With Texas Republicans rushing to fulfil Donald Trump’s wish to gerrymander to the max, many Americans are no doubt wondering why there isn’t some referee to stop this hyperpartisan race to the bottom that is poisoning our democracy. The supreme court should be the referee that puts a halt to this ugly, undemocratic mess, but in a shortsighted, 5-4 ruling in 2019, the court’s conservative majority essentially told state legislatures that anything goes when it comes to gerrymandering. Their message was: no matter how extreme the gerrymandering, we’ll look the other way.
Writing the majority opinion in that case, Rucho v Common Cause, chief justice John Roberts declared that gerrymandering was a political matter that federal courts shouldn’t intervene in (unless it involves racial discrimination). Many legal experts said the conservative justices were defaulting on the court’s responsibility to prevent absurdly unfair, undemocratic elections, where the fix is in even before people vote. In a prescient dissent, justice Elena Kagan warned that the huge permission slip the court was giving to gerrymandering would encourage “a politics of polarization and dysfunction” and might “irreparably damage our system of government”.
