We are under a Constitution, but the Constitution is what the judges say it is.
Chief Justice Charles Evans Hughes
During the recent Kavanaugh confirmation process, much was said and written about the future of Roe v. Wade. In 2003, Kavanaugh questioned whether that case is “settled law.” He wrote, “It can always be overturned.”
A few weeks ago, he told the Judiciary Committee, “As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade,” which he called “settled law.” Apparently, Senator Collins, at least, was persuaded.
As we know, Supreme Court decisions are not written with indelible ink. If the Court overrules Roe v. Wade, “the judges” will have said that that the federal Constitution no longer protects a woman’s right to choose. The conservative members of this court seem most willing to “correct” mistakes of the past, even “settled law.”
Such a ruling will do nothing to prevent state legislatures from enacting abortion rights laws. Nor will the Court be adjudicating the scope of possible protections under state constitutions. So, for example, the Supreme Court of New Hampshire or any other state would still have power to rule that a woman’s right to choose is protected under its state’s constitution.
Partisan gerrymandering is another matter. In 2004, when four other Justices thought there was no way to determine when the configuration of legislative districts transgressed the constitutional partisanship line, Justice Anthony Kennedy wrote, “That no such standard has emerged in this case, should not be taken to prove that none will emerge in the future.”
Partisan gerrymandering is truly non-partisan. During last year’s term, the Supreme Court heard two cases, one from Wisconsin (Gill v. Whitford), where the Republicans did the dirty work, and the other from Maryland (Benisek v. Lamone), where it was the Democrats. In both states, the result was an extreme imbalance between voter demographics and the outcome of the elections. Such “outlier” cases effectively allow the minority to rule.
For differing reasons, the Court did not decide either case on the merits. So we don’t know any more today than we did a year ago. But we do know that after the 2020 census, state legislatures will engage in the decennial process of redistricting.
The Court was different in 1962, when a rural district with a thousand people and an urban district with ten times that many could each elect a member of the House of Representatives. In Baker v. Carr, the Court decided that voting districts could no longer consist of vastly different numbers. Each district now had to be apportioned according to population, thus creating the rule of “one person one vote.” Chief Justice Earl Warren, a Governor before becoming a judge, considered it the most important decision during his tenure.
Baker v. Carr was transformative, but it was not unanimous. Justices Frankfurter and Harlan dissented on the grounds that apportionment was for legislatures, not courts, to decide. Justice Frankfurter warned that the Court should stay out of this “political thicket.”
Like disproportionate electoral districts, partisan gerrymandering is regarded by many as a political thicket to be avoided. But, sooner or later, the Supreme Court will have to decide whether political self-interest that amounts to putting the majority party’s thumb on the political scales is “justiciable” and, if so, whether it is consistent with the Bill of Rights.
Based on her comments in the Wisconsin case, Justice Kagan will likely be a strong voice for doing something about a practice that the conservative Justice Alito has called “distasteful,” but I wouldn’t bet on her gaining four other votes. Justice Kavanaugh’s track record points directly to the “No” column, where he will join Justices Thomas, Alito, and Gorsuch. I’m less sure about Chief Justice Roberts, but he is a likely fifth vote to leave things where they are.
Various theories have emerged in favor of interpreting the Constitution to require a change. One is that voting is a kind of expression, and partisan gerrymandering means that one party gets to talk louder than the other, thereby creating a burden on freedom of speech. Another approach is that the First Amendment right of free association, including membership in a political party, is undermined if one group is arbitrarily allowed to express its political views more effectively than the other.
These are interesting ideas, but if voting fairness is to prevail, the electorate will likely need to find another way. One solution is to take the power out of the state legislatures’ hands and appoint independent redistricting commissions to draw the lines. Arizona and California already do so, and the question is on several ballot initiatives this fall.
Nothing says that state and federal constitutions have to be in lockstep, so another possibility, as with abortion rights, is state constitutional law. Last year the Pennsylvania Supreme Court ordered redistricting under the state constitutional right of “free and equal” elections. The opinion minces no words. “While federal courts have, to date, been unable to settle on a workable standard by which to assess such claims under the federal Constitution, we find no such barriers under our great Pennsylvania charter.”
Twelve other state constitutions have the same wording as Pennsylvania, and every state guarantees the right to vote. So, if democracy requires not just “one person one vote” but also “my vote is worth as much as your vote,” then the solution may be local, not national.