The Supreme Court heard oral argument Tuesday in the controversial gerrymandering case Gill v. Whitford, which poses the question of whether gerrymandering for partisan, not racial, reasons can be unconstitutional. There is a legitimate concern that there is no objective standard by which lower courts could apply whatever rule the court comes up with and, worse, that every redistricting in every state would become a lawsuit.
However, as I did in the challenges to the Affordable Care Act, I find very problematic Chief Justice John G. Roberts Jr.’s notion that the court should avoid acting when its reputation would be harmed. He told the litigants during oral argument:
We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board. And if you’re the intelligent man on the street and the Court issues a decision, and let’s say the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes. And the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. … And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.
Wait. Especially for a “conservative” justice, where does it say in the Constitution that the court should “ignore constitutional violations if it makes the court less respected by people who don’t read opinions“? This is an entirely illegitimate concern that rests on three fundamental errors.
First, if “don’t hurt the court’s standing with the public” is the standard, why would the court ever vindicate rights of a minority (racial or otherwise)? It is the court’s job to do unpopular things, to override the elected, political branches when their actions conflict with the Constitution. It’s an abdication of the court’s obligation to act as a check on the other branches and a misreading of the system of checks and balances to eschew “too hot to handle” cases. (We are talking about cases in which there is a constitutional right that requires vindication but the court would prefer not to dirty its hands.)
Second, the non-elected, life-tenured justices are the worst possible people to predict public opinion about their own decisions. Will the court be excoriated over time for “ducking” the commerce clause issue in the ACA case or for refraining from ruling on that basis? Does the court’s gay-marriage ruling hurt or help the court’s reputation over time? It’s nearly impossible for political pros, let alone judges, to assess these things. Moreover, what seems reasonable in the span of a generation (e.g., “separate but equal”) can be seen as outrageous a century later. Stay out of the reputation-prediction business, Mr. Chief Justice.
Third, the biggest reason the court is seen as political, and therefore less worthy of respect, is because the president and Congress politicize the court, and the chosen justices more often than not are certain to follow the ideological viewpoint of the president who appointed them. One reason Justice Anthony M. Kennedy gets so much attention is that he seems one of the only justices amenable to persuasion on a given issue. There may be no way to undo this rigid ideological division, but reintroducing the filibuster for Supreme Court nominations would force presidents to select nominees who at least hold out the hope of independent-minded jurisprudence.
In any event, I’m not sure how the gerrymandering case should come out or will come out. I am, however, fairly certain fear of losing one’s reputation is an entirely illegitimate basis on which to decide cases.