Demonstrators outside the U.S. Supreme Court on the day of arguments in Gill v. Whitford, Tuesday, October 3, 2017.
Photo: Diego M. Radzinschi/ALM

Amid dire predictions of an imminent end to democracy, the U.S. Supreme Court on Tuesday debated whether modern-day gerrymandering is so partisan and polarizing that it violates the Constitution.

“You are the only institution that can solve this,” lawyer Paul Smith told the justices, asserting that legislators themselves are unlikely ever to put an end to redistricting practices that give them a lock on election outcimes.

True to form, Justice Anthony Kennedy emerged as the swing vote, and he appeared to swing toward a First Amendment theory that would end extreme gerrymandering because it silences the political voice of voters in the minority party.

But other justices also played their typical roles, complicating any prediction of the outcome of Gill v. Whitford, the case being argued Tuesday before a large audience that included former California governor Arnold Schwarzenegger, a vocal advocate for terminating gerrymandering.

The case is a challenge to Wisconsin’s latest redistricting plan, which in 2014 resulted in Republicans winning 63 of 99 state assembly seats with only 52 percent of the vote. Twelve Wisconsin voters from 11 districts sued the state, and whether they had standing to complain about statewide redistricting was a strong undercurrent during Tuesday’s arguments.

Edward Foley, an election law expert at the Ohio State University Moritz School of Law, said before the hearing that Gill was “one of those rare cases for which what transpires during oral argument genuinely has a chance to be outcome-determinative.” Foley might be right. Justices seemed to tip their hand or show their colors more than usual:

Roberts, Court Protector: In his 12th year as chief justice, John Roberts Jr. often views groundbreaking cases through the lens of what a given decision will do to the court’s docket and image. “There will be a lot of these claims” asserting unconstitutional gerrymandering, Roberts said. “Everyone will come here for a decision on the merits. We will have to decide whether the Democrats or Republicans win … The intelligent man on the street will say, ‘that’s a bunch of baloney.’ … That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”

Gorsuch, Sarcastic Constitutionalist: Justice Neil Gorsuch, who seems to use sarcasm to get responses from lawyers, said the proposed metrics for appraising gerrymandering reminded him of the spices he likes on his steak—he mentioned turmeric. “I like a few other little ingredients, but I’m not going to tell you how much of each,” he said. “What’s the court supposed to do? A pinch of this, a pinch of that?” He then rattled off provisions of the Constitution that give the states and Congress—not the courts—power over elections and redistricting.

Ginsburg, Never Shy: Justice Ruth Bader Ginsburg would have none of what Gorsuch was saying about the lack of any role for the courts in redistricting under the Constitution. “Where did one-person/one-vote come from?” Ginsburg shot back. She was referring to Reynolds v. Sims, the 1964 ruling that said the Equal Protection Clause gives the courts a key role to play. “A claim of debasement of the right to vote through malapportionment presents a justiciable controversy,” the court said in 1964.

Kennedy, First Amendment Champion: Liberals hoped that Anthony Kennedy would extend his embrace of the First Amendment to striking down gerrymandering as a de facto punishment of expression. Kennedy did just that on Tuesday. “Suppose … the court found this is a First Amendment issue, not en equal protection issue?” Kennedy said. He then used an analogy of one party confiscating the campaign signs of the opposing party.

Alito, Social Science Skeptic: Justice Samuel Alito Jr. acknowledged that “gerrymandering is distasteful,” but recited some of the metrics and formulas that have been advanced for measuring how partisan a given redistricting plan is. “Is this the time for us to jump into this?” Alito said. “Are all of the techniques … scientific? I think they rely a lot on polls.”

Sotomayor, Social Science Advocate: ”Every metric points in the same direction” toward ending gerrymandering, Justice Sonia Sotomayor said. “How does [gerrymandering] help our democracy?”

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro