By Alan B. Sternstein

Shapiro v. McManus, No. 14-990, 136 S. Ct. 450 (decided Dec. 8, 2015), started as a challenge, on First Amendment grounds, to Maryland’s 2011 congressional redistricting. It appears, however, that Maryland and Supreme Court watchers nationwide will need to wait before the Court potentially sheds light on the lawfulness of that or other First Amendment challenges to congressional and state legislative redistricting.[1]  In Shapiro, a unanimous Supreme Court ruled only that the Fourth Circuit Court of Appeals erred in affirming the District Court’s decision that it was not required under the Three-Judge Court Act, codified at 28 U.S.C. § 2284, to convene a three-judge panel to consider Petitioners’ First Amendment challenge to the 2011 redistricting. Further, because the Court has already summarily and unanimously upheld an equal-protection challenge to Maryland’s 2011 redistricting, see Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011), aff’d 133 S. Ct. 29 (2012), it seems unlikely that Shapiro will clarify the standards applicable to a constitutional challenge to redistricting.

Among other things, the Three-Judge Court Act requires the convening of three-judge district court panels to hear U.S. constitutional challenges to state legislative apportionments of congressional districts — that is, unless the single district court judge to whom the case is initially referred “determines that three judges are not required.” 28 U.S.C. § 2284 (a), (b)(1). In Goosby v. Osser, 409 U.S. 512 (1973), the Court held that the Three-Judge Court Act “does not require the convening of a three-judge court when the [claim] is insubstantial,” meaning “obviously frivolous,” “essentially fictitious,” or “inescapably … foreclose[d]” by this Court’s precedents. Id. at 518. In Shapiro, however, the District Court, as affirmed by the Fourth Circuit, equated these standards with the question whether Petitioners’ complaint failed to state a claim under Fed. R. Civ. P. 12(b)(6) and, finding that the complaint did not, dismissed it.

This disposition, the Supreme Court held, was error. According to the Court, in a unanimous decision and opinion written by then-Justice Scalia, the language of § 2284(a) clearly required the convening of a three-judge court and left the District Court no discretion in the matter. 136 S. Ct. at 454. Section 2284(b)(1)’s language permitting the district court to dispense with convening a three-judge court if it “determines that three are not required” should, according to the Court, “not be read as a grant of discretion to the district judge to ignore §2284(a).” Id.

Section 2284(b)(1) is, the Court ruled, “not even framed as a proviso, or an exception from [§ 2284(a)], but rather as an administrative detail that is entirely compatible with §2284(a).”  Id. According to Justice Scalia, the questioned language reflected the Court’s longstanding jurisdictional, not substantive, standard for determining whether actions were within federal-court jurisdiction. The Court explained, “Goosby rested not on an interpretation of statutory text, but on the familiar proposition that ‘[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented.’” Id. at 455.

The case did not permit a district court judge to make a summary determination on the merits. Rather, for example, a complaint that did not, on its face, challenge a congressional redistricting but, instead, made some state law claim and requested the convening of a three-judge court could be dismissed by the single judge for failure to state a substantial federal question and, therefore, a claim not within federal-court jurisdiction. The substantive determination of whether or not Petitioners’ complaint failed sufficiently to state a claim for purposes of Rule 12(b)(6), however, was to be left to the three-judge court that should have been convened.

Although Shapiro clarified the meaning and application of § 2284, resolving circuit court conflicts as well (136 S. Ct. at 454[2]), the Court’s unanimous opinion is also significant for what some of the justices did not say. Justices Scalia and Thomas have long held the view that redistricting challenges on constitutional grounds were non-justiciable, because, they argued, experience had shown that there were no judicially manageable standards for assessing the constitutionality of redistricting. See Vieth v. Jubilirer, 541 U.S. 267, 271-306 (2004) (Scalia, J., opinion announcing judgment of the Court).[3] Although the District Court’s decision in Shapiro expressly found, inter alia, that there were no judicially manageable standards for review[4] and although respondents’ briefing in Shapiro at least alluded to the matter of justiciability,[5] no justice on the Court seized this opportunity to argue that the matter was non-justiciable.[6] Only passing reference is made to justiciability.[7]

The upshot of the silence is, perhaps, this. In Vieth, Justice Kennedy declined to provide a fifth vote for the proposition that non-racially based constitutional challenges to redistricting were non-justiciable. One may well surmise that Justice Kennedy, then and now at the center of the Court’s jurisprudence, was unwilling to signal to state legislatures that the dogs would be called off (that is, that unless race or some other established suspect motivation were involved) and they could proceed in redistricting without concern for potential judicial oversight.[8] The Court’s silence on justiciability in Shapiro may well signify assent, with the change in make-up of the Court since Vieth,[9] to that concern arguably indicated by Justice Kennedy in his concurring opinion in Vieth.[10]  Difficult as congressional and state legislative redistrictings may be to review judicially, still there is a danger in foreclosing review, for there is little doubt that redistrictings may rest on opaque or undetectable, yet, nevertheless, exclusively unconstitutional motivations.

The Shapiro decision resulted in a return of the case to the District Court for the convening of a three-judge court. As of this writing, the parties were completing the briefing of Maryland’s renewed motion to dismiss and to stave off the convening of a three-judge court. Despite the murkiness of the standards that the Supreme Court has attempted to articulate for assessing the constitutionality of redistricting and the need, therefore, for clarification, it does not appear that Shapiro will be the vehicle that returns to the Supreme Court for that exercise, unless a three-judge court invalidates the redistricting on some federal ground.

Standards for testing, on equal-protection grounds, the constitutionality of redistricting were first articulated at length in Davis v. Bandemer, 478 U.S.109 (1986), though no opinion on the standards offered by various justices gained a majority. Justice White delivered an opinion in which Justices Brennan, Marshall, and Blackmun joined. Justice O’Connor, concurring only in the Court’s judgment, delivered an opinion joined by Chief Justice Burger and Justice Rehnquist, and Justice Powell, joined by Justice Stevens, issued an opinion concurring in part and dissenting in part. As later redistricting decisions of the Court have highlighted,[11] achieving precision, let alone agreement among the justices, in articulation of the standards applicable for determining what constitutes an equal-protection violation (or, as are the grounds raised in Shapiro, a First Amendment violation), remains difficult and elusive.[12]

In Bandemer, Justice White’s plurality opinion, even though garnering the support of most of the then-Court’s liberal core, raised a substantial threshold for litigants to negotiate in showing an equal-protection violation.[13] Essentially, the plurality required that a non-racial minority claiming unlawful impairment of its vote demonstrate inveterate disenfranchisement in a state’s political processes. According to the plurality:

[W]here unconstitutional vote dilution is alleged in the form of statewide political gerrymandering, the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination. …  [W]ithout specific supporting evidence, a court cannot presume in such a case that those who are elected will disregard the disproportionately underrepresented group. Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.

478 U.S. at 132 (emphasis added).

Likewise, according to the plurality, “a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” Id. at 133 (emphasis added). Even though the plurality assumed that the evidence below sufficiently demonstrated discriminatory intent, id. at 127, 141-42, it found that the showing of discriminatory effect was insufficient. Id. The record lacked, for example, “any finding that the 1981 reapportionment would consign the Democrats to a minority status in the [state] Assembly throughout the 1980’s or that the Democrats would have no hope of doing any better in the reapportionment that would occur after the 1990 census.” Id. at 135-36 (emphasis added). Accordingly, “[r]elying on a single election to prove unconstitutional discrimination is unsatisfactory.” Id. at 135 (emphasis added).

Since Bandemer, the complexion of the Court, at least pending the nomination and confirmation of Merrick Garland to replace Justice Scalia, has not gotten any more liberal or, therefore, more forgiving of the showing that must be made to succeed in a constitutional challenge to a redistricting.[14] Indeed, as noted at the outset, the Supreme Court has already summarily affirmed the decision of a three-judge court upholding Maryland’s 2011 congressional redistricting against a challenge alleging racial and partisan gerrymandering in violation of the Equal Protection Clause and statutory law. See Fletcher v. Lamone, supra.

Accordingly, the Plaintiffs in Shapiro are likely to have a difficult and challenging road back to the Supreme Court, both in persuading the Court to review any three-judge decision adverse to them and, if obtaining that review, succeeding on the merits. The 2011 redistricting was upheld in Lamone despite the three-judge panel’s descriptions of the new districts as a “blatant political gerrymander,” 831 F. Supp. 2d at 905 (Titus, J., concurring), their shape as a “Rorschach-like eyesore,” id. at 906, and “a broken-winged pterodactyl, lying prostrate across the center of the State,” id. at 903 n.3 (opinion for the court, Niemeyer, J), and their effect as “creat[ing] a district in which any commonality of community interests has been shattered.” Id. at 906 (Titus, J., concurring). More importantly, and heeding the crux of the liberal plurality’s opinion in Bandemer, it is doubtful that an inveterate exclusion of Republicans from the political process in Maryland can be shown, at least at this juncture.

The 2011 redistricting is just one redistricting, and congressional redistricting in Maryland begins as a plan that the General Assembly passes as ordinary legislation and is then subject to gubernatorial veto. See Md. Const., Art. III, §§ 30, 49; Md. Code Ann., Election Law, §§ 8-701-09 et seq. Maryland’s current governor is a Republican, and one need only go back a short distance in history to find a second. The weighty gubernatorial influence on Maryland legislation —including, potentially, congressional redistricting — therefore seems, thus far, to assure Republicans a substantial role in the state’s political process, shielding the 2011 congressional redistricting from successful constitutional challenge.[15]

[1] A congressional redistricting concerns the geographic layout of the voting districts in each state for members of the U.S. House of Representatives. The U.S. Constitution consigns this function to the legislatures of each state, subject to further regulation by Congress. See U.S. Const. Art. 1, Sec. 2, 4; 2 U.S.C. §§ 2a – 2c. A congressional redistricting should be distinguished from a state legislative redistricting, which concerns the geographic layout of voting districts for offices to be held in state legislatures, not Congress.

Though congressional and state legislative redistricting typically occur at approximately the same time (after a decennial census), their processes and ends are quite different. Both, however, are subject to constitutional challenge under the First and 14th Amendments. See Vieth v. Jubilirer, 541 U.S. 267, 306-68 (2004) (opinion of Kennedy, J., concurring in the judgment and dissenting opinions of Justices Stevens, Souter, and Breyer); Davis v. Bandemer, 478 U.S.109 (1986); Matter of 2012 Legislative Districting of the State, 429 Md. 301 (2012). For discussion of the constitutionality of Maryland’s legislative redistricting based on the 2010 census, see my blog posted December 19, 2013, entitled “In re 2012 Legislative Districting and the Permanence or Expedience of Judicial Review.”

[2] For cases deciding that a single judge could not dismiss, for failure to state a claim, a three-judge-court request, see LaRouche v. Fowler, 152 F. 3d 974, 981–983 (D.C. Cir. 1998), and LULAC v. Texas, 113 F. 3d 53, 55–56 (5^th Cir. 1997) (per curiam).

[3] Vieth was a challenge, on Article I and 14th Amendment equal-protection grounds, to a Pennsylvania congressional redistricting. Rejecting non-justiciability, Justices Stevens, Souter (joined by Justice Ginsburg), and Breyer each filed separate dissenting opinions in Vieth. Justice Kennedy concurred in the judgment but, denying a fifth vote for non-justiciability, also carefully stated that he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” 541 U.S. at 306. More fundamentally, Justice Kennedy’s concurrence also precluded the overruling of Davis v. Bandemer, 478 U.S. 109 (1986), in which the Court held that political-gerrymandering claims were justiciable but could not agree upon a standard to adjudicate them. Justice Kennedy’s concurrence arguably and, therefore, prudently signaled to state legislatures, both Republican- and Democrat-dominated, that redistricting would not be a political free-for-all, uninhibited by the possibility of judicial review.

[4] Memorandum at 13a – 20a, as set forth at Appendix B to Petition for Writ of Certiorari.

[5] Brief in Opposition to Petition, at 10-11; Brief in Opposition at 10-11, 30-31, 43, 46.

[6] Nor, for that matter, did the Court or any justice need to be given the opportunity, for justiciability is, as established by decisions of the Supreme Court, a question of jurisdictional and prudential limitations on the exercise of federal judicial power. (Other such matters include standing requirements, the applicability of the Case or Controversy Clause, and whether consideration of an issue is precluded pursuant to the political-question doctrine.) See generally E. Chemerinsky, Federal Jurisdiction, at 44-48 (5^th ed. 2007). Because it is a limitation on the exercise of federal judicial power, justiciability must, if at issue, be resolved by federal courts sua sponte, even if the matter has not been raised below or directly in briefing. See Nixon v. United States, 506 U.S. 224, 225 (1993) (“[B]efore we reach the merits of [a claim that the Impeachment Trial Clause of the Constitution, Art. I, § 3, cl. 6, has been violated], we must decide whether it is ‘justiciable,’ that is, whether it is a claim that may be resolved by the courts.”); Vieth, 541 U.S. at 278-79 (Scalia, J., opinion announcing the judgment of the Court); C. Wright, Federal Courts, at 28 (5^th ed.  1994) (“The court, whether trial or appellate, is obliged to notice want of jurisdiction on its own motion[.]”). See also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Given Justice Scalia and Thomas’s previously expressed view that redistricting cases are categorically non-justiciable, one may well question how any substantial federal question was present, allowing them to reach the question of statutory jurisdiction that Shapiro posed.

The requirement of judicially manageable standards for judicial review has been characterized as a test for the existence of a political question, one of six the Court set forth in Baker v. Carr, 369 U. S. 186 (1962):

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id.at 217 (emphasis added); accord Nixon, 506 U.S. at 228-29 (citing Baker, 369 U.S. at 217).

[7] 136 S. Ct. at 456. Other than with respect to the political-question doctrine and judicial manageability, however, it does not appear that the Court in redistricting cases is about to back off any time soon on other justiciability limitations on the exercise of federal jurisdiction. See Wittman v. Personhuballah, No. 14-1504 (decided May 23, 2016) (decision by unanimous Court affirming the denial, on standing grounds, of review of a constitutional challenge to Virginia congressional redistricting).

[8] In League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006), despite significant changes to the Court’s composition, a majority could still not be mustered for overruling Bandemer’s holding that challenges to redistricting on constitutional grounds were justiciable. See discussion, supra, text & note 3. In Latin American Citizens, the Court comprised Chief Justice Roberts and Justices Stevens, Souter, Scalia, Kennedy, Thomas, Alito, Ginsburg, and Breyer; only Justices Scalia and Thomas dissented from the holding on those grounds.  Id. at 511.

[9] Chief Justice Rehnquist and Justice O’Connor, who concurred in Justice Scalia’s opinion, have since been replaced by Chief Justice Roberts and Justice Alito. Of the justices who had no concern with justiciability in Vieth and who are no longer sitting, Justice Stevens has been replaced by Justice Kagan and Justice Souter by Justice Sotomayor.

[10] Indeed, because the justiciability of a case is a matter necessarily preliminary to a federal court’s exercise of jurisdiction, including the Supreme Court’s, see discussion, supra, note 6, the fact that justiciability is mentioned only in passing in Shapiro, 136 S. Ct. at 456, strongly indicates that the present Court does not view lack of judicially manageable standards as a barrier to adjudicating redistricting cases, whether congressional or state legislative. It bears noting that, within some limits, the standards that the courts may apply in congressional redistricting cases and, therefore, questions as to justiciability are subject to congressional control, given Congress’s express power under the Constitution to regulate congressional apportionments. As Justice Scalia observed in Vieth:

Recent history, however, attests to Congress’s awareness of the sort of districting practices appellants protest, and of its power under Article I, § 4 to control them. Since 1980, no fewer than five bills have been introduced to regulate gerrymandering in congressional districting. See H. R. 5037, 101st Cong., 2d Sess. (1990); H. R. 1711, 101st Cong., 1st Sess. (1989); H. R. 3468, 98th Cong., 1st Sess. (1983); H. R. 5529, 97th Cong., 2d Sess. (1982); H. R. 2349, 97th Cong., 1st Sess. (1981).

541 U.S. at 276-77.  That being the case, it is Congress that may potentially provide, through legislation, standards for assessing the constitutionality of congressional redistricting, standards that would, with respect to matters of justiciability and constitutionality, bind the Court in deciding cases challenging redistricting — save, perhaps, for standards that are clearly insufficient to protect rights granted by the First Amendment, 14^th Amendment Equal Protection Clause, and Fifth Amendment Due Process Clause.

[11] See League of United Latin American Citizens v. Perry, supra; Vieth v. Jubilirer, supra.

[12] Though it is not the aim of this post to explore the difference, if any, between a constitutional challenge to redistricting on equal-protection grounds and a challenge on First Amendment grounds, that difference does not appear significant. Compare Latin American Citizens, 548 U.S. at 416-17 (Kennedy, J., opinion delivering judgment of the Court) (“A decision … to effect mid-decennial redistricting, when solely motivated by partisan objectives, violates equal protection and the First Amendment because it serves no legitimate public purpose and burdens one group because of its political opinions and affiliation.”), with id. at 461-62 (Stevens, J., joined by Breyer J., concurring in part and dissenting in part) (“The equal protection component of the Fourteenth Amendment requires actions taken by the sovereign to be supported by some legitimate interest, and further establishes that a bare desire to harm a politically disfavored group is not a legitimate interest. Similarly, the freedom of political belief and association guaranteed by the First Amendment prevents the State, absent a compelling interest, from ‘penalizing citizens because of … their association with a political party, or their expression of political views.’”) (citations omitted; emphasis added). Perhaps the difference amounts to this: Given that it can hardly be gainsaid that official action infringing First Amendment rights must be justified by some compelling interest, where that infringement also amounts to or is effected by a denial of equal protection, the showing of a compelling interest to justify the discrimination should also necessarily be required. See generally 3 R. Rotunda & J. Nowak, Treatise on Constitutional Law, at 320-21 (5^th ed. 2012) (“strict scrutiny” review under Equal Protection “will require the government to show a close relationship between the classification and promotion of a compelling or overriding interest,” and “the [Supreme] Court will … use this standard of review … when the governmental act classifies people in terms of their ability to exercise a fundamental right[.]”); 5 R. Rotunda & J. Nowak, at 82 (“Whenever a statute allows some persons to speak or assemble but not others … , the statute at issue can be analyzed under equal protection as well as First Amendment principles.”); id., at 83 (“[W]hen a law regulates the ability to engage in a fundamental constitutional right, the courts must determine whether the classification is narrowly tailored to promote a compelling or overriding governmental interest. All First Amendment rights are fundamental rights …”).

 [13] Justice Stevens, who made up the rest of the liberal core, joined Justice Powell’s opinion concurring in part and dissenting in part, which argued for a somewhat lower threshold than the plurality. Bandemer, 478 U.S. at 161-85.

[14] See League of United Latin Am. Citizens v. Perry, supra; Vieth v. Jubilirer, supra.

[15] It is also notable that a recent and insightful online news report also reasonably questions whether one of the congressional districts in which the 2011 redistricting allegedly enhanced Democratic weight, the 6th, and which is now held by a Democrat, will remain Democratic after the 2016 general elections. “District 6 Congressional Candidates Tout Dueling Polls on Closeness of Contest,” Bethesda Beat, Bethesda Magazine (June 2, 2016).