In the run-up to Independence Day 2019, Americans are left to contemplate two disturbing developments: Thursday’s admission by the Supreme Court of the United States that all federal courts are constitutionally impotent in matters of partisan gerrymandering abuse; second, the hijacking of Washington, D.C.’s Fourth of July celebration by the president, possibly for purposes of a re-election rally partially funded through our tax dollars. Your feelings about either likely (and unfortunately) pivot on whether your electoral pick is doing the gerrymandering and holiday hijacking. But hold that thought for a moment.
We can’t say we were surprised by the court ruling. Of two atrocious redistricting cases (one benefiting Maryland Democrats, the other North Carolina Republicans), the court majority acted as if redistricting excess were so much poison ivy, obviously corruptive to paraphrase Chief Justice John Roberts’ estimation, yet beneath or beyond constitutional remedies by the high court. Roberts’ opinion thus threatens to stand as enduring historical evidence of a dysfunctional constitutional system in free fall: America in decline.
“Excessive partisanship in districting leads to results that reasonably seem unjust,” the chief justice acknowledges in an opinion distinguished by its contorting to such degrees any pretzel would be jealous. “But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean the solution lies with the federal judiciary.” Given the court’s willingness to offer other election intrusion such as Citizens United and the neutering of the transformative 1965 Voting Rights Act, this is a remarkable statement, yet so emblematic of our times.
Yes, the chief justice does reassure those Americans outraged by partisan gerrymandering abuse, in which state lawmakers redraw election boundaries to gross extremes to benefit their political party and themselves, often eliminating districts of general election competition. While Roberts insists that federal judges “have no license to reallocate political power between the two major political parties,” he exults in the creation, state by state, of multi-member commissions to tackle redistricting in lieu of state legislatures, sharply contradicting his sentiments in a 2015 redistricting dissent. He also says “Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause [of the Constitution].” He notes approvingly that the first bill introduced in the current Congress would require states to create 15-member independent commissions to draw congressional districts and establish redistricting criteria. (The bill passed the U.S. House but now mildews in the Senate.) So which Chief Justice Roberts should we believe — Chief Justice Roberts of 2015 or Chief Justice Roberts of 2019?
Perhaps it’s too easy to blame justices and lawmakers. Too many of us, after all, go mute when our party holds power and has the ability to reform redistricting but instead balks to benefit politically. We protest only when the party we don’t favor clinches power. Therein lies the Achilles’ heel that eludes justice. We bow before political parties at the expense of democracy and fair and free elections.