A constitutional wrong to which there is no remedy? For decades the Supreme Court has held severe partisan gerrymandering to be a violation of equal protection, but for just as long it has proved unwilling to convert that holding into any sort of solid remedy. In last year’s Cato Supreme Court Review I described the resulting situation as the “ghost ship of gerrymandering law,” drifting on as precedent, yet abandoned by a majority crew.
Today in Rucho v. Common Cause and Lamone v. Benisek Chief Justice Roberts as expected recruited the votes of newcomers Neil Gorsuch and Brett Kavanaugh for the position identified with Justices Sandra Day O’Connor and Antonin Scalia that gerrymandering is a political question to which the Constitution provides no judicial remedy.
If partisan gerrymandering is a substantial evil worth fighting – and I believe it is – we should now get serious about finding that remedy through other means….