Supreme Court justices chafe at accusations that their rulings are political. Five of the tribunal’s nine members have gone public recently refuting that characterization and trying to dissuade that growing public perception.
Their protestations were reminiscent of the memorable observation by John Roberts at his confirmation hearing as chief justice 15 years ago this fall. He viewed his prospective role as a neutral “umpire … calling balls and strikes.”
Regardless of prickly judicial protestations of political purity, justices’ decisions often have substantial partisan effects. That reality was reflected at a short hearing in Duluth regarding the current congressional and legislative redistricting process accompanying the 2020 census, which has prompted legislators in numerous, primarily Republican-dominated, states to proceed with unmistakable partisanship. The artifice known for more than two centuries as “gerrymandering” has not had a big footprint in Minnesota. This time around is different, though, due to the split Republican majority in the state Senate and DFL control in the Minnesota House. The device is more prevalent across the border in Wisconsin, an epicenter of modern-day partisan redistricting gadgetry.
Instincts and a history of gerrymandering do exist in Minnesota, and a panel of state court jurists already is in place to undertake the anticipated task — as they have for the past four cycles, holding their 40-minute road show at the St. Louis County Courthouse.
One major challenge concerns the 8th Congressional District, centered here in Duluth, covering the Iron Range, and extending down the northeast corridor of the state, reaching the outlying area of the Twin Cities.
Conformance with shifting demographics, in keeping with the judicially mandated “one-person, one-vote” standard, may result in the 8th, currently represented by St. Louis County Republican Pete Stauber, picking up some 40,000 to 50,000 additional constituents from the adjoining 7th Congressional District by importing Lake County from the north and the portion from Beltrami County to the west not currently in the 8th. Or perhaps by adding additional voters in the northern suburbs of the Twin Cities metropolitan area.
Either arrangement could have political repercussions. Injecting more voters from the 7th, as advocated by several at the hearing in Duluth, could solidify the GOP character of the 8th. Adding residents from the metro suburbs could increase its Democratic composition and make it more favorable terrain for that party, which previously dominated the district for years.
The politicization of the redistricting process, also reflected to a lesser extent in drawing state legislative boundaries, is attributable to a pair of recent decisions of the U.S. Supreme Court.
The first was from neighboring Wisconsin, Gill v. Whitford, a 2018 case in which the tribunal unanimously barred a legal challenge to a redistricting arrangement in the Badger State’s legislature, yielding a sizable GOP majority in its state Senate, even though the total vote for candidates in that chamber was decidedly Democratic by a 54% margin.
But the High Court refused to address the disparity because the challengers lacked standing to contest the arrangement on a statewide basis since their votes were confined to the specific legislative districts where they lived, making it nearly impossible to challenge politically distorted legislative redistricting.
It presaged the coup de grace a year later in a case from North Carolina, Rucho v. Common Cause, as the justices, by a narrow 5-4 conservative-liberal divide, shut the door on most redistricting challenges because of the absence of a “limited and precise standard,” which caused four liberal dissenters to lament that the court abdicated its duty.
But it was more than that; the court rulings were akin to Lucy yanking the pigskin away, preventing Charlie Brown from kicking it. The decision left peanuts for redistricting challengers, restricted to less potent claims of racial discrimination or claims under state constitutions.
The pair of decisions provide a free pass to state legislators to exercise unfettered, raw discretion to redraw electoral districts in blatantly political ways, belying the “we’re not politicians” wailings by the High Court justices and justifying the mounting skepticism of that disavowal.
While using the judicial panel in Minnesota ameliorates some partisanship in redistricting, the gerrymandering process is alive and well elsewhere, including next door in Wisconsin.
By the way, those two Supreme Court rulings were authored by no less an indifferent “umpire” than Chief Justice John Roberts.
Marshall H. Tanick of Minneapolis is a constitutional-law attorney. He wrote this for the News Tribune.