Although the court dodged the big questions this time around, they can not be avoided for long.
While the decisions in these cases do little to resolve partisan gerrymandering, gerrymandering plaintiffs still face the prospect that as the liberal justices draw closer to retirement, their shot at ending gerrymandering in the Supreme Court begins to diminish.
Gill and Benisek shine a spotlight on just how far state legislatures will go to entrench one party in power and subordinate voters of a minority party.
"As synthesized by University of Wisconsin political science professorDavid Canon, "[The Supreme Court] had an opportunity to give some guidance to state legislatures on redistricting that would say one way or the other, "This is a constitutional problem and you can't gerrymander districts"...or to say for the first time definitively, 'Sorry, this is okay and anything goes - go ahead and redraw the lines however you want.' Instead, they basically punted - so we basically don't have an answer at all".
What the Supreme Court said Monday is that it isn't likely to decide the debate over how much politics is too much politics in redistricting anytime soon.
"The court had abundant evidence that extreme gerrymandering in Wisconsin and Maryland is toxic for democracy", said Michael Li, senior counsel at the Brennan Center for Justice at NYU School of Law, which has carried out extensive studies of gerrymandering and its impact.
"The 2011 gerrymander was devastatingly effective", the plaintiffs wrote in their appeal to the Supreme Court, saying that "no other congressional district anywhere in the nation saw so large a swing in its partisan complexion following the 2010 census". "By placing a state party at an enduring electoral disadvantage, the gerrymander weakens its capacity to perform all its functions". "There is a bipartisan body, and that - and I would argue - that's the best you can hope for is a bipartisan body". Time will tell if Kagan can convince Kennedy that the First Amendment principles that form such a critical part of his legacy - the guarantee of associational freedom for all and the prohibition on viewpoint discrimination - require limits on extreme partisan gerrymanders that subordinate voters simply because of the party they associate with.
Gerrymandering has been an issue for the last 200 years. In Shelby County v. Holder, the court argued that anti-discriminatory provisions of the Voting Rights Act targeting states that had historically disenfranchised voters were no longer necessary.
Political scientists and some politicians were intrigued at the notion of an algorithm proving unconstitutionality, but at the October oral arguments Chief Justice John G. Roberts Jr. lambasted the concept as "sociological gobbledygook" and said "the intelligent man on the street is going to say that's a bunch of baloney". Gill holds that, when individual voters bring such a claim, "the remedy that is proper and sufficient lies in the revision of the boundaries of the individual's own district". A blowout win in one district means lots of "wasted" votes for the victorious party under the Efficiency Gap model, but that doesn't necessarily mean the map was created to bring about that outcome. The court ruled that the plaintiffs didn't have standing to sue because they failed to prove they were injured by the maps.
The court could announce as early as next week whether they will be moving ahead with the North Carolina case this fall. Indeed, the chief justice's majority opinion recognized that "the Court's constitutionally prescribed role is to vindicate the individual rights of the people appearing before it".
"Indeed", she wrote, "the need for judicial review is at its most urgent in these cases".
Advocates working to put an end to partisan gerrymandering don't agree.
What is redistricting, and how is it different from gerrymandering?Thus, she urged, "cases like this one might warrant a statewide remedy". "The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked".
Were this the Court's final word on how partisan gerrymanders may proceed, it would be a disaster for anti-gerrymandering plaintiffs. This disposes of the case, but makes no new law at all. In 2004, after hearing a challenge from a group of Pennsylvania Democrats who claimed they were unfairly harmed by a GOP-drawn map, the Supreme Court ruled in Vieth v. Jubelirer that it could not adjudicate claims of political gerrymandering for lack of a "workable standard" for identifying it. Supreme Court to avoid intervening on some contentious issues - so that state and federal lawmakers who are directly answerable to the public can take the lead in setting policy - makes plenty of sense.