There's an excellent chance that tomorrow the Supreme Court will announce it will take up (again) the question whether partisan gerrymandering is unconstitutional. Don't take an agreement to hear case as a sign the Court will police gerrymandering. It is actually the opposite. /1
A three-judge district court found that North Carolina's congressional districts were an unconstitutional partisan gerrymander. These kinds of cases come up to #SCOTUS on "appeal" not a "cert. petition" and a ruling not to hear an appeal means the lower court got it right. /2
So it's almost impossible to believe that Court won't hear the North Carolina case. Last term the Court ducked the merits in the Wisconsin partisan gerrymandering case. But it is clear that the conservatives on the Court are skeptical federal courts can police gerrymandering. /3
The wildcard last year was Justice Kennedy, who had vacillated on the question whether courts could hear partisan gerrymandering cases since 2004. The Court's punt in Wisconsin was because Kennedy wasn't ready to join the four liberals to start federal courts policing this. /4
And now Kennedy is gone, replaced by Kavanaugh. We don't know what Justice Kavanaugh thinks specifically about partisan gerrymandering, but his general ideological orientation makes me very skeptical he'd vote to have courts enter this "political thicket." /5
It's not impossible that Kavanaugh or even CJ Roberts is willing to police partisan gerrymandering, but I wouldn't bet on it. They might look for another way to sidestep the issue in NC, and in a Maryland case also pending. /6
But they won't be able to duck partisan gerrymandering forever. And if they don't police there will be more egregious gerrymanders in states with unified control of legislature and governship where they draw district lines. /7
I do like the argument of @ProfGuyCharles and Luis Fuentes-Rohwer that if the Court really wants to stay out of the thicket overall, it is better to police the most egregious cases. harvardlawreview.org/2018/11/judici… That's the best pitch to Roberts /8
But I'm bearish & suggested that if the Court decides that federal courts cannot hear partisan gerrymandering cases, it's next target could be to declare unconstitutional the use of nonpartisan redistricting commissions to draw congressional districts. blog.harvardlawreview.org/the-next-threa… /9
