(Bloomberg Opinion) -- The U.S. Supreme Court on Monday kept the much-watched partisan gerrymandering case alive – in a most unusual way. The justices sent the claim by Wisconsin Democrats that Republicans violated the Constitution in the drawing of state assembly voting districts back to the lower court. They want to see whether the plaintiffs can prove that they were individually harmed by having their votes diluted within their own districts. If they can do that, their case will almost certainly return to the Supreme Court.
This was a setback for the plaintiffs, who had hoped Justice Anthony Kennedy would rule for them this time. But it wasn’t a disaster, because the court didn’t say their partisan gerrymandering claims had no merit, either.
And Justice Elena Kagan wrote a concurring opinion, joined by the other three liberal justices, that amounted to a rough draft of the brief she wants the plaintiffs to submit. That brief is aimed squarely and explicitly at Kennedy.
Kagan doesn’t think he’s going to retire now, apparently.
If he is still on the court when the case comes back, he may find it hard to avoid accepting the argument Kagan has crafted just for him – because it’s built on his own words and theories. Kagan may even have hinted that Kennedy’s Citizens United decision should lead him to strike down partisan gerrymandering as a First Amendment violation.
If all this seems so complex as to be incomprehensible, let me break it down. What we can say with total confidence is that Kennedy was not yet prepared to use this case, Gill v. Whitford, to rule that partisan gerrymandering is unconstitutional.
Given that reality, it was in the interests of the liberals, who clearly favor that result, to send the case back to the lower courts for a partial do-over. Their goal was, above all, to avoid an opinion that rejected the partisan gerrymandering claim altogether.
The way to get that result was for the court to say that the Wisconsin Democrats who brought the case lacked standing, because they failed to allege that they had suffered what the court calls “injury in fact.” All nine justices joined the part of the opinion by Chief Justice John Roberts reaching that conclusion.
The opinion noted that the plaintiffs had alleged a “statewide” injury to all Democrats, because the redistricting techniques the state legislature had used reduced the total number of Democratic candidates elected. That’s because they wanted a statewide remedy: the redrawing of the state electoral map.
The court said that the real injury suffered by someone whose votes have been diluted is not statewide but personal and restricted to that voter’s district. Because that wasn’t the plaintiffs’ claim, they had not stated an injury in fact, and had no standing to continue.
Typically, when the court finds no standing, it orders the case dismissed. But in a final section of his opinion, which Justices Clarence Thomas and Neil Gorsuch refused to join, Roberts said this “unusual” case involved “an unsettled kind of claim that this court has not agreed upon,” and the plaintiffs should get another bite at the apple in the district court.
Kagan, in her concurrence told the plaintiffs exactly what they should do in district court. “The key point,” she wrote, “is that the case could go forward in much the same way it did below,” except with the allegation of the individual harm of vote dilution.
Then she aimed straight at Kennedy. The plaintiffs, she said with a very broad hint, “may have wanted to do more than present a vote dilution theory.” They ought, she told them, argue for a First Amendment violation of their right to free association.
This First Amendment theory is Kennedy’s, Kagan helpfully explained, taken from his concurrence in a case called Vieth v. Jubelirer. The basic thrust of Kennedy’s idea is that if a state treats me unfavorably based on my party affiliation, it burdens my right to associate in joining the party.
That, Kagan said helpfully, is different from vote dilution. A statewide districting plan that disfavors one party hurts individuals who are associating into that party. Here she was interpreting Kennedy – brilliantly, it must be said.
The twist here is that Kennedy’s commitment to freedom of association is most famously expressed in his infamous Citizens United decision. There he wrote that a corporation has free speech rights because it acts as a vehicle for the expression of the people who associate in the corporate form.
The liberals don’t like the Citizens United decision, of course, and Kagan didn’t mention it. But she isn’t above playing to Kennedy’s commitments, if it will help defeat political gerrymandering. You might even read her references to free association as an implicit offer to Kennedy that the liberals might be willing to sign a Kennedy opinion citing Citizens United if it also struck down partisan gerrymandering.
For any of that to happen, the gerrymandering case has to come back to the court before Kennedy retires. And it’s hard to say when the case will return; it could be two years. Kagan is clearly signaling that she doesn’t think Kennedy will go anytime soon. Or at least she hopes not.
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