Last November, a three-judge federal court struck down Wisconsin’s state assembly maps, saying they were unconstitutionally drawn to advantage Republicans. That alone is a big deal. The Supreme Court has been highly skeptical of gerrymandering suits in the past. Though Kennedy refused to slam the door entirely shut to such suits, many obstacles remain in front of any attorney who seeks a federal court order against a gerrymandered map.
But the legal team behind Whitford is seeking far more than just a court order nixing one set of maps in Wisconsin. They’ve also devised a mathematical formula that will allow courts to determine which states are engaged in partisan gerrymanders. This matters because Kennedy previously said that he is reluctant to strike down gerrymandered maps because “workable standards” have not emerged that courts can use to make such an assessment.
Team Whitford, in other words, may have solved the specific problem the Court’s swing justice identified in challenges to partisan gerrymandering. It’s a potentially nation-changing development that could break the Republican Party’s near-stranglehold on the U.S. House of Representatives.
One thing that Team Whitford did not have, however, was one of the handful of ultra-elite attorneys who frequently argue before the Supreme Court. Litigation before the justices is increasingly specialized, and arguments are often handled by a very small list of repeat players.
So it’s a big deal that the Campaign Legal Center (CLC), which is litigating the Whitford case, just hired Paul Smith as its Vice President of Litigation and Strategy. Smith has argued 19 cases before the Supreme Court, including his victorious argument in Lawrence v. Texas, the landmark civil rights case striking down Texas’ anti-sodomy law. He is widely viewed as one of the best lawyers in the country, and as one of the most elite Supreme Court advocates.
Most significantly for Whitford, Smith also argued several major redistricting cases, including a 5–4 loss in the last wholesale challenge to partisan gerrymandering, Vieth v. Jubelirer. There’s probably no attorney in the country with more experience confronting gerrymanders in the Supreme Court.
Smith’s move to CLC likely means that he will take a significant pay cut. As the National Law Journal notes, Smith previously was a partner at Jenner & Block, where partners “were being paid on average $1.7 million in 2015.”
Of course, the fact that Whitford will be argued by one of the biggest stars in the Supreme Court bar’s constellation does not guarantee a victory. But Team Whitford is armed with a legal theory that speaks directly to concerns that Justice Kennedy raised in the past, and they’ve now recruited the best lawyer they possibly could have hired to present this theory to the justices.
If Whitford can be won before the conservative Roberts Court, Smith is the attorney who is most likely to win it.
Author: Ian Millhiser