In October 2017, all eyes and ears were focused on Justice Kennedy during the Supreme Court’s oral argument in Gill v. Whitford. In this case, the Court was asked to decide whether and when it is possible to bring a claim that partisan gerrymandering (redistricting that is an advantage to one political party) is unconstitutional.

In the 2012 election, Wisconsin Republican candidates received less than 49% of the statewide vote and won seats in more than 60% of the state’s assembly districts. In 2014, 52% of the vote yielded 63% of the seats for Republicans.

Justice Kennedy’s vote is considered crucial in this case as not only is he the Court’s “swing” Justice, inVeith v. Jubelirer (2004) he wrote a concurring opinion indicating he believed partisan gerrymandering could be unconstitutional if the Court could agree on a workable standard. Challengers to Wisconsin’s redistricting plan attempted to provide the Court with such a standard.

Justice Kennedy didn’t disappoint. In most arguments in controversial cases, he is especially measured and asks one or two questions of each side later in the argument. In this argument, he asked the first question of first and second attorneys arguing the case in support of Wisconsin’s redistricting plan and insisted the second attorney answer his question.

Challengers of the plan might take these questions as a good sign but they were mixed and subject to interpretation. His first question suggested he may think the named challenger, in this case, might not have standing—or a legal right—to bring the case. His second question seemed to suggest that he thinks that some amount of partisan gerrymandering is simply too much to be constitutional. Specifically, he asked if a state law requiring partisan gerrymandering in favor of one party after traditional factors were considered was unconstitutional; however,  he didn’t follow up with any questions indicating whether he liked or disliked the three-part test proposed by the challengers to prove unconstitutional partisan gerrymandering.

The majority of the argument went mostly as expected with the liberal justices expressing support for the challenger’s position and the conservative justices expressing skepticism toward it.

Chief Justice Roberts candidly stated that if the Court agrees that partisan gerrymandering is judiciable it will be asked to hear a challenge to every redistricting plan. If the Court tried to explain to an average person the math formulas suggested by the challengers to determine when too much partisan gerrymandering occurred, the average American would dismiss the complicated math and assume the Justices voted to support the political party of the president who nominated him or her. To this, the challengers’ attorney responded that what the Court may save avoiding these cases will result in a corresponding loss to democracy.

On the left, Justice Kagan perhaps most clearly embraced the test that the challengers proposed by asking their lawyer to explain how the test limits which of the redistricting plans can be challenged in court.

Newly confirmed Justice Gorsuch joined the conservative Justices in expressing concern that the challengers had failed to articulate a workable test. And in a nod to state legislatures, he asked whether courts should be in the business of “revising state legislative decisions” by disallowing partisan gerrymandering.

The Supreme Court is expected to rule on this case by the end of June 2018.

The International Municipal Lawyers Association, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and local government law professors filed an amicus brief in this case supporting the challengers, arguing that “intentional partisan gerrymandering threatens local democracy.” In particular, it has led to state legislatures preempting local ordinances that the legislature may not have otherwise preempted if it actually represented the majority of voters.