Lawrence Lessig is a professor at Harvard Law School and the author of “Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.”
Gerrymandering is obviously democratically obnoxious. With modern technologies, it’s also increasingly democratically dangerous. It is inconsistent with the principles of equality and free association. Without doubt, it should be excised from our republic. Yet the fury generated by Chief Justice John G. Roberts Jr.'s opinion last month declining to end the practice shows precisely why Roberts may have been right.
Since its founding, the Supreme Court has balanced two types of fidelity — one, a fidelity to the meaning of the Constitution; the other, a fidelity to its own role. Under the first, the court asks what the Constitution, properly interpreted, means. Under the second, the court reckons whether it in particular, or courts in general, can apply that meaning, consistent with the obligations of a court.
Justice Elena Kagan’s dissenting opinion does a masterful job showing why the Constitution’s principle of equality should render partisan gerrymandering unconstitutional. The Founders would see nothing wrong in racial gerrymandering and be astonished that “one person, one vote” was constitutionally required. Yet our Constitution is now more than they gave us. And Kagan was right to insist that, rightly read, it means partisan gerrymandering is wrong.
Yet the question for the court is never solely what justice requires. The question is also whether justice can be served — by justices. Can they, consistent with their role, do as required by fidelity to meaning? Or should they better avoid a decision, or jurisdiction, so as to preserve the integrity of the court?
This was the critical idea of the extraordinary 1992 joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which the court declined to overturn Roe v. Wade. The joint opinion considered whether Roe was wrongly decided, but critical as well was whether overturning the 1973 decision would be consistent with the court’s own role. “The Court must take care,” the joint opinion advised, “to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures.” Meaning was not everything; instead, perception constrained meaning.
This same instinct guided this term’s gerrymandering decision. Roberts had no kind words for gerrymandering itself. While he affirmed that the framers would have permitted it, he affirmed as well the court’s later jurisprudence cabining their understanding in the name of equality. The difference with partisan gerrymandering was in application, not principle. There was no rule that could be applied consistently or with clarity that would “allow people to accept,” as the 1992 Casey opinion would put it, that its decisions were grounded in principle, not politics.
Roberts made this point explicitly in an earlier gerrymandering case: If the court decides a case favoring one political party over the other, the “intelligent man on the street,” as the chief justice put it, will ask why. Lawyers may cite sophisticated social science, but the man on the street, according to Roberts, would say, “that’s a bunch of baloney.” Instead, the “intelligent man” will believe that it “must be” because the court preferred one party over the other. And in the run of such cases, “the status and integrity of the decisions of this court,” Roberts insisted, would be seriously harmed. As the Casey opinion would put it, “the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”
On that standard, the reaction to the court’s partisan gerrymandering decision may well show precisely why the decision was right. The court reviewed two partisan gerrymanders, one Republican, one Democratic. The actual result thus benefited neither party directly. Yet the court’s decision was widely characterized in simple partisan terms. This was, as it was received, just another case of a Republican court bending the rules to benefit Republicans. It was partisan politics, not legal principle.
Yet that is precisely the reaction Roberts feared, not just in the one case, but in every future case applying an antipartisan-gerrymandering principle. Whenever the partisan makeup of the court matched the particular result, the ruling would be framed as political. That is unavoidable when the rule is unavoidably unclear.
American democracy is at a fragile moment. It is not unwise to worry about further weakening the institution of the court. Roberts made clear that the problem of partisan gerrymandering — at least at the federal level — could be ended by a simple statute. So shifting “the Court’s duty,” as Kagan characterized it, to end this barbarism from the court to Congress might make sense.
Indeed, this is what those opposed to gerrymandering should want as well. In the most optimistic case, the court could only rule against the most extreme instances of gerrymandering. A rule by Congress could end them all. Rather than a partial victory stifling the growing and vibrant political movement against gerrymandering, the court’s decision will add fuel to the political fire that could end this monstrous practice in Congress more effectively than anything courts could ever do.