Supreme Court and political gerrymandering: What does it mean to ‘kill’ a case?

In Rucho v. Common Cause, a 5-4 majority of the Supreme Court rejected challenges to political gerrymandering by North Carolina’s Republican legislature and Democratic lawmakers in Maryland. In the wake of Rucho, states can redraw their maps according to the 2020 census without worrying about federal court challenges to their excessively partisan motives.

Rucho is an example of what it means for a court to “throw out” or “kill” a case without reaching the merits. In legalese, “the merits” refers to the ultimate question in a case, for example, whether Joe ran the red light before he crashed into Joan’s car. In this case, the question is whether the North Carolina and Maryland legislatures violated the Constitution by carving up districts in ways that would deliberately dilute certain votes for partisan advantage.

Under the plain language of the Constitution, federal courts are only empowered to hear “cases,” but that term is undefined. Over many decades, the Supreme Court has devised multi-factored, fairly subjective tests for determining if a dispute qualifies as a “case.” Courts only have what’s called “jurisdiction” — or power — to adjudicate cases. 

The goal is to preserve the separation of powers. Because federal judges are not elected and serve for life, they must be confined to calling balls and strikes in discrete disputes that happened in the past between discrete parties. Policymaking for the greater population is what legislatures are for.

When a court throws out a case for lack of what’s called “standing,” it means that no discretely injured plaintiff with a discrete gripe against the defendant is involved. In those cases, another plaintiff with a better injury to trigger federal jurisdiction can come forward. The doors to the courthouse door aren’t closed forever.

Not so with the decision in Rucho. In that case, a solidly conservative majority decided that partisan gerrymandering cases are categorically off limits to federal courts — even if they raise a constitutional claim that is legitimate on the merits. You read that right. Unconstitutional partisan gerrymandering must be fixed by (often) gerrymandered representatives in state legislatures or not at all. 

The court’s majority admitted that it had a “case” before it, so it had jurisdiction, but it applied what’s known as the political question doctrine to refuse to exercise its power. Unconstitutional partisan gerrymandering is too much of a political hot potato, the court held, so nobody on the federal bench is allowed to wade into that fray. Unlike with standing problems, a case tossed out under the political question doctrine cannot come back in another form. That party is over.

There are a number of other legal reasons to throw out a case before reaching the merits. If there is no law barring what the plaintiff is complaining about, the case will be tossed out. Stink-eye on the subway is unpleasant, but not against the law. Prior to the Civil Rights Act of 1964, discrimination by private entities was unethical, but not illegal. There are other bases for throwing out a case for some inherent legal flaw — not because a court decided that the defendant did nothing wrong under the law.

Rucho is a bit different. In dissenting Justice Kagan’s words, “nearly all [justices] have agreed on this much: Extreme partisan gerrymandering (as happened in North Carolina and Maryland) violates the Constitution.”

Decisions to throw out cases on threshold grounds serve a range of policy objectives, including making sure that courts don’t tread too far onto the other branches’ turf. But Rucho was squarely on the Supreme Court’s turf. It just refused to pick up the ball.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. Her book, “How to Read the Constitution and—Why,” will be published today. Follow her on Twitter @kim_wehle.

This is the fifth piece in a series by Wehle on constitutional literacy. Read her analysis on constitutional literacy, constitutional rights, the country’s crisis of compassion and war power.