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Let’s start with the 🤷🏻♂️, which comes from the fact that partisan gerrymandering isn’t an area (in contrast to, say, racial gerrymandering) where there are a series of prior SCOTUS decisions that define the boundaries of what is possible. #fairmaps 2/
Instead, this is an area where the court has famously deadlocked in the past. To be sure, there are some hints in last term's Gill decision as to where the Justices might go, but they are fuzzy signals at best. #fairmaps 3/
That said, there seem to be five broad options, some of which I rate as being more likely. #fairmaps 4/
Option 1 would be to hold that partisan gerrymandering claims are non-justiciable (a political question beyond the reach of courts). This would be *by far* the most drastic of the options - both legally & in terms of political explosiveness. #fairmaps 5/
For that reason, I don't think the court goes here (though recognizing that the Justices have the word 'supreme' in their job title and I don't). Even if they were inclined to walk away, there are more subtle ways of doing so. #fairmaps 6/
That's especially the case given the starkness of the North Carolina fact pattern. Lawmakers blatantly said on the record that they were doing a political gerrymander & wrote into the rules a rule that they would only consider maps that gave Rs a 10-3 advantage. #fairmaps 7/
Even if you are cynical enough to assume that the conservatives on the court are at some level okay with that, talk about a way to make the court a political issue in the 2020 election as well as to undermine the court's institutional reputation. #fairmaps 8/
Which note, doesn't mean that the court won't end up in a place that is functionally equally as bad - just that they don't have to do non-justiciability to accomplish that. #fairmaps 9/
Option 2 for the court would be a variant of what has happened in the past - that is a punt. Under this scenario, the Supreme Court would say the courts below didn't use a workable standard but leave the door open for future claims. #fairmaps 10/
There are various ways a punt might play out. For example, the court might say, yes, the facts of NC and/or MD are horrid but the tests used by the lower courts would bring in too many other cases & inject the courts too much into the political process. #fairmaps 11/
The court also might - given some of the back & forth at oral argument - reject the tests and evidence used by the lower courts as being too closely rooted in proportionality, something the court has said in the past is not constitutionally required. #fairmaps 12/
The punt scenario would leave open the possibility of future litigation, but effectively doom any further challenges this decade because it would be hard to get another case back up to SCOTUS before the 2020 election. #fairmaps 13/
That effectively means that the next showdown on partisan gerrymandering would come after maps are redrawn in 2021. #fairmaps 14/
But, as tempting as option 2 might be to justices torn about their decision, it is only slightly less politically fraught. The facts of North Carolina are so extreme & blatant allowing the map to stand invariably will be seen as political decision by many. #fairmaps 15/
And that, just as much as walking away, risks injecting the court into the 2020 presidential race in a big way (bear in mind the first Democratic presidential debate at the end of June coincides with the end of the SCOTUS term). #fairmaps 16/
This is especially the case given that it is hard to see this scenario playing out without a Kavanaugh vote that will look to many like "what goes around, comes around." #fairmaps 17/
Option 3 for the court is that the NC and/or MD maps get struck down as unconstitutional partisan gerrymanders. This option has a couple of possible sub-variants. #fairmaps 18/
One sub-variant is that the Supreme Court simply adopts one of the standards used by the courts below and says we agree *this* is it. #fairmaps 19/
In that case, it's on to redrawing of maps in the state where the lower court's standard was upheld. For example, if the court adopts one of the NC standards, map redrawing would start in NC, while the MD case would go back down for application of the NC standard. #fairmaps 20/
But the court also could adopt its own standard - which could include bits & parts of the standards below or could be something wholly different because when it comes to partisan gerrymandering the court in essence is writing on a blank slate. #fairmaps 21/
If that happens, the NC & MD cases would go back down for further proceeedings (ditto the OH & MI cases now on appeal). Those proceedings could take a lot of time - or not. It would depend on how different the Supreme Court's standard is. #fairmaps 22/
But either sub-variant under option 3 would be a huge, no make that EPIC win, even if some maps don't get redrawn this decade, because *there would be a standard* accepted by the Supreme Court. That would be a gamechanger heading into 2021. #fairmaps 23/
Option 4 would be that a majority of the Justices agree to strike down the NC and/or MD maps but disagree on the standard. This would be a good outcome in the short term (maps get struck down!) but leave considerable uncertainty for the future. #fairmaps 24/
One way this option might play out, e.g., would be if some of the conservative justices rule to strike down the NC map on narrow grounds but reject the statistical evidence of bias as being a proxy for proportionality, while the liberals say that evidence is ok. #fairmaps 25/
It's not out of the realm of possibility, for example, to imagine a 4-4 split along these lines (with Thomas voting for non-justiciability as he did in Vieth in 2004). #fairmaps 26/
Or a 4-3-1-1 split with Kavanugh writing on his own. #fairmaps 27/
That said, while option 4 will leave a lot of future work for litigators & academics, it also will be a big victory ahead of 2021 because the mapdrawers will go into the next redistricting cycle knowing that there are at least *some* limits. #fairmaps 28/
That will be a big difference from the 2011 cycle where mapdrawers post-Vieth and post-LULAC widely believed that there basically were no limits. #fairmaps 29/
Last but not least is option 5 - the possibility that the Supreme Court could decide the case on some technical ground, such as standing, as it did the Gill case last term. #fairmaps 30/
I rate this option the least likely. Standing didn't come up at all in oral argument, and it seems like the court has moved well beyond the threshold issues. #fairmaps 31/
So, those are my thoughts, offered again with a huge dose of modesty because this is one of the perhaps most difficult areas in which to read the tea leaves.
In any event, another round of SCOTUS opinions Monday at 10 a.m.! We shall see.
#fairmaps 32/
In any event, another round of SCOTUS opinions Monday at 10 a.m.! We shall see.
#fairmaps 32/
