By not opening his mouth, Justice Anthony Kennedy may have tipped his hand in one of the biggest Supreme Court cases of the year. If history is any indication — and although it’s a handy guide, it’s hardly infallible — things don’t look good for extreme partisan gerrymandering.
The Supreme Court is hearing a case on whether partisan gerrymandering can be considered unconstitutional, and Kennedy is likely to be the deciding vote. (For more on why, listen to our podcast on the case.) Wisconsin is appealing a decision by a lower court, which ruled that the way Republicans crafted the state’s electoral maps in 2010 was illegal. The attorneys for the state, who are defending the maps, got plenty of questions from Kennedy, while the Wisconsin Democrats, who want the maps struck down, got none. Kennedy spoke 10 times during the state of Wisconsin’s arguments. He asked five questions and made five statements.
“If you get a lot of questions, you’re going to lose,” Adam Liptak, The New York Times’ Supreme Court reporter, told FiveThirtyEight in 2015.
Justices aren’t just asking questions to get information from the lawyers arguing their cases. In some ways, the questions aren’t meant for the lawyers at all. The justices ask questions to signal their positions to their fellow members of the court, and to potentially sway other justices to their side. If they’re skeptical of one side’s argument, they often pepper that side with queries. Chief Justice John Roberts has even described the lawyers as a “backboard” — the questions bounce off them and come right back to the bench.
A body of academic research has confirmed this conventional wisdom, showing empirically that questions from the justices are usually bad news for the party on the receiving end. The number of questions, their length, their linguistic content and even the tone of voice in which they’re asked are all statistically significant factors in predicting the court’s eventual decision.
Bryce Dietrich, a political scientist at the University of Iowa, provided us with data on the questions Kennedy has asked in cases from 1988 to 2014, gathered from transcripts of the oral arguments. There are 5,151 lines in these transcripts that Kennedy directed toward either the petitioner (the party asking the high court to hear the case) or the respondent (the party that won the case in the lower court) when asking a question.21
That data shows that Kennedy is no different from the rest of the court: You don’t want to be on the receiving end of his questions. When Kennedy votes for the respondent (which would be the Wisconsin Democrats, in this case) he directs 93.3 words to them (57.5 percent of his speech). When he votes against the respondent, he directs 102.0 words to them (61.1 percent of his speech).
And on Tuesday, he directed zero words to the respondent. Historically, he directed zero words toward the party he went on to vote for 272 times, out of 1,022 cases in this data set. He directed zero words toward the party he wound up voting against only 177 times.
But when he did speak, what did he ask? Kennedy was the first justice to speak during the state of Wisconsin’s arguments, and he dove right into a suggestion he made in a 2004 opinion on a separate case: that the best argument against partisan gerrymandering may be that it’s a violation of the First Amendment. Previously, these kinds of cases have been argued as violations of the 14th Amendment, which covers “equal protection of the laws.” The First Amendment protects freedom of speech, religion and assembly, and it has been interpreted as protecting Americans’ freedom to associate with whatever groups they choose, including political parties.
Kennedy’s other main question also came straight out of his 2004 opinion. He proposed a hypothetical, asking whether it would be unconstitutional if a state wrote a law explicitly saying that “the overriding concern is to … have a maximum number of votes for party X or party Y.”
At that point Ginsburg, Alito and Kagan all jumped into the debate. It was a hotly contested hypothetical and is likely key to the case, as Kennedy wrote in 2004:
“If a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, …’ we would surely conclude the Constitution had been violated. If that is so, we should admit the possibility remains that a legislature might attempt to reach the same result without that express directive.”
Kennedy didn’t speak during the Wisconsin Democrats’ arguments, but they were clearly speaking to him. Their attorney cited him twice during his arguments, and, as one of their attorneys in lower court, Nicholas Stephanopoulos, told FiveThirtyEight, “Our first Supreme Court brief … cites Anthony Kennedy all over the place and that’s not purely for tactical reasons, it’s actually because he’s said a lot of things that we think our test is consistent with.”
Of course, some of the other justices had plenty to say during the Wisconsin Democrats’ arguments. The most junior justice, Neil Gorsuch, dismissively compared their legal test to the hodgepodge of spices in his steak rub, and Chief Justice Roberts called it “sociological gobbledygook.” But Kennedy sat in silence, taking in a case that was tailor made for him.