Two cases before the Supreme Court Tuesday could yield rulings where the replacement of Justice Anthony Kennedy by Justice Brett Kavanaugh is acutely felt.
The cases are related to partisan gerrymandering. Kavanaugh, the court’s newest member and former judge on the federal appeals court in the District of Columbia, has yet to confront partisanship in the redistricting process, leaving his view shrouded in mystery.
“We don’t really have a good track record to draw on, and it’s a bit of a mystery going into this how some of the most conservative justices are going to view gerrymandering at this point,” Campaign Legal Center Vice President Paul Smith said.
But the key to earning Kavanaugh’s vote could be conservative Chief Justice John Roberts, whose lead Kavanaugh appears to be following.
“If it turns out one or more of the plaintiff groups here have found a way to appeal to Chief Justice Roberts, I think it would be very possible to get Kavanaugh as well,” Smith said.
Partisan gerrymandering opponents had looked to Kennedy as the swing vote, as he previously suggested a voting map may be so infected with politics it is unconstitutional. But the composition of the court changed after Kennedy’s retirement last year, and his replacement by Kavanaugh shifted the Supreme Court rightward. Conservatives tend to think the courts should not have a role in deciding how states draw districts.
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The justices will hear arguments in cases involving congressional districts in North Carolina and Maryland, which lower courts struck down as unconstitutional because of an excessive injection of politics.
The cases raise the question of whether extreme partisan gerrymandering runs afoul of the Constitution, which was posed to the justices last term. But the court issued technical rulings in challenges to voting maps from Maryland — before the court again Tuesday — and Wisconsin.
Kavanaugh hasn’t ruled on any redistricting cases so his views on the issue are unknown, and while he clerked for Kennedy on the Supreme Court, he is “his own man, he’s his own justice, he has his own views,” Loyola Law School professor Justin Levitt said.
“I think he shares Justice Kennedy’s concerns and the concern of a lot of the justices with the use of state power to punish people for what they believe,” Levitt said. “There’s only one person who knows how far that principle will carry, and I’m not him. But I wouldn’t be surprised to see Kavanaugh, like the other justices on the court, really putting the questions for the advocates for the states about whether this is constitutionally acceptable.”
The challenge to Maryland’s 6th Congressional District was brought by GOP voters who say the state’s Democrats retaliated against them for their support of Republicans in violation of the First Amendment.
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The district had been held for two decades by GOP Rep. Roscoe Bartlett. But since 2012, it’s been held by a Democrat.
The Supreme Court heard the Maryland case last term but sent it back to the lower court. In November, a three-judge panel ruled the map was unconstitutional and ordered the state the draw new lines.
The North Carolina case, meanwhile, involves the state’s full congressional map. A three-judge panel found the state legislature violated the Constitution when it drew the voting lines as they were intentionally drawn to undercut Democrats’ chances of getting elected.
The judges noted one North Carolina state lawmaker, GOP Rep. David Lewis, explicitly stated in 2016 the districts were drawn with politics in mind.
“I think electing Republicans is better than electing Democrats,” Lewis said. “So I drew this map to help foster what I think is better for the country.”
In 2016, Republicans won 10 of North Carolina’s 13 congressional districts, though GOP candidates won just 53 percent of the statewide vote.
The Supreme Court has never invalidated a voting map as an unconstitutional partisan gerrymander, but experts believe the extremity of these cases provides the justices with ample opportunity to address the issue.
“The politicians made abundantly clear what their objectives were,” Tom Wolf, a redistricting expert at the Brennan Center for Justice, said of the lawmakers in North Carolina and Maryland.
The evidence demonstrating the mapmakers’ intent, he said, could also mean there is “broader swing potential” from justices other than Kavanaugh, such as Roberts and Justice Samuel Alito.
[Also read: McConnell trashes Democrats for ‘running roughshod’ over state elections]
