WASHINGTON (CN) - Considering the issue for the second time in as many years, the Supreme Court struggled Tuesday to pin down when, whether and how to tackle gerrymandering driven by political, rather than racial, bias.
Presented with one case from North Carolina Democrats and another from Maryland Republicans, the justices appeared divided across two hours of sometimes contentious arguments this morning. With no standard on the books as yet, the justices asked difficult questions of both sides.
They also returned repeatedly to the views expressed on the issue last year by former Justice Anthony Kennedy before his retirement.
"It seems to me that this is kind of Justice Kennedy's hypothetical come to life,” Justice Elena Kagan said, “in the sense that there is a particular provision in the [North Carolina legislation here that says the partisan makeup of the congressional delegation is 10 Republicans and three Democrats and the committee shall make reasonable efforts to construct districts to maintain that current partisan makeup, 10 and 3.”
Kennedy's successor, Justice Brett Kavanaugh, was an active questioner throughout the arguments Tuesday morning and routinely pressed the attorneys to give him a baseline against which courts should judge when a state has gone too far in considering politics in their map-drawing efforts.
The only justice not on the bench when the court considered gerrymandering last term, Kavanaugh asked nearly all of the attorneys at Tuesday’s hearing whether the equal-protection clause of the Constitution could be interpreted to require proportional representation or something similar to it.
Kavanaugh wondered why the attorneys were "running" from saying that it does, but later in the arguments nodded to Supreme Court precedent that might explain why the attorneys were reluctant to take such a position.
"You said gerrymandering has been recognized as unconstitutional," Kavanaugh said. "But if gerrymandering is defined as deviation from what you would otherwise get with proportional, Justice [Sandra Day] O'Connor and Justice Kennedy have made very clear in various opinions that the Constitution contains no such guarantee.”
In 2016, North Carolina Republicans set out to redraw their state map after a federal court struck it down as an unconstitutional racial gerrymander. Intent on avoiding another racial challenge, they brought in a mapmaking expert and, among other things, instructed him to preserve the party's 10-3 advantage in the state's congressional delegation.
The League of Women Voters, Common Cause, the North Carolina State Democratic Party and a collection of voters filed two lawsuits challenging the map as a partisan gerrymander. They say the mapmaker packed Democrats into a small number of districts while diluting other liberal strongholds by jamming them into GOP-controlled areas to offset their impact.
A panel of judges struck down the map, but the Supreme Court sent the case back last year after ruling on a gerrymandering case out of Wisconsin. The lower court again invalidated the map in November.
Paul Clement, who argued in favor of the map on Tuesday, said the founders unequivocally chose to put redistricting in the hands of political actors and that the court stepping into the issue would be inappropriate.
Clement, with the firm Kirkland & Ellis, said people who complain their districts favor their political opponents are simply trying to impose proportional representation on a system that was never meant to operate that way.
He also said the court's inability over the years to develop a standard by which to judge partisan gerrymandering claims is no accident. If it chooses to weigh in on the issue, it will soon be overwhelmed by voters challenging maps they don't like, he added.
"And once you get into the political thicket, you will not get out and you will tarnish the image of this court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politics," Clement said.