By Nicholas Stephanopoulos. Stephanopoulos is an attorney in the Washington, D.C. office of Jenner & Block, where he specializes in election law.
One of the many areas in which Elena Kagan has left next to no paper trail is election law. In particular, Kagan has expressed no views - at least, not in writing - on redistricting, gerrymandering, or the Voting Rights Act. These are all important topics. And they are especially vital now, as the Census nears completion and states prepare frantically to redraw all their districts in 2011. Election law blockbusters will very soon be on the Supreme Court's docket.
The Justice that Kagan has been nominated to replace, John Paul Stevens, has a unique perspective on redistricting. In his view - never endorsed by a majority of the Court - it is unconstitutional for a legislature to draw district lines with the primary purpose of benefiting (or harming) any political party or incumbent. As he put it in his 2004 dissent in Vieth v. Jubelirer, "purpose [is] the ultimate inquiry," and "when partisanship is the legislature's sole motivation," a district map must be struck down.
Justice Stevens has recognized that legislative purpose is often very difficult for courts to determine. In his 1983 concurrence in Karcher v. Daggett, he argued that courts should therefore focus not on the "subjective intent of local decisionmakers," but rather on "objective indicia of irregularity." These objective indicia include the "packing" or "cracking" of members of a political group, "dramatically irregular [district] shapes," and "[e]xtensive deviation from established political boundaries." If courts find enough of these clues, they can conclude that the legislature's motivation was overly partisan.
How does Justice Stevens' position on redistricting relate to Elena Kagan? The answer is that in one of her best-known academic articles, she embraced exactly the same approach - only with regard to free speech rather than electoral districts. In "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan contended that the underlying theme of the Supreme Court's First Amendment decisions is that actions taken due to "improper governmental motives" are unconstitutional. Perhaps the quintessential illicit motive is "restrict[ing] speech because the ideas espoused threaten officials' own self-interest - more particularly, their tenure in office."Like Justice Stevens, Kagan appreciated the difficulty of figuring out why politicians pass particular laws. She observed that, because of this difficulty, the Court has abandoned any "direct inquiry into motive." Instead, the Court "construct[s] and use[s] objective tests" that allow it to "flush out" illicit purposes and "invalidate actions infected with them." In Kagan's view, these objective tests include almost the entirety of modern First Amendment doctrine.
Kagan's writings therefore suggest that she may well share Justice Stevens' stance on redistricting. If the Court is highly suspicious of speech-restricting actions that serve politicians' interests (as Kagan argues), why should it not be equally skeptical of incumbent-protecting district maps (as Justice Stevens contends)? If the Court uses various objective techniques to ascertain subjective intent in the First Amendment context (Kagan), why should it not do the same in the redistricting arena (Justice Stevens)?
It would be a very good thing if this speculation is correct. Gerrymandering is rampant across America. Everywhere you look, politicians draw bizarrely shaped districts in order to keep themselves in office and advance their parties' interests. Though he has never been able to persuade a majority of the Court, Justice Stevens has long been an articulate opponent of these seamy practices. Were Kagan to adopt his purpose-oriented approach, the cause of redistricting reform would find a new and gifted champion.
There are, of course, significant differences between free speech and redistricting cases. In particular, free speech doctrine is governed by the First Amendment while redistricting falls, for the most part, under the Equal Protection Clause. Kagan also made clear in her article that she was describing the law as it is, not as it ought to be. As she wrote, "I make no claim that a sensible system of free speech should be concerned exclusively with governmental motivation."
On the other hand, the First Amendment often comes up in the redistricting context. (Justice Kennedy, the crucial swing vote in Vieth, opined that "[t]he First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering.") The similarities between Kagan and Justice Stevens' analyses are also so striking that they cannot be ignored simply because different constitutional clauses are involved. And while Kagan's article was largely descriptive, she plainly did not shy away from the "normative underpinnings" of her theory.
There is hope, then, that Kagan will be Justice Stevens' successor in spirit as well as in name. The Court's election law doctrine - and American elections themselves - both stand to benefit if this hope is realized.