The Supreme Court’s original sin in gerrymandering cases

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Few matters capture the pathology of the Roberts Court more completely than the two Abbott v. Perez cases, a pair of identically named racial gerrymandering cases that the Supreme Court will hear on Tuesday.

The Perez cases are about partisan gamesmanship. In 2013, the state of Texas admitted in a brief filed in a federal court that their “redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats.” They did so because they believed, based on the Supreme Court’s own partisan gerrymandering decisions, that the Court would do nothing to stop such gerrymandering. Texas’ calculation may yet prove to be correct.

The Perezes are cases about delay. Texas enacted its gerrymandered maps in 2011, and while those maps were partially altered in 2013, a federal court found that portions of those maps were illegal racial gerrymanders in 2017. It’s now 2018 and, thanks in part to the Supreme Court’s intervention, it is all but certain that the gerrymandered maps will be in effect during this year’s midterm elections. Even if the Supreme Court ultimately rules against Texas, their decision is likely to only impact one election — the 2020 races — before the Census requires the state to draw a new set of maps.

But, most of all, the Perez cases are cases about abdication. They are the product of a Supreme Court whose priorities are entirely upside-down. And they warn of a larger rot at the heart of American democracy.

Misplaced Deference

To explain why, we need to start more than a century ago. Beginning in the late nineteenth century, the Supreme Court began striking down laws protecting workers and other progressive legislation based on aggressive readings of some of the vaguest provisions of the Constitution. Worse, the Court often manipulated its own doctrines to achieve conservative results.

Thus, for example, the Court held that the federal government was forbidden from regulating labor unions in a way that protected workers, but that it could intervene against unions and in favor of management. The Court allowed Congress to ban products from interstate commerce for socially conservative ends, but would not allow Congress to use the exact same power to target manufacturers who employ child workers.

By the 1930s, a majority of the Court felt a great deal of remorse over these decisions. As the Court drifted leftward due to an influx of Roosevelt appointments, the new majority could have repeated the sins of their predecessors, replacing anti-democratic conservative activism with anti-democratic liberal activism. Instead, the justices of this era embraced one of the most important insights in the Supreme Court’s history — unelected judges cannot be trusted with the kind of freewheeling power the Court wielded for the first third of the twentieth century.

The culmination of this insight was United States v. Carolene Products, which held that, in the vast majority of cases, the Supreme Court should permit elected lawmakers to govern. “Regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional,” Justice Harlan Fiske Stone wrote for the Court, unless the law lacks any “rational basis within the knowledge and experience of the legislators.”

Carolene Products, in other words, created a strong presumption in favor of democracy. Yet it also recognized that democratically elected officials sometimes seek to rig our electoral system, and that this kind of electoral gamesmanship can be just as destructive to popular sovereignty as a rogue judiciary.

Thus, Carolene Products announced a few exceptions to the general rule that America is ruled by the people’s representatives and not by judges. Judges should be inclined to strike down a law when that law violates an explicit provision of the Constitution, or when it arises out of prejudice toward certain minority groups, or when it “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.”


For the better part of three-quarters of a century, this framework dominated the Supreme Court’s understanding of the Constitution. In more recent years, however, the Roberts Court has begun to turn Carolene Products on its head. The 2012 lawsuit asking the Court to repeal Obamacare, for example, rested on a theory of the Constitution that is strikingly similar to the theory the Court used a century ago to strike down federal child labor laws.

Meanwhile, the Court has abandoned much of its obligation to police our democracy to ensure that lawmakers do not attempt to rig elections.

Consider Crawford v. Marion County Election Board, a 2008 case involving an Indiana voter ID law. Voter ID is a common method of voter suppression favored by Republicans because the practice disproportionately disenfranchises groups — such as students, low-income voters, and people of color — who tend to vote for Democrats. Though supporters of voter ID typically justify such laws as a way to prevent in-person voter fraud at the polls, such fraud barely exists. Notably, the lead opinion in Crawford was only able to identify a single case of in-person voter fraud in the preceding 140 years.

Nevertheless, a majority of the Court permitted the voter ID law to take effect — despite the fact that disenfranchises thousands of voters, and despite the fact that voter ID ostensibly targets a problem that is only slightly more common than elves.

Nor is Crawford an isolated case. The Roberts Court tore out the heart of the Voting Rights Act. It gave the wealthy massive influence over how campaigns are conducted and how elected officials behave in office. It prevented courts from striking down voter suppression efforts as an election approaches. And, even when it has intervened to prevent racial gerrymanders, it has often slow-walked these cases, allowing states to run multiple elections under illegal maps.

The Roberts Court, in other words, is shifting the law back towards the regime that existed in first part of the twentieth century. Rather than deferring to the legislature on matters of policy while ensuring that lawmakers are accountable to the people, the Court is increasingly willing to substitute its own policy judgment for that of the people’s representatives — while also giving those representatives more and more leeway to entrench themselves in power.


To be sure, it’s important not to overstate this point. Obamacare mostly survived its encounters with the Supreme Court. Voter ID laws are vulgar incursions on the franchise, but they are small potatoes compared to the systematic voter suppression of Jim Crow. But the trend line is clear. And it does not bode well for proponents of government of the people, by the people, and for the people.

And that brings us back to the Perez cases…

The Fox and the Henhouse

The two cases being argued on Tuesday are not the Texas maps’ first trip to the Supreme Court. They were also before the Court in 2012, which triggered a bit of a judicial fire drill at the time.

Texas initially drew its gerrymandered maps in 2011, before the Supreme Court struck down much of the Voting Rights Act. Under the fully armed and operational Act, any new Texas voting law had to be submitted to federal officials in Washington, DC for “preclearance” before it could take effect, and a federal court in DC ultimately concluded that the state’s maps were not legal.

Meanwhile, the 2012 election was drawing closer and closer, and Texas still did not have any valid maps it could use to conduct that election.

With this deadline drawing nigh, a federal district court drew its own maps that Texas could use for 2012, but the Supreme Court vacated those maps. In an ominous statement that plays a starring role in Texas’ Perez brief, the Supreme Court explained that “redistricting is ‘primarily the duty and responsibility of the State.'” The district court’s maps, at least according to the justices, needed to be reconsidered because they may not have shown sufficient deference to state lawmakers.

“A district court,” the Supreme Court concluded, “should take guidance from the State’s recently enacted plan in drafting an interim plan.” Thus, even when state lawmakers draw legally dubious maps for the very purpose of giving some voters more power than others, courts should be reluctant to make sweeping changes to those maps.

In fairness, this was not an especially novel holding. The Court proclaimed in 1975 that “reapportionment is primarily the duty and responsibility of the State.” But such a holding takes on chilling implications when a state legislature is actively trying to rig elections. Should courts really defer to lawmakers who are a straight up trying to undercut democracy?

It’s likely that a majority of the Supreme Court’s answer to this question in Perez will be an emphatic “yes!” and that the Court will effectively allow much of Texas’ gerrymander to endure without any meaningful judicial review at all.

After the Supreme Court’s 2012 decision striking down the district court’s maps, the case went back down to the district court with instructions to try again. By this point, it was late January. Texas still had no valid maps, and a primary election was looming. Candidates had no idea where to campaign. Incumbents did not know who their constituents would be.

The result was a rushed, March 2012 order which laid out interim maps that closely resembled the maps drawn by the state legislature. “This interim map is not a final ruling on the merits of any claims asserted by the Plaintiffs in this case or any of the other cases consolidated with this case,” the court warned when it handed down the hastily drawn maps. Nevertheless, the court understood “the need to have the primaries as soon as possible, and the resulting need for the Court to produce an interim map with sufficient time to allow officials to implement the map.”

With few good options, the district court allowed several of Texas’ districts to remain unchanged, even though there were serious concerns that those districts were racial gerrymanders.

Flash forward to 2018, and the Perez cases involve several of these unchanged districts that the district court later held to be illegally gerrymandered. But there’s a catch! The Texas legislature, seeing a potential opportunity to shut down this litigation altogether, took the district court’s inadequately scrutinized, rush-job maps, and wrote them into state law in 2013. They now claim that these maps are immune from judicial review because they were drawn by a court.

“There are few things a legislature can do to avoid protracted litigation over its redistricting legislation,” Texas claims in its brief. “But if the nearly inevitable litigation comes to pass, one would have thought there was one reasonably safe course available to bring it to an end—namely, enacting the three-judge court’s remedial redistricting plan as the legislature’s own.”

It’s a stunning, arrogant claim. The only reason why the district court blessed its interim maps is because it felt it had no choice — a deadline was looming, and the Supreme Court left it with little time to act and an order to defer to the state legislature’s maps whenever possible. The districts at issue in Tuesday’s oral argument never received meaningful judicial scrutiny before they were whisked into action as a matter of necessity.

And yet, it is highly likely that a majority of the Court will agree with Texas’ claim that its maps are immune from review. Though the district court struck down portions of the Texas maps (again), the Supreme Court voted along party lines to reinstate those maps for the 2018 election last September.

The Original Sin

There is some logic to the Supreme Court’s command that courts should defer to state lawmakers in redistricting cases. Such lawmakers will have a better sense of the communities within their state. They will know, for example, if a neighborhood of Hasidic Jews should be grouped together in one district to ensure that this community’s unique concerns are heard in the legislature. Or if a community of steelworkers should similarly be grouped together under a single representative.

But Perez is not about lawmakers using their intimate knowledge of their state to group communities together in logical ways. Indeed, it is the exact opposite. The allegation in Perez is that Texas lawmakers used their powers for evil instead of good — that they intentionally drew district lines that would empower white voters and disempower voters of color. And now Texas wants the Supreme Court to defer to this kind of manipulation.

The wisdom of Carolene Products is that courts have a special obligation to preserve our democracy. Someone must watch the mapmakers, or else those maps can render our elections meaningless. Whatever the virtues of deferring to state lawmakers in redistricting matters, those virtues end once those lawmakers intentionally rig the maps to benefit one party — or one race.

Even before the Roberts Era, the Supreme Court never quite got this fact. The Court’s failure to understand that redistricting is a special area of the law requiring extra scrutiny is the original sin of its gerrymandering jurisprudence. It is the reason why Texas is able to get away with employing the maps it has now.

Perez threatens to make matters even worse. At the very moment when the Court’s right flank wants to seize a larger role in shaping American policy, the same flank appears completely unconcerned by efforts to rig elections.

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

Stronger Together

Stronger Together