The Supreme Court Could Make Gerrymandering Worse

The Supreme Court’s decision on Friday to take up partisan-gerrymandering cases from North Carolina and Maryland brought to mind a saying attributed to Judy Garland: Behind every cloud is another cloud.

The now firmly conservative Court likely took the cases not to announce that such activities violate the Constitution, but to reverse the lower courts that said they do. Down the road, the Court might do much more damage, including by preventing states from using independent commissions to draw congressional districts.

For years, the Supreme Court has ducked the question of partisan redistricting, failing on this issue. In 2004, he disagreed with conservatives that such cases present “political questions,” which courts cannot hear given the lack of “judicially manageable standards.” And he disagreed with liberals that any as-yet-proposed standards adequately separated permissible from impermissible consideration of partisan information in drawing district lines. But he suggested that the First Amendment’s right of association could serve as the foundation of a ruling against gerrymandering.