Rucho v. Common Cause: A Judicially Rendered End to Democracy
By James Freyland
The formulaic can be compelling and reassuring in its promise of sameness. Millions of fans of specific genres can attest to the comfort of convention, relying on societally agreed-upon rules to guarantee particular outcomes. The Supreme Court is no different, as judicial philosophies result in predictable outcomes bound by precedent, history, and constitutional text. Liberal loose constructionists will interpret the Constitution as a document reflecting current values. In contrast, conservative strict constructionists will interpret the Constitution as a document reflecting the period it was written.
In an extremely shocking 2022 term, the six conservative members of the Court seemed to depart from their judicial philosophy, rendering decisions premised on breaking precedent, misrepresenting history, and reinterpreting constitutional text. It appeared that nothing was safe as Native sovereignty (Oklahoma v. Castro-Huestra), executive power (West Virginia v. Environmental Protection Agency and National Federation of Independent Business v. Department of Labor), separation of Church and State (Kennedy v. Bremerton School District and Carson v. Makin), and public safety (New York State Rifle and Pistol Association v. Bruen) were significantly curtailed. The culmination of this assault on tradition was the showstopper Dobbs v. Jackson Women’s Health Organization, the court case overturning Roe v. Wade and sending the issue of abortion back to the states. Many sounded the death knell for our democracy as the judiciary embraced novelty to enable states to deprive their citizens of constitutional rights. This is incorrect. The death knell for democracy had already been sounded three years earlier in Rucho v Common Cause as an inept Supreme Court previewed their newfound approach to judging and condemning us to death by partisan rancor.
Rucho v. Common Cause challenges the constitutionality of partisan gerrymandered congressional maps. Consisting of an amalgamation of two cases, one challenging North Carolina’s Republican-drawn congressional map and another challenging Maryland’s Democratic-drawn congressional map, the focus was on how maps drawn by political parties produce electoral results resistant to the national environment and partisan lean of the state. The discrepancy was especially stark in North Carolina and Maryland, as 53% of the statewide congressional vote for Republicans in the former and 60% of the statewide congressional vote for Democrats in the latter resulted in a 10-3 delegation favoring Republicans and a 7-1 delegation favoring Democrats in 2016, respectively. These results held throughout the decade, as wave elections for Republicans in 2014 and Democrats in 2018 were insufficient to dislodge even a single member from gerrymandered seats. Unsurprisingly, the liberal and conservative members of the Court agree that partisan gerrymandering is synonymous with diluting votes, ensuring one party’s vote will always be worth less in a particular congressional district. Both wings of the Court even agreed that partisan gerrymandering is “incompatible with democratic principles.” Yet, the conservative majority vacated the District Courts’ rulings in North Carolina and Maryland for lack of jurisdiction, once again refusing to fix the greatest threat to the notion of America being a “government of the people, by the people, for the people.”
In his majority opinion, Chief Justice Roberts stresses that a refusal to involve the federal judiciary in such cases “does not condone excessive partisan gerrymandering.” His analysis does not reflect an apparent sympathy for being unable to do what is right. Instead, it expresses profound ignorance of the reality of American politics and apathy for flagrant Constitutional violations. Point by point, Roberts rejects acknowledging present circumstances, basing his decision on misrepresenting history. This theme is reflected in his most tenuous claims: that there is no “limited and precise standard that is judicially discernible and manageable” to render partisan gerrymandering judiciable, the “dissent seek[s] an unprecedented expansion of judicial power,” and “experience proves that accurately predicting electoral outcomes is not so simple.” Wrapped in legalese, these lies appear plausible. However, a closer look reveals these justifications for what they are, mere excuses for disregarding the Fourteenth Amendment’s protection from “any law which shall abridge the privileges or immunities of citizens of the United States.”
To dispel these noxious justifications, let’s dig a little further. One of the cases cited by Roberts is Baker v. Carr, where the Supreme Court overturned years of precedent by ruling that districts must have equal population and clarified what makes something judiciable. Remiss in Roberts’ quoting of this case is context. Disparities in congressional districts’ populations were once deemed a political issue rather than a judiciable one. Baker rejected that claim without developing a standard of how much deviation was unconstitutional. To cite Roberts himself, “fairness does not seem … a judicially manageable standard.” Clearly, this is not true, as the standard developed post-Baker holds to this day, regardless of whether or not people think less than 10% population deviation between congressional districts is a fair amount of discrepancy. The onus is on the Supreme Court to provide a standard it deems fair to judge these cases, not on individual notions of fairness. The dissent notes that advances in mapping technology and data enable states to randomly generate maps “that incorporate the State’s physical and political geography and meet its declared districting criteria, except for partisan gain.” It is simple to say that a state must randomly generate a hundred such maps, line them up on “a continuum—the most favorable to Republicans on one end, the most favorable to Democrats on the other,” and then adopt a map from the 10 in the center of the continuum. A lack of desire does not mean a lack of capability, a lesson the Court would do well to learn.
In her confirmation hearing, conservative Justice Amy Coney Barrett identified Brown v Board of Education, the court case ending segregation in schools, as an instance of super precedent, a case “so well settled that no political actors and no people seriously push for their overruling.” Yet, Barrett’s admiration disparages the memory of a Court committed to fixing a great wrong regardless of the expansion of judicial power necessary to achieve their ends. Contrary to how she casts it, Brown was controversial. It encountered massive resistance throughout the South, with governments enacting drastic measures to prevent its realization. Necessarily, the Court expanded the power of District Courts to ensure they could properly compel integration. Is the suggestion that this “unprecedented expansion of judicial power” was unjustified? If it is not unjustified, then instances of great Constitutional wrong enable the Court to respond accordingly, whether in breaking precedent or expanding the power of the judiciary. The parallels between Brown and Rucho are significant, as both challenged prior precedent, claimed Fourteenth Amendment violations, and hoped to protect fundamental rights. Instead of viewing Brown as an inspiration in settling Rucho and justifying judicial intervention in partisan gerrymandering, the Court mythologizes Brown through depictions of judicial decisions taking instantly to society. In truth, it’s the other way around. Brown showed that ensuring equality was the Court’s top concern, catalyzing the civil rights movement and spurring legislation cementing its decision. Rucho will never get the chance to become a super precedent because the Court’s priorities have changed. Equality is no longer a priority for the current Court.
Far from condemning “complaints about districting to echo into a void,” the majority attempts to assuage concerns with the promise of electoral unpredictability. Even the most vicious gerrymanders can succumb to rapid demographic change, especially as the parties adapt to the reality of increasing educational polarization remaking traditional voting coalitions. Where change is not quick enough to overcome a gerrymander, states can actively address “the issue on a number of fronts,” such as amending their constitutions or challenging the maps in state courts. Casting an illusion of unpredictability enables Roberts to distract from the one predictable constant in these circumstances, political agents working to insulate themselves from the people’s will. The reality, of course, is anything but unpredictable. When a gerrymander fails, a new decade allows the party in power to redraw lost seats, claim new ones, and shore up any that had become competitive. When the people vote to amend their constitutions, legislatures can slow enactment or edit the wording in direct opposition to the people’s will. When state courts issue rulings, legislatures can ignore directives or changes in their members can overturn prior decisions. In the epitome of irony, Roberts lauds the Fair Districts Amendment passed by Florida voters in 2010 for rendering gerrymandering claims judiciable. The amendment survived numerous challenges in the Florida Supreme Court and won drawn-out legal battles over a gerrymandered map imposed after the amendment passed. Years of dispute resulted in a fair map in 2015 and another round of challenges in 2020. Florida’s current governor steamrolled a bipartisan map created by Republican legislators, threatened them into passing his own heavily gerrymandered map, delayed signing the map into law to prevent a challenge before the map’s use in the 2022 elections, and appointed four conservative judges hostile to the amendment’s existence. In the face of the people’s will and written law, the map performed precisely as intended, turning a 15-12 map in favor of Republicans into a lopsided 20-8 map in their favor, despite Florida only voting for Trump by 3.4 points. Perhaps history can predict the future, if only we look for patterns rather than outliers.
After a lengthy objection to the majority’s opinion, Justice Elena Kagan concludes by saying, “with respect but deep sadness, I dissent.” In the three years since Rucho was decided, one can only guess whether Kagan still feels the Court warrants respect. Fortunately, the public is much more overt in its disdain for the Court. Case after case resulting in broken precedents and novel interpretations of the Constitution destroy any pretense of the Court’s legitimacy, a pattern with no end in sight. Not even a precedent set by the very same conservative wing in Rucho, excluding Justice Barrett, who joined after the case was decided, appears safe from hypocrisy. A state Supreme Court’s ability to hold gerrymandered maps accountable to their state’s constitution, as allowed by the majority in Rucho, is currently being questioned by the court in Moore v. Harper. Despite the possible dangers of further insulating state legislatures from accountability, Moore offers Roberts the opportunity to add to the 18 “[annoying] unanswerable questions” he flings at the dissent in Rucho. Hopefully, he will ask questions the public wants the answers to this time around. Is the Court legitimate when three of its members were appointed by a president who lost the popular vote? How about when four are confirmed by senators representing less than half of the population? Why can the First and Second Amendment be given an expansive new reading but not the Fourteenth? Is homosexuality still equatable to “incest, prostitution, … bestiality, and obscenity”? Are you sure “the government cannot bestow dignity”? How can you support the democratic process while destroying people’s political power? For all its impracticality, maybe Roberts is onto something. In all this questioning, it’s easy to forget that our democracy’s on fire.