The Supreme Court heard oral argument—yet again—in two cases arguing it should adopt a standard for when partisan gerrymandering is unconstitutional. Before argument court watchers were focused on Chief Justice Roberts, but during argument Justice Kavanaugh stole the show.
In 1986 in Davis v. Bandemer six Supreme Court Justices agreed that some amount of partisan gerrymandering is unconstitutional. But the Court has never laid out a test for making the determination.
Most recently, last term, with Justice Kennedy still on the bench, the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. The two cases before the Court today came from North Carolina and Maryland favoring Republicans and Democrats, respectively. By almost any measure the gerrymanders were unapologetic and extreme.
Now that the Court has five solidly conservative members many have speculated that these Justices will rule that partisan gerrymandering claims raise non-justiciable political questions, effectively ending litigation over this question.