Author

It has been five years since the U.S. Supreme Court’s ruling in Rucho v. Common Cause closed the door on federal claims challenging partisan gerrymandering, declaring them nonjusticiable political questions. Scholarly literature, since then, has focused primarily on where the Court went wrong in abdicating its responsibility and, to a lesser extent, how the Court got Rucho right. However, an under-addressed feature of Rucho is what Justice Elena Kagan explicitly and implicitly stated in her dissent; that is, the role of judicial federalism before and after Rucho and the influence of state courts in developing partisan gerrymandering doctrine as a matter of state constitutional law.

Justice Kagan’s dissent explicitly reminded the majority that if the state courts were capable of crafting appropriate standards to address partisan gerrymandering, so too was the Court. The problem, of course, was that the number of state court rulings addressing partisan gerrymandering at the time were in short supply. Implicitly, Justice Kagan then suggested that the Court could and should have consulted, borrowed, and adopted the state versions of neutral and objective standards as a source to guide the Court towards crafting a workable federal version. She, however, failed to identify or reference prior instances when the Court looked to the state courts to educate federal constitutional law. This Essay draws attention to how Justice Kagan’s dissent should be understood as foundational support for both the process of percolation and practice of federalization.

The percolation of state constitutional doctrines on partisan gerrymandering offers the Court a rich source of doctrine that will clarify the neutral and objective principles necessary to effectively adjudicate such sensitive political questions in the future. As such, the Court will be positioned to federalize those state doctrines, if it chooses to do so, in order to inform, guide, and support the creation of a federal partisan gerrymandering jurisprudence.