Ian Millhiser at ThinkProgress has the story. It is Court watching speculation based on a dissent by Ginsburg & Sotomayor on an order denying an expedited hearing for Rucho v. Common Cause, the case challenging the North Carolina gerrymander. The denial means that there is no hope of striking down NC’s gerrymander in time to help the 2018 elections. But the dissent from this denial by Sotomayor and Ginsburg is a clue that they would have wanted the case in time—which means that they think the Court would have ruled to strike down the gerrymander. Millhiser believes this means the similar Wisconsin case, Gill v. Whitford is about to be decided against gerrymandering.
If Ginsburg and Sotomayor know that the Court is about to uphold the Wisconsin gerrymander, it is very unlikely they would want to place another partisan gerrymandering case on the Court’s docket. Ginsburg and Sotomayor are probably the most liberal members of the Supreme Court. If Whitford is going to end in a loss for them, they would not want to compound that loss by taking up another, similar case.
But if Ginsburg and Sotomayor know that the Wisconsin gerrymander is going down — and that the Court is about to usher in a legal revolution that will sweep away many unconstitutional gerrymanders — then they most likely will want that revolution to move swiftly. The most likely reason why they would want the North Carolina case to be heard on an expedited basis is because they know that they won Whitford, and they want to win Rucho fast enough for it to matter in 2018.
Now, this is all pretty speculative. I’ve seen court watchers read the signs wrongly many times—such as when they were positive that Roberts would vote with the other conservatives to strike down the ACA, but he upheld most of it. But this seems likely to me. It could also explain why arch-conservative Alito denied cert. to PA GOP’s appeal of their state supreme court’s ruling against THAT gerrymander. Most have chalked that up to Alito refusing to interfere in a case based soley on PA’s STATE constitution. But what if it also means Alito knew that Whitford will end partisan gerrymandering—and that granting cert. in the PA case would only postpone the end of that gerrymander? (The GOP attempt to impeach the 5 Democratic justices on the PA Supreme Court is desperate and I hope the public heads it off.)
Do we dare have hope that Kennedy sided with the liberals in Whitford and democracy in the USA is about to get a boost from the end to partisan gerrymandering? It’s far from a done deal, and my own hope seems desperate and clinging, but I like these tea leaves and pray the signs are being read correctly.