Unintentionally or not, chief justice identified the key question.
THE QUESTIONS AND COMMENTS that clearly had U.S. Supreme Court Chief Justice John Roberts agonizing are not frivolous.
"The whole point is you're taking (redistricting) issues away from democracy and you're throwing them into the courts," Roberts said. If that becomes the norm, the chief justice worries it will tarnish the courts' image as independent arbiters of the law rather than partisan tools of the political parties.
"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," Roberts said.
THAT'S A REAL PROBLEM, but the courts didn't cause it. The political parties did. And, unfortunately, the only remedy appears to be the courts because professional politicians of both parties have proven over and over such things as "status" and "integrity" run a poor second to raw power.
The Wisconsin redistricting case - officially known as Gill v. Whitford - essentially asks the court to determine if there's a point where partisan engineering of legislative maps to gain unfair advantage crosses the line between permissible politicking and unconstitutional cheating. Supreme Court justices heard oral arguments in the case Tuesday.
It's always a fool's errand to try to predict how the court may rule based on the justices' comments and questions during arguments. Nevertheless, as expected, it appeared the four conservative justices are reluctant to wade into the partisan thicket while the four liberal justices look like they are ready to say rigging lines to lock in one party's control violates the rights of voters. In the middle - where he often sits - is Justice Anthony Kennedy. Where he winds up may well determine if sweeping change is ordered from coast to coast in how legislative boundaries are drawn.
Perhaps the "tell" for Kennedy came when he asked a lawyer defending the current map if it would be unconstitutional for a legislative majority to pass a law mandating that redistricting lines be configured to lock in their control. The lawyer said that would be unconstitutional, but added no such law had been passed in Wisconsin. True. But is it any less wrong if a majority builds just such a map in secret and then uses its legislative muscle to impose it on a state's voters?
THERE'S NOTHING GOOD about the fact professional politicians have forced this issue on the Supreme Court by their own bad behavior. Both parties are to blame, and one need look no further than Illinois and Wisconsin to see it. In Illinois, majority Democrats turned Republicans into perpetual potted plants by cheating when they drew legislative boundaries. In Wisconsin, Republicans did the same to Democrats, guaranteeing they would keep the majority in Madison even if Democrats scored lopsided gains in the popular vote.
Roberts is not wrong when he worries that a decision finding against political mischief will make die-hard partisans squeal and likely bring more and more redistricting cases onto the court docket.
Let us suggest, however, though the justices did not pick this fight neither can they duck it.
When Chief Justice Roberts worries about "taking ... issues away from democracy," he inadvertently poses the right question, which is: Should the court protect democracy or political parties? Requiring fair redistricting protects democracy - the people's vote. Giving the court's blessing to cheating - or even just looking the other way in deference to political branches - protects professional partisanship.
NOTHING SHOULD BE more basic to democracy than the principle that every vote counts the same, without being diluted by partisan schemers. Strategies intended to diminish the power of voting patterns are anti-democracy. The intent is to lock in rule. No fair-minded American should want that.
So we sympathize with Roberts' lament, while recognizing the Founders saw clearly the political branches could be self-serving and gave independent courts the job of saving them from their worst authoritarian impulses. Unpleasant? Yes. But it's the court's job, one no other institution can perform.
So, Justice Kennedy, what say you? In a few months America will know.