The justices ruled that the plaintiffs in Gill v. Whitford didn’t establish standing, but sent it back for reargument, but Wisconsin attorneys including Misha Tseytlin (Solicitor General) and Erin E. Murphy (for Wisconsin State Senate) found themselves grilled throughout oral arguments in the partisan gerrymandering case heard by the Supreme Court, and which may have far-reaching implications for how states across the country approach “redistricting” in the future, regardless of the Supreme Court’s punt.
Several justices hit the Wisconsin legal team with questions which seemed to telegraph that a majority of the court was ready to impose constitutional limits on redistricting for purely political reasons. The ugly practice of redrawing districts to gain political advantage is not new. If you’ve ever watched election returns and noticed that a particular state’s districts appear to be a battle of Picasso-drawn salad forks, ten or so miniature Rhode Islands, and the rest appear to be of such bizarre geometry, you struggle to name shapes… you can be certain that considerable gerrymandering has gone down.
The barrage of academic and otherwise abstract questions launched at the attorney’s arguing for Wisconsin’s right gerrymander (to be clear, that is not the official case representation; only the reality) by Justice Kennedy and others were anticlimactic when compared to the moment that Justice Sonia Sotomayor asked a very simple inquiry that cut right to the heart of the matter. She asked: “Could you tell me what the value is to democracy from political gerrymandering? How does that help our system of government?”
This is pure Sotomayor. She doesn’t get lost in a sea of constitutional technicality or pedantry. Sotomayor does not labor the court by asking questions that read more like reflective monologues than attempts to extract information. Justice Sotomayor’s simplistic style has been criticized in the past by those who find her style, well, a little too simplistic. But her Gestalt view makes her effective. On Tuesday, Erin E. Murphy, the attorney representing Wisconsin’s State Senate, had no good answer for Sotomayor’s direct question about citing any democratic benefit to political gerrymandering. Murphy replied, “I don’t think that … districting for partisan advantage has no positive values. She added, “I would point you to, for instance, Justice Breyer’s dissenting opinion in [2004’s Vieth v. Jubelirer] which has an extensive discussion of how it can actually do good things for our system to have districts drawn in a way that makes it easier for voters to understand who … the legislature is. It produces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power.”
Sotomayor responded, “I really don’t understand what that means.”
Let’s be absolutely clear. Sonia Sotomayor was not confused about the jurisprudence or any precedent. What Sonia Sotomayor was really saying should be read more as a compassionate attempt which would have allowed Murphy to restate Wisconsin’s position in a way that seemed far less cynical, and far less word-salad. If you’re a lawyer representing a state senate in a constitutional manner and you’ve given a wordy response only to be told that that your answer was not understood by a Supreme Court Justice — this should not be counted as a victory — particularly when your answer included citation of a prior dissenting opinion of the very case of which your state is accused of violating the majority opinion.