As Term Winds Down, Supreme Court Says It Will Take On Partisan Gerrymandering

By Nina Totenberg

Published June 20, 2017 at 2:20 PM CDT

Chief Justice John Roberts (second from right) and Justice Neil Gorsuch (center) walk down the steps of the Supreme Court in Washington, D.C., last week. The court is wrapping up its term, with a handful of consequential cases decided on Monday.

The U.S. Supreme Court, forging its way to the end of the current term, unloaded a raft of important decisions Monday, with many more expected in the days to come. At the same time, the court agreed to hear a case next term that will test whether there is a constitutional limit to how much partisanship can be used to draw legislative maps.

Among Monday's decisions were these:

In a case that pitted alleged constitutional violations against national security claims, the court ruled that top Justice Department officials in the George W. Bush administration cannot be sued for money damages over policies they devised and carried out after the Sept. 11 terrorist attacks.

In a test of the 1946 federal trademark law, the court ruled unconstitutional a provision barring any registration for a trademark that "disparages individuals or groups."

In another free speech case, the court struck down a North Carolina law that barred convicted sex offenders from using Facebook, Twitter and other social networking sites that are available to children.

And, in a death penalty case, the court ruled that an indigent defendant has the right to have an expert witness of his own to help defense lawyers prepare and present an insanity defense.

Of all the court's actions, the most high-profile was its announcement that it will hear a constitutional challenge to partisan gerrymandering next term.

Both major political parties have long sought to gain partisan advantage when drawing state legislative and congressional district lines after each decennial census. But with the advent of computers and the growth of one-party dominance in many states, the practice has grown exponentially.

Republicans have more to lose in next term's case because they control state legislatures in many more states than the Democrats do, and they stand to maximize that advantage again after the 2020 census.

The partisan gerrymander to be reviewed next term is in Wisconsin, where the state legislature and the governorship are controlled by Republicans. The result is that while Republicans won only a minority of the statewide vote — 48.6 percent — they captured a 60 of 99 seats in the state Assembly.

A federal appeals court panel struck down the map as so lopsidedly partisan that it violated the Constitution's guarantee of equal protection of the law. The lower court ordered the state to draw new district lines in time for the 2018 election, but in a sign of how closely divided the Supreme Court is, it split 5-4 on Monday, ordering that map redrawing to be halted while the case is under review.

The Supreme Court has for decades forbidden racial gerrymandering, but it has repeatedly shied away from addressing partisan gerrymandering. The last time it tackled this issue was in 2004 when it split five different ways, ultimately refusing to dive into the partisan gerrymander pool by a 5-4 vote.

The fifth and decisive vote was cast by Justice Anthony Kennedy, who left the door open to revisiting the issue if a manageable test could be found for evaluating how much is too much partisanship. Now the court has walked through that open door, with Kennedy as the likely deciding vote once again.