In a highly unusual move, the Supreme Court last week granted cert in another case involving partisan gerrymandering to be heard later this term. What makes this unusual is that they already have the decision pending in the Wisconsin case and ordinarily they would wait to hand down that ruling and then remand the second case back to the lower court to consider the merits in the light of that new ruling.
The case is Benisek v. Lamone and it comes out of Maryland. There hasn’t been a ruling on the merits, this is an appeal of the district court’s refusal to grant a preliminary injunction. The plaintiffs moved for a preliminary injunction and the state moved for dismissal; the court denied both motions but stayed the entire case pending the outcome of Gill v Whitford, the Wisconsin case that is in the process of being decided now. Oral argument has been heard and a ruling will likely come early next year.The lower court’s staying of the proceedings is routine in a situation like this. When there is a case pending that will likely alter the legal standard that the lower courts must apply, it’s normal for the court to just put the case on hold until that ruling comes down so they don’t have to go through the whole process twice. And if there is a pending cert petition in the meantime, the Supreme Court would ordinarily deny cert until that ruling comes out, then remand it back to the lower court for a new ruling based upon their recent guidance.
This is all very unusual and, as is common with cert petitions, the court did not give any information at all about why they did it this way. We can only speculate as to why they did it, but quite frankly I’m coming up blank. The only thing I can think of, and it doesn’t seem terribly plausible to me, is that four of the conservative justices wanted a case accusing Democrats of gerrymandering (in this case, the districts were drawn by Democrats and are being challenged by Republicans) on the docket at the same time for some sense of balance. But that still strikes me as unlikely and tenuous.