Editors’ Note: History has a way of teaching us that the wisdom of SCOTUS dissents evolve to become the rule of law. Excerpted from HuffPost, October 28, 2019.
In a 5-4 decision this past June, the U.S. Supreme Court said there was nothing it could do to stop partisan gerrymandering. Even though the court’s five conservative justices conceded that excessive partisan gerrymandering was harmful to democracy, they said it was a problem that could not be addressed by the federal courts.
Justice Elena Kagan wrote a searing dissent for the court’s four more liberal justices in Rucho v. Common Cause, declaring that partisan gerrymanders “imperil our system of government.” On June 27, the day the decision was announced, Kagan read a summary of her dissent from the bench ― an unusual move that justices reserve for cases in which they strongly disagree with the majority. Bloomberg reported that Kagan’s voice cracked and she “wiped her face with a tissue as she read it.”
The audio of Kagan reading from her opinion, first published by Slate, is now publicly available. Listening to the justice dissent in her own voice is stirring. She delivers an unmistakable warning that the highest court in the land has refused to act in the face of a practice that threatens the heart of American democracy.
“The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights ― the right to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives ” Kagan said. “In doing so, these gerrymanders dishonored our democracy, turning upside down the core American idea that all governmental power derives from the people.”
The case before the justices challenged excessively gerrymandered congressional districts in North Carolina and Maryland. In North Carolina, Republicans had drawn districts that virtually guaranteed they would control 10 of the state’s 13 congressional seats, regardless of how people voted. In Maryland, Democrats openly admitted they redrew one district to flip it from Republican to Democratic.
“Left unchecked, as the court does today, gerrymanders like these may irreparably damage our system of government,” Kagan said.
The practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections.
After describing how lawmakers in both North Carolina and Maryland were explicit in their intent to gerrymander for partisan gain, the justice said, “Ask yourself one simple question: Is this how American democracy is supposed to work?”
As she reached the end of her summary, Kagan’s voice cracked.
“The practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections,” she said.
“With respect, but deep sadness,” Kagan said, “Justices Ginsburg, Breyer, Sotomayor and I dissent.”
Lower courts had found that the gerrymanders in both states violated the Constitution, but the Supreme Court reversed those decisions. Since that June ruling, the Supreme Court has also overturned lower court decisions that struck down excessive gerrymanders in Ohio and Michigan.
Speaking at Georgetown University Law Center in July, Kagan said that she would never accept the ruling on partisan gerrymandering. She said her dissent was written for a future Supreme Court that might revisit the issue.
“There are dissents where it’s like, ‘Well, I saw the case differently, here’s the way I saw it, and now we start all over again.’ And there are dissents that are, ‘This is abysmally wrong,’” she said at the time.
Despite the Supreme Court’s refusal to weigh in on partisan gerrymandering, the conservative majority did say that state courts and state constitutions could serve as a check on partisan gerrymandering. In North Carolina, a panel of three state judges did just that in September, using the state’s constitution to strike down several state legislative districts. A second lawsuit challenging North Carolina’s congressional plan, the same one on which the Supreme Court refused to rule, is now proceeding through state court.