I should have known better than to be optimistic about Kennedy based on the oral arguments:
The Supreme Court declined on Monday to decide two challenges to partisan gerrymandering, citing technical grounds.
In a case from Wisconsin, the court said plaintiffs there had not proved they had suffered the sort of direct injury to give them standing to sue. The court sent the case back to the lower courts to allow the plaintiffs to try again.
In a second case, from Maryland, the court ruled against the challengers in an unsigned opinion.
The decisions were a setback for critics of partisan gerrymandering, who had hoped that the Supreme Court would decide the cases on their merits and rule in their favor, transforming American democracy by subjecting to close judicial scrutiny oddly shaped districts that amplify one party’s political power.
As Jack Balkin has written:
Standing doctrine is among the most unprincipled and arbitrary parts of American constitutional law. The Supreme Court has expanded and contracted standing requirements repeatedly over the years in order to accommodate cases that a majority of Justices want to hear or would rather shut down.
The argument that the plaintiffs lack standing is not at all convincing, but the Court’s four liberal nominees presumably went along because denying standing is better than rejecting the claim on the merits. Kagan’s concurrence, which convincingly explains why partisan gerrymandering with modern technology is a disaster for democracy, tries to be optimistic:
Kagan: “the federal courts will not tolerate partisan gerrymandering for long.” Republican judges: “just watch us.”