I hope the justices of the Supreme Court re-read John Hart Ely’s book before they consider the pending cases on partisanship in redistricting:

Partisan gerrymandering has become the norm in U.S. politics because the Supreme Court has declined to declare it unconstitutional. For three decades, a majority of justices have failed to identify manageable standards to determine when a plan rises to the level of an unconstitutional partisan gerrymander.

As a result, state legislators have come to believe that they can draw partisan gerrymanders so long as long as they satisfy two criteria: They do not violate one-person, one-vote standards and do not reduce the electoral fortunes of African Americans or other protected racial and ethnic groups. As a result, the 2010 round of redistricting saw partisan gerrymandering run amok in some states.

But change may be coming.

Most interesting to me is that the lower courts are starting to move beyond the view that equal protection is the only question at play in redistricting:

Perhaps most important, however, is a case from Wisconsin (Whitford v. Gill). In November, a three-judge federal court invalidated that state’s legislative districts in a 2 to 1 decision. The majority wrote:

The plaintiffs have established … that the defendants intended and accomplished an entrenchment of the Republican Party likely to endure for the entire decennial period. … They did so when the legitimate redistricting considerations neither required nor warranted the implementation of such a plan.

Whitford was the first time a federal court has ruled a single-member district plan a partisan gerrymander. When there is an appeal of that decision, it will almost certainly be heard by the Supreme Court and has the potential to be a “game-changer.”

One thing that distinguished Whitford from the many previous unsuccessful challenges was that it was based on a First Amendment freedom of association test rather than a 14th Amendment equal protection test. Other federal courts have also noted this distinction. A three-judge panel in Maryland held last year that even if an equal protection claim failed to generate a cause of action, a First Amendment claim against a specific congressional district required a trial on the merits (Shapiro v. McManus). Regardless of the trial outcome, that case will likely come before the U.S. Supreme Court in 2017.

Partisan redistricting is a classic example of the kind of problem that the various conservative theories of constitutional interpretation have a hard time addressing. Our constitution does not recognize the existence of parties. It doesn’t even recognize the right to vote as such; it just says that the right can’t be infringed for certain specific reasons (like race, sex, or previous condition of servitude). If you’re a textualist, there’s not a lot of text to justify mucking about with how states conduct elections. If you’re an originalist, you’ve got a similar problem. If you’re a federalist, you’re hardly going to be eager to usurp state prerogatives. And if you believe in judicial deference, then you’re hardly going to be comfortable intervening to alter the partisan composition of the legislature.

But partisan redistricting doesn’t threaten novel fundamental rights that exist only in the emanations of the penumbras of the constitutional text. It threatens the integrity of the political system itself, by making government structurally unresponsive to the electorate. To call for a democratic response to a situation where the legislature has specifically acted to frustrate that response seems like cruel mockery. On the other hand, without clear textual warrant for action, isn’t the Court inevitably just aggrandizing power to itself — and thereby undermining the very democracy it claims to be protecting?

That’s why I suggest taking another look at Ely’s book. Democracy and Distrust is an extended argument as to why we have judicial review in the first place, in the face of the counter-majoritarian difficulty. At the heart of that argument is the notion that apparently fundamental rights like speech and assembly are, in fact, a kind of deep foundation for procedural rights. It’s not that they are God-granted privileges inherent to humans, but that free speech is necessary for the citizenry to be able to do its job of holding the government accountable. Ely proposes that the Court look at all of its jurisprudence this way, and that this framing would help both limit the Court’s innovations and ensure that when the Court acted its actions would be aimed at improving the functioning of democracy rather than usurping it.

At all events, I am very eager to see where the Court goes with this. I’d expect Roberts and Alito to be distinctly uninterested in wading into this area, but I really don’t know what the rest of the Court will think. And while he’d surely refuse to comment on pending cases (as well he should), I’m quite curious what the recently nominated Neil Gorsuch thinks about the topic.