Constitutional Harms

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation.  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.  In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.  These gerrymanders enabled politicians to entrench themselves in office as against voters' preferences.  They promoted partisanship above respect for the popular will.  They encouraged a politics of polarization and dysfunction.  If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

And checking them is not beyond the courts.  The majority's abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims.  Those standards satisfy the majority's own benchmarks.  They do not require -- indeed, they do not permit -- courts to rely on their own ideas of electoral fairness, whether proportional representation or any other.  And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process.  But yes, the standards used here do allow -- as well they should -- judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms.  In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland.  In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.

-- Supreme Court Justice Elena Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, dissenting in Rucho v Common Cause (27 June 2019) in which they anticipated the escalating gerrymanders attempted by Texas and threatened by California this year