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Which Way Will Justice Kennedy Swing in Gerrymandering Case?

By George Khoury, Esq. on October 04, 2017 | Last updated on March 21, 2019

With SCOTUS basically split along partisan lines, Justice Anthony Kennedy's swing vote is expected to decide the closely watched Wisconsin gerrymandering case. During oral arguments this week, Justice Kennedy's line of questioning may have hinted at what he's considering in this case.

First off, he did not bother questioning the plaintiffs in the case who successfully challenged the law in the lower courts. Instead he only asked questions of the state's attorney, and led by asking what would result if the Court decided that gerrymandering along political lines was a First Amendment issue. Generally, conservative justices focus their question to the liberal viewpoint's attorney, while the liberal justices question do the same to the conservative viewpoint's attorney.

Is Kennedy's Focus a Hint?

Since Justice Kennedy is generally regarded as a conservative justice, despite the fact he often sides with liberal justices, his questioning of the state's attorney may reflect a liberal viewpoint on the case.

However, his questioning suggested, at one point, that the challengers may not have standing to assert their claim. Regardless, the big picture of whether extreme political gerrymandering is constitutional is something he may have been waiting to decide again.

Is This the Time?

The drawing of voting districts has traditionally been something left to the legislatures. A big issue that may cause the conservative justices, including Kennedy, to vote in favor of the state to uphold the heavily Republican favored voting district maps is the separation of powers.

Notably, in a gerrymandering case from 2004, and again in this case, Justice Kennedy suggested that courts could be involved in limiting partisan gerrymandering when it goes too far. However, the 2004 case did not do so. Kennedy noted then that he would be open to the idea of courts limiting partisan gerrymandering if a good test could be developed to manage and measure the issue.

Fortunately for the state, there is no upcoming election this November as the ruling is not expected until spring.

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