Standing Gill v. Whitford On its Head

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Opinion

by Ryan Adler

Ryan Adler is a Superforecaster and Senior Consultant for Good Judgment who specializes in legal analysis for Good Judgment’s question writing team. He also administers the SCOTUS Challenge on Good Judgment Open, a collaboration between SCOTUSblog and Good Judgment that facilitates probabilistic thinking about court decisions. Ryan can be reached at adler@goodjudgment.com.

 

In The Devil’s DictionaryAmbrose Bierce described patience as, “a minor form of despair, disguised as a virtue.”  After today’s decision in Gill v. Whitford, a number of Court watchers might take issue with the use of the term, “minor.”  It goes without saying that 258 days is a long time to wait after oral arguments for a ruling, even by Supreme Court standards.  With Gill argued on just the second day of the term and handed down on the second to last Monday of the term, they couldn’t have stretched it any farther without setting the case for reargument as Justice Breyer suggested during oral arguments in Benisek v. Lamone (the companion political gerrymandering case out of Maryland that was affirmed in a per curiam opinion also handed down this morning).  But instead of seeing Kennedy reluctantly embracing the status quo again fourteen years after the last major case of this ilk, or even the door opening to an avalanche of litigation over the district maps of thousands of federal, state, and local jurisdictions, the Court became the third Colquitt brother for the day and punted over standing.  The result was our 1,258 forecasters landing on 65% going the wrong way, a miss that may be forgiven, at least in part, on the Court kicking the can down the road that will be back on the steps of 1 First Street NE sooner rather than later.

While the substantive fight over the judiciary’s role in political cartography will eventually come to a head, this case offers a very important reminder for forecasters.  While reading the district court opinion in preparation for drafting this SCOTUS Challenge question, I faintly heard, “Newdow!” echo in the back of my mind.  Elk Grove Unified School District v. Newdow was the Pledge of Allegiance case back in 2004, which saw the Supreme Court sidestep the question of the constitutionality of “under God” on standing grounds.  The press was abuzz with speculation over whether the Court would either embrace or strike down one of the most prominent mentions of God in American society.  They took a third option, and the question hasn’t been reached on the merits there since.

Mindful of Newdow, we made a very deliberate decision on how we would frame our case questions.  By asking yes or no if the Court would make a particular, substantive ruling (“…will the Supreme Court rule that any part of Wisconsin’s redistricting plan is an unconstitutional partisan gerrymander?”), any decision failing to reach that substantive decision clearly results in a “no.”  So though we’re left with a question that feels a bit dryly-worded compared to the headlines, even an unexpected result fell squarely within an answer.

Question mechanics aside, I will give you a forecast right now.  No matter how sure a future SCOTUS might claim to be in crafting a framework for the adjudication of partisan gerrymandering claims, it would be an administrative disaster for courts.  Kennedy knew that when he wrote his Vieth v. Jubelirer concurrence, and I suspect that he knows it in his heart of hearts today.

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