Court Upholds GOP Redistricting in Pennsylvania
By Charles Lane
April 29, 2004
A deeply divided Supreme Court yesterday upheld a
redistricting plan that sought to give the Republican Party an
edge in races for Pennsylvania's 19 congressional seats but
refused to close the door on court challenges to such
"partisan gerrymandering" in future cases.
A five-justice majority ruled that there is no objective way
to determine whether the 2002 Pennsylvania redistricting plan,
which a Republican-dominated state legislature devised and
which produced GOP victories in 12 of the 19 districts, was so
unduly influenced by politics that it denied Democrats their
constitutional right of equal treatment under state law. As a
result, the majority said, the court must bow out.
The Pennsylvania case had drawn the attention of politicians
nationwide because it arose at a time of intense partisan
debate over post-2000 Census redistricting plans in several
states, including Texas -- where Democratic legislators
temporarily fled the state in an ultimately failed attempt to
block the Republican-controlled legislature from drawing new
congressional districts that create a GOP-majority state
delegation in the U.S. House. Appeals of Texas's new districts
No "judicially manageable standards for adjudicating
political gerrymandering claims have emerged," Justice
Antonin Scalia wrote in an opinion that was joined by Chief
Justice William H. Rehnquist and Justices Sandra Day O'Connor
and Clarence Thomas. Though a decision by the court in 1986
opened the door to court challenges against alleged partisan
gerrymandering, Scalia wrote, the past 18 years of experience,
in which no court has upheld such a challenge, shows that
"political gerrymandering claims are nonjusticiable and
that [the 1986 decision] was wrongly decided."
The fifth member of the majority, Justice Anthony M. Kennedy,
agreed with Scalia that the Pennsylvania Democrats, who noted
that the state now has a Republican-majority House delegation
even though Democrats got most of the statewide vote for
Congress, had failed to show how a court could decide that
they had been the victims of unconstitutional gerrymandering.
But he said that did not mean a court could never figure out
how much political gerrymandering is too much, and he refused
to overrule the 1986 decision.
"I would not foreclose all possibility of judicial relief
if some limited and precise rationale were found to correct an
established violation of the Constitution in some
redistricting cases," he wrote.
Justices John Paul Stevens, David H. Souter, Ruth Bader
Ginsburg and Stephen G. Breyer dissented, offering their views
of how courts could formulate intelligible definitions of
excessively partisan redistricting.
In his opinion, Stevens emphasized that, together with
Kennedy, the dissenters formed a five-vote majority for the
proposition that "political gerrymandering claims are
justiciable," at least in theory.
He criticized Scalia for what he called "a failure of
judicial will to condemn even the most blatant violations of a
state legislature's fundamental duty to govern
Sixty-one Democratic Texas state representatives and five
Democratic members of the U.S. House filed a
friend-of-the-court brief noting that advances in computer
technology have greatly enhanced the capabilities of would-be
partisan redistricters, and urging the court to rein in what
they called "an increasingly bare-knuckled and irregular
Other critics of the current redistricting process, such as
the Brennan Center for Justice at New York University Law
School and the American Civil Liberties Union, which also
filed briefs in the case, charge that both parties are using
computer-aided redistricting to entrench incumbent House
But yesterday's outcome, which left future lawsuits against
political gerrymanders hanging on the theoretical possibility
of winning Kennedy's vote, seemed to signal a shift of the
debate from the courts to the political process.
"With the courts out of the picture, it is up to citizens
and legislators to fix a redistricting process that in too
many states has corroded democracy rather than serving
it," Tom Gerety, executive director of the Brennan
Center, said in a statement.
"The political gerrymandering claim is not legally dead,
but it's on permanent life support," said Michael Carvin
of the law firm Jones Day, who has represented Republicans in
numerous redistricting cases. "There's no real-world
theory [of redistricting that is unconstitutionally partisan]
that this majority is going to accept. They are
extraordinarily skeptical that any kind of political
redistricting would violate the constitution."
But Sam Hirsch, who represented the Democratic plaintiffs in
the Pennsylvania case, said that "the search for a
standard goes on, but partisan gerrymanders remain subject to
judicial attack. Today's decision is a warning shot to
legislators who care more about partisan greed than democracy
and majority rule."
The case is Vieth v. Jubelirer, No. 02-1580.