IDEAS
Charles is the Edward and Ellen Schwarzman Professor of Law at Duke Law School.
Fuentes-Rohwer is Professor of Law and Class of 1950 Herman B. Wells Endowed Professor at Indiana University Maurer School of Law.

If you were among those hoping, as were we, that Chief Justice John Roberts would vote to save American democracy from unbridled partisanship, we offer our sincere condolences. Writing for the Court in Rucho v. Common Cause, the gerrymandering case decided on June 27, the Chief Justice seems more interested in promoting a no-holds barred political process where anything goes, including biting, spitting, and gouging. When Justice Anthony Kennedy retired from the Court following the 2017 Supreme Court Term, plaintiffs challenging egregious partisan gerrymanders lost the justice from the Court’s conservative bloc who seemed most open to limit a practice that the Court has acknowledged is “incompatible with democratic principles.” As a consequence, plaintiffs were forced to pitch their arguments to Chief Justice Roberts, who was regarded, wrongly as it turned out, as the one persuadable conservative vote on the Court. In a clichéd opinion replete with platitudes, red herrings, and non-sequiturs, the Chief Justice, joined by the Court’s four conservative Justices, stated that even though partisan gerrymandering “leads to results that seem unjust,” the Constitution does not authorize the Court to assume “such an extraordinary and unprecedented role.” This is breath-taking. If it were not evident before Rucho, it is now clear that Chief Justice Roberts has a laissez-faire approach toward the political process, which means that he will not interpret the Constitution to protect the American people from the rapacity of political elites.

On the surface, Rucho seems logical and coherent. But once you glance in its direction, it crumbles from the mere threat of scrutiny. Chief Justice Roberts begins by telling us that partisan gerrymandering has been with us since the dawn of the Republic and that the Framers delegated the issue of gerrymandering to the states and to Congress. But this cannot possibly be true. As Justice Elena Kagan points out in a forceful and brilliant dissent (and the most thorough undressing of a majority opinion that we have ever read), the Framers hated political parties and did not mention them at all in our Constitution. There is no evidence that this is what the Framers would have wanted.

Just as embarrassing for Roberts and the majority, the Court has rarely relied on originalism to resolve constitutional questions in the field of law and democracy. Consider the issue of political parties again. If relying on the Framers’ view of political parties as an interpretive frame, we would probably not afford political parties any constitutional protection. This would of course be nonsensical. Modern democratic politics is unthinkable without political parties. Our conception of democratic participation and political rights is so different from that of the Framers that the exercise would be futile. This is why the Court has protected the right of political parties; the right of voters to spend money in politics; the right of voters not to have their votes diluted because of their race; the right of voters not to have their votes debased through malapportionment, and a whole host of other political rights, without caring a whit what the Framers’ thought. In a modern multiracial, multicultural, and a roughly populist republic with two competitive political parties, originalism, as a way of mediating political rights, is as sensible as using a 17th or 18th century physics manual to guide our understanding of thermonuclear dynamics.

Boiled down to its essence, Chief Justice Roberts argues that partisan gerrymandering claims are too hard for the federal courts to resolve. Why? Because courts would either have to mandate proportional representation, or else they would have to come up with their own standard of fairness. And even if they could come up with their own fairness criteria, they would be left with the question of how far is too far. In a nutshell: policing the political process is just too hard for federal judges to do. But what about the fact that in the 1960s the Court decided to restructure the apportionment of virtually every state by requiring population equality among districts, one-person, one-vote? Aware of this history, the Chief Justice states that one-person, one vote “is relatively easy to administer as a matter of math.” By contrast, the federal courts won’t be able to handle the difficulties posed by partisan gerrymandering claims. But this is not true. As Justice Kagan’s dissent shows, these complaints are red herrings. The lower federal courts have already done what Roberts said they could not do. They have developed standard legal tests and adjudicated partisan gerrymandering claims. As she wrote, neutral and manageable oversight by the federal courts “is not only possible; it’s been done.”

Over a decade ago, in a campaign finance case, the late Justice Scalia accused Roberts of “faux judicial restraint.” More precisely, Justice Scalia wrote that the Roberts’ “faux judicial restraint is judicial obfuscation.” Chief Justice Roberts had only been on the Court for a couple of years, but even then, his penchant to mask what he is really up to was evident. That observation is relevant to Rucho. One has to dig deep into the opinion to see what Roberts is really after. The clue comes in a passage where Roberts quotes Justice O’Connor. Roberts explains that the “opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.” In other words, the party that controls the redistricting process is entitled to draw the lines in its favor as part of its loot; it’s what you get when you control the game.

The fact of the matter is that Roberts, abetted by a conservative majority, is uninterested in policing the ground rules of modern democracy, and originalism is the figleaf intended to camouflage that desire. Rucho is of a piece with the Roberts Court’s deregulatory approach to the political process. It calls to mind Chief Justice Roberts’ opinion in Shelby County v. Holder, which struck down an important provision of the Voting Rights Act. According to Roberts and his conservative majority, Congress no longer has the power to protect voters of color from racial discrimination because racial discrimination is a thing of the past.

At his confirmation hearing, then-Judge Roberts told the Senate Judiciary Committee that he viewed his job as calling balls and strikes. We think back to that analogy as we reflect on his opinion in Rucho. Imagine an umpire in a baseball game who decides that she is no longer interested in calling the game, or a judge who decides that she will not enforce rules of procedure in her court. Roberts has decided that for some games the players will call the game themselves, because this is what the Framers wanted, or something like that. What do we think will happen when players are policing themselves without any oversight in high stakes situations? They will cheat, lie, and take advantage of every opportunity. We live in a highly partisan era where our political leaders have shown that they will do whatever it takes to win elections and keep their political opponents from winning. Notwithstanding what he might say, by taking the federal courts out of the business of policing extreme partisanship, the message from the Roberts Court to our political leaders, on both the right and the left, is that it is perfectly fine to do whatever you have to do to gain and keep political power. Representative democracy be damned.

 

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