June 25, 2018 02:46 PM UTC

Gorsuch: Bad As You Thought (Gerrymanderin' So Cool Edition)

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• by: Colorado Pols

Slate’s Mark Joseph Stern reports on a 5-4 Supreme Court decision today upholding gerrymandered state legislative districts in Texas–a decision ominous for both its short-term effects, and what it broadcast about the views of Neil Gorsuch, Colorado’s radical native son appointed by President Donald Trump to the Supreme Court last year:

On Monday, the Supreme Court issued a bitterly divided 5–4 decision upholding all but one of Texas’ gerrymandered districts, ruling they were not drawn with impermissible racial bias. Justice Samuel Alito’s majority opinion reverses a lower court’s conclusion that Texas gerrymandered both congressional and state legislative districts in order to curb the power of minority voters. The ruling is a brutal blow to civil rights advocates, who amassed a vast record of evidence that Texas mapmakers diluted the votes of Hispanic residents.

What may be most remarkable about Monday’s decision in Abbott v. Perez, however, is Justice Neil Gorsuch’s effort to position himself as a fierce opponent of the Voting Rights Act. The Supreme Court already gutted a central provision of the VRA in 2013’s Shelby County v. Holder. Now, in Perez, Gorsuch has joined Justice Clarence Thomas’ crusade to hobble the law even further by holding that it does not prohibit racial gerrymandering. Were the court to adopt Gorsuch’s interpretation, the VRA could never again be used to stop racist mapmakers from diluting minority votes.

In a different case concerning state-level gerrymandering before the court in October of last year, Gorsuch expressed a similar view–and was smacked down for it by liberal Justice Ruth Bader Ginsburg:

“And where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear—if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2.” In other words, Gorsuch was saying, why should the Court involve itself in the subject of redistricting at all—didn’t the Constitution fail to give the Court the authority to do so?

Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal. In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.) [Pols emphasis]

But today, the Supreme Court reversed a lower court’s ruling that these Texas districts had been drawn to reduce minority representation in all but one of the pertinent districts. And in the concurring opinion from Gorsuch and arch-conservative Justice Clarence Thomas, as Stern continues, we see that Gorsuch would have gone much farther:

In a brief concurrence, Thomas explained that he would’ve gone further than Alito. Rather than reject the plaintiffs’ VRA claims, he wrote, the court should have overturned decades of precedent to hold that the VRA does not prohibit racial gerrymandering at all. Thomas has argued this point for years, often joined by Justice Antonin Scalia. On Monday, Gorsuch took up the mantle, conspicuously signing onto Thomas’ assertion that the VRA allows mapmakers to dilute minority votes.

It is difficult to overstate how devastating this theory would be if it ever gained majority support on the Supreme Court. [Pols emphasis]

During the confirmation hearings for Gorsuch early in 2017, Colorado Democrats still reeling from Trump’s election were subjected to considerable pressure to support “native son” Gorsuch. This was despite the fact that Gorsuch’s record was distantly to the right of the political mainstream–fully understood to be more radical than Antonin Scalia, the Justice he succeeded on the court. Former Gov. Bill Ritter led a long list of (nominally) Democratic local attorneys and officials–not to mention the Denver Post editorial board–who implored skeptics to give Gorsuch’s prodigious intellect a chance to shine.

Well folks, at least we know just how wrong they were now.