Justices provide a pause to give partisans a chance to act appropriately.
HERE'S OUR TAKE on the unanimous U.S. Supreme Court decision in Gill v. Whitford, the Wisconsin legislative redistricting dispute.
The justices are sending a message to partisan politicians across the country: Fix this, or we may have to.
The high court did not render a decision on the merits of the case. Instead, on a technicality, the justices kicked the case back to the trial level. There, the process can start all over again. The trick is for plaintiffs to find voters with more demonstrable standing to sue, individuals who can claim to have been personally harmed by partisan district boundaries. That will not be hard, and it can start the clock ticking again with a case winding its way toward the Supreme Court.
Meanwhile, the justices could take another crack at the issue even sooner, if they so desire, with a North Carolina case already in the pipeline alleging excessive partisan shenanigans in its redistricting process.
THIS IS NOT an unusual strategy for the court in high profile, politically sensitive matters. Traditionally, the court does not like to create new law out of whole cloth, particularly when it comes to political competition for the elective branches of government.
Instead, the court tends to duck and dodge - hoping changing political winds lead to legislative decision-making - until avoidance becomes a worse option than treading into troubled political waters.
Consider the issue of same-sex marriage. The Supreme Court first ruled in 1972 that there was no "substantial federal question" in dismissing a Minnesota case brought by a gay couple wishing to wed. It took more than 20 years before a state, Hawaii, legalized same-sex marriage via court challenge. Even then, in the 1990s, Hawaiian voters adopted a constitutional amendment banning the practice. Meanwhile, in Washington, President Clinton signed the Defense of Marriage Act, denying federal benefits to married same-sex couples.
In 2003, the Massachusetts Supreme Court legalized same-sex marriage. By 2004 11 states had adopted constitutional bans.
The first legislative approval came in 2009, in Vermont. That was quickly followed with approvals in New Hampshire and Maine.
With a national consensus growing, cases challenging same-sex marriage prohibitions began working through the system. Still, the Supreme Court largely took a pass to allow legislators to act. Not until 2015, after the political process caught up in state after state, did the Supreme Court take and decide a case legalizing same-sex marriage across America.
FOR THE MOST PART, we believe the justices' preference for not getting out in front of political disputes is sound. It's usually better if the people's elected representatives make changes consistent with the will of the governed.
Not always, though. The courts finally stepped in - about 100 years late - to drag the country to the right side of the civil rights issue. The preceding Jim Crow century following the Civil War was a low water mark for America's political and judicial institutions.
The question now is whether partisan interests can read the justices' signals and find the will to stop trying to rig elections. The Wisconsin case was not the resounding victory being claimed by politicians in charge. Rather, it is a technical delay allowing the political process an opportunity to find common ground.
Churchill said, "Americans can always be trusted to do the right thing, once all other possibilities have been exhausted."
The right thing is to assign decennial redistricting responsibilities to a nonpartisan process.