Point Austin: The Victory of Tom DeLay
With redistricting ruling, SCOTUS says it’s OK to cheat to win
It's definitely not a reflex I would recommend, but over the weekend I found myself thinking of Tom DeLay. The occasion was the release of the Supreme Court opinion in Rucho v. Common Cause, a combined ruling on challenges to legislative redistricting in North Carolina and Maryland. Advocates of fair districting had been hoping that these cases would finally begin to restrain the most extreme forms of partisan redistricting – painfully familiar to Texas voters, and to Travis County residents in particular. Indeed, as these cases approached SCOTUS, the lower courts ruled that the partisan gerrymanders they reflected had gone too far in disenfranchising voters from the minority party (Democrats in North Carolina, Republicans in Maryland).
Thus ended the good news. A 5-4 SCOTUS majority ruled (at great length but small logic) that while extreme partisan gerrymandering is indeed lamentable – even unconstitutional – there is nothing the federal courts can or should do about it, as it is a matter entirely left to Congress and state legislatures. The court majority – Chief Justice John Roberts (who wrote the opinion) and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh – typically do not shy away from proclaiming the august authority of the court, but in this case declared they are simply powerless to find a sufficiently "neutral" solution.
In other words, the legislative burglars may have robbed the bank, but we just have to hope they will see fit to return the money. "We conclude," they sigh, "that partisan gerrymandering claims present political questions beyond the reach of the federal courts."
In a spirited, personal dissent, Justice Elena Kagan (joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor) is at some pains to point out that the majority has ample precedent and reason to act – they simply choose not to do so. Kagan begins bluntly: "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities." Kagan's opinion – which may yet prove historically prescient – is worth quoting at more length: "The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people."
Moreover, she continues, the specific cases under review themselves provide the resolution that the majority purports to find so inconceivable. "The majority's abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims." By giving a pass to these extreme gerrymanders, Kagan says, "the majority goes tragically wrong."
The Roots of Rucho
Kagan's opinion merits much praise – she goes on to show in great detail how the lower courts managed to find and employ the standards of fair redistricting that the majority claims are impossible or somehow illegitimate, even as they sentimentally agree that the partisan gerrymanders those courts corrected indeed violate the Constitution. But only judicial courtesy enables Kagan to call the majority's conclusion "tragically wrong."
That's true only if you ignore the last two decades of political history: the ongoing record of radical Republican redistricting across the South; the repeated and aggressive episodes of voter suppression and voter purges; and the plain fact that the Supreme Court itself has been gerrymandered, with the suppression of Merrick Garland and the elevation of Gorsuch and Kavanaugh, to install a reactionary GOP majority. With this opinion, the court's majority has not gone "tragically wrong" – it is doing exactly what it was appointed to do.
And that's how I found myself reflecting on long-departed GOP hatchetman Tom DeLay, who used Texas as a personal national laboratory for radical gerrymandering – redistricting and re-redistricting until the GOP had imposed congressional and legislative maps that have politically shaped the past two decades here and in D.C., and which make it both extremely difficult and mandatory that the Democratic minority flip the Texas House next year.
For painful and necessary reflection, search "Tom DeLay," "redistricting," and "re-redistricting" in the Chronicle archives (an unhappy exercise, I know). The foundation of the Rucho majority opinion was laid in Texas, and in Texas it must be uprooted and undone.