Rucho v. Common Cause

The hosts reflect on the Amy Coney Barrett confirmation hearings, then move on to discussing gerrymandering, the practice of drawing up voting districts to favor a particular political party. Specifically, they talk about Rucho v. Common Cause, a 2019 case in which the Supreme Court not only refused to rule on two states’ gerrymandered maps, they found all partisan gerrymandering to be outside the purview of the Court going forward.

A podcast where we dissect and analyze the Supreme Court cases that have sapped oxygen from America's bloodstream like the novel virus COVID-19

00:00 [Archival]: We'll hear your argument first this morning in case 18-422 Rucho versus Common Cause.


00:07 Katya Kumkova: Hey everyone, this is Katya Kumkova, the producer of 5-4. Leon is off this week but Peter, Rhiannon, and Michael are here, and they're talking about gerrymandering, the practice of drawing voting districts to favor a particular political party. The hosts are discussing Rucho versus Common Cause, a 2019 opinion that said no courts could rule on partisan gerrymandering going forward.

00:33 [Archival]: For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

00:42 [Archival]: Whichever party gains control of state legislatures in 2020 is gonna get to set district maps for a decade, which will decide control of the US House for a decade.

00:53 Katya Kumkova: This is 5-4, a podcast about how much the Supreme Court sucks.


01:06 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have sapped oxygen from America's bloodstream like the novel coronavirus COVID-19.


01:20 Peter: I am Peter. I'm here with Michael.

01:24 Michael: Hey, everybody.

01:25 Peter: And Rhiannon.

01:27 Rhiannon: Hi, friends.

01:28 Peter: Today's episode is another in our mini-series on the various anti-democratic practices in institutions that make America so uniquely mediocre. And today, we are looking at gerrymandering, the process of dividing up congressional districts to favor a specific party. But first, we have to talk about the elephant in the room, the extremely wide-eyed elephant in the room, Amy Coney Barrett's confirmation hearing. It's been ongoing and...

02:00 Rhiannon: The mommy elephant in the room.


02:01 Peter: Oh, god. I've tried to watch portions of it.

02:04 Rhiannon: She's got kids.

02:05 Peter: Yeah, she does have kids.

02:07 Michael: Five white little scholars and two black little athletes.


02:12 Rhiannon: Yeah.


02:13 Michael: That's her description, not mine, to be clear. That's how she describes them.

02:16 Rhiannon: Yeah, yeah... She describes five as smart and two as, "Hmm, some personality."

02:21 Michael: Happy go lucky.


02:23 Rhiannon: Yeah.

02:23 Peter: Oh, god. It's been arduous. Like, if there was any part of your mind that felt like the confirmation process is meant to be an open and honest inquiry into the competency or intellectual ability of the nominee, I hope you have shed that by now. It has been several days at this point of absolutely nothing but political theater and some of the most unbelievably hollow non-answers I've ever heard.

02:51 Rhiannon: Yeah, yeah. Maybe even more egregious than usual. I mean, it is all political bullshit, it is all political theater. We expect the nominees to say stuff like, "I'm gonna respect the President," and not specify more about their jurisprudence, etcetera. But this one in particular, man, this past week. Her saying she can't answer hypotheticals? What?

03:13 Michael: Oh, god.

03:13 Peter: Yeah. Easily the most entertaining answer she gave, which was... She said she could not apply the law to a hypothetical set of facts, which is literally what like... All of legal practice is. So...


03:25 Rhiannon: Right. It's really sad really.

03:27 Peter: Pretty disconcerting that she said she couldn't do it. She dodged every substantive question, she dodged questions about Roe v. Wade, about Obamacare and Medicare, dodged questions about whether the President could delay the election, which isn't even something you need to dodge.

03:43 Rhiannon: Right.

03:44 Peter: You could just say, "No, he can't do it."

03:45 Michael: Peaceful transfer of power?

03:46 Rhiannon: Exactly. Would not say that Medicare was constitutional.

03:49 Peter: Right, right.

03:50 Rhiannon: Like, come on.

03:51 Peter: Dodged questions about whether she believes in climate change. She was like, "That's a hot button issue."


03:58 Peter: Every scientist thinks it's happening, and it's human-caused, and everyone I hang out with says the opposite so who knows?


04:06 Peter: The only thing that Democrats can really do in confirmation hearings is build enough political pressure that, at the least, Republicans who vote for her take a political hit of some kind, right? And they failed to do that primarily because they are led by Dianne Feinstein who is just a fucking blithering decrepit embodiment of everything wrong with the Democratic Party. Weak, out of touch, morally compromised, physically dying before our eyes, and worth like $65 million.

04:41 Rhiannon: That's right, yep.

04:42 Peter: She made no colorable effort to pin down Barrett on abortion or anything else. At the end of the hearings, she praised Lindsey Graham.

04:50 Rhiannon: Hugged him.

04:51 Peter: And gave him a hug, said it was one of the best hearings she's ever participated in.

04:56 Rhiannon: She's an embarrassment. This person is an embarrassment.

05:00 Michael: Right.

05:00 Peter: Oh god, retire you fucking Tales from the Crypt-looking freak.


05:05 Peter: There is some good news which is that Lindsey Graham refused to take a COVID test [chuckle] and then showed up maskless, and she just fucking hugged him.

05:13 Rhiannon: Right... Right.

05:15 Michael: Yeah.

05:15 Peter: She's 87 years old. It's not like high risk, that's just looking the Grim Reaper in the eyes and embracing him.


05:26 Michael: She's fearless man.


05:32 Michael: Something I can't stop thinking about all week, I read this little book 15 years ago called "On Bullshit" by this philosopher named Harry Frankfurt, and his idea was this, like you said, "Look, somebody who tells the truth is concerned with an objective truth in the world and they're trying to reveal it to you, and a liar is also concerned with an objective truth in the world and trying to conceal it from you, whereas a bullshitter doesn't care at all." And so bullshit can be true, it can be false, it doesn't matter, it's about changing the way someone feels, changing in appearance, and in this way, it's more of an enemy of the truth than the liar. And this hearing was like having a fucking fire hose of bullshit aimed directly at your face.

06:17 Rhiannon: Right.

06:17 Michael: It was so upsetting to watch considering what the stakes are, and the fact that Dianne Feinstein thought that it was the best hearing she's ever been a part of? I don't know, man, I can't handle it. I wanna punch my computer screen just thinking about it.

06:33 Rhiannon: Yeah, it's a disservice to the American people, to the public that they're acting like this...

06:37 Michael: Right. I guess for me, the question is, "What goal does this serve? This sort of disregard for the truth, and I think it serves many goals, but the biggest one is that it gives Republicans, it gives the government permission to do whatever it wants. Bullshit is what justifies all their awful excesses. It's what underlies all the worst Supreme Court decisions and her willingness to spew bullshit should be concerning for all of us on just what types of horrific Supreme Court decisions she's gonna be authoring.

07:10 Rhiannon: Right.

07:10 Michael: And in terms of her particularly bullshitty answers, off the top of my head, her saying, she can't imagine a legislature trying to outlaw contraception."

07:23 Peter: Right.

07:24 Rhiannon: Right.

07:24 Michael: Somebody's asking whether or not she believes that Griswold v. Connecticut, a foundational, important case about the availability of contraception to married couples and people generally, whether or not she believes it was correctly decided, and rather than answering that head-on, she tried to dodge it by saying, "Well look, I don't think that's an issue. I don't think that's something that's gonna be before the court... " and eventually she said that she doesn't think that this is something that states will be trying to do, outlaw contraception. And so it's not something she should be talking about. But for one thing, if it's not gonna be before the court then that's all the more reason why you should feel very comfortable talking about it. [chuckle] Usually, the reason to not talk about a case is well, "Well, that's pending before the court and I don't wanna pre-judge it."

08:11 Rhiannon: Right, if it's so settled, then it's not a controversy.

08:14 Michael: Right, it should be a very simple thing to talk about. But the other part is, obviously, states are constantly trying to do shit with the availability of contraception, whether it's Plan B and blurring the line between abortion and contraception, or pharmacists who reserve a religious right to deny contraception to women who have prescriptions or don't even need a prescription but want it and can't get it. These issues already exist and the idea that states won't be trying to do more and make it harder, that's a bullshit answer, top to bottom, in and out.

08:52 Peter: Yeah, the whole strategy at these things has just become, "Don't give the other side ammunition." which means, don't say anything at all. So you're in this position where everyone's asking you questions and you're just like, "What is the least information I can provide right now... And that's considered a good answer in these things?" It's just fucking worthless. We don't need these hearings.

09:12 Rhiannon: Exactly, but to me it's also like... It's more than worthless, it's concerning how little prep she had to do because it's clear that she knows she's through. So it went around Twitter that, under questioning by a Republican who was trying to give her a softball question, Senator Ben, is it Sass or Sasse?

09:33 Peter: I feel like I would know if it was Sassy.


09:36 Michael: I think that's right.


09:36 Rhiannon: Senator Sasse asked her to name the five freedoms protected by the First Amendment and okay, sure, she couldn't name all five and yeah, if you're put on the spot, you usually miss that last one, fair redress or whatever. But a Supreme Court nominee, that morning, you didn't just maybe just skim those first 10 Amendments one more time just to make sure you got that vocabulary front of mind. Do you know what I mean?

10:09 Peter: I mean, she knows that she's been on the shortlist for years. It's not just that.

10:13 Rhiannon: Exactly.

10:14 Peter: One of the big takeaways for me was just how unprepared she was on the legal questions. I don't know if it's just because she's not particularly smart, not particularly well read on that stuff. That's how it came off. She got the applicable law in Loving v. Virginia, the interracial marriage case, wrong. She characterized it as an equal protection case rather than what it actually is, which is a equal protection and a substantive due process case. It's important because substantive due process is what underlies the Roe v. Wade right to an abortion. She got the law in the Obamacare case, that's going to be before the Supreme Court, wrong. Just very fundamental things that anyone in her position should be knocking out of the park... It's bizarre.

11:00 Rhiannon: Yeah, I know. She sounds like a fucking idiot even to law students and that's a major concern because it means that she's willing to do whatever the conservatives want her to do and want her to decide, right?

11:11 Peter: Yeah. Her handmaiden told her not to prepare.

11:13 Rhiannon: That's right. [laughter]

11:16 Michael: I wanna give Senator Whitehouse a little shout out for the anti-bullshit, the opposite of bullshit and bringing something real to these hearings where he had a presentation on dark money in the law and these sort of dark money organizations where we don't know, specifically, who's behind them and who's funding them, but they are very involved in supporting judicial nominees and also in funding lawsuits or filing Friend of the Court briefs. And these organizations have, I think he said there were 80 cases in the last decade where they filed Friend of the Court briefs at the Supreme Court level and they have won all 80 of those cases. And I think something like all 80 were five to four, which is a wild thing to learn... And a bracing bit of truth into, "What's actually going on here?" And who Amy Coney Barrett's actual masters are and what all this bullshit is designed to keep from view of us? And he mentions the total price tag on this whole operation is something like $250 million, which is an insane amount of money. Some of which presumably is going towards Amy Coney Barrett's confirmation... So...

12:29 Peter: Right.

12:30 Rhiannon: Yeah, yeah, I like the sort of bird's eye view of, "Why is Amy Coney Barrett doing this? Who's behind her?" But also, "Who's paying John Roberts?"

12:37 Michael: Right.

12:38 Peter: Or, "If you are so committed to neutral principles, why does it seem that everyone funding you comes from one end of the political spectrum?"

12:46 Rhiannon: Right.

12:47 Peter: These things are sort of obvious, but they need to be highlighted in confirmation hearings.

12:51 Rhiannon: Yeah, right.

12:52 Peter: Alright, let's put a hold on this and go to a quick ad.


12:56 Peter: Alright, let's move on. Bottomline, confirmation hearings, thumbs down, not good.

13:03 Rhiannon: Yeah, zero out of five stars.

13:05 Peter: Now, we can talk about one of the various ways in which our elections are just absolutely fucked. So today we are looking at gerrymandering. Again, the process of dividing up congressional districts to favor a specific party. And to look at gerrymandering, we need to look at Rucho v. Common Cause, the 2019 Supreme Court case that essentially made it legal. In Rucho, the court held that partisan gerrymandering, meaning gerrymandering done to benefit a political party, is a political question that is beyond the power of courts to address and as a result of the court's refusal to act, many congressional districts across the country, state and federal, remain heavily gerrymandered, functionally depriving millions of people of representation that reflects their will. Great country.

14:00 Rhiannon: Very good.

14:01 Peter: As we've discussed, the Roberts court in voting rights cases, may be the court at its most right-wing. They are truly disinterested in democracy as an inherent virtue in the law, and Rucho v. Common Cause is a great example. Here, the court had the opportunity to state something that I think is pretty obvious, both the purpose and the result of gerrymandering is the dilution of the will of voters and therefore it violates the principal function of democratic systems and is unconstitutional. On top of that, it just so happens to disproportionately benefit the political party of conservative justices. And, let's get this straight up top, both parties absolutely gerrymander.

14:47 Peter: And this case purposefully included a state that was gerrymandered by Democrats. But there is no question that Republicans do it more, do it more aggressively, and currently benefit from it more than Democrats do. Obviously, strategically drawing districts is in and of itself anti-democratic. But we're gonna talk about how it fits into this broader Republican project to suppress votes, to dilute votes, to alter the weight of votes of different people depending on who they are voting for and how that bleeds into this November and every election that they could conceivably see for the course of the next decade or two. States where congressional district boundaries benefit Republicans outnumber those that favor Democrats four to one, not to mention that Republican favoring, gerrymandering is prevalent across swing states.

15:40 Rhiannon: Right.

15:41 Michael: Yeah.

15:41 Peter: This case is the court washing its hands of one of the single biggest problems in American politics. And on top of that, saying that, "No court is allowed to address the issue." This case, probably, I think in my view, reflects the most egregious abdication of the court's responsibility in modern history, and has allowed for what can only really be described as the open subversion of democracy across the country.

16:11 Michael: That's right.

16:12 Rhiannon: Yeah, so let's get some groundwork then, just kind of set, on gerrymandering, just get a lay of this gerrymandered land that we live in. Gerrymandering, like Peter said, it's the practice of manipulating the shape of voting districts in order to give an advantage to a certain group. You intentionally create voting districts with certain demographic make-ups so that you can guarantee a particular outcome in an election. And there are different types of gerrymandering. Racial gerrymandering, for example, would be segregating voting districts by race or otherwise manipulating voting districts in order to get specific racial demographic make-up in those districts for elections... Or hypothetically, you could imagine if we wanted voters over the age of 65 to be spread out more among voting districts, we could draw a map that carved those voters into various districts even if, geographically, they all, hypothetically, resided in one neighborhood or something. In the US, some forms of gerrymandering, like racial gerrymandering, that I just mentioned, are illegal. They've been held unconstitutional, because discriminating on the basis of race in voting, disfavoring voters based on their race, that's supposed to be a no-no. So...

17:28 Peter: There's a whole amendment about that one.

17:30 Rhiannon: Right, exactly. [chuckle] But what we're talking about today is partisan gerrymandering, which is the manipulation of district boundaries in order to give an advantage to a political party.

17:42 Peter: It's only coincidentally racist.


17:44 Rhiannon: Right, exactly, exactly. A helpful way for me to think about this concept and what's unfair about it is, partisan gerrymandering allows politicians to choose their voters instead of voters choosing their politicians. And like Peter said in this case, Rucho, the Supreme Court said that federal courts have nothing to say about partisan gerrymandering and the courts can't be involved in upholding or striking down any partisan gerrymandering because it's not a legal question but a political one. So let's talk about what partisan gerrymandering looks like in the US. When a state grows in population, it's entitled, obviously, to more representatives in Congress, so it gets additional congressional districts.

18:31 Rhiannon: And of course, states that don't have big growth or loss in population, they still will be drawing new district maps, because they need to reflect population movement within the state so that residents of the state have equal representation, no matter what city or county they live in. So the framers of the Constitution, they totally conceived of that kind of redistricting and they wanted to take into account population growth and movement and that kind of thing, but what ends up happening with the coalescence of political parties and technological advances is that now Democrats and Republicans are able to use this information to draw district maps where they've essentially hand-picked certain voters into and out of districts to get a desired party result. So let's take Texas for example, where I live, and what happened in Texas after the 2010 census data was collected. So from 2000 to 2010, the population of Texas swelled by more than four million people.

19:33 Rhiannon: Now, of those new residents, nearly 3 million were Hispanic and over half a million were African-American. So the Hispanic population of Texas had grown at a rate of 42% in that decade, and the African-American population had grown by 22%. So officially, that makes Texas now a majority-minority state. And at the same time, the population of white residents in Texas only grew by 4%. So it's important to note that without the growth in the minority population, Texas would not have received a single new congressional district, but its population did grow, so new congressional districts needed to be drawn. So you would expect that the vast majority of the population boom being people of color would mean that the new congressional districts would lean Democratic because people of color traditionally, historically vote much more for Democrats, but that's not what happened. What happened, because of partisan gerrymandering, is that the GOP map drawers basically just sliced and diced districts...

20:36 Peter: Map artists, they're called.


20:42 Rhiannon: Excuse me, I'm not respecting the art, yeah. And so what happened...

20:45 Michael: That's like a sandwich artist that's...

20:47 Peter: That's right, yeah, yes.

20:47 Rhiannon: Yeah, yeah, exactly.

20:48 Peter: It's the same guys too.

20:49 Rhiannon: Yeah, that's right. So they sliced and diced these districts, and what resulted is they gave Republicans a net gain of four districts, and Democrats, zero.

21:02 Peter: Fascinating. And just to give a little bit of color, in case you're wondering exactly how this works. The idea is you pack the unfavorable party voters into the minimum amount of districts that you can, right? So if Democrats are all clustered in one city, you give them that one district, and then you draw the rest so that the largely suburban and rural areas around the city go to Republicans.

21:27 Rhiannon: Right. The way gerrymandering works is by vote dilution, which is the devaluation of one citizen's vote as compared to others. So gerrymanderers use what Peter just called packing and cracking. They pack super majorities of voters of one party into a few districts, and then they crack the rest of the voters by spreading them across many more districts and spreading them so thin that their candidates would not be able to win. So that means, in the end, that each person, whether you've been packed into a district or cracked out and spread across other districts, each person's vote is less weighty, it's less valuable than it would be in a neutrally drawn map.

22:09 Peter: Right.

22:09 Michael: Right. And it's not like a coincidence that Republicans have been gerrymandering a lot, especially in the last decade or two, in a way that's more aggressive than Democrats and all that, this was and is a concerted strategy.

22:24 Rhiannon: Exactly.

22:25 Michael: There's a whole history. This is well detailed, it's people talking on the record about their roles in this, but there is this thing called Project REDMAP, which was something about the Republican enduring majorities or some shit like that. I don't remember what the acronym stands for, but it was birthed in 2009 when the Republican Party was still reeling from getting their asses kicked in the 2008 election. Democrats had a super majority in the Senate, they controlled a bunch of state houses, they had a large majority in the House, and Barrack Obama had one in fucking Indiana and in North Carolina, traditionally Republican states, in all corners of the map. And Republicans weren't sure where they were gonna go from there.

23:10 Rhiannon: Exactly.

23:11 Michael: And their big plan was this, was, "Well, 2010 is when we have our decennial census, which means that's when there'll be a lot of redistricting being done. And so if we go heavy on that election, and we really focus our spending very smartly, and switch control of a few state houses, we can grab control of the legislative redistricting process and draw the maps in a way that will give us a long-term structural advantage in those states and in federal Congress as well."

23:47 Peter: Right.

23:47 Rhiannon: Yeah, exactly.

23:48 Peter: I think after 2008, there was a meeting at the RNC where there was dead silence for 20 minutes and then a guy was like, "What if we cheated?" And everyone was like, "Yes. Okay, now... I didn't wanna say it."

24:00 Rhiannon: We're good now. Let's go with that.


24:03 Rhiannon: Yeah, yeah, and we've talked a couple of times now on the podcast about how Republicans sort of fail to reckon with changing demographics in the US, and instead of... At about that time, 2008, 2010, instead of changing their party to be more responsive to the needs of people of color and attract people of color, especially Latinx residents in the United States, instead of doing that, right, the Republicans decided that voter suppression, gerrymandering, manipulating the vote is the strategy that they were gonna go with.

24:37 Michael: I just wanna make a point about money well spent in strategy and all that, really quick, which is like... They spent some time, they went and looked at the laws, they looked at the make-up of the state houses, and, "What would it take for us to get control of the redistricting process, state by state? Where could we conceivably get this done?"

24:57 Peter: Right. It's the state legislatures who are drawing the maps that end up being the maps for the federal Congress, which is why control of those state legislatures is so significant.

25:06 Michael: Right. And overall, it cost them, I think, $30 million, is what they put into the 2010 Project REDMAP, state legislative races. $30 million is a lot of money, especially in state races, but by comparison, I think Amy McGrath has raised more than that, running what is clearly a failed campaign, a doomed campaign, to unseat Mitch McConnell in Kentucky this year. For the cost of running her against Mitch McConnell, they got a stranglehold on the House of Representatives for eight years, and it took fucking Donald Trump and riots in the streets and shit to break that gerrymandering, right?

25:48 Peter: Right.

25:48 Rhiannon: Right, yeah.

25:49 Michael: Like it was very smart, it was very sophisticated, and I'm still not sure that Democrats are on that level a decade later.

25:57 Rhiannon: No.

25:58 Peter: No.

25:58 Rhiannon: Yeah, so turning to this Supreme Court case, in Rucho v. Common Cause, there were a few different partisan gerrymandering claims that were consolidated into this one case that came before the Supreme Court, and the two states with partisan gerrymandering at issue here were North Carolina and Maryland. In North Carolina, their congressional districts had been manipulated to give Republicans an unfair advantage, and in Maryland, the districts had been manipulated to give Democrats an unfair advantage. So just breaking down, I think for illustration purposes, I think it's helpful to go through what exactly happened in these states, and I'm just gonna focus actually on North Carolina because this is so... Because this is so long. In North Carolina, after the 2010 census, Republican majorities enacted a new congressional districting plan that led to Republicans winning nine of the state's 13 seats in the House of Representatives in 2012, even though Republicans had only received 49% of the state-wide vote. So...

27:06 Michael: So not even a majority of the state-wide vote, but a super majority of the seats.

27:11 Rhiannon: Exactly. That plan they had used was actually later struck down because it was unconstitutional, racial gerrymandering, but when the rat fuckers got together to make a new plan, they called up this guy, Thomas Hofeller, to come and help out. And before Thomas Hofeller joined Scalia in hell in 2018, Hofeller was a Republican mapmaker and strategist, who was known as the redistricting guru. His specialty was in building these congressional districts, wherever he was needed, in order to ensure Republican victories in elections. And just a side note that I've been thinking about is, we've talked about how it costs money to manipulate maps on this level, at the state level, like the GOP is doing nationwide, and Hofeller being a character here just makes me think about the industry that flows from this, people make money being experts on how to manipulate maps.

28:11 Peter: Right, that mapmaker.

28:12 Rhiannon: Right, exactly.

28:13 Peter: By the way, just to let the listeners know, I am working on a parody of the Fiddler on the Roof, matchmaker song, it's called Mapmaker, it'll be ready in a few weeks. And then we'll release it fully.

28:27 Rhiannon: Dork reference, bro. Dork reference.

28:30 Michael: Get his ass.

28:31 Peter: Cultural milestone.


28:33 Rhiannon: So the assistance, in particular, that Hofeller would bring to Republican state parties was very technologically advanced map-making computer software, where with a single key stroke, he could manipulate just one factor and then the algorithm spits out like 20,000 possible ways to redraw the map in order to get their desired result. So with Hofeller's assistance, Republicans in North Carolina re-drew their districts so they wouldn't come under legal fire again for being racist, and as a result, they ended up getting 10 out of the 13 seats guaranteed to them.

29:14 Michael: Instead of nine.

29:15 Rhiannon: Right, exactly.

29:16 Peter: Incredible.

29:16 Rhiannon: Exactly, so they bumped it up even more, and they're upfront about it too. The Republican Co-Chair of the Redistricting Committee in North Carolina said that they were, "Drawing the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it's possible to draw a map with 11 Republicans and two Democrats." He also later said...

29:39 Michael: Incredible.

29:39 Rhiannon: "I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country."

29:47 Peter: And if those quotes make you angry, I got good news, that guy recently resigned in shame after pleading guilty to charges related to embezzling his campaign funds.


30:00 Peter: Fuck you, bro.

30:00 Michael: Yes, that's awesome.

30:01 Rhiannon: Now, Democrats do this too, and Maryland's partisan gerrymandering ensured seven out of eight House seats to Democrats in Maryland's elections from 2012 to 2018, even though Democrats never got more than 65% of the state-wide vote there. So the Democrats actions were at issue in this case too, but for our purposes, I think it's important to clarify again that this isn't quite the like, everybody does it, so that's just how the game is played like issue that the court would maybe like to frame it as.

30:33 Michael: Yeah.

30:33 Rhiannon: Republicans have gone ape shit with partisan gerrymandering in a way that Democrats haven't, and frankly, probably wish they had. In general, the thing to keep in mind, as we move into what my arch-nemesis, the little bitch, John Roberts, had to say about gerrymandering here, is that "It absolutely implicates legal constitutional questions about voting rights and how people participate in a supposed democracy, and the court just kicks the can."

31:01 Peter: Right. Right. So the underlying legal question in this case is whether purposeful gerrymandering to benefit one political party is unconstitutional, but the more immediate question that the court must address is whether the issue is what's called justiciable, meaning whether the court can hear it at all, or whether it is outside of the court's prerogative. So again, this is limited to partisan gerrymandering only, it's very clear that racial gerrymandering is justiciable because of the 15th Amendment which addresses racial discrimination in voting specifically.

31:36 Rhiannon: Right.

31:36 Michael: Right.

31:36 Peter: So what the court holds here, in a 5-4 opinion authored by your boy, John Roberts, is that the court cannot hear this issue, and therefore complaints of partisan gerrymandering must be dismissed by courts because, according to Roberts, this is a political question that courts cannot address.


31:56 Rhiannon: [Grunts]

31:58 Peter: The first thing that might jump out to you here is the idea of a "political question".

32:03 Rhiannon: Right. Right.

32:04 Peter: The court has in the past held that it cannot address what it calls purely political questions. This is the political question doctrine. The idea is that some issues are so purely within the discretion of the legislature or the presidency that they can't be addressed by a court. For example, the court won't address details about foreign relations, right, 'cause it says, "Well, that's an executive branch power." But this has always been a little weird. Not least because everything is a political question in the literal sense. The court is not hearing any issues that just don't have political implications. This doctrine has always been a way for the court to sort of just punt on issues it doesn't wanna address for whatever reason. Yeah, in some cases that might be because they don't want conflict with another branch of the government. And in the others like this one, it might be because they are right-wing pieces of shit who don't give an actual fuck about democracy.

33:02 Rhiannon: Yep.

33:03 Peter: Right. So let's talk about the decision itself, which is one of the most poorly reasoned of the last few years, I think. The first thing the court does is note that gerrymandering was an issue known to the Founding Fathers at the time of the drafting of the Constitution, and the point that Roberts is trying to make is like, "Well, if they knew about it back then and they didn't create a mechanism to prevent it, then I guess we can't really interfere, right?" So look, first off, obviously, our official podcast position is that the Founding Fathers were a bunch of frilly little dips who need to be given no deference.

33:37 Rhiannon: Exactly.

33:38 Peter: But also this is a weird argument in large part because A, the Founding Fathers absolutely did not believe in actual democracy. So the fact that they didn't explicitly try to prevent gerrymandering doesn't say much. B, there weren't any real political parties at the time of the Constitution. So the idea of partisan gerrymandering to benefit a political party couldn't have been on their minds. C, the first iteration of gerrymandering as we understand it now dates to 1812, not the time when the Constitution was drafted. It was first used by the Massachusetts Governor, Elbridge Gerry, right? That's where the name comes from. And then also D... Am I at D?

34:18 Rhiannon: You're you were at D. Yep.

34:20 Peter: D.

34:20 Rhiannon: Yeap, that's number four.

34:21 Peter: The constitutional provisions most implicated here, are mainly the Equal Protection Clause, were approved almost a 100 years after the founding of the country, so it doesn't fucking matter what the Founding Fathers thought about it. So the idea that the current practice was anticipated by the Founding Fathers is both irrelevant and just revisionist bullshit.

34:41 Rhiannon: Exactly.

34:42 Michael: Yeah.

34:42 Peter: And this is part of why originalism is not just theoretically stupid, but also practically useless. Even if you think that there is some wisdom in adhering strictly to these rules set out by a group of wig-wearing slave owners who didn't understand germ theory, you're still just sort of approximating their intentions in a way that is so riddled with uncertainty that it's almost completely useless. Like Roberts is saying, "Well look, they were aware of gerrymandering and they didn't do anything about it." But they were not actually really aware of gerrymandering in any meaningful sense. And even if they were, they wouldn't have enough of a lens into modern American politics for us to be able figure out what they might have thought about it. The only purpose of this sort of pseudo-originalist interpretation is to try to pretend that the court's extremely weak argument here is somehow rooted in history. It's connected to something real.

35:40 Rhiannon: Yeah.

35:41 Michael: Right, and I think Roberts also uses history to engage in like sort of a rhetorical slight of hand here where he basically says in so many words that he assumes this is not justiciable unless there's historical evidence to the contrary, but I don't think that's right. Whether or not our democracy is functioning properly seems like a basically justiciable question.

36:07 Rhiannon: Exactly.

36:08 Peter: Right.

36:08 Michael: And I would think the presumption runs the opposite way.

36:10 Rhiannon: Exactly.

36:10 Michael: Unless there's something in Federalist 57 or whatever that says like, "Oh, drawing of districts, that's something court shouldn't be looking at," I would presume this is justiciable. Like Peter said, it's a bullshit argument, and the whole point is to just sort of throw sand in your eyes, so that you're not really like with what's going on here, which is this is an opinion running interference for the Republican Party.

36:33 Peter: Right, and that's a great point that he's saying, "Look, the Founding Fathers didn't say that we could look at this, so... " But that's not the standard. The presumption is that the court can analyze the constitution. If there's some specific reason to believe that they can't, then you work from there.

36:48 Rhiannon: Right.

36:48 Michael: Right.

36:48 Rhiannon: Right. Exactly. And I like the framing, Michael, about what question Roberts is saying is not justiciable. This question about, in particular, partisan gerrymandering, and that's not justiciable, but there is certainly a broader question. The implications of this, is our democracy functioning?

37:06 Michael: Right.

37:06 Rhiannon: That seems really justiciable and that just reminds me of all the ways, especially conservative legal scholars will narrow a question and make it so formal and technical and specific that their answer is always a no, right?

37:22 Peter: Yeah, right.

37:23 Rhiannon: Rights shouldn't be expanded in this specific way, this specific question shouldn't be before the court, that kind of thing, but if you just broaden it just little bit, even a sixth grader can see like, "This is unfair. I feel like the Constitution should say something about this."

37:36 Peter: Right.

37:36 Michael: Right. Rhi made the point earlier that racial gerrymandering is a clearly justiciable question.

37:42 Rhiannon: Right, they have cases on it.

37:43 Michael: The functioning of our democracy and our elections, and whether or not they are they're fair is something courts regularly address. The idea that they need specific instruction from George Washington himself to answer this question is ridiculous.

37:58 Peter: Yeah.

37:58 Rhiannon: Yeah. Yeah.

38:00 Peter: Alright, so the next portion of the opinion is like a very long digression into how Roberts thinks there's no way for the court to figure out what is or what is not fair when it comes to drawing districts. He's like, "Look, the Constitution doesn't guarantee that you have representation proportional to your party's share of the electorate, which is true in the most literal narrow sense, but of course it's a dodge of the real question which is whether it's constitutional for a party to engage in redistricting with the express purpose of disenfranchising the opposing party to their own benefit.

38:34 Rhiannon: Right, right.

38:34 Peter: Everyone understands that representation will not exactly align with political party affiliation. That doesn't mean that someone can purposefully subvert the will of voters.

38:43 Rhiannon: Right.

38:44 Peter: Roberts just acts like this is like this big theoretical exercise, it's so fucking obnoxious to read. The other issue with Roberts's argument is that it seems to fundamentally misunderstand the constitutional complaint. Roberts is saying, "Well, look, the Constitution doesn't guarantee that your representatives will have a particular political alignment so there's sort of no issue here." To address this more fully, I think it's important to think about a rhetorical question, "Why is it bad for someone to lose their vote?" Everyone can agree that as a general rule, adults in this country should be able to vote. That is the ostensible position of every adult in the room.

39:21 Rhiannon: Right.

39:22 Michael: Not Amy Coney Barrett. Not Amy Coney Barrett.


39:23 Rhiannon: Yeah.

39:23 Peter: Yeah. That's true.

39:25 Michael: Just to be clear.

39:26 Peter: So why would it be bad for someone to just burn another person's ballot, for example?

39:32 Rhiannon: Yeah. Right.

39:33 Peter: The answer is pretty obvious, right? This is a rhetorical question. They are reportedly trying to have a government that reflects the will of the people.

39:40 Rhiannon: Yeah.

39:40 Peter: There is no functional difference between a government official burning some ballots and a government official drawing congressional boundaries that are designed to render certain ballots meaningless, no functional difference. The outcome is the same. If you believe the Constitution creates any sort of obligation upon government officials to further a government that is reflective of the will of its citizens, then it... There cannot be a question that this shit is unconstitutional.

40:04 Rhiannon: Yeah, absolutely. And like we've said a couple of times, the Supreme Court has handled many cases that are about voting rights, that are about gerrymandering but in different contexts, that would seem to indicate that this also is unconstitutional. So for example, the 14th Amendment has been interpreted to mean in part, one person, one vote. And under that jurisprudence, Justice Kagan notes in the dissent here, "The Supreme Court has ruled for instance, that districts can't be created with significantly different populations, which would dilute the weight of votes." Say for example, if you're one vote in a district of one million voters, and next door, that district is 50,000 voters, then your vote is diluted, right? And the Supreme Court has said, "That's unconstitutional." So partisan gerrymandering does this same exact thing except the dilution is based on party affiliation.

40:57 Michael: Right, right.

40:58 Peter: Yeah. And on that note, the next section is basically just Roberts saying that there's no adequate test that could be applied to gerrymandered states to see whether they are improperly gerrymandered because it's unclear what's fair and what's not fair.

41:13 Rhiannon: Yeah.

41:13 Peter: And I don't wanna get into detail in this section, but the basic argument is just extremely disingenuous. Like Rhi just said, this is about partisan gerrymandering but everyone knows that racial gerrymandering is something that courts can address. And how do they do that? Well, they take a look at the districts, they say, "It looks, based on how these are drawn, that it was intended to disenfranchise minority voters."

41:34 Rhiannon: Right.

41:34 Peter: If you analyze where the lines are going, what the implications of those districts to being drawn that way are and you say, "Okay, it looks like these are intended to disenfranchise minorities," you could do the same thing but using a partisan analysis. "It looks like these are intended to disenfranchise Democrats or Republicans or whoever." And instead of saying that, instead of saying, "Okay, look, this is difficult to analyze, but we should do our best because people are getting unjustly disenfranchised," the court is just like, "Oh, boy, we're... This is way too hard."


42:01 Rhiannon: Can't do it.

42:02 Peter: This is way too hard so we're not actually gonna do it.

42:05 Rhiannon: What am I a mathematician?

42:07 Peter: Yeah. That's the United States Supreme Court taking the same approach to fixing democracy that I take toward fixing the broken door hinge on my hall closet.


42:16 Peter: Just like, not today, not today.

42:19 Michael: I think one reading of this opinion is John Roberts basically saying, "Politics ain't beanbag kids, you know?"

42:27 Rhiannon: Yeah, right.

42:28 Peter: Yeah.

42:28 Michael: Like, "Oh, politics is tough and people play dirty. And what do you want us to do about it?" Except that there are limits to that, like understanding that politics is dirty, right? For sure. There's a difference between that and preventing people from voting. There's a difference between that and just straight writing people out of the body politic entirely.

42:50 Rhiannon: There has to be a line.

42:51 Michael: There has to be, right.

42:52 Peter: You can't be like, "Look, he assassinated his running mate, but politics is a dirty business."

42:57 Michael: Yes. Exactly.

42:58 Rhiannon: Don't hate the player, hate the game, baby. Like, what?

43:03 Michael: These guys... I don't think they believe there really is a line, I think they resent the fact that the 15th Amendment provides lines that they can't ignore. I think that's the best way to read Shelby County too, which we've discussed before. Like, they hate the Voting Rights Act because it's like, "Of course, we wanna suppress black votes. They don't vote for us, and that's fucking politics." Right? Like, fuck 'em.

43:23 Rhiannon: Right. Yeah.

43:24 Peter: Yeah. And we should note that the whole racial gerrymandering versus partisan gerrymandering thing... Yes, 70 years ago, there was a lot of gerrymandering that was done to disenfranchise black people because they are black.

43:37 Rhiannon: Right.

43:38 Peter: Now, yes, that exists, but a big part of American racism now is not... Well, simply because they are black, we're attaching affiliations and cultural affectations to the black community, for example, that you don't like. And so partisan gerrymandering and racial gerrymandering are incredibly closely intertwined. The idea that they are completely separate is ridiculous. And they're getting to that point where they can say, "Well, look, this isn't really racial gerrymandering because what they're really trying to do is disenfranchise Democrats." The functional result is that they are disenfranchising the same exact black communities that they were disenfranchising 70 years ago.

44:13 Rhiannon: Yeah, absolutely, and...

44:14 Peter: There's no real distinctions here, it's just that the justification that Republicans use when they're talking to the court and when they're talking to themselves is just a little bit different.

44:24 Rhiannon: Yes, exactly. And how do you think they're doing the partisan gerrymandering? When they're redrawing the congressional districts, when they're drawing these maps, they're looking at race demographics and where people of different races live in every voting district.

44:38 Michael: Absolutely. One of the reasons redistricting is so much more powerful now than it's ever been is because of the type of data they have on you.

44:45 Rhiannon: Exactly. Yeah.

44:46 Michael: It's more sophisticated than ever, and they... Based on your subscription habits, your race, your age, your ethnicity, your income, they can pretty much guess with specificity on how you're gonna vote.

44:58 Rhiannon: They can go block by block through a city and decide what lines to draw between which city streets.

45:05 Peter: Yeah. The last section of this opinion, it almost broke me. There's no part of this opinion where you're like, "Alright, that's a good point."

45:13 Rhiannon: Right. No, no, no.

45:14 Peter: There really isn't one.

45:15 Rhiannon: It's all fucking garbage.

45:16 Michael: Yeah.

45:17 Peter: The last section is the most outrageously disingenuous shit I've ever seen in my life. Roberts says, "Look, we're not condoning partisan gerrymandering, it's actually horrible, we hate it. We're just saying that it's an issue for the legislature." But the whole issue is that those legislatures are corrupted, right? They're compromised.

45:36 Rhiannon: Right.

45:36 Peter: They're comprised of the wrong people because of gerrymandering.

45:40 Rhiannon: Yeah. They're winning because of the gerrymandering cheating thing, right?

45:44 Michael: Yeah.

45:45 Peter: The problem is that districts are drawn such that the legislatures themselves are unfair. They can't fix the problem of their own corruption, the court has to. The court has to. Roberts is literally saying, "It's terrible that our legislatures are corrupt, undemocratic institutions. Hopefully, the legislature will do something about this."


46:04 Rhiannon: Right. Why have checks and balances, you stupid bitch?

46:09 Peter: This is a district attorney getting up in front of the press and being like, "Well, the mafia's doing all sorts of crime. Hopefully, that will be sorted out by the mafia."


46:17 Peter: "That's really... It's a mafia business." Just absolute baby brain shit, just like a statement so disingenuous that it almost feels like they put this section in just to mock you. Are you fucking with us? That's what it feels like.

46:31 Rhiannon: Yeah, yeah.

46:32 Michael: You're saying these elections are broken and we hear you, and our answer is, "Those broken elections are the solution to problem."

46:40 Rhiannon: Right. Get out and vote, baby.

46:43 Michael: What am I supposed to do with that? It's insulting. It is.

46:47 Peter: Yeah.

46:47 Rhiannon: Absolutely. So I think we should spend a little bit of time on the dissent.

46:52 Michael: It's good.

46:52 Rhiannon: It's written by Justice Kagan, and I'm not ever all that impressed with Elena or her writing, but I have to say she goes in here. And y'all know I'm a quote girl.

47:02 Peter: Is that how you would describe yourself? As a quote girl?


47:05 Rhiannon: On this pod.

47:07 Peter: When you said it, I wasn't like... "Yeah. That's right, Rhiannon's a quote girl. We all know that."

47:12 Rhiannon: I'm a lot of things, okay?

47:14 Michael: She likes to read from the opinions. I get that.

47:16 Rhiannon: Thank you.

47:16 Peter: Okay, okay.

47:17 Rhiannon: I read and engage with the text.

47:18 Peter: Alright, you're a quote girl.

47:21 Michael: Yeah.

47:21 Rhiannon: Okay. [chuckle] So I just wanna read a few things that Justice Kagan says that I think really plainly identify what is so deeply concerning about this majority opinion, and I think this dissent is the closest you can get to reading something like, "What the fuck is your fucking problem, you dumbasses?" in a Supreme Court opinion.

47:40 Peter: Yeah, 'til they put me on the court, baby.


47:45 S?: 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. In doing so, these gerrymanders dishonored our democracy, turning upside down the core American idea that all governmental power derives from the people."

48:13 Rhiannon: She goes on later and says, "Liberty demands not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people. Members of the House of Representatives, in particular, are supposed to recollect that dependence every day. To retain an intimate sympathy with the people, they must be compelled to anticipate the moment when their exercise of power is to be reviewed. Election day, next year, and two years later, and two years after that, is what links the people to their representatives and gives the people their sovereign power. That day is the foundation of democratic governance, and partisan gerrymandering can make it meaningless."

48:53 Michael: That's right.

48:53 Rhiannon: So she doesn't just talk about the erosion of democracy in these broad terms, she gets really specific about how individuals' constitutional rights are violated in this kind of system. You know, she points out that a districting system that is so gerrymandered on this level is flat out not giving people an equal vote, and it's not fair and free participation in people's system of government. She says this is a violation of the 14th Amendment, this is a violation of the First Amendment, and the incredulousness, I think, at what the majority is doing in saying that this isn't a justiciable issue, is really palpable in her dissent.

49:29 Michael: Yeah, absolutely.

49:30 Peter: Yeah, I think she hits all the points. One thing that she would never, and no Supreme Court justice would ever have the balls to say is that, every step that the conservatives on the court take towards conceding the illegitimacy of elections is a step towards conceding the illegitimacy of the seats that they sit in.

49:46 Rhiannon: Yes.

49:47 Michael: Right.

49:47 Peter: If you believe that the modern American election system is, to some degree, illegitimate, that Republicans have been able to artificially suppress the votes of Democrats in order to gain power, then you have to concede that, for example, Donald Trump's Supreme Court appointments flow from that.

50:08 Rhiannon: Yes. Exactly.

50:09 Peter: And Kavanaugh, Gorsuch, and, soon, Amy Coney Barrett are sitting in what are essentially illegitimate seats.

50:15 Rhiannon: Yes.

50:16 Peter: Republicans like John Roberts aren't just saying, "This is just how politics goes because it's their party." It's also them. This institution rules over us predicated upon the same exact illegitimacy that someone like Donald Trump does.

50:32 Rhiannon: Right.

50:32 Michael: Yep. That's right.

50:34 Peter: So one important thing to realize is that the court is holding, in this case, that this is non-justiciable, meaning that it cannot constitutionally be addressed by courts. That means that all challenges to partisan gerrymandering in federal courts are non-justiciable, and courts across the country are forbidden from hearing them. So it's not just that the court is punting on this, it's taking it out of the realm of the judiciary entirely, taking one of the most prevalent anti-democratic practices in this country and basically saying, "There's nothing to be done about this legally."

51:07 Rhiannon: Right.

51:07 Michael: Right.

51:08 Peter: So the immediate implications of this are kind of obvious, gerrymandered states remain gerrymandered, which means their elections are just less democratic. But there's also indirect consequences. The biggest is, as we've discussed in the past, states set their own election laws for federal elections. So if Republicans gerrymander the state legislature, districts in North Carolina, which they do, then not only do they artificially maintain control of that legislature, they can use that control to engage in voter suppression at the federal level. So this stuff kind of piles up, and it's worth pointing out, not just to show how these sort of anti-democratic processes are intertwined, but also how stopping one can have this aggregating cumulative effect.

51:51 Rhiannon: Yes.

51:51 Peter: If the Supreme Court strikes down gerrymandering, you get rid of this bullshit practice, but you also get rid of all these downstream effects that start unraveling the GOP's voter suppression project.

52:02 Rhiannon: Exactly.

52:03 Peter: It cannot be stressed enough how many parallels there are between the current Republican Party's voter suppression strategy and the bus and speed. They need voter suppression to secure their election wins, they need those election wins to secure their control of the courts, and they need control of the courts to secure voter suppression. If any link in this daisy chain drops below 50 miles per hour, the whole thing blows up. This metaphor makes sense for the record. It's a good metaphor.

52:34 Rhiannon: Well, you know, while you were talking, Peter, I was thinking of the stupid onion. What did you describe as a stupid layered onion the other day?

52:41 Peter: The Electoral College is a stupid layered onion.

52:43 Rhiannon: Yeah, the Electoral College is a stupid layered onion. The conservative project of disenfranchising voters is a stupid, rotten, smelly-ass, ugly onion.

52:55 Peter: Yeah. And it's a bus. You guys are keeping track of this, right?

53:00 Rhiannon: It's an onion, it's a bus, it's a ball that's hit out of the park.

53:03 Michael: John Roberts is gonna hit that stinkin' onion 500 feet into the stands, baby. Home run.

53:09 Peter: Yeah. And if that ball ever goes below 50 miles per hour...

53:13 Michael: It's gonna explode. It's gonna explode.

53:16 Peter: Touch down, baby.


53:21 Michael: So if all these mixed metaphors are confusing you...

53:25 Peter: Which they shouldn't be, for the record.

53:26 Rhiannon: No way. How could that be...

53:27 Michael: I think they're very clear. Let's just think of this upcoming election, which, again, as we've mentioned many times in the past, has a lot of room for wrongdoing and malfeasance by state legislators that, as we've been saying here, are often heavily gerrymandered. If you remember in our Electoral College episode last week, we talked about how state legislatures can pick the electors who go to the Electoral College. And that means heavily gerrymandered legislatures, like the one in Wisconsin for example, could just ignore the voters in their states, and that wouldn't be that crazy. Democrats have outvoted Republicans in Wisconsin state legislature races several times in the last decade and yet the Republicans have super majorities in the state houses.

54:19 Rhiannon: Right.

54:21 Michael: And we mentioned that the election could be decided in the House of Representatives, which again, if you remember, has this ridiculous method where each state delegation gets one vote. And again, the make-up of those state delegations will be gerrymandered in a lot of cases. North Carolina is a purple state, it's regularly like a 51%, 49% vote, Democrats or Republicans nudging each other out. But Republicans control that state delegation with a commanding majority because it's heavily gerrymandered.

54:51 Rhiannon: Yes.

54:52 Peter: Right.

54:52 Michael: And look, we've said this many times, but this is a political party that has sort of abandoned assembling a majority coalition. They're not interested in having a popular mandate at all. So yeah, what you have is gerrymandered state legislatures who might ratfuck the election, and why not? That's just what they've been doing for a while now.

55:14 Rhiannon: Right.


55:21 Peter: Next week, we are doing an episode on court reform, and we will be talking to... This can't be right. Congressman Ro Khanna.


55:34 Rhiannon: Why is this happening?

55:35 Michael: No, we deserve this. I'm just surprised it took this long.

55:39 Peter: Someone at Ro... In Ro Khanna's communications office has made a horrific mistake, and...

55:45 Michael: Career misstep.

55:46 Peter: And we will be punishing him for it.

55:50 Rhiannon: Yeah.

55:50 Peter: That's a real thing, by the way. That's really...

55:52 Rhiannon: Yeah, yeah, we're not joking. Ro Khanna is going to be on 5-4.

55:56 Peter: Yeah.

55:57 Michael: We're talking court reform, it's gonna be great.

56:00 Rhiannon: Yeah.

56:00 Peter: Follow us on Twitter, @fivefourpod. I don't think we have an Instagram yet but...

56:05 Rhiannon: We do but we don't post nothing on it.

56:07 Peter: You can still follow.

56:10 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.

56:28 Leon: From the Westwood One Podcast Network.