He told attorney Paul Smith, who argued on behalf of the plaintiffs challenging the map, that allowing plaintiffs in a partisan-gerrymandering case to challenge an entire map seemed inconsistent with the court’s rule that plaintiffs in racial-gerrymandering cases can only challenge their own districts, not the whole map. Credit Tom Brenner/The New York Times 
 
 WASHINGTON — Justice Anthony M. Kennedy has long been troubled by extreme partisan gerrymandering, where the party in power draws voting districts to give itself a lopsided advantage in elections. He asked no questions of the lawyer representing the Democratic voters challenging the map. “Gerrymandering is distasteful,” said Justice Samuel A. Alito Jr., “but if we are going to impose a standard on the courts, it has to be something that’s manageable.” 
 
 Some of the court’s more liberal members said the problem represented a crisis for democracy and that the Supreme Court should step in. The plaintiffs seemed to find a more receptive audience in Justice Ruth Bader Ginsburg, who told Erin Murphy – arguing on behalf of the Wisconsin legislature – that the “precious right to vote” is at the heart of this case. She answered her own question: “The precious right to vote.” 
 
 In extended remarks, Chief Justice John G. Roberts Jr. expressed worry that the court’s authority and legitimacy would be hurt were it to start striking down voting districts in favor of one political party or another. “That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country,” he said. Paul Smith of the Campaign Legal Center argued the case on behalf of the Democratic voters from Wisconsin. Roberts was unconvinced, telling Smith that his rule would take democracy away from the legislatures based on social science “gobbledygook.” The court’s newest justice, Neil Gorsuch, was relatively quiet, but he appeared to show his cards when he asked Smith to name the source of the Supreme Court’s authority to revise state redistricting maps. He asked Erin Murphy, an attorney for the Wisconsin Legislature, whether it would violate the Constitution for a state to pass a law that required lawmakers to draw maps that gave maximum advantage to one side (while still complying with traditional redistricting principles). “I have to say that I don’t think you ever answered the question,” he said. Justice Sonia Sotomayor asked Ms. Murphy more fundamental questions. "They like gerrymandering.” 
 
 The map for the Wisconsin Assembly, he said, "is so extreme that it effectively nullifies democracy." Kennedy (whom many regard as the key vote in the case) acknowledged that the plaintiffs could not point to a specific Supreme Court case in their favor, but he asked Wisconsin Solicitor General Misha Tseytlin whether the plaintiffs might have standing if their claims were grounded in the First Amendment, rather than a right to equal protection of the laws. The packed gallery included Arnold Schwarzenegger, the Republican former governor of California who has championed redistricting reform, and Wisconsin Senate Majority Leader Scott Fitzgerald (R-Juneau), one of the top leaders to sign off on the GOP-friendly maps. Credit Tom Brenner/The New York Times 
 
 “Plaintiffs are asking this court to launch a redistricting revolution based upon their social science metrics,” he said. Roberts called the plaintiffs' test “sociological gobbledygook.” 
 
 Justice Stephen Breyer said the social science measurements may be gobbledygook, but the idea of fairness is not and there are efficient ways for courts to determine what's fair. Justice Elena Kagan said courts should be able to determine if maps are fair by using the same tools lawmakers use to draw maps. It counts “wasted votes” — that is, any votes beyond those needed to elect a candidate — to determine the “efficiency gap” of a map. Breyer offered Tseytlin a five-part test that looked at, among other things, whether one party controls the legislature and the redistricting process; whether the redistricting maps create “partisan asymmetry” – that is, they do not treat the different political parties equally; and whether that asymmetry is “persistent” and extreme. But although the justices spent some time at the 50,000-feet level, contemplating the broader implications of their ruling, much of their time was spent in the weeds, on what Justice Stephen Breyer described as another “hard issue” in the case: If courts are going to get involved with partisan-gerrymandering cases, what are manageable standards that they can apply to evaluate the claims? The justices heard oral argument in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. The case arose after Republicans won majorities in both houses of the Wisconsin legislature and captured the governor’s office, giving them control over the maps that were drawn after the 2010 census. In the 2012 elections, Republicans won slightly less than half of the statewide vote, which translated into 60 seats in the state’s 99-seat assembly; by contrast, Democrats won just over half of the statewide vote but garnered only 39 seats. A federal court struck down the plan last year, agreeing with the plaintiffs that it violated the Constitution because it was the product of partisan gerrymandering – that is, the practice of purposely drawing district lines to favor one party and put another at a disadvantage. Both parties have engaged in partisan gerrymandering, but these days, Republicans have an advantage following a wave of victories in state legislatures that allowed lawmakers to draw election maps favoring their party. The district court may have regarded the case as a “straightforward” one, but few justices seemed to share that sentiment today. “As Einstein said, those who created the problem will not be able to solve it.” 
 
 Last year, a divided three-judge Federal District Court panel ruled that Republicans in Wisconsin had gone too far. The map, Judge Kenneth F. Ripple wrote for the majority, “was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.” 
 
 The decision was the first from a federal court in more than 30 years to reject a voting map as partisan gerrymandering. ”I say it is time to say hasta la vista to gerrymandering and it is time to terminate gerrymandering," Schwarzenegger said on the plaza outside the court.
– Justice Anthony Kennedy may end up casting the deciding vote in one of the Supreme Court's biggest cases this term—and he appears to be leaning toward joining the court's more liberal justices when it comes to reining in gerrymandering. The court heard arguments Tuesday in a redistricting case from Wisconsin, where Democrats say Republicans created districts so lopsided that they violated voters' constitutional rights. Kennedy, a Reagan appointee, seemed skeptical of the arguments made by lawyers defending the Wisconsin voting map and didn't ask any questions at all of the lawyer representing the Democratic voters, which "would seem to bode well for the challengers," SCOTUSBlog notes. Justices including Ruth Bader Ginsburg said it was time for the Supreme Court to step in and stop partisan gerrymandering, though Chief Justice John Roberts said he worried that the court itself would be seen as partisan if it started striking down voting districts, the New York Times reports. That would "cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country," he said. Republicans including Arnold Schwarzenegger and Sen. John McCain are siding with Democrats on the issue. "It is time to say hasta la vista to gerrymandering and it is time to terminate gerrymandering," Schwarzenegger said outside the court, per the Milwaukee Journal Sentinel.