Gerrymandering ruling challenges citizens to act

Americans have been at odds over political boundaries for a very long time, well before an egregious form of partisan power-grabbing came to be labeled “gerrymandering” in the early 19th century But reading the outcry over the Supreme Court’s ruling in a North Carolina case this week you might assume that this abuse is a novelty.

But what, exactly, did the court say? Thanks to the swing vote of Chief Justice John Roberts, it hedged. Roberts has shown in pivotal cases a concern to avoid judicial overreach. In the two 5-4 decisions announced Thursday, he rebuffed a Trump administration effort to write a citizenship question into the 2020 Census forms — one clearly calculated to shrink the usually Democratic immigrant vote. But in the gerrymandering case Roberts’s deciding vote kept the federal courts out of political quarrels that judges are ill-suited to referee.

Some of the resulting commentary depicts this act of judicial self-restraint as an insult to democratic values. It is, in fact, a step backward, though not in the negative sense. It is a modest restoration of the “political questions” doctrine that prevailed until the 1960s, when the Warren Court in a Tennessee case held apportionment issues to be “justiciable” — a legal term meaning that federal judges could try to referee them.

“Try” is the key word. Judges, by the nature of their craft are ill-equipped to correct abuses that voters tolerate. The 1963 case of Baker v. Carr arose from the failure of state legislative bodies to obey even their own constitutional mandates to adjust party balances to fit census findings. Legislative malapportionment was the political outrage of that era.

Justice Felix Frankfurter explained the judicial deficiency in a powerful dissent whose relevance has not faded, has indeed become even more evident. Chief Justice Roberts is doubtless familiar with the long-term results of that judicial correction of bad democratic habits , which have been disappointing. Yes, legislatures are now more attentive to rural/urban imbalances. But as Republican abuses show here in North Carolina, the improvement in apportionment commanded decades ago by federal judges does not prevent the abuse of majority power. And both major parties are perennially guilty — and meanwhile, in a perverse side effect, have lowered the quality of representation by shifting the balance of power overwhelmingly from rural to upstart urban constituencies.

The common complaint about last week’s gerrymandering decision — that it is anti-democratic —is misplaced. Typically, the ostensibly “democratic,” exercise of a roving judicial license to police bad voter habits has attenuated voting and political parties and thus democracy itself.

The Roberts vote in effect challenges the passivity of American voters — the tendency to leave political proprieties to judges. It challenges us to turn off the TV sets and engage in the grassroots activities that produce real democratic results.

Meanwhile, like Roberts’s vote two years ago against the Trump administration’s effort to cripple Obamacare, his present vote again highlights his institutionalist instinct to confine judicial power to appropriate uses and curb the ongoing tendency to enfeeble democratic habits in the name of democratic theory.

Edwin M. Yoder Jr. of Chapel Hill is retired after a career as a writer and editor in Washington, D.C.

This story was originally published July 1, 2019 at 5:09 PM with the headline "Gerrymandering ruling challenges citizens to act."