Keeping it Real: Distinguished Visitor from Practice Paul Smith Argues a Historic Gerrymandering Case in the Supreme Court
October 3, 2017
When the Supreme Court agreed to hear Gill v. Whitford, the Wisconsin gerrymandering case, Distinguished Visitor from Practice Paul M. Smith found himself in the unique position of preparing to argue a Supreme Court case while planning his Constitutional Law I class for the fall semester.
It’s all in a day’s work for Smith, who for decades was in Jenner & Block’s appellate practice — arguing 19 Supreme Court cases involving matters ranging from free speech and civil rights to civil procedure. Notable wins include Lawrence v. Texas, the landmark gay rights case; in Spring 2018, Smith will teach an LGBT Civil Rights Seminar with Distinguished Visitor from Practice Evan Wolfson, architect of the movement that won marriage equality in the United States in 2015.
We sat down with Smith — now the vice president for litigation and strategy at the Campaign Legal Center and counsel of record for appellees — to glean his thoughts regarding this important case.
Gill v. Whitford is the first partisan gerrymandering case to be heard by the Supreme Court since 2004 — and you argued that 2004 case for a 5-4 loss?
I did argue that case (Vieth v. Jubelirer). There was a case years later called LULAC v. Perry (2006) that also had a partisan gerrymandering claim in it, involving the Texas Congressional District. We lost that case too. It’s been over a decade, it’s certainly fair to say, since the court has looked at the issue.
Why will this case be big? Why will it be different?
It is important to understand what happened in Vieth. In that case, four justices said that the plaintiffs, which was us, should win, that the map was a gerrymander. And four justices, in an opinion written by Justice Scalia, said that they didn’t think the issue ought to be in court at all, that it’s a political matter. As they say in the law, nonjusticiable. And there was an opinion from Justice Kennedy which said, I do think this stuff is bad, that gerrymandering is unconstitutional; on the other hand, I feel uncomfortable about how we would handle it, how we would draw lines, how we would measure it. I’m not willing to say, these cases should never be heard. But I’m not willing, at this point, to say you’ve come up with enough to win the case. So we lost 5 to 4 with that very unusual middling opinion.
The social science has now been geared to try to give him some comfort level, that there is a way to measure gerrymandering and to rank gerrymanders from really bad to just a little bit of partisanship.
They’re saying this is a blockbuster case. Why?
Because this is kind of the last big shot to have the Supreme Court recognize — which should be obvious, to me — that discriminating against people based on their political views or partisan affiliation ought to be unconstitutional. They have now, multiple times, not been willing to go there, and people feel like it is worse than ever. The gerrymandering, in fact, is worse than ever. The statistics show it, with these new social science measures, the efficiency gap. You can tell that it’s actually worse than it was 10 and 20 years ago.
And I think there’s a sense that polarization in our politics is in part caused by the division of a lot of the districts into either red or blue districts, and no competitive districts. People who are concerned about that, and the fact that there is no cooperation across the aisle, partly blame gerrymandering, and would like to see our politics work better. I think those are all reasons why it’s viewed as a big blockbuster. It’s basically the last chance. If we can’t win this time, reform efforts are going to have to go in a different direction. There will still be people trying to get independent commissions passed, as there are in a number of states, but there won’t be an across-the-board, 50-state solution at the Supreme Court level if we don’t win this case.
What’s the efficiency gap?
Basically, it’s a formula that tries to measure how many of each party’s votes are wasted. It says if votes are wasted, if in districts where you lose because you only have 45 percent of votes, that all your votes are wasted, [because] they’re not getting you any representation. And votes are wasted in districts where you win, but you have way too many voters, so for 90 percent, 40 percent of those votes are wasted. You’re measuring the places where your votes are either packed or cracked — meaning you don’t have quite enough to win.
In a good gerrymander, one party will have at least a small number of districts with 90 percent and lots of districts with 45 percent. And the other party will have, most of districts, they’ll be 55 percent and they’ll be very efficiently distributed. So if you add up all the wasted votes, the excess votes in the 90 percent districts and all the votes in the 45 percent districts and you compare that with the same number for the other party, you can calculate a percentage. And so you get a single number to say how much disparity is there in wasted votes between the two parties… So you end up with a way to actually come up with a score. NOTE: See explainer video at bottom of page.
How did the case get to you? You’re representing Campaign Legal Center?
Campaign Legal Center litigated the case in the trial court, along with some lawyers from Wisconsin, and won the case at trial. And the plan was always to have Jenner & Block Supreme Court people, me and my colleagues, do the Supreme Court phase. And at some point I came over to Campaign Legal Center…Gerry Hebert of Campaign Legal Center and I have worked together on voting cases for decades.
Talk about your con law class. You are teaching con law this fall, while the case is going on?
I really enjoy the teaching. I can talk about the process, the Supreme Court, how that works. I think it will be interesting as an experience for the students to hear, that this is happening right now — to hear your professor be in the limelight for a while.
This will be your 20th case argued in the Court. For law students who have never had the experience, what is it like to argue a Supreme Court case?
It’s very intense and surprisingly short. You only get a half hour a side, and the Court in recent years has become extremely active in questioning. When I was a law clerk there in 1980, a lawyer could talk for ten minutes before getting the first question. Now you’re lucky if you get a sentence out. They’re often very aggressive questions, because the justices are in many ways using the questioning and the answers to speak to each other, to try to bring out the weaknesses in a position… It can be a very daunting experience for which you really want to be prepared. There’s a reason why there has been developed this specialized Supreme Court bar — those who have experience doing this feel comfortable doing it, the justices feel comfortable with them. It goes more smoothly when you have a veteran most of the time.
How is that changed in your career? When you started, there was not this elite Supreme Court bar.
There was hardly anything like that when I clerked. A large majority of the arguments were by rookies giving their first argument. And now it is certainly true that most of the cases are argued by somebody who has experience, and many are argued by people who have lots of experience. So there’s a great deal of pressure on clients now to go hire one of these special lawyers. And the people who create that pressure the most are the justices, who are always saying how much they really like to have somebody they know and trust, and has a lot of experience, to argue the cases. They just feel like they get better value.
How did you get into this?
It was a long process…I went to work in a boutique law firm in 1981 after I clerked. There were a lot of Supreme Court clerks in this boutique. Those were the days when it was a lot easier to get Supreme Court arguments, so I started arguing cases in the mid 80s. And kind of just kept at it, and over time, you get enough experience that it starts to reinforce itself. But it took a long time.
You clerked for Justice Lewis Powell. Do you have a Lewis Powell story?
Justice Powell was the world’s nicest man. He was totally beloved by his clerks, who worked as hard as they could to always try to please him. He was very centrist. I didn’t agree with him on everything, but I always knew that if he was running the world, we would be fine. He was not a person who had rigid ideological lines that he wanted to draw. And he believed fundamentally in the values of civil liberties and civil rights. He was a Southerner and he told me that the most important man in America in the twentieth century was Thurgood Marshall. Who was down the hall at the time…
Did you always want to be a lawyer?
I wanted to be in Washington, D.C., involved in making policy. I came down here during the summer of ‘74 from college…Watergate was a big part of my college experience. It was all about the press and the lawyers; those were the two categories of things people wanted to be. I majored in political science, political theory.
How did you get involved in Lawrence v. Texas?
That case actually came to the firm because Lambda Legal was looking for a Supreme Court firm to consult with after they had lost all their appeals in the state courts of Texas. These guys were prosecuted for sodomy. We counseled them on whether it was a good idea to go back to the Supreme Court and try to get Bowers v. Hardwick overruled. We told them in the end we thought it was a good idea to go back, the court had changed, the country had changed… So we filed the cert petition and we got it granted, which was really quite a stunning moment because all of a sudden everybody said, this is going to change everything. It’s really hard to understand now how terrible the divide was between the gay community and the rest of the country — after Bowers said you basically have no rights at all.
So we worked on the merits brief and it turned out I was the only person on the team who had ever argued a Supreme Court case. It turned out to be a completely life changing experience for me…I got an opportunity to be involved in all the strategizing over the next ten years. I was just kind of lucky that I was in the right place at the right time.
You’re teaching with Evan Wolfson in the spring. Do want to talk about that class?
We haven’t taught it before. It is going to be a combination of law and how civil rights movements operate, how the strategy works to try to change the law in terms of the fundamental civil rights. Evan has a lot of experience in moving public opinion… We’re going to talk about how you actually organize a civil rights movement, and at the same time, talk about the doctrinal developments. My guess is there will be new doctrinal developments happening next spring… We’re not in the post-LGBT rights era yet by any means.