Former Justice John Paul Stevens

Former Justice John Paul Stevens. Photo by TalkMediaNews

Former Supreme Court Justice John Paul Stevens is calling Maryland’s recent congressional redistricting “outrageously unconstitutional,” and says that his inability to persuade the other justices to overturn partisan gerrymandering like it was “one of my major disappointments in my entire career.”

Stevens, 91, who retired last year after almost 35 years on the court, said the Supreme Court’s “failure to act in this area is one of the things that has contributed to the much greater partisanship in legislative bodies now that wasn’t true years ago.”

Stevens was interviewed for SCOTUSBlog by a former court clerk about the justice’s new book “Five Chiefs.” The interview was published Thursday, and ProPublica reported on his gerrymandering comments Monday.

Deep in the long interview, the former clerk, Stanford University law professor Jeffrey Fisher, asked Stevens: “how you would envision the Court getting involved in something as crass and divisive as partisan gerrymandering while maintaining the public perception of political independence.

Stevens responded, “Well it goes back to the fundamental equal protection principle that government has the duty to be impartial. When it’s engaged in districting, it should be impartial.

“Nowadays, the political parties acknowledge that they are deliberately trying to gerrymander the districts in a way that will help the majority,” Stevens went on. “I just read a newspaper article the other day about the Maryland redistricting, which is designed to help the Democrats. That’s outrageously unconstitutional in my judgment.”

“The government cannot gerrymander for the purpose of helping the majority party; the government should be redistricting for the purpose of creating appropriate legislative districts.  And the government ought to start with the notion that districts should be compact and contiguous as statutes used to require.”

Fisher followed up by asking how the Supreme Court could find a way “to fend off accusations that the Court is choosing sides in political warfare?”

“If the Court followed neutral principles in whatever rules they adopted, the rules would apply equally to the Republicans and Democrats,” said Stevens, who was appointed by Republican President Gerald Ford but was considered part of the court’s liberal wing.

“I think that line of cases would generate a body of law such as the one-person, one-vote cases that would be administered in a neutral way,” Stevens said. “This is one of my major disappointments in my entire career: that I was so totally unsuccessful in persuading the Court on something so obviously correct.  Indeed, I think that the Court’s failure to act in this area is one of the things that has contributed to the much greater partisanship in legislative bodies now that wasn’t true years ago when I worked on a sub-committee of the House Judiciary Committee.”

The lack of Supreme Court decisions overturning partisan gerrymandering is one of the reasons that congressional redistricting plans can only be challenged on very narrow grounds, particularly violations of the Voting Rights Act in regard to minorities.

Stevens’s opinion on Maryland’s redistricting seems to be based on a lone newspaper article, but even if he had read 10 or 20 articles, he would likely have come to similar conclusions.

–Len Lazarick