There’s been a lot of good news recently for opponents of partisan gerrymandering. The Pennsylvania Supreme Court just revoked a map of congressional districts that had been designed to help Republicans, and substituted one that gave Democrats a greater chance of winning more seats. In a similar vein, a U.S. district court in North Carolina also struck down a Republican gerrymander in that state. And, in perhaps the most consequential case, five Justices on the U.S. Supreme Court, hearing an argument in October, appeared ready to reject a Republican gerrymander in Wisconsin, and thereby put an end to the partisan redistricting that has been a principal feature of American politics in recent years.

But that momentum may have come to a halt. (The new Pennsylvania map will go into effect, because the court acted pursuant to state, rather than to federal, constitutional law; the North Carolina case is on hold pending further appeals.) At the Supreme Court on Wednesday morning, in a strangely desultory argument, the Justices, for the second time in a year, took up the subject—this time, in Maryland—but they appeared further from a consensus, or even a majority, than they did during the argument of the Wisconsin case. It’s always dangerous to infer too much from Justices’ statements and questions during oral arguments, but the hints in today’s proceedings suggested that the Court, as a whole, may not be ready to put an end to gerrymandering.

The Maryland case, argued under the name of Benisek v. Lamone, differs somewhat from the Wisconsin litigation. Benisek concerns only a single district, which the Democrats in the state legislature redrew after the 2010 census. As the legislators intended, the new district lines meant that the Republican incumbent, U.S. Representative Roscoe Bartlett, lost to a Democrat, John Delaney, who still holds the seat. The Wisconsin case, in contrast, deals with a challenge to every district in the lower house of the state’s legislature. The core issue, though, is fundamentally the same in both cases: Can a state legislature draw district lines with the principal goal of helping one political party and hurting the other?

As is so often the case with the current Supreme Court, these decisions look as if they will hinge on the vote of Anthony Kennedy. Chief Justice John Roberts, Samuel Alito, and Neil Gorsuch, as well as the customarily silent Clarence Thomas, all appear likely to allow gerrymandering to continue. Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan seem determined to outlaw the practice. On Wednesday, Kennedy made it clear, as he has in the past, that he finds the practice of gerrymandering distasteful, particularly because the state legislatures appear to be punishing some voters for their political views, in violation of the First Amendment. Questioning Steven Sullivan, Maryland’s solicitor general, Kennedy said, “Suppose the Maryland constitution had a provision that required that partisan advantage for one party be the predominant consideration in any districting. Lawful or not?” Sullivan conceded that such a law would violate the constitution. Kennedy followed up by asking, rhetorically, “How is this case different?” In other words, that provision might not be part of the state constitution, but the state was acting as if it were—that is, using partisan advantage as the predominant factor in redrawing the lines of the district.

The problem is how to create a remedy for this sort of viewpoint discrimination. In various ways, Roberts, Alito, and Gorsuch all made the point that redistricting is invariably a political process, so there is no way that partisanship can be entirely scrubbed from it. Indeed, Ginsburg and Kagan made similar arguments. The question of the remedy was so muddled that Breyer even put forth the notion that the Court should ask the parties for an entirely new set of briefs on it. No other Justice picked up on that idea, but the mere fact that Breyer proposed it suggests that in the Wisconsin case (which presumably has already been decided) the Court has not produced a workable standard embraced by a majority of the Justices.

It’s perhaps easy to have sympathy for the Justices in this instance. Partisan redistricting is easier to identify than to rectify. Several of them have heard other cases on the subject over the past decade or so (without settling the law). And, as the Justices dawdle, the problem is growing worse. With the advent of ever more powerful computer technology, politicians can draw legislative districts with chilling precision; they can guarantee victory or defeat before a single vote is cast. The 2020 census is drawing near, and the district lines for every legislative seat in the country will soon be redrawn. The time for the Supreme Court to address the problem is now.

This story has been updated to correctly identify the districts relevant to the Wisconsin gerrymandering case.