The court had to review hardcore movies in detail because it was trying to reconcile its broad definition of obscenity, which could be censored, with its otherwise vigorous defense of free expression.
“No other aspect of the First Amendment has, in recent years, demanded so substantial a commitment of our time, generated such disharmony of views, and remained so resistant to the formulation of stable and manageable standards,” Justice William J. Brennan Jr. wrote in a 1973 opinion. That year, the court more or less backed down and issued a narrower definition of obscenity.
Now, 45 years later, the court is dangerously close to making a similar hash out of a far more consequential matter: legislative and congressional districting.
The justices have heretofore declined to strike down any particular example of partisan excess in this most political of the functions that the Constitution assigns to state elected officials, on the sensible grounds that they couldn’t define “too partisan” with sufficient exactitude. (The court has regulated racial gerrymandering under the Voting Rights Act.)
As Justice Sandra Day O’Connor, the last member of the court with experience as a state legislator, put it in a 1986 opinion, the Constitution’s guarantee of equal protection of the laws “does not supply judicially manageable standards for resolving purely political gerrymandering claims, and no group right to an equal share of political power was ever intended” by the document’s authors.
Yet well-intentioned political reformers have persuaded the court to review state legislative districts enacted in 2011 by Wisconsin’s Republican government and the congressional districts that Maryland’s Democratic government concocted the same year.
Like the blue-movie censors of the ’60s and ’70s, today’s political reformers insist that the court can draw a tenable legal line between an unconstitutionally partisan gerrymander and the acceptable kind.
Last Wednesday, the justices heard arguments on Maryland’s plan, having already done so in the Wisconsin case on Oct. 3 without, so far, issuing a ruling. Yet after batting the Maryland case around for an hour, the justices seemed no closer to a solution than they were before.
“It seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering,” Justice Stephen G. Breyer observed. “But is there a practical remedy that won’t get judges involved in every — or dozens and dozens and dozens of very important political decisions?”
Not yet, apparently: Breyer suggested combining the Wisconsin and Maryland cases, and a third from North Carolina, for a new, consolidated argument in the court’s next term.
Though preferable to rushing into something, a mega-hearing might not prove any more productive than Movie Day. Maybe the court is having difficulty coming up with a satisfactory answer to this problem because, well, there isn’t one.
Unquestionably, both the Wisconsin and Maryland maps deliberately disfavor the “out” party, which is not only unfair but also contrary to norms of civility.
Not everything that’s unfair or uncivil is unconstitutional, however. In their zeal to right this wrong, reformers overlook the possibly greater damage to constitutional values that could result from Breyer’s nightmare scenario: unelected federal judges — meaning, ultimately, the Supreme Court — determining thousands of state and federal legislative district maps.
Alternatives, such as nonpartisan districting commissions, have already been enacted in some states; there’s also a check on partisan gerrymandering provided when the parties split control of state government.
Why risk fatally politicizing the courts to fight a problem that’s not entirely to blame for our political dysfunction anyway? The Cook Political Report’s David Wasserman and Ally Flinn found that redistricting explains only 17 percent of the decline in competitive congressional districts over the past 20 years. Partisan gerrymandering “may be just as much a symptom of America’s political problems as a cause,” writes Harry Enten, an expert on gerrymandering.
Could the court at least police the most blatant and egregious partisan gerrymanders, just as it still occasionally polices child porn, an extreme form of pornography that pretty much everyone agrees should be banned? Perhaps, yet even child porn can be difficult to define, as the justices have learned in some knotty recent cases.
A certain irreducible constitutional ambiguity may be sustainable when courts deal with words and images, but not if they get into distributing political power between our mutually antagonistic parties.
Sandra Day O’Connor was right: The Supreme Court should leave partisan politics to the partisan politicians.
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