Steven K. Fedder: On this Law Day, thoughts on gerrymandering

In high school, we were taught there were three separate but equal branches of government. But in practice, separation of powers, this year’s theme for the American Bar Association’s Law Day (celebrated each year May 1), has been more of an ephemeral goal than reality.

In its most simple terms, under the Constitution, Congress is empowered to make the laws (Article I); the Executive Branch to enforce the laws enacted by Congress (Article II); and the Judicial Branch to interpret the laws enacted by Congress and signed into law by the president (Article III).  In practice, the checks and balances contemplated by the founders have been substantially eroded.

Article III of the Constitution provides for the establishment of the Supreme Court but left it to Congress to create lower federal courts. Immediately after ratification, Congress enacted the All Writs Act of 1789, which authorizes federal courts to issue writs of mandamus to compel the executive branch to perform duties prescribed by law. In 1803, a unanimous Supreme Court held, in Marbury v. Madison, the court could not compel the issuance of a commission to William Marbury announced by outgoing President John Adams. In so doing, it held for the first time it could declare acts of Congress to be unconstitutional and unenforceable, thus establishing the principle of judicial review.

Equally important to the doctrine of separation of powers is the concept of federalism, embodied in the 10th Amendment to the Constitution, ratified in 1791. The text of the amendment is short: “The powers not delegated to the United States by the Constitution, nor prohibited by it (the Constitution) to the States, are reserved to the States respectively, or to the people.”

The federal judiciary now appears to be willing to assert its power over state legislative decisions, at least insofar as it deems it necessary to protect the right to equal protection and the right to assembly. In most states, congressional districts are drawn by the state legislature and are nearly always drawn on partisan lines. Under the principles of separation of powers and federalism, one would be excused for believing the drawing of congressional districts by the states’ legislatures are not the province of the Supreme Court. But indeed, the court has begun to assert itself into cases involving challenges to partisan gerrymandering.

The court has had little difficulty in ruling that gerrymandering along racial lines is unconstitutional. For example, last year, in Cooper v. Harris, a majority made up of Justices Elena Kagan, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Clarence Thomas (no, that’s not a typo) held two North Carolina congressional districts were unconstitutionally gerrymandered along racial lines. The districts were redrawn by the Republican legislature in 2011 as part of a nationwide effort after the 2010 wave election to solidify Republican control of state legislatures and Congress.

Earlier, in 2004, writing for the plurality in Veith v. Jubelirer, Justice Antonin Scalia wrote “political gerrymandering claims are nonjusticiable because no judicially discernible and management standards for adjudicating such claims exist.” The opinion was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Thomas.

Justice Anthony Kennedy filed a concurring opinion in which he agreed with the result but concluded the possibility of judicial relief should not be foreclosed because a satisfactory means of redress had yet to be found.

“Our willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims makes it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering,” Kennedy wrote.

There are now two cases before the Supreme Court in which it has granted review of political gerrymandering cases, involving Wisconsin and Maryland. Other than Thomas, all of the justices in the plurality are gone. Kennedy and Justice, who dissented, remain on the court. No one can predict how Chief Justice John Roberts and Justices Samuel Alito, Kagan, Sotomayor, Ginsburg or Neil Gorsuch will come down. Nor can the court’s decision not to intervene when the Pennsylvania Supreme Court struck down that state’s partisan gerrymandering as violative of the Pennsylvania Constitution be seen as an indication of where the court is leaning.

One thing is certain: if the court rules that either Wisconsin or Maryland’s political gerrymandering is unconstitutional, elections will be fairer and less prone to partisan manipulation.

Steven K. Fedder of Fedder & Janofsky LLC is a trial lawyer who practices in state and federal courts and can be reached at [email protected].