Republicans including President Trump, meanwhile, were aghast that the new 5-4 conservative Supreme Court majority would halt the administration’s census citizenship question. The decision both drives at the heart of Republican concerns about illegal immigration and could deprive the party of a game-changing new gerrymandering tool.
But while there are certainly winners and losers from Thursday’s decisions in the near term, all hope is not lost for either side over the long haul.
For now, an open season on political gerrymandering will very likely benefit Republicans. They are the ones who had more power to redistrict after the 2010 Census, by virtue of their standing in state legislatures and governor’s seats. They still control the entire government in 22 states, compared with just 14 for Democrats.
But the GOP’s edge right now is considerably smaller than it was after 2010, when it controlled the redrawing of about four times as many congressional districts as Democrats. By winning governor’s races, Democrats have gained a seat at the redistricting table in three big states the GOP controlled back then: Pennsylvania, Virginia and Wisconsin.
What’s more, while it’s easier for Republicans to gerrymander when they’re in control, given Democratic voters are increasingly clustered in urban areas and Republican voters are more spread out, that doesn’t mean this will always be a practice that favors them. If Democrats win in some key states, they could just as easily exploit this moving forward — after 2030, 2040 or beyond. And Democrats have proved more than willing to draw egregious gerrymanders when they can.
Then there is the movement to rein in gerrymandering at the state level, which is proceeding apace. Voters in several key states have already taken this power out of the hands of lawmakers, including in Michigan, where there the GOP also drew the lines post-2010. Increasing public awareness seems likely to keep pushing things in that direction. The processes that result might not be immune from politics, but they at least make gerrymandering more difficult.
None of this is to sound Pollyannaish about how much the GOP has to gain from this decision, which is more than Democrats do. Nor is it intended to dismiss genuine good-government concerns about gerrymandering, which tend to be more plentiful on the political left. But it’s worth placing things in context. And it’s likely that Republicans will benefit from this decision in fewer states in 2020 than in 2010, and potentially fewer than that moving forward.
As to the census citizenship question, this was unquestionably an embarrassing setback for the Trump administration and Commerce Secretary Wilbur Ross. A 5-4 majority opinion, written by GOP appointee and Chief Justice John G. Roberts Jr., essentially accused them of obscuring the true motivation for the question, which they have claimed was to enforce the Voting Rights Act. Roberts wrote that “the VRA enforcement rationale — the sole stated reason — seems to have been contrived.”
But this isn’t necessarily the end. The decision didn’t strike down the question but rather sent the case back to a lower court, where the administration can revise its justification.
Some like Rick Hasen have even argued that Roberts may have provided it a road map for getting the question approved — provided it has enough time before the census is due out in April 2020. (Trump floated the idea of delaying the process on Thursday to deal with this case; the law seems clear that April 2020 is the date.)
Basically, the argument is that Roberts issued a narrow opinion that acknowledged Ross’s broad discretion to add questions to the census, as long as he provides the actual reason(s) and not a pretext. Given the four conservative justices argued that Ross had almost complete authority to add census questions, it’s not difficult to see Roberts eventually joining with them and upholding the question as early as the Supreme Court’s fall 2019 term.
Despite this very real possibility, some Trump allies such as American Conservative Union head Matt Schlapp went so far as to call for Roberts’s impeachment. So in response to a potentially momentary setback, the remedy is apparently to launch a doomed impeachment effort against the guy who could guide a conservative Supreme Court majority for decades to come? Sounds like smart politics.
Schlapp’s is an extreme reaction, if there ever was one. But it also encapsulates the tendency to over-read the implications of these decisions and predict too much. Activists can feel truly aggrieved that causes they believe in suffered setbacks, provided they actually believe the decisions were wrongly decided and not just inconvenient for their politics. But that doesn’t mean these decisions will necessarily change U.S. politics for good.