How The Women of SCOTUS Are Trying To Salvage American Democracy

On Tuesday this week, the Supreme Court of the United States heard oral arguments on a case Justice Ruth Bader Ginsburg has described as “the most important case” on the court’s docket this year: Gill v. Whitford, a challenge to the racist, undemocratic practice of partisan gerrymandering.

The case challenges the hyper-partisan district lines drawn by Wisconsin’s Republican governor, Scott Walker, which favored Republicans so strongly that even though Wisconsin Democrats won 51.4% of the vote in State Assembly elections — a whopping 174,000 more votes than the Republicans — they gained a mere 39 seats to the 60 won by Republicans. These legislative district lines were deliberately cooked in a meeting room with GOP officials to keep Republicans in political power no matter what electoral scenario arose or how many people came out in favor of the Democrats. Indeed, the maps were redrawn until one that could entrench Republicans in power for years emerged. (When questioned in oral arguments about this particularly egregious intention, the State’s attorney simply pointed out: they did it because they could.)

Ever since the disastrous events of November 8, 2016, and the human rights abuses that have ensued thereafter, everyone has been trying to diagnose what happened in the presidential elections. However, the oft-forgotten victors of last year’s elections — and needed accomplice to Trump’s government — have been state Republican governments, who came to power as a result of racist and partisan gerrymandering and assumed single-party control in 26 of them. These states have since attempted to pass a slew of legislation that curtails civil liberties, impairs voting rights for minorities, impedes on trans rights, stamps on abortion rights and threatens the LGBT community. With gerrymandered district lines, and the present carte blanche to continue to redraw these lines as they please, these states are now gearing up for years of Republican control, uncontrolled by lax federal oversight, uncurtailed by Trump’s federal judicial appointees, and unchallenged by any human rights or civil rights based constraints.

It’s with this context in mind that Gill comes to the Supreme Court — the question before them being whether the constitution, essentially, plays any meaningful role in preserving American democracy. And predictably, in Tuesday’s oral arguments before the Court, the only people who came swinging hard to protect gerrymandering’s victims were the women of SCOTUS, with the most powerful women of color in the judiciary today, Justice Sonia Sotomayor, leading the fore.

Sotomayor’s intervention in oral arguments was sharp and precise: “Could you tell me,” she asked the attorney representing Wisconsin, “What the value is to democracy from political gerrymandering? How does that help our system of government?” The direct nature of Sotomayor’s question — after nearly an hour of wrangling on the legal technicalities of gerrymandering — took attorney Erin Murphy aback so sharply that her response was pure gibberish, instantly lampooned by critics. As Slate’s Mark Stern points out, Sotomayor has a knack for being “simple but devastatingly effective,” and getting to the heart of the issue. Sotomayor followed up her question with an even more precise blow, asking, “It’s OK to stack the decks so that for 10 years — or an indefinite period of time — one party, even though it gets a minority of votes, can’t get … the majority of seats?” Murphy once again did not offer a coherent response.

Justice Ginsburg, meanwhile, played her part by asking: “What becomes of the precious right to vote? Would we have that result when the individual citizen says: I have no choice, I’m in this district, and we know how this district is going to come out?”. Her finest moment, however, came when she silenced the Court’s newest member: conservative Trump appointee Neil Gorsuch — with a single comment. Gorsuch asked Paul Smith, the lawyer challenging Wisconsin’s gerrymandered state lines, in a condescending manner to consider the “arcane matter of the Constitution,” stating the document offered absolutely no authority to the Supreme Court to involve itself in redistricting debates. Ginsburg barely lifted her head up before grumbling, pointedly:  “Where did ‘one person, one vote’ come from?” Legal analyst Jeffrey Toobin claims that “there might have been an audible woo that echoed through the courtroom,” and that “Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.” “In one cutting remark,” Toobin comments, “Ginsburg summed up how Gorsuch’s patronizing lecture omitted some of the Court’s most important precedents.”

The court’s third female justice, Elena Kagan, also chipped in to contribute. When conservative justices argued that it would be too difficult to litigate whether maps are drawn in gerrymandered ways, Justice Kagan pointed out the obvious flaw in that argument: Wisconsin used experts to draw gerrymandered maps “pretty easily,” using “extremely sophisticated” techniques; why couldn’t the same precise, scientific technology be reverse engineered, and used to tell which legislative districts were problematically structured? “This is not some hypothetical airy-fairy,” Kagan said, pushing back on Roberts and Alito’s accusations of “gobbledygook”, adding “this is pretty scientific by this point.”