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Thursday, June 27, 2019

Justice Kagan Cannot Be Serious

The opening line of Justice Kagan's dissent in the partisan gerrymandering case must be bad joke. "For the first time ever," she writes, "this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities."

The first time ever? That's preposterous. How about Marbury? How about Ex Parte McCardle? How about Worcester v. Georgia? Or Giles v. Harris? I could go on, but you get the point.

For what it's worth, I think that the Court made the correct decision, as I explained in a post from the Fall when the case was argued. I could not (and still do not) understand the constitutional injury to an individual voter from partisan gerrymandering. Nor do I see how a manageable standard for courts to apply. Justice Frankfurter was right about the existence of a "political thicket," even if he was wrong about exactly where the forest begins.

Posted by Gerard Magliocca on June 27, 2019 at 08:52 PM | Permalink


What I find most surprising is that Thomas or one of the other originalist justices did not write separately. The majority opinion mentions the history of gerrmymandering but Kagan can claim that it does not do so to make an originalist argument. I would have expected a concurring opinion that makes the originalst case much more strongly.

Posted by: Jr | Jun 30, 2019 6:48:21 AM

In response to those asking about whether the Court agrees that the Constitution is violated by excessive partisan gerrymandering, here is one statement acknowledging that -- from the opinion most opposed to the courts getting involved in this area before Rucho, which is Justice Scalia's plurality opinion in Vieth: “an excessive injection of politics [into
redistricting] is unlawful.” 541 U.S. at 293. “So it is,
and so does our opinion assume.” Id.

If there was ever a case involving extreme partisan gerrymandering, it was the NC case, which is what the three-judge court below held. But the Court's non-justiciability holding means that there is no judicial remedy even for what the Court has said is a constitutional violation.

Posted by: Richard Pildes | Jun 29, 2019 10:06:09 AM

I took the majority to be saying that there is no textual basis to conclude partisan gerrymandering is unconstitutional and going on further to explain that there is no reasonable standard that the Court can invent as a matter of living constitutionalism. It is perhaps a bit odd that the majority spent so much time on the absence of any reasonable standard, and so little on the originalist case for their ruling, but I discern no hypocrisy.

Posted by: Jr | Jun 29, 2019 7:15:16 AM

If judicial capabilities means “as defined by Baker v. Carr,” then the statement makes more sense, except insofar as the Court does not say that there is a constitutional violation here. A more straightforward understanding of judicial capabilities is what I was referring to in the post. There are many times where the Court has not given a remedy because political conditions made courts incapable of acting in practice, or at least that was the belief.

Posted by: Gerard | Jun 28, 2019 6:26:47 PM

Where does this acknowledgement mentioned a comment below that gerrymandering violates the Constitution really happen? I see statements that partisan motives don't violate the Constitution, that disproportionality doesn't violate the Constitution, that super-disproportionality doesn't violate the Constitution, etc.

Posted by: Asher Steinberg | Jun 28, 2019 4:13:17 PM

I agree with Suzanna Sherry that Gerard's post misunderstands or takes out of context the point Justice Kagan is making. Her point is the Court acknowledges that the Constitution is violated by excessive partisan gerrymandering, but then concludes it cannot remedy the violation because it cannot craft manageable standards.

That's quite different from any of the cases Gerard references. The closest case might be Giles v. Harris, but there the Court says it simply doesn't have the power to force Alabama to honor the 14th/15th Amendments (true, Kagan uses the term "judicial capabilities," but in context she obviously means the narrower issue of whether there are manageable legal standards).

In addition, the modern political question doctrine began with Baker v. Carr. It is certainly true that since then, as Suzanna says, the Court has never held that lack of judicially manageable standards alone is a basis for holding something a political question. If Kagan meant since the modern PQ doctrine was forged, the Court has never done this, she should have been a bit more precise in putting it that way. But I'm not the statement is wrong, even as a more general comment about the pre- and post-Baker v. Carr eras.

Posted by: Rick Pildes | Jun 28, 2019 3:49:39 PM


I think that's right. But if the problem to be solved is the lack of proportional representation, why stop at a methodology that doesn't fix it? (One answer is that she recognizes the Court can't adequately do so).

One alternative is that Kagan doesn't see disproportionate representation as the problem per se. Rather, she is concerned with *how* it came about - through deliberate abuse of raw political power. In that respect, she and Roberts are speaking past each other to some extent. (Here we can see echos of debate over government motivation for an act - eg the census, immigration ban - versus whether it is categorically unconstitutional).

Or maybe she *does* see disproportionality as the problem, but accepts that the Court can't effectively fashion a stronger rule, whether as a matter of competence or practicality.

Or maybe her focus is on the severity of the disproportionality. But then we are left with questions of how severe and the fact her solution doesn't really address it.

Posted by: JSS | Jun 28, 2019 3:42:35 PM

In holding that this issue must be resolved by Congress’s powers over elections, that seems to me to be a textual commitment to Congress.

Posted by: Profanon | Jun 28, 2019 3:22:08 PM

What would you have textualist justices do in this case? There is no textual basis on which to decide this case. What textual clues are there in the Constitution to decide how much political bias is too much?

Anyway, I think there are very few literally textualist judges, especially when it comes to the Constitution. I know Scalia used to say he was a textualist, but I am not sure how many of the current justices say they are. What they are are originalists and when and if they they say they are textualists, they just mean that as opposed to ignoring the text, or making up clauses in the Constitution, like the right to abortion or the right to have your party be proportionally represented in Congress.

Posted by: Biff | Jun 28, 2019 1:11:04 PM

There are six "strands" to the political question doctrine, including that the question is textually committed to another branch or that there are no judicially manageable standards for answer it. This is the first time the Court has relied solely and unequivocally on the "no manageable standards" strand. In all the other cases that found a political question, there was at least one other strand that also counseled against judicial resolution (almost always a textual commitment). So it is a first, and saying that there are no judicially manageable standards might be translated as "the court isn't good enough to resolve this." Many scholars argue that the political question doctrine is unconstitutional to the extent that it goes beyond declining to resolve a question that is textually committed to another branch. And for the textualists on the Court to abdicate judicial responsibility in the absence of a textual commitment (note that the majority opinion did not rest on the Elections Clause, although they discussed it) is hypocritical.

Posted by: Suzanna Sherry | Jun 28, 2019 11:56:10 AM


What baseline did Kagan suggest? Many baselines for districting, such as basing it primarily on existing counties or the like, naturally leads to results that are far from proportional. Is she not suggesting the problem is when results are biased compared to what normal districting would give, not comparing to proportional representation?

Posted by: Jr | Jun 28, 2019 11:45:26 AM

I still need to give the dissent a thorough reading but am I correct in perceiving a deep contradiction in Kagan identifying disproportionate party representation to be the injury and yet insisting efforts to cure that do not need to result in proportional representation?

Posted by: JSS | Jun 28, 2019 11:14:03 AM

I actually read the Court's opinion to say partisan gerrymandering doesn't violate the Constitution, however hyperpartisan, so I'm confused by her dissent. But I could be wrong. (Yes, I understand it's formally a PQD holding, but PQD holdings are almost always merits decisions, see, e.g., Seidman's article on this).

Posted by: Asher Steinberg | Jun 28, 2019 10:44:25 AM

All this maybe, maybe, maybe.

Maybe...just maybe...she was being needlessly hyperbolic.

Yeah. That answer seems simpler than the other contortions in these comments.

So let's go with my answer. Occam said so.

Posted by: YesterdayIKilledAMammoth | Jun 28, 2019 6:34:15 AM

The court didn't say it lacked the ability or talent. The court said that "too much" partisan bias is in the eye of the beholder, and so this is a political question not capable of judicial remedy.

Needless to say, this is not the first case the court has ruled to be a political question.

Posted by: Salem Al-Damluji | Jun 28, 2019 2:20:07 AM

I understood Kagan as saying that the Court has never previously confessed to a lack of ability (i.e., intelligence and talent). The cases you cite involve the court saying that it lacked jurisdictional power, but not that it lacked the talent or smarts to do the job if given. Kagan's statement is still probably wrong in that I would expect somewhere in the 200 year history of judicial review the court has at least once confessed to a lack of ability, but it doesn't come readily to mind.

Posted by: TJ | Jun 27, 2019 10:35:54 PM

Perhaps she's suggesting that this was the first time the court genuinely and honestly believed the task beyond judicial capabilities, whereas the other times were all just "pretextual", i.e. done for the same reason the administration wanted to ask about citizenship.

Posted by: Pretextualists | Jun 27, 2019 10:12:20 PM

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