The judges broadly agreed that the peculiar Maryland congressional district, drafted by Democrats during the legislature, was an extreme example of a disgusting political playfulness.
"There does not seem to be any internal logic," chief judge John G. Roberts Jr. said about the district that stretches from northwest Maryland to the Washington suburbs. He added that the district had been redrawn in a way "that one party prefers the other".
Justice Elena Kagan said that sometimes it's hard to say when politics plays too big a role, but she said that's not a problem here. "Whatever you think is too much," she said, "this case is too much."
However, it was by no means clear that the court was ready to say that the constitution could set limits on extremist partisans. The Party of Power draws electoral districts in order to gain an overwhelming advantage in future elections.
The Supreme Court has never denounced an electoral district as an unconstitutional partisan Gerrymander. A decision that allows for such challenges could revolutionize American politics.
Wednesday's arguments gave little information on whether the judges are ready to take this step. In fact, if arguments in October had encouraged, in the earlier case, a Democratic challenge to a Wisconsin Republican map, opponents of extreme partisan gerrymandering, then Wednesday's arguments in the Maryland case only served to confuse them.
Justice Anthony M. Kennedy, who in both cases is likely to have the deciding voice, returns to a topic he had pursued in the arguments in the Wisconsin case, and asked if there was a law that partisan gerrymandering in so many words required violate the constitution.
Steven M. Sullivan, Attorney General of Maryland, said this would happen.
Judge Kennedy asked, "How is the case different?" Mr. Sullivan said that the Restructuring Act did not explicitly demand a party benefit.
Judge Kennedy was not satisfied. "So, if you hide the evidence of what you do, then you will prevail?" He asked.
The surprising announcement of the court in December that it was the second partisan commentary, Benisek v. Lamone, would hear. # 17-333 led to much speculation about what the move meant for the challengers in the Wisconsin case, Gill v. Chr. Whitford, No. 16-1161. But the argument of Wednesday has done almost nothing to clarify the mystery why the judges decided to hear a second case.
If there was a clue as to where the court went in the Wisconsin case, it came from Justice Breyer, who suggested that the court plans in both cases a new round of arguments, along with one from North Carolina, during the tenure will begin in October. His question indicated that at least some of the challengers could not prove that they had suffered the kind of direct injury that prompted them to file a lawsuit.
"What would you think," Justice Minister Breyer asked, "to take the three cases and I have them scheduled for repositioning on the issue of standing, and there we have all three options in front of us?" He asked a lawyer for the challenger Michael B. Kimberly. But Breyer's real audience seemed to be his colleagues, none of whom supported the proposal.
Justice Breyer, who appears ready to admit constitutional challenges on the basis of party political ringing, would probably not have held the proposal in place when the judges conducted their pre-ballot vote in Wisconsin in October.
Several judges said the Maryland case was plagued with procedural and practical problems.
Judge Ruth Bader Ginsburg said there was little reason for the court's ruling because his ruling would be too late to influence the 2018 election.
"It's much too late, even if you've succeeded, that things will change for the 2018 election," Justice Ginsburg told Mr. Kimberly. Judge Kennedy seemed to agree with me. Chief Justice Roberts and judge Sonia Sotomayor said the challengers had waited too long to sue. Kimberly, who represents the plaintiffs, argued that Democratic deputies there had redrawn a district in northwest Maryland to avenge against citizens who supported their longtime incumbent, Republican Roscoe G. Bartlett. This retaliation violated the First Amendment by diluting its votes in a Republican-controlled district.
Mr. Bartlett had won his race in 2010 with a margin of 28 percentage points. In 2012, he lost to the deputy John Delaney, a Democrat, with 21 points ahead.
Several judges said that the evidence for extreme partisan gerrymandering was strong.
"People were very forward-thinking about what they were trying to do here to create another democratic district," Justice Kagan said. "And they did that."
In the past, some judges have said that the court should stay out of such political disputes. Others have said that partisans of Gerrymander could violate the constitution.
Justice Kennedy has taken a middle position, opening the door to such challenges, though he has never voted to uphold one.
In 2004, he wrote in a consensus opinion on a gerrymandering case that he might find challenging if there were "a workable standard" for deciding when such a tactic has crossed a constitutional line. But he said he had not seen such a standard.
In the Maryland case, a split three-judge panel of the United States District Court in Maryland denied the claimants' request for an injunction in August. By contrast, Judge Paul V. Niemeyer, who normally sits at the United States Appellate Court in Richmond, Virginia, wrote that Partisan Gerrymandering was a cancer on democracy.
"The widespread nature of Gerrymander in modern politics is complemented by the almost universal absence of those who will defend their negative impact on our democracy," said Judge Niemeyer. "In fact, both the Democrats and the Republicans have vilified them if they are led by their opponents, but still continue in their own interest Gerrymander."
"The problem is cancer," he wrote, "undermining the fundamental principles of our form of democracy."
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