The brazen partisan redistricting underway in Texas, with Republicans attempting to entrench themselves in office and Democrats weighing a counter-offensive in blue states, was greenlit by the US Supreme Court six years ago.
Chief Justice John Roberts, in an opinion for a 5-4 court, declared that federal judges could not review extreme partisan gerrymanders to determine if they violated constitutional rights.
Roberts’ opinion reversed cases that would have allowed such districts, drawn to advantage one political party over another, irrespective of voters’ interests, to be challenged as violations of the First Amendment’s guarantee of free speech and association and the Fourteenth Amendment’s guarantee of equal protection.
The justices split along the familiar ideological lines, with the five conservatives ruling against partisan gerrymanders and the four liberals dissenting.
“Of all times to abandon the Court’s duty to declare the law, this was not the one,” dissenting justices warned in 2019, “The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
That decision in Rucho v. Common Cause has generated a new era of partisan rivalry with vast repercussions for American democracy. The decision resonates as profoundly as the Roberts Court’s decision last year in Trump v. United States, which granted presidents substantial immunity from criminal prosecution (also delivered along partisan lines).
Trump has taken the 2024 ruling as a blank check, tearing through democratic norms.
The gerrymandering case also lifted a federal guardrail. Lawsuits challenging extreme partisan gerrymanders can still be brought before state court judges. But state laws vary widely in their protections for redistricting practices, and state judges differ in their ability to police the thorny political process.
Roberts may have failed to foresee the consequences in 2019 and then in 2024. Alternatively, perhaps he understood and simply believed the effects were not properly the concern of the federal judiciary.
In his opinion, Roberts acknowledged the apparent unfairness of gerrymandered districts.
“Excessive partisanship in districting leads to results that reasonably seem unjust,” he wrote. But, he said, “the fact that such gerrymandering is ‘incompatible with democratic principles,’ … does not mean that the solution lies with the federal judiciary.”
The chief justice said no constitutional authority exists for judges to oversee the politics of redistricting, nor are there standards for their decisions, that is, to know when state lawmakers have gone too far in what is an inherently political process.
Roberts wrote: “‘How much is too much?’ At what point does permissible partisanship become unconstitutional?”
When should voters be allowed to pick their representatives?
The current redistricting controversy arises from Trump’s pressure on fellow Republicans to generate as many GOP-controlled districts as possible before the 2026 midterm elections for the US House of Representatives.
Right now, the focus is on Texas, where legislators broke from the usual cycle of post-census redistricting that happens every 10 years and suddenly proposed a new map intended to push several Democrats out of office and buttress the chances that Republicans keep their majority, now hanging by a thread, in Congress.
The audacious Texas effort has prompted liberals to consider a counterattack in Democratic-controlled states such as California to create new maps that could boost their numbers.
But politicians to draw lines to their advantage have never been free of controversy.
The paired cases before the justices six years ago involved extreme gerrymanders by Republicans in North Carolina and by Democrats in Maryland.
Roberts was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, whose vote was crucial. A year earlier, Kavanaugh had succeeded Justice Anthony Kennedy, who had previously left the door open to federal court challenges to partisan gerrymanders.
Justice Elena Kagan, taking the lead for dissenters, insisted workable standards existed and had been used by lower US court judges.
“For the first time, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation,” she wrote, pointing up the stakes.
“The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives,” Kagan added.
She was joined by Justice Sonia Sotomayor, who remains on the bench, and Justices Ruth Bader Ginsburg, who died in 2020, and Stephen Breyer, who retired in 2022.
Echoing a line from redistricting precedent that appears apt as Texas legislators divide voters for predetermined results, Kagan wrote that a core principle of government is “that the voters should choose their representatives, not the other way around.”
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