Courts

Unanimous Punt On Gerrymandering Illustrates The Decline Of Our Nation

We don't fix anything in Late Republic America

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It’s always somebody else’s fault. It’s always somebody else’s responsibility to fix problems. The hidden intellectual bankruptcy of the much heralded “do your job” philosophy is that nobody thinks it’s actually their “job” to make things better.

President Donald Trump is the ultimate example of a person who blames others for all of his problems. He is genetically incapable of accepting personal responsibility, his weakness is only highlighted by the fact that he happens to be the most powerful man in the country. But he is far from alone. Congress has abdicated its responsibility to govern for nearly a decade, blaming the other party or other branches of government. During the Facebook hearings on Capitol Hill, a Senator from Alaska actually begged Mark Zuckerberg to not fool him, because he was too weak and stupid to stand up to Facebook if they tried to influence him. Congress is a pathetic joke.

But the rot goes deeper. The media reprints obvious lies and calls it “journalism.” It suffers extended bouts of false-equivalency reporting under the guise of “balance.” It’s up to the reader to tease out the “truth” — the media is just here to report facts, even “facts” that are demonstrably untrue. Don’t blame the media, says the gaggle of White House reporters who regularly yuck it up with a woman, Sarah Huckabee Sanders, whose sole job is to lie to them and belittle them. Blame “the people” for not demanding better journalism.

Yeah, right, let’s talk about “the people.” We as a people are poorly educated, easily manipulated, and generally apathetic. There’s been so much focus on whether Trump colluded with the Russian government, we’ve kind of missed the fact that Russia was able to influence our election because we are weak and dumb. They knew we were racist, and fed racist tropes right to all those “economically aggrieved” whites. The knew we were dumb, just dumb enough to believe anything we read on the internet. The knew we have a cloying, desperate need for social acceptance, and flooded our networks with bots dressed to look like friends. Hot friends. It wouldn’t have worked on an educated, or even functionally literate, people. We fell for it so hard we’re now a country that kidnaps children and denies entry to refugees based on their religion.

And what do we do about the kidnappings and bigotry? Nothing. All those people in Texas have all those guns, and ain’t one of them storming the child concentration camps. What do we do about election interference? Nothing. Donald Trump lost by two million votes, but 100 million eligible people didn’t vote at all. And since 2018 isn’t a presidential election year, even fewer people will vote. Gross. The Alien Xenomorph could run for office, and half the people would say “there’s NO DIFFERENCE between the candidates.” They’d leave it to somebody else to stop the invasion.

It should therefore come as no surprise that the Supreme Court is just as susceptible to this weakness. Yes, they are smarter and less accountable than any other branch of government or American institution. But they’re still part of this nation and, as such, our national culture of “not my problem” has infected their deliberations too.

Today, the Supreme Court had a chance to fix the problem of gerrymandering. They declined. The kicked the case back down to the lower courts on standing. Now, as a person with legal training I am contractually obligated to say that standing, while unsatisfying, is a legitimate issue on which to dismiss or remand a case. We have rules on who can sue who, or what, and in our already litigious society, these rules are important. The courts are not here to issue theoretical opinions on the philosophy of law. They’re here to deal with actual cases or controversies. Standing rules preserve that essential character of our courts.

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There are entirely good reasons for a court to kick a case on standing, and boy was this NOT one of them. Chief Justice John Roberts, in a judgement joined in part by everybody, decided that the plaintiffs challenging gerrymandered districts in Wisconsin erred because they challenged the whole map of the state of Wisconsin. Instead, the Court argued that the could only challenge individual districts, and to do that, they had to show that they lived in a district that was adversely impacted by gerrymandering. Hence, no standing, but the case will go back to a lower court to determine if the challengers live in a screwed up district.

That’s like arguing that a bird has no interest in the tree, and can only argue for the preservation of her particular branch.

This is not a careful preservation of order through the smart application of standing rules. This is a punt. If you don’t follow American football, a “punt” is best understood as: willfully abdicating your chance to advance the ball in hopes that the other team fails so spectacularly that your job eventually becomes easier or irrelevant. The Supreme Court couldn’t agree that gerrymandering was a problem that they were empowered to solve, so they cowered under their robes in hopes that somebody else would figure it out.

The opinion here reminds me of Jill Stein voters. Instead of making a decision, the Court made a statement. And that statement was “we don’t like our choices so we’re going to do something stupid and wait and see what happens.”

What’s particularly annoying is that you’re going to be able find both conservatives AND progressives today who argue that this decision is great. Conservatives will be happy because now there is no chance that most of their pro-Republican maps will be redrawn before the midterm elections. When you’re running a whites-only government, you need these kinds of court victories. But progressives will argue that this is the best we can hope for. Since Mitch McConnell — who has taken doing nothing to an existential state of practiced obstinacy — stole a Supreme Court seat for Republicans, liberals simply didn’t have the votes to do any better. Not without Anthony Kennedy who is, at heart, a Republican who wants Republicans to win elections. Kagan wrote separately to basically say that gerrymandering is freaking terrible, but she didn’t have the votes. Punting, progressives will tell you, is preferable to SCOTUS spiking the football through the heart of the electoral reform movement.

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They’re not wrong, but their argument is still unsatisfying. Gerrymandering has always been an anti-democratic way for legislators to pick their constituents, instead of allowing constituents to pick their representatives. It can be used for “good” — to the extent that you think creating majority-minority districts is in fact a social good that allows for more equal representation. It can be used for “bad” — if you think that breaking apart communities so to create “safe” districts for one party or another leads to more extreme candidates and disenfranchises huge swaths of voters.

And it’s worse now than ever before. The modern problem with gerrymandering is its devastating effectiveness. Computer modeling, tied with “big data,” allows map-makers to draw districts with far greater precision, all but guaranteeing their preferred outcomes over time.

As is so often the case, science created this problem, and science can now fix it. The plan offered in Gill v. Whitford was a straightforward mathematical solution for map making. I know lawyers don’t like math, but the solution here is relatively simple. Identify districts that are overly skewed, and fix them. It’s geometry, not rocket science.

But again, fixing things is not what we do. We bitch and moan and deflect responsibility. We blame others (I blame white people). We don’t have the sustained will or common education to improve our republic.

We are in decline. Really the only questions left involve whether we will flame out in spectacular violence, or fade away, gently submerged under our own bullshit.

Gill v. Whitford [Supreme Court]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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