On June 27, the last day of the current Supreme Court term, two momentous decisions sent waves through America’s political establishment. Legal battles over the partisan gerrymandering of district maps in Maryland and North Carolina culminated in a 5-4 opinion which effectively deferred to the states themselves. In the other much-anticipated ruling, the Court unanimously decided that, for the time being, a question about citizenship cannot be added to the census, which is next due to be conducted in 2020.
The Court Upholds State Sovereignty
In the gerrymandering case – Rucho v. Common Cause – the majority opinion was written by Chief Justice John Roberts. He was joined by the Court’s conservative associate justices: Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. The opinion held that gerrymandering claims, as partisan as they may be, “present political questions beyond the reach of the federal courts.”
Roberts asked: “How do you decide where the line is between acceptable partisanship and too much partisanship?” Republicans in North Carolina and Democrats in Maryland were both challenged for their alleged gerrymandering. Roberts added that if the Court overruled the state legislatures in this matter, it would lead to endless litigation over redistricting.
Effectively, the judiciary would have assumed final authority over every state’s district maps – and by extension, the outcome of both federal and state elections.
The chief justice suggested the challengers in both states were seeking “an unprecedented expansion of judicial power.” Republicans in North Carolina hailed the opinion as a victory for states’ rights. A statement from the NCGOP said: “We are pleased that the Supreme Court declined to overrule the sovereignty of states and has held that the power to draw Congressional Districts lies with state legislatures and not the courts.”
In a dissenting opinion, Justice Elena Kagan argued that this was a constitutional matter and, therefore, entirely appropriate for the Court to decide. Kagan, who was joined in her dissent by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, made a point of reading her opinion from the bench: “In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong," she said.
"The gerrymanders here – and they are typical of many – violated the constitutional rights of many hundreds of thousands of American citizens," Kagan wrote. "Those voters (Republicans in the one case, Democrats in the other) did not have an equal opportunity to participate in the political process."
No Citizenship Census Question – For Now
In a blow to the Trump administration, the Court’s ruling in Department of Commerce v. New York effectively put on hold efforts to include in the census a question about citizenship. The justices were divided over parts of the case but ruled unanimously against the Commerce Department. Secretary Wilbur Ross’s argument that the inclusion of the question was necessary for the enforcement of the Voting Rights Act “seems to have been contrived,” Roberts wrote in the opinion.
The chief justice noted in his opinion that a citizenship question – in one form or another – had been included in many previous censuses. To put it in layman’s terms, the Court ruled that, while the inclusion of the question was not unconstitutional, the Commerce Department needed to come up with a more comprehensive justification for why it wanted to include a citizenship question.
Democrats will view the decision as a victory. There is no chance that the 2020 census will include the question, which they argued would have discouraged many people from participating in the census.
Again, it seems the highest court in the land – despite the fears of many people on both the political left and right – remains somewhat unpredictable for those with anything less than expert-level knowledge of the U.S. Code, constitutional law, and the history of the court itself.
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