As the Lone Star State’s districting debacle drags into extra innings — and maybe to the courts — feature some insights by America’s top legal umpire, Chief Justice Roberts. The chief told the senators at his confirmation that “judges are not politicians.” He allowed that “it’s my job to call balls and strikes.” He hasn’t yet weighed in on Texas’s tumult. Yet his opinion in a districting case in 2020 suggests that he envisions the key role for Congress in gerrymandering feuds.
It’s not the first time that these columns have traced the chief justice’s occasional forays into the political fray. These included, most recently, his scolding of President Trump after the commander in chief mooted impeaching a “radical left lunatic” judge. Plus, too, the chief’s apparent attempt to broker a high-court compromise to salvage the Roe v. Wade precedent suggested that he was, we’ve said, “Washington’s least-heeded political strategist.”
The political arena is not the chief justice’s home field, as it were. Yet no one can doubt the chief’s constitutional bona-fides — nor his grasp of the deep currents of American history. The chief justice, after all, will soon mark the 20th anniversary of his accession to the high bench. He had considered a career as a historian. All of which makes the chief justice’s words in the gerrymander case, Rucho v. Common Cause, ones to weigh amid today’s debate.
The case reached the Nine amid gripes about partisan district maps in two states. Maryland’s map gave short shrift to the GOP, while North Carolina’s map was seen to discriminate against Democrats. Writing for a majority of five in Rucho, Chief Justice Roberts notes concerns about gerrymandering. He reckons that “excessive partisanship in districting leads to results that reasonably seem unjust.” Yet it is not an issue for federal courts, he writes in Rucho.
Gerrymandering is an issue for Congress to address, Chief Justice Roberts reckons. He points in Rucho to the Framers having “addressed the election of Representatives to Congress in the Elections Clause.” In Article I of the Constitution, state legislatures are assigned the power to set the “Times, Places and Manner of holding Elections” to Congress. Plus, also, the chief says, the Congress in turn has power to “make or alter” these state policies.
During the Constitutional Convention, the chief writes in Rucho, some Framers “opposed to such congressional oversight moved to strike” that power from Congress. Yet “Madison came to its defense,” the chief relates. In words that could echo at Austin, Albany, and Sacramento today, Madison warned that “State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local coveniency or prejudices.”
Chief Justice Roberts says that Madison cautioned, too, that “State Legislatures,” to foster “a favorite measure,” might “take care so to mould their regulations as to favor the candidates they wished to succeed.” Hence the grant to Congress of “revisionary power,” the chief justice writes. Federalists, in ratification debates, pitched this as necessary “to counter state legislatures set on undermining fair representation, including through malapportionment,” he says.
Congress used to wield this power to bar gerrymanders, the chief explains. The Apportionment Act of 1842, he writes, “required single-member districts” that were to be “composed of contiguous territory.” An apportionment law in 1911 ordained “districts composed of a contiguous and compact territory.” Yet in 1929 this requirement was removed, the Congressional Research Service reports, opening the door to convoluted and partisan maps.
Chief Justice Roberts, at his confirmation hearings two decades ago, assured the senators that judges are meant to be impartial umpires, “not to pitch or bat.” Yet as the wrangling over partisan redistricting intensifies, it could be said that the chief justice has, in a manner of speaking, already in Rucho lobbed to Congress what baseball aficionados know as a meatball. The question at the moment is where is Congress?
(Except for the headline, this story has not been edited by PostX News and is published from a syndicated feed.)
