I am wiggling around today, on pins and needles. Today was the oral argument in Gill v Whitford, the huge Wisconsin gerrymandering case before the Supreme Court.
A number of people have written that SCOTUS’s decision might be the biggest one in a long, long time. So I’m reading whatever I can about how the oral argument went.
Every day I read a top-notch blog called SCOTUSblog. Or, rather, I look through it; it’s so meaty and fine-tuned I don’t always have time and patience for a thorough read.
Today, while anxiously reading their take on the Gill oral argument, I picked up these paragraphs. Talk about bitter laughter (I’ve bolded the “bitter laughter” part):
And so most of the one-hour argument today was spent on the substance of the case, and in particular on two closely related questions: Should the courts get involved in reviewing partisan-gerrymandering cases at all; and, if so, what standard should they use to review such claims?
[Chief Justice John] Roberts made clear that, in his view, the Supreme Court should stay out – for the good of its institutional reputation. He told Smith that if the plaintiffs win, the courts would be flooded with partisan-gerrymandering claims, which would all wind up at the Supreme Court because, unlike in most cases, in which the court can choose which cases to review, the court is generally required to review redistricting challenges. For example, if the Supreme Court rules for the Democrats in a case, Roberts continued, most people will not understand that the decision rests on a complicated calculus. Instead, Roberts posited, the average person will say, “That’s a bunch of baloney,” and chalk the ruling up to a preference for the Democrats. And that, Roberts stressed, will cause very serious harm to the status and perceived integrity of the Supreme Court.
Institutional reputation? Status? Perceived integrity????????? I’m not going to bother to link to the awful experience of watching the Koch Bros–who, you know, are responsible for the right-wing take-over of Wisconsin, since they virtually bought the state–buy Neil Gorsuch’s seat on the Supreme Court.
So, oh, yeah, reputation, integrity and status. Right. If Roberts really wants to recover the integrity and status of the Court, he’d better start modifying his own opinions.
Meanwhile, one of the lawyers for the Gill plaintiffs responded thusly, and I’ve bolded this, too, because it’s so brilliant:
Smith pushed back, predicting that any potential harm to the Supreme Court’s reputation would pale in comparison with the harm to democracy if the state prevails.
UPDATE 5:29 pm. And I just read Rick Hasen–election law expert–on his blog, regarding exactly what I fumed about above. Except Hasen doesn’t fume; he explains. Here’s what he said about Roberts’ argument regarding the “integrity” of SCOTUS (and again I’ve bolded the key point):
Second, and more importantly, the Court is already viewed as a political court, and as I’ve argued (and argue more in my upcoming book on Justice Scalia) it is likely to be viewed as a partisan court going forward much more, now that all the liberals on the Court were appointed by Democratic presidents and all he conservatives by Republican presidents. This case is not going to do it. It is already done. The Court that decided Shelby County and Citizens United along party/ideological lines is looked at by the intelligent woman (or man) on the street as the product of a highly ideological politicized Court.
Indeed, if Justice Kennedy (a Republican appointee after all) votes with the liberals to rein in partisan gerrrymandering, perhaps that would improve the views of the Court by seeing a cross-party coalition reining in something seen as a major problem by both Democrats and Republicans.