I’m a constitutional law professor by trade. In our small world, lots of folks were disappointed by the U.S. Supreme Court’s decision in Rucho v. Common Cause. But none were surprised. If Anthony Kennedy had remained on the court, Common Cause likely would have prevailed. Rep. David Lewis and his buddies had finally painted him into a corner. But when Kennedy left, so did Common Cause’s chances.
All Brett Kavanaugh’s talk about being an “umpire” and “neutral arbiter” was no more truthful than his denials of sexual assault. He’s an ideologue, top to bottom. Ever was it so. And John Roberts, when push comes to shove, is Republican first and judge second. (Yes, even in the Affordable Care Act case.)
Chief Justice Roberts wrote that “excessive partisanship” like North Carolina’s was “incompatible with democratic principles.” But the federal courts cannot provide relief — jurisdiction being barred by the arcane political question doctrine. Those seeking redress should, Roberts said absurdly, turn to the Congress or the state legislatures. “Talk your tormenters into letting up,” seemed to be the message. Marbury v. Madison was apparently wrong to say “the very essence of civil liberty” is that for every right there is a remedy.
Rep. David Lewis, the Harnett County Republican who had shocked the national press by announcing he’d cheated as hard as he possibly could when crafting the districts, said the Rucho decision was “a complete vindication of our state.” (Lewis has an odd tendency to confuse himself with the people of North Carolina). But, of course, Roberts had said nothing of the kind. Both Lewis and former Sen. Bob Rucho also claimed the N.C. Supreme Court now had to fall into line with the Roberts ruling. That’s untrue, too. The political question doctrine limits the federal courts, not state ones. Our high court is free to enforce the state constitution.
But Lewis’ exuberance was understandable. Roberts had delivered. Gerrymanders can run free. It brought to mind former Sen. Tom Apodaca’s excitement when Roberts wrote the Shelby County opinion gutting the Voting Rights Act. “So, now we can go with the full bill,” Apodaca told his fellow suppressors as they expanded the voter ID law. Get out your tools of “surgical precision.”
And the chief justice didn’t exactly shoot straight. It is tough, to be sure, to develop a political gerrymandering “standard that is judicially discernible and manageable.” But the unruly (and non-existent) nature of the rules produced in Citizens United (corporate cash) and D.C. v. Heller (guns) gave Roberts no similar pause. And he had to re-invent the political question doctrine in Rucho itself. There was no “textually demonstrable” federal constitutional commitment in sight. The jurisdictional bar had always required one before. But Roberts changes the rules when he needs to — in service of the cause. Guns and dollars count. Democracy, not so much.
John Roberts is a clever and sophisticated Republican jurist. The country-club type. I doubt he thinks of himself as soul mate to the nation’s most hard-edged and brutal right-wingers, like Lewis, Rucho, Senate leader Phil Berger and House Speaker Tim Moore. But, in truth, there’s no space between them. Roberts aids and abets the darkest corners of the Republican Party. You can’t have the North Carolina General Assembly without gentleman John. It doesn’t work just to have the fire-breathers. Roberts has to be there to provide the patina of law and reasoned constitutional judgment — even when they have nothing to do with the matter. Especially when they have nothing to do with the matter. Roberts answered the call. Few doubted he would.
Contributing columnist Gene Nichol is the Boyd Tinsley Distinguished Professor of Law at the University of North Carolina.