In a famous obscenity case, Potter Stewart, who served on the Supreme Court from 1958 to 1981, remarked that he couldn't define "pornography" but he knew it when he saw it. I'd guess that most people who are aware of the quote imagine the speaker to have concluded that the work in question—it was the Louis Malle film, Les Amantes (The Lovers)—is indeed pornographic. Stewart's view, however, was the opposite: he "knew pornography when he saw it" and Les Amantes was not it. Theoretically, it could have crossed the line. It didn't.
This idea that a right exists on a continuum seems unexceptional. You can make movies but not snuff films. You have a right to free speech but can't shout "Fire!" in a crowded theater. So don't cross the line! It's there, somewhere, and, if your behavior is outrageous enough, we'll decide it's on the wrong side of the line.
I think this general framework for analyzing disputes that arise is pretty widely accepted, but it was last week implicitly rejected by five justices of the Supreme Court in a gerrymandering case, Rucho v Common Cause. Writing for the majority, Chief Justice Roberts held that partisan gerrymandering occurs and is a bad thing. Since, however, the Court lacks the means of distinguishing a gerrymander from an acceptably drawn district, or a mild gerrymander from one so outrageous that it violates the principle that voters be treated equally, Roberts and the Court's other conservatives would not wade into the swamp and deem the gerrymander in question illegal. The plaintiffs would have to find another remedy, like Congress.
The beneficiaries of gerrymandering will have to supply the remedy!
On the principle of "I know it when I see it," the plaintiffs in the case should have prevailed. Here is an instance of political pornography, the 33rd congressional district in Texas:
These "barbell districts" are a standard tool in the gerrymander toolbox. There are too many Democrats in the respective weighted ends. If those areas were in different districts, each has enough voters to elect a Democratic congressperson. The solution is to connect them with the skinny barbell, to create one overwhelmingly Democratic district. When all the Democrats are packed into just a few districts, Republicans will win everywhere else. Competitive races are rare, because everything is fixed before Election Day. Instead of voters picking their representatives, representatives pick their voters. To which the Supreme Court majority says, "Have at it!"
The chart at the top of this post should qualify as another case of knowing it when you see it. In Wisconsin, for example, Democratic candidates for the State Assembly in 2018 outpolled Republican candidates, statewide, by 53% to 45%. That is, of all the votes cast in 99 individual Assembly districts, the Democratic candidate was chosen on 53% of the ballots and the Republican candidate was chosen on 45% of the ballots. Nevertheless, the Republican candidates won 63 of the 99 races. An overwhelming majority of the representatives with a minority of the votes—outrageous! I know it when I see it!
In his confirmation hearing, Chief Justice Roberts memorably compared the job of judging to that of the home plate umpire calling balls and strikes in baseball. If one adopts the metaphor, and tries to bring it into conformity with his decision in the gerrymandering case, I think you'd have to say he knows very well that the Wisconsin case is a ball outside the zone. But he doesn't know for sure where the strike zone begins or ends. There are other cases—Michigan, North Carolina—that are a harder call. Since he can't define the strike zone, he'll let someone else make the call, and, until they do, everything is permitted, nothing is outside the zone.
This to me is an abdication of responsibility dressed up, perhaps, as judicial restraint. Defining the strike zone is the umpire's job. It's not difficult to conceive of ways to define the zone. The same tools—mathematical modeling of election data, sophisticated mapping software—that Wisconsin Republicans have put to use to frustrate the majority of voters who dislike their policies could be repurposed to prevent them from subverting democracy. For example, a computer could generate at random a very large number of different ways to divide Wisconsin into 99 districts of equal population. Election results could then be superimposed over each of these hundreds of divisions. We would then have data with which to answer some questions pertaining to the fairness of a particular proposed election map. For example, we'd be able to answer questions like: given the actual precinct-by-precinct election results in State Assembly races in 2018, what is the likelihood that Republican candidates win in at least 63 of the 99 districts? If it's 31 or 22 percent, we'll only frown. But if it's less than 1 percent, you're cheating: make a new map. I'm saying it wouldn't be that hard to define the zone, set a marker, draw a line that can't be crossed.
As a Minnesota Gopher, it's only my job to point the way. John Roberts went to Harvard and can work out the details. Justice Kagan is willing to help. This Slate article includes links to the majority opinion as well as to her ardent dissent. Notwithstanding his service as President Reagan's Solicitor General, Charles Fried sees things my way—his column for The Atlantic is here.
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