Analysis Law and Policy

Justice Kagan Tries to Bring Kennedy Along on Partisan Gerrymandering, But Her Efforts May Not Pan Out

Jessica Mason Pieklo

In two recent high-profile cases, Justice Elena Kagan has written a concurring opinion targeting Justice Anthony Kennedy for a future vote. It's a smart strategy—but only if Kennedy sticks around.

On Monday, the U.S. Supreme Court side-stepped another high-profile decision, this time declining to rule on when, if ever, politically partisan gerrymandered maps can violate the Constitution. It’s the second punt of a marquee case from the Court following its less-than-satisfying resolution earlier this month in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a Colorado baker who refused to make a cake for a same-sex couple. It’s also the second time this term Justice Elena Kagan has issued a concurring opinion to lay a path for a future liberal victory that crucial swing vote Justice Anthony Kennedy could potentially join.

Monday’s rulings involve challenges to partisan-drawn electoral maps in two states, Wisconsin and Maryland. In Gill v. Whitford the Supreme Court considered arguments that state assembly maps drawn by Wisconsin Republicans following the 2010 Census were unconstitutional because of partisan gerrymandering. A federal court struck down the plan in 2016; the State of Wisconsin then appealed that ruling to the Supreme Court.

Benisek v. Lamone challenged a single federal congressional district drawn by Democratic officials in Maryland and a lower court’s refusal to block officials from holding congressional elections under that map.

On Monday the Court ruled first unanimously in Gill that the individual plaintiffs lack standing to challenge the entire statewide assembly map and sent the case back to the lower court to determine if the plaintiffs can proceed in district-by-district challenges to the map. Then in Benisek, the justices declined to rule on the merits of the maps at issue and instead issued a per curiam, or collective, decision, sending that case back to the lower court where the legal challenge to the redistricting will proceed as well. This ruling ultimately dealt with the question of whether the court was correct to not issue a preliminary injunction in the case, avoiding the substantive challenge to the Maryland plan entirely.

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Back in October, I noted after arguments in Gill that it was clear the conservative justices were looking for a way to deny the challengers standing to challenge the maps on a statewide basis, and Monday’s decision shows they found one. At the time, I thought that was a strategy designed to keep Justice Anthony Kennedy from siding with the more liberal justices and ruling against Wisconsin Republican redistricting efforts. Monday’s unanimous ruling, however, makes me think the liberal justices signed on to the Gill standing decision to try to sway Kennedy to their side and ultimately rein in partisan gerrymandering, which they could do as early as next term. And just like in Masterpiece Cakeshop, Justice Kagan is tasked with persuading Kennedy down the road.

Like her concurring opinion in Masterpiece Cakeshop, Kagan’s concurrence in Gill—this time joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor—is a roadmap for a (hopefully) future majority opinion that would limit partisan gerrymandering. Kagan makes two crucial points in her concurrence, both of which appear to speak directly to Justice Kennedy, the likely fifth vote in such a decision.

First, she suggests that plaintiffs should have no problem meeting the standing requirements to launch a district-by-district challenge, because not only are those the districts in which the plaintiffs would vote to satisfy the requirement of individualized harm the law requires, but also that the evidence suggests enough bad faith on the part of Wisconsin Republicans to show the plaintiffs were injured in the majority of districts. This, Kagan notes, could effectively produce the same result as a statewide challenge to the map.

So, in other words, game on. The fight in Wisconsin is not over yet.

Then Kagan, and the liberal justices who joined her, really start speaking to Kennedy’s interests. She notes that the plaintiffs have suggested that the gerrymandered map violated their First Amendment right of association. They didn’t make those claims with enough specificity in this challenge for the Court to rule on them; instead, the Court focused instead on the plaintiffs’ claims that their votes had been unconstitutionally diluted, meaning that they were worth less than those votes from other (Republican) districts. That left those associational arguments unresolved. But Kagan suggests that when the case goes back to the lower courts for another round of challenges, the plaintiffs may want to advance those claims directly. Doing so, she states, would open another avenue to challenge the entire map—but they should also develop the the claim because it’s just the kind of First Amendment argument Justice Kennedy loves.

“Justice Kennedy explained the First Amendment associational injury deriving from a partisan gerrymander in his concurring opinion in Vieth,” Kagan writes, before quoting Kennedy directly: “‘Repre­sentative democracy is unimaginable without the ability of citizens to band together’ to advance their political beliefs.”

Vieth v. Jubelirer is a 2004 decision that involved a challenge to Pennsylvania’s redistricting plan following the 2000 Census. A lower court dismissed a challenge to the plan, ruling the case was “nonjusticiable,” or one the courts could never resolve because no “judicially discernible and manageable standards for adjudicating” such cases exist. The Supreme Court agreed to take the case and issued a mess of a decision. Justice Antonin Scalia led four conservative justices in upholding the lower court’s finding that partisan gerrymandering claims are nonjusticiable. Meanwhile, the four liberal justices each issued their own opinions setting forth their own standard for judging the constitutionality of partisan gerrymandering cases.

And then there was Justice Kennedy. He dismissed the standards set out by each of his liberal colleagues for judging partisan gerrymandering cases, but refused to sign on with his conservative colleagues in foreclosing future challenges. His controlling opinion agreed that the courts had no manageable standard yet to judge when a partisan gerrymander crossed the line, but that left open the possibility that such a standard would develop—and that courts could be in the position to determine when electoral maps are drawn to effectively punish people based on their partisan affiliation in violation of the First Amendment.

Kagan’s concurrence in Gill quotes Kennedy heavily, at the same time as she essentially develops the challengers’ associational claim for them. It’s both a roadmap for the plaintiffs on bringing the case back to the Court, and a dare of sorts to Justice Kennedy to stand by his words.

This is precisely the move she made in Masterpiece Cakeshop, when she voted to join Kennedy in siding against the Colorado Civil Rights Commission. In that concurrence, Kagan goes out of her way to note that the baker’s conduct clearly violated Colorado’s anti-discrimination law, but states that because (in the majority’s view) there was evidence of anti-religious bias on the commission, its order had to be overturned. It’s an opinion that appeals both to Kennedy’s legacy on LGBTQ rights and his sympathies with religious evangelicals. And like Monday’s concurrence in Gill, Kagan’s concurrence in Masterpiece Cakeshop is an outline of sorts for Justice Kennedy to craft a future opinion balancing those interests.

When the Court granted cert last year in Masterpiece Cakeshop and Gill, legal observers—including myself—saw it as a signal that Justice Kennedy was going to stay on the Court to finish building his legacy on two critical areas of jurisprudence in his career: LGBTQ rights and the First Amendment. But with punts in both cases, the question of what Justice Kennedy is thinking, both in terms of the law and his own tenure on the bench, is now less clear.

The Court is currently considering taking cases for next term on situations nearly identical to those in Masterpiece Cakeshop and Gill, and we could know as early as Monday if it will do so. Should Justice Kennedy stay on the Court, there is a good chance he will have the opportunity to be the deciding vote on these issues. Justice Kagan’s concurring opinions in Masterpiece Cakeshop and Gill recognize this reality and the crossroads at which Kennedy sits, career-wise. In response, she offers him a jurisprudential path forward in those cases and, ultimately, a way for Kennedy to retire with his Supreme Court legacy intact.

Let’s hope he sticks around long enough to take her up on both.

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