The new Supreme Court term began with arguments in one of the most anticipated cases, Gill v. Whitford, which concerns the justiciability of partisan gerrymandering schemes. Many commentators were focused, naturally, on Justice Anthony Kennedy and his questioning of counsel for the respondent, the state of Wisconsin. Kennedy is perceived to be the swing vote between the bloc of justices inclined toward allowing some judicial regulation of partisan gerrymandering and the bloc that would leave such matters to the political process.
Also interesting, though for a different reason, were the comments of Chief Justice John Roberts. He questioned whether judicial regulation of partisan gerrymandering, which might require a court to strike down a districting plan in certain circumstances, risks the legitimacy of the Supreme Court. Such regulation, Roberts observed, “is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”
It is of course possible that judicial involvement will, to the contrary, renew voter confidence in the idea that votes in elections actually matter, a consequence likely to bring the Supreme Court praise rather than criticism. But let’s set that aside and think about where Roberts is coming from, which is different from where Justice Neil Gorsuch is coming from. During the argument, Gorsuch suggested that, because the Constitution does not explicitly refer election issues to the judiciary, the courts have no business reviewing partisan gerrymandering, notwithstanding decades of judicial involvement in the regulation of elections.
The chief justice’s position instead reflects a pragmatic approach to constitutional decision making, not as to constitutional interpretation, but as to the appropriate institutional role the Supreme Court plays in our government. The chief justice’s comments reflect a recognition that the Supreme Court, as Alexander Hamilton famously put it, is possessed of neither the purse nor the sword, but relies for its legitimacy on the quality of its judgment, both in the cases it hears and in the disputes it avoids. Roberts appeared to be suggesting that entering dense political thickets which implicate untested constitutional frameworks, like partisan gerrymandering, could well undermine the Supreme Court’s institutional legitimacy.
This is not new. Perhaps the most significant example of the chief justice’s defense of the Supreme Court is National Federation of Independent Businesses v. Kathleen Sebelius, in which the plaintiffs argued Congress could not, in enacting the Affordable Care Act, rely upon either the commerce or the taxing authority to mandate that individuals purchase health insurance. Roberts sided with the plaintiffs as to the former but not the latter, writing for a majority upholding the Affordable Care Act under the taxing power and a different majority rejecting the commerce clause argument.
His analysis in respect to each argument in that case was strained and likely of limited precedential value. In the end, it was almost beside the point. As chief justice, Roberts has a particular responsibility to safeguard the Supreme Court, so that the institution will not be damaged by a decision or decisions that appear to a majority of the American people, or their representatives, to stretch too far into the political realm.
On this view, the American people’s trust in the Supreme Court’s decision making flows at least in part from the tacit boundaries within which the court goes about its business. That trust, in other words, flows from the court’s recognition of practical limits to its power, limits which do not necessarily coincide with the constitutionality of particular government actions, such as the individual mandate or partisan gerrymandering.
The chief justice, during his confirmation hearings, compared the work of the justices to that of baseball umpires calling balls and strikes. That analogy may be even more spot on than he realized at the time. We are comfortable with umpires calling balls and strikes because we continue to prize human decision making in such matters. We are confident that, for the most part, an umpire’s call will be the right one, consistent with the strike zone the umpire has set for the game, for each sets his or her own strike zone. The chief justice seeks to protect the Supreme Court by setting what he sees as the appropriate strike zone for judicial decision making. Too high, too low, or too wide, and the public may question not just individual calls, but the whole effort.
Lawrence Friedman is professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”