By Professor Vincent Bonventre
or much of the last two terms, the United States Supreme Court was short one Justice. The vacancy created by the death of Justice Antonin Scalia in early 2016 remained unfilled until the appointment of Neil Gorsuch late last term. During that interim period, the eight sitting Justices came to a 4-4 draw in several cases; in other cases, the competing ideological sides obviously compromised in order to render some decision; and in still other cases, the Justices either declined to grant review or they did grant review in cases that would be heard when there would be a full complement of nine Justices.
For the 2017-18 term of Court that is to begin Monday, October 2–the iconic First Monday in October–the cases that are already on the Court’s docket strongly suggest that this will be a year of blockbuster decisions. It is always possible, of course, that the Justices will bob and weave and avoid confronting some of the hot-button constitutional questions at the heart of these cases. But with four Justices who lean very politically conservative, and four very politically liberal–oftentimes leaving Justice Anthony Kennedy to cast the deciding vote– the Court can be expected to resolve some very ideologically-contentious issues with some very ideologically-charged rulings.
Here are several of the most significant issues the Court will tackle this term:
As in extreme gerrymandering. As in extreme mathematical efficiency to virtually guarantee that the political party in power remains in power. As in making it extremely difficult for that party to lose elections.
So, for example, in the case to be heard by the Court this week, Gill v. Whitford, the Republican party in power in Wisconsin has carved up voting districts in the state in ways that severely dilute the effect of Democratic votes. This gerrymandering has, in fact, produced a near certainty that the Republicans retain control of the legislature. Indeed, even when the Democratic party has won a substantial majority of the statewide vote in recent years, the Republicans have still won a substantial majority of the voting districts.
[Yes, Democrats have done the same thing when they can.]
Racial gerrymandering is unconstitutional. But what about partisan gerrymandering? Is it just another “political question” which the majority of the Court believes should be resolved in the political process? Or is partisan gerrymandering, at least in extreme cases, a fundamental violation of our democratic voting process that calls for a judicial redress?