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Elena Kagan Destroys Conservative Bloc’s Arguments In Partisan Gerrymandering Case

The United States Supreme Court, delivering a blow to reformists across the country, declared that federal courts have no right to intervene on disputes when it comes to the possibility that state legislatures may have drawn political maps to promote the majority parties in charge of them.

Photo by Paul Morigi/Getty Images for FORTUNE

The 5-4 decision was split strictly down partisan lines, as all five members of the conservative bloc of justices voted in favor of dismissing claims of partisan redistricting, or “gerrymandering,” in the federal court system, the New York Times reported.

Chief Justice John Roberts, who wrote the opinion of the Court, was joined by Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas.

“There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral,” Roberts wrote in his opinion, per the Supreme Court’s official electronic release of it on its website. “Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal courts.”

Justice Elena Kagan wrote a blistering dissent of Roberts’s opinion, being joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” Kagan began. “And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.”

Partisan map-drawers in recent years have “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people,” she added.

Kagan disagreed strongly with Roberts’s contention that the Supreme Court and lower federal courts had no basis to hear complaints from citizens and activist organizations that proved maps were drawn nefariously.

Checking state governments’ powers to draw political maps “is not beyond the courts,” Kagan wrote, and the standards created by lower courts to determine if partisanship was a problem “satisfy the majority’s own benchmarks” for creating a way to determine what is an overly partisan gerrymander.

Kagan pointed out that “partisan gerrymandering can make [democratic governance] meaningless, and can amount “to ‘rigging elections.'”

She also noted that the majority opinion acknowledged the problems with partisan gerrymandering, but went along with it anyway. “I think it important to underscore that fact: The majority disputes none of what I have said…about how gerrymanders undermine democracy,” Kagan wrote.

Partisan gerrymandering “subverts democracy” and “violates individuals’ constitutional rights as well,” she added.

Kagan concluded by stating that this was the absolute worst time for a majority of justices on the Supreme Court to decide it shouldn’t intervene.

“Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government,” Kagan insisted. “Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”



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