Appeal The State announced its intentions to appeal to the
Supreme Court of the United States following the District Court's ruling in November 2016. Due to special procedures in the Supreme Court involving voters' rights cases, the Supreme Court was required to take the case, though whether they would summarily rule to affirm or reverse, or hear the case in full, would be up to the discretion of the Court. The State asked that the action in the District Court be put on hold until the appeal is decided. The State requested that the Supreme Court overturn the trial court's decision and allow the Legislature to continue drawing its assembly maps. The State was joined through
amicus curiae briefs filed by twelve other states led by Texas. Separately, the CLC and its co-counsel from the District Court filed a motion to affirm the District Court's ruling on May 8, 2017. It was the first time that the Supreme Court has evaluated partisan redistricting based on the First Amendment's
freedom of association clause in addition to the
Equal Protection Clause. The case received at least 54
amicus curiae briefs across numerous fields. Among these were several by political scholars that had the consensus that "by any measure, Wisconsin's 2010 redistricting plan is extremely biased". These scholars introduced other metrics besides the efficiency gaps that equally demonstrated the partisan bias in Wisconsin's plan, which were expected to be considered to be evaluated by the Justices. Oral arguments were heard on October 3, 2017, as the first before the Court in its new term. Court observers identified that the Justices were split from the oral session. The four Justices that were considered liberal appeared to side with the original plaintiffs in arguing that the redistricting plan was biased, with
Justice Ruth Bader Ginsburg proposing that if they did not intervene here, Republicans would likely be able to stack other states in a similar manner, and it would de-incentive voters not favored by such redistricting plans to vote. Four of the conservative Justices felt the Court should not intervene, with
Chief Justice John Roberts fearing that if they get involved, it would open up for more redistricting challenges that the Supreme Court would need to take up, and could harm the Court's credibility. The conservative Justices also questioned if the defendants had legal standing to bring the case forward in the first place. The decision was expected to hinge on Justice Kennedy, who had held a middle ground in
Vieth and wrote in his opinion about the need to find a "manageable standard" to determine if a partisan gerrymandering had occurred. During the oral arguments, Kennedy had appeared to side with the conservatives on asking about the legitimacy of the original plaintiffs in bringing the case, but asked both sides difficult questions relating to the redistricting approaches, leaving it difficult for observers to tell which way he would decide. However, some writers expected that he would side with the lower court and not for the appellants. Subsequent to the oral arguments, the Court had agreed to hear one other partisan redistricting case in the same term:
Benisek v. Lamone,
Opinion of the Court This court ruled on the plaintiffs lacked standing in the evidence they brought to the court, and remanded the case so that they could present evidence in favor of their standing. Chief Justice
John Roberts wrote the unanimous decision to remand the case, arguing that the plaintiffs in the Wisconsin cases could not argue that there was harm to them due to the redistricting as presented in the current case, pointing out that Whitford, a Democrat, lived in a heavily-Democratic district. Instead, Roberts suggested there may be other forms of harm that the plaintiffs could demonstrate, such as by considering the impact of the redistricting on the entire state rather than one district.
Concurrences Justice
Elena Kagan wrote a concurring opinion, joined by
Ruth Bader Ginsburg,
Stephen Breyer, and
Sonia Sotomayor, which identified steps that the plaintiffs could use in the remanded case to demonstrate harm. Justice
Clarence Thomas wrote another concurrence in part joined by
Neil Gorsuch, supporting the majority opinion but believing the Court should have vacated the case because he believed the plaintiffs had no standing. The District Court re-hearing was scheduled to start in April 2019. and may wait to decide on the issue in
North Carolina v. Covington, a pending petition before the Supreme Court that the Court has already been involved with in January 2018 by blocking an injunction issued by the Appeals Court. ==Subsequent developments==