A new Supreme Court map? Maybe....

We'll start with the map, because that's what everyone will want to see, and my thanks to @FrankCalabrese for providing this to FWIW. This map shows, according to Mr. Calabrese, how the Democratic Party proposes to redraw the state's judicial map. (I have not been able to find a bill reducing this proposal to writing, but that only means I couldn't find it, not that one has not been drafted and filed. I will update if necessary.)

There has been some loose talk in the media and on the Intertubes that the Illinois judicial map has not been updated for 50 years. This is only sorta, kinda true. There have been a couple of bills passed tinkering with Illinois judicial districts in the last 30 years, but these have foundered on the shoals of unconstitutionality.

So let's start with the 1970 Constitution.

Article VI, Section 2 divides the state into five Judicial Districts. "The First Judicial District consists of Cook County. The remainder of the State shall be divided into four Judicial Districts of substantially equal population, each of which shall be compact and composed of contiguous counties." (Emphasis supplied.)

Article VI, Section 3 specifies that three Supreme Court Justices will be elected from the First Judicial District and one each from the other four.

Article VI, Section 7(a) declares Cook County---already the First Judicial District---to be its own Judicial Circuit. The rest of the state is divided into Judicial Circuits consisting of one or more counties. Over the course of my professional lifetime, most of the counties adjoining County Cook have gotten their own separate circuit courts. The Circuit Court of McHenry County, once part of the 19th Circuit (with Lake County), became the 22nd Circuit. The 12th Judicial Circuit is now only Will County; the 16th has been reduced to just Kane County. Single-county circuits make it easier to draw new Judicial Districts, inasmuch as no circuit can be divided among Judicial Districts.

This is because Article VI, Section 6 provides, in pertinent part, "Appeals from final judgments of a Circuit Court are a matter of right to the Appellate Court in the Judicial District in which the Circuit Court is located...."

In People ex rel. Chicago Bar Assn. v. State Board of Elections, 136 Ill.2d 513 (1990), the Illinois Supreme Court struck down the General Assembly's first attempt to divide Cook County into 15 subcircuits. The subcircuit proposal fell because, in the court's opinion, it was 'inextricably bound' to another provision of the statute in question, namely, the division of the Appellate Court within the First Judicial District into five appellate subdistricts. This proposal was found unconstitutional because the "Illinois Constitution does restrict and limit the power of the legislature to further divide judicial districts for the election of appellate judges" (136 Ill.2d at 525).

The General Assembly took the hint and soon thereafter passed subcircuit legislation without trying to tinker with the Appellate Court and the rest is history. Meanwhile, People ex rel. Chicago Bar Assn. certainly stands for the proposition "that the delegates to the constitutional convention intended that appellate court judges be elected from their respective districts at large, that Cook County be viewed as one judicial district and that the legislature could determine the boundaries of the other four judicial districts" (136 Ill.2d at 530).

And so it can -- but it is not free to do so any old way it chooses. The Legislature subsequently passed the Judicial Redistricting Act of 1997, which, once again, tried to divide the First Judicial District, this time into Districts 1A, 1B, and 1C. It also redrew the lines for the Second through Fifth Judicial Districts, dividing a number of judicial circuits between Judicial Districts. For these reasons, the Act was declared unconstitutional in Cincinnati Insurance Co. v. Chapman, 181 Ill.2d 65 (1998).

Perhaps the key passage on this latter point is found at 181 Ill.2d at 79:

It is the combination of sections 6 and 7 [of Article VI] which renders unconstitutional the splitting of a judicial circuit amongst different districts. Section 6 requires that appeals from judgments of the circuit court be heard "in the Judicial District in which the Circuit Court is located." Ill. Const. 1970, art. VI, § 6. However, the Constitution limits each judicial circuit to only one "circuit court," even though a circuit may be comprised of multiple counties, throughout which various circuit courthouses may be situated. In order to comply with the constitutional requirement that appeals from a circuit court must be heard by the appellate court in the judicial district in which the circuit court is located, the entire "judicial circuit" from which the single circuit court is created must likewise be contained wholly within a single judicial district.

The challenge to the mapmaker comes thus into view.

The three Justices elected from Cook County may be safely presumed to be Democrats for the foreseeable future. But how to find a reliable fourth vote?

Mapmakers drawing legislative districts are not constrained by county lines. Dependable portions of Chicago and suburban Cook County can be tapped as necessary to create as many safely Democratic suburban districts as possible in the expectation of indefinitely preserving the permanent Democratic supermajority. But, for judicial purposes, the Constitution puts Cook County behind a wall, untouched and untouchable for the mapmaker looking to find a 4th Democratic vote on the Supreme Court.

Some of you, perhaps, may marvel at this: Is not Illinois a Bluer-than-Blue state?

Without Cook County, however, and even with the evolution of some of the collar counties from dependable red to increasingly purple, the answer is no. Democratic precincts are widely scattered, clustered together, perhaps, but too far apart from each other if only four districts can be drawn.

The hyperpartisan estrangement which has afflicted the rest of our country has not left Illinois untouched. Most FWIW readers, safely in Cook County, have seen the virtual extinction of viable Republican candidates within a generation. But beyond the collar counties, in the vast majority of Illinois' 102 counties, the exact opposite phenomenon has occurred.

There will be two seats on the Supreme Court up for grabs in 2022. Under the current map, it is the Third District seat which would be open (Justice Robert L. Carter, appointed after Justice Tom Kilbride was defeated for retention, has announced that he will not be a candidate for the seat). Justice Michael J. Burke would have been expected to seek election to the Second District seat to which he was appointed upon the retirement of Justice Robert R. Thomas. But this proposal likely moves Burke into the Third District.

As the Second and Third Judicial Districts are presently constituted, both races would be rated, at the very least, as 'leans Republican'. The question for the mapmakers is, given the constitutional limitations on their cartographic creativity, whether either or both of these seats can be made at least competitive. In a non-presidential election year, will this map "work"?