The Supreme Court does not “serve one party or one interest.” Thus spoke Chief Justice John Roberts Jr. at the outset of the 2018-19 term. This week, in one of the final decisions of the term, Roberts put the Court’s seal of approval on the kind of computer-assisted gerrymandering used by the Republican Party to win five out of eight Wisconsin seats in the U.S. House of Representatives with the backing of about 47 percent of the state’s electorate.
Roberts wasn’t defending such practices as right or fair, he insisted; he was merely declaring his inability to find a rationale for the federal judiciary to get involved. Since the Founders had not believed in totally unfettered democracy, state legislatures can undermine democracy as much as they please — there you have the gist of Roberts’ opinion.
Dissenting Justice Elaine Kagan summed it up like so: “In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights — in the face of escalating partisan manipulation whose compatibility with this nation’s values and law no one defends — the majority declines to provide any remedy. For the first time in this nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.”
Alas, there were precedents. This is the same body that equates money with speech and now requires proof of an explicit written or spoken agreement to trade Favor A for Payment B in order to find a public official guilty of bribery or corruption. And let us not forget the 1996 case in which the Court ruled that it was perfectly OK for a state to deny a ballot line to a Third Party choosing to endorse a major-party candidate. “The State’s strong interest in the stability of its political systems… does permit the State to enact reasonable election regulations that may, in practice, favor the traditional two party system,” wrote Justice William Rehnquist in that case.
The founders, whose motives are often hailed as paramount by today’s conservative justices, hoped to steer America clear of political parties entirely. Now we have the Court validating laws that not only favor one party over another but maintain a two-party lock on most U.S. elections.
That 1996 decision, by the way, kept the Working Families Party from setting up shop in Florida and endorsing Al Gore in 2000, which likely would have added – let us say — at least another 538 votes to his statewide tally. In other words, the Court with its earlier ruling had made the election close enough that it could then hand the presidency to George W. Bush by curtailing the recount that was threatening to take it away from him.