—Justice Kagen, joined by Justices Ginsberg, Breyer and Sotomayor, (p.2 of concurring opinion)
Wisconsin's Republican gerrymandering scheme is remanded back to lower court for further proceeding, the United States Supreme Court ruled today, (Howe, SCOTUSBlog).
The court sends the case back for further proceedings, "in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion," notes Amy Howe.
Decision is here.
The court explains that it would normally order the dismissal of the plaintiffs' claims, but this "is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unreslved." So the court sends the case back to the district court to give the plaintiffs a chance to show that they themselves have suffered "concrete and particularized injuries."What happened is the swing-vote Kennedy is so weak and suspicious of liberty claims that the four liberal justices went along with remanding the case so plaintiffs, voters, can establish incontrovertible standing and harm inflicted by the Republican redistricting scheme in Wisconsin.
by Amy Howe 9:21 AM
The concurring opinion by Kagen, joined by the three liberal justices, makes clear Kennedy as well is looking for a precedent-setting opinion that applies nationwide, not statewide in Wisconsin.
Writes Kagen, (p.2 of concurring opinion):
Partisan gerrymandering, as this Court has recognized, is 'incompatible with democratic principles.' Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 1) (quoting Vieth v. Jubelirer, 541 U. S. 267, 292 (2004) (plurality opinion); alterations omitted).
More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. None of those facts gives judges any excuse to disregard Article III’s (United States Constitution and standing to litigate) demands. The Court is right to say they were not met here. But partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy.
Liberty-loving voters just have to wait another year, and hope Kennedy does not retire.