In a 1986 case, Davis v. Bandemer, the Court announced that it could hear such cases (in technical legal terms, that the cases are “justiciable”), but it set forth a standard that was so hard to meet that there was never a successful claim. The Court reconsidered the issue in the 2004 case of Vieth v. Jubelirer. Four conservative justices, led by Justice Antonin Scalia, held that such claims were “nonjusticiable,” meaning that the Court could never hear such cases because there was no standard to separate permissible from impermissible consideration of party. The four liberal justices on the Court issued four separate opinions each setting forth a different standard which could be used to police the lines. Kennedy alone stood as the man in the middle, agreeing with the liberals that courts could hear these cases, but agreeing with the conservatives that each of the standards the liberals proposed, as well as a slightly different standard proposed by the plaintiffs in Vieth, were lacking. Kennedy suggested further consideration of the issue, looking perhaps at history, at analysis aided by technology, and at the First Amendment, which prevents certain government action that punishes people based on their partisan affiliation.

One way to understand the four different dissenting opinions in Vieth is that they were like contestants in a beauty pageant parading before Kennedy to see if there was anything he liked. And it has become clear that what’s happened since Vieth in the lower courts has been more of the same: attempts in partisan gerrymandering cases to find a new “manageable” standard that would please Kennedy.

The lower court in the Gill case, which found last year that Wisconsin’s legislative districts were unconstitutional, relied partially upon the “efficiency gap,” a measure of partisan gerrymandering developed by Eric McGhee and Nicholas Stephanopoulos which focuses on how much a partisan redistricting plan “packs” and “cracks” the other party’s voters for partisan advantage.

It is not clear whether Kennedy will find the efficiency gap to his liking, given that it has some similarities to earlier standards on partisan asymmetry that he has rejected, and some political scientists have sharply criticized the notion that the efficiency gap is a good standard of measurement. But no matter: Expect the Court to be flooded with amicus briefs from political scientists and others offering standards of their own. There are also gerrymandering cases from North Carolina and Maryland where plaintiffs have offered their own standards. The new beauty pageant for Kennedy will not lack for contestants.

The matter has some urgency. To begin with, it is not clear how much longer Kennedy will remain on the Court (though the Court’s grant in Gill signals he is likely to stay on the Court through next term and be the deciding vote). If the Court does not resolve the issue in this set of partisan gerrymandering cases, it may be too late for another case to establish the standard, especially if President Trump gets to pick another conservative like Justice Neil Gorsuch to replace Kennedy.