Justice Kavanaugh Strangely Hostile To Disenfranchisement ... Of Republicans

Is it actually possible that Kavanaugh would vote to overturn partisan gerrymandering? Nah.

(Image via Getty)

Ed. note: Please welcome Elizabeth Dye to our pages. She will be writing about the intersection of law and politics.

Where you stand is where you sit. And ever since he was a wee laxbro drinking beers in Saint Michael’s with PJ and Squi, Justice Brett Kavanaugh has been sitting in the State of Maryland. Which goes a long way to explaining his strange behavior last Tuesday in the Maryland gerrymandering case Lamone v. Benisek, where Kavanaugh was openly hostile to Maryland Solicitor General Steven Sullivan’s argument and even wondered, “Why can’t the Constitution be interpreted to require something close to proportional representation[?]”  

Is it actually possible that Kavanaugh would vote to overturn partisan gerrymandering, when Justice Kennedy couldn’t bring himself to pull the trigger in Gill v. Whitford? Surely not. But at the same time… that was weird.

During oral argument regarding North Carolina’s gerrymander, which allows Republicans to reliably hold nine or 10 of the state’s 13 House seats while receiving only half the votes, Justice Kavanaugh wondered why proportional representation is “not a judicially manageable standard.” But he seemed amenable to Justice Gorsuch’s suggestion that the states would work it out somehow, perhaps by adding a pinch of turmeric to a referendum. But in the Maryland case, Kavanaugh came alive. Maybe he felt less personally affronted by a district rigged to favor the GOP. Or maybe the Justice was simply unable to wrap his mind around the maps. How many of us really understand the geography and demographics of a congressional district several states away? It might as well be Narnia!

But if you grew up in Maryland, if you’ve lived here all your life, you don’t need a dozen amicus briefs to explain why Sullivan’s argument is funkier than a glass of Bay water. You know darn well that after the 2010 Census, Governor Martin O’Malley told his guys to get rid of that Tea Party fossil Roscoe G. Bartlett in the 6th District, and so they parceled off great chunks of the Democratic D.C. suburbs to districts in the western and northern parts of the state. Justice Kavanaugh, a resident of Chevy Chase, Maryland, knows that he can cast his vote for whichever doomed Republican he likes, and unless the Democrats really screw up, it won’t make a bit of difference.

He knows it, and I know it. Because I live here.

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That would be MD-03, perhaps the least compact district in America. And while I think my Congressman John Sarbanes is terrific, this is clearly no way to run a country. I live in Baltimore, where I write about law and politics for Wonkette — and now for ATL. So I know what Justice Kavanaugh means when he says:

I mean, the crossing the bay thing is not very persuasive, given all the evidence that this was just seven/one. And, you — you know, you’ve got Easton grouped in with Carroll County, Talbot County, Wicomico County grouped in with west of Baltimore. That’s just — as opposed to just crossing the bay, when everyone’s saying we want seven/one. I don’t — I just don’t know.

He means, “Cut the crap. You didn’t redraw the districts to avoid crossing the Chesapeake Bay. You did it to make sure that the Maryland Congressional delegation would be seven Democrats and Andy Harris, from here to eternity.” And he’s absolutely right. (He’s also right that those CAY-O-knees are pronounced CARE-uhl, TALL-bit, and Why-CAHM-ick-o. It’s the law, hon.)

And while my politics are far to the left of Kavanaugh’s, I understand that living in a functionally one-party blue state isn’t exactly a panacea. For instance, my city seems to have lost another mayor this week. It happens. On the regular.

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So I was delighted to see Kavanaugh ask the Republican plaintiffs’ attorney, “Equal Protection Clause does not suggest to you something where political groups are treated roughly equally?” Really? A Trump appointee is so offended at being a political un-person that he thinks partisan gerrymandering violates the 14th Amendment? I would be thrilled to give Maryland’s rural counties back a couple of Republican representatives if North Carolina, Texas, and Wisconsin were also forced to start playing fair, too.

And if Justice Kavanaugh is willing to find prima facie evidence of illegal partisan intent in the fact that Maryland Democrats take two-thirds of the votes but wind up with seven out of eight Congressional seats, that is fine by me.

That’s to justify it, but it would be a problem? The seven/one is a problem. The five/three almost certainly not a problem. Which I think has got to be right.

Indeed, your Honor!

Even Chief Justice Roberts got in on the action.

CHIEF JUSTICE ROBERTS: Well, you say we haven’t done it in the past, but we’re being asked to do a lot of things we haven’t done in the past, and — and it’s because there’s been a change in how redistricting has been done. And I guess I don’t understand. I mean, if you have, I don’t know, any other kind of state employee and you don’t like her exercise of First Amendment rights, and you fire her, there — there’s pretty well established analysis for approaching that case. And I don’t know why the same wouldn’t reply — apply here.

Nothing like throwing your vote away in D.C. and Chevy Chase for 30 years in a row to make it clear that vote suppression based on party affiliation is a First Amendment issue!

As a resident of a city of 600,000 which routinely cracks 300 murders a year, I am hardly a naive Pollyanna. It’s entirely likely that the Court will give its blessing to partisan gerrymandering and states are on their own to fix this problem. Or perhaps they’ll find a reason to punt again based on standing. They might even uphold North Carolina’s Congressional districts while striking down Maryland’s — the devil buys souls at a hefty clip! But there is at least a chance that Justices Kavanaugh and Kagan could work out a judicial standard to strike down partisan gerrymanders which go too far — whatever that means. In any event, I look forward to writing about this case and the rest of the federal judiciary for you at ATL.


Elizabeth Dye lives in Baltimore where she writes about law and politics.