Wegman: Steak Rubs, gobbledygook and the future of American politics

Early in oral arguments at the U.S. Supreme Court on Tuesday, Justice Sonia Sotomayor posed a simple question to one of the lawyers defending Wisconsin's legislative district maps against charges that they were drawn intentionally to maximize and entrench Republican power - the practice known as gerrymandering.

“Could you tell me what the value is to democracy from political gerrymandering?” Sotomayor asked. “How does that help our system of government?”

The lawyer had no good answer, because there isn't one. And that encapsulates the dilemma the justices face as they consider Gill v. Whitford, which has shaped up to be one of the court's most important cases in years: No one can honestly defend partisan gerrymandering, but no one is quite sure how to stop it.

Drawing legislative maps with the intent of benefiting one party is as old as the country itself, and in its milder forms the courts tolerate it as part of the normal political process. But as map-drawing software has grown more sophisticated and voters more polarized, the district gerrymanders have become more pernicious. The most extreme examples can lock in a party's majority indefinitely, even when it gets a minority of the vote statewide.

That's what happened in Wisconsin, where Republican lawmakers secretly drew up new maps that were so skewed in their favor the party won 60 of the state's 99 legislative seats in 2012 - with just 48 percent of the total vote. Democrats' 51 percent of the vote that year translated into only 39 seats. The Republicans have held on to their lopsided margin for two additional cycles, even as Wisconsin voters continue to split roughly down the middle.

The natural check against such self-serving behavior is the will of the people, as expressed through their votes. But when those voters are systematically silenced by the lawmakers themselves, they have no recourse.

This can't be right. So what's the constitutional fix - the 14th Amendment's guarantee of equal protection under the law? Previous challenges have invoked that clause to no avail. How about the First Amendment? Justice Anthony Kennedy, who is almost certain to cast the deciding vote in the case, suggested that extreme gerrymanders violate voters' right to freedom of association. Whatever the rationale, the justices must answer two key questions: How do you measure the degree of partisan bias in map-drawing, and then how do you set a standard beyond which everyone can agree the Constitution is violated?

The plaintiffs in the Wisconsin case believe they have found the answer in a variety of statistical tools that measure partisan bias and urged the court to adopt any or all of them. Several conservative justices weren't impressed.

“It reminds me a little bit of my steak rub,” Justice Neil Gorsuch (the folksy one from out West, if you forgot) said to Paul Smith, the lawyer for the plaintiffs. “I like some turmeric, I like a few other little ingredients, but I'm not going to tell you how much of each.”

“Sociological gobbledygook,” Chief Justice John Roberts told Smith. The chief, ever sensitive to perceptions that the justices are but black-robed politicians, warned that rulings in redistricting cases will always appear political. Even if they are based on neutral statistical formulas, he said, “the intelligent man on the street is going to say that's a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans.”

Smith responded that if the court refuses to step in and stop extreme gerrymanders like Wisconsin's, “it may be that you can protect the court from seeming political, but the country is going to lose faith in democracy big time.”

“The problem in this area is if you don't do it, it is locked up,” Smith said. “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse.”

Smith is right. Regardless of which party is doing the gerrymandering - and both are guilty - the motive is as obvious as it is insidious. As Justice Antonin Scalia wrote in a 2003 case, “The first instinct of power is the retention of power.” And as long as politicians can retain that power with impunity, they will, even when they know it's harmful.

There may well be five votes to strike down Wisconsin's egregiously unfair maps, which would be a big win for the nation's political health. Still, the arguments on Tuesday illustrated the difficulty of asking courts to resolve these partisan battles on a regular basis. And that's a vote in favor of independent redistricting commissions, which have already been adopted by roughly a dozen states. The alternative - letting self-interested politicians draw maps that cement their power and ignore the voices of voters - is to carve out the heart of representative democracy.

Jesse Wegman is an editorial writer for the New York Times.