The Court avoided the issue of partisan gerrymandering yesterday by remanding Gill v. Whitford on standing grounds. A number of commentators have noticed the Court's recent minimalism. Garret Epps asserts that the “Court so far has taken every possible opportunity to avoid important decisions.” Dahlia Lithwick asserts that Court is “now too frightened of public outcry to decide anything.” Howard Wasserman suggests that, because the Court hears so few cases, it should do a better job of selecting cases that provide a vehicle for rulemaking to guide the lower Courts. But, as Eugene Volokh points out, “some, both on the left and on the right, have argued that such narrow decisionmaking, or remand or dismissal on procedural grounds, are often a good idea, and that the Supreme Court should indeed often decide as little as possible.”
In my view, judicial minimalism is much more defensible in cases like Masterpiece Cakeshop than in Gill. As I argue in my forthcoming article, I think the Court should issue narrow and constrained rulings when attempting to produce change on contentious social issues. The history of cases like Dred Scott, Brown, Roe, and Goodridge all arguably teach that bold rulings on such issues can incite backlash that undermines the very goal that the Court was attempting to achieve. (My paper adds Prigg v. Pennsylvania to this list). In an earlier post, I argued that the issue presented in Masterpiece Cakeshop arguably fits within this paradigm. A broad decision in either direction could have provoked public outcry from the other side, prompted attacks on the Court, and influenced the midterm elections. It also might have been hard to predict the consequences of a broad decision on related legal issues.
I think the gerrymandering issue in Gill is different. As Epps points out, “everyone agrees partisan gerrymanders are naughty.” The issue has been studied at length, and there is little need for further debate over the merits of gerrymandering. And, although a decision that ended extreme partisan gerrymandering would hurt Republicans overall, it would also apply to the many states that have been gerrymandered by Democrats, like the district at issue in Benisek. It therefore seems unlikely that a strong decision on gerrymandering would have produced social backlash of the type that major social issues like segregation, abortion, or same sex marriage invoked. Of course, bringing an end to gerrymandering would produce change at the polls, but that change would be attributable to fair voting rules rather than anger at the Court.
There is another, more fundamental reason, to reject judicial minimalism in gerrymandering. As Justice Kagan’s concurrence explains, gerrymandered districts are far more likely to produce radical and uncompromising representatives. When swing voters are ignored and the most important election is the party primary, partisan social issues like religious liberty are more likely to influence elections. In other words, limiting partisan gerrymandering could help prevent backlash against unrelated Court rulings in the future.
Finally, as Justice Kagan’s concurrence explains, “Courts have a critical role to play in curbing partisan gerrymandering.” Going back to Caroline Products, gerrymandering distorts the political process, and the states lack the incentives to fix the problem. Although judicial minimalism often makes sense on divisive social issues that split the nation, strong action from the Court is needed on gerrymandering.
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