Reconsidering the law of democracy: of political questions, prudence, and the judicial role.

• Author: Fuentes-Rohwer, Luis

ABSTRACT

In Vieth v. Jubelirer, the U.S. Supreme Court seemed poised to offer its definitive position on political gerrymandering questions. Yet the Court splintered along familiar lines and failed to offer an unequivocal answer. This Article focuses on the Court's plurality opinion, and particularly on its conclusion that judicially manageable standards are wanting in this area. This conclusion is implausible and masks the real question at the heart of the case. The Vieth plurality is best understood by examining the Court's political and prudential concerns as cabined by the political question doctrine. One understanding is simply that the plurality is making a call on the merits. A more intriguing explanation is that the plurality is signaling a retreat from its aggressive posture of years past: uncomfortable with the Court's general role in political affairs, the plurality is finally willing to call it a day. This is a worthy inquiry; in the wake of Bush v. Gore, we must revisit the Court's entry into the political arena. Rather than sending us in a futile quest for standards, Vieth is best understood as inviting such an inquiry.

TABLE OF CONTENTS INTRODUCTION I. EXAMINING THE GERRYMANDERING THICKET: OF POLITICAL QUESTIONS AND JUDICIAL WILL A. The Two Faces of the Political Question Doctrine 1. The Classical Theory 2. The Prudential Strain B. Political Questions as Questions of Politics: Luther's Guarantee Clause C. Out of Guarantees, for Equality's Sake: Baker v. Carr II. RECONSIDERING THE COURT'S OFFICIAL POINT OF ENTRY: BANDEMER'S PLURALITY OPINION III. WHERE ART THOU, STANDARDS? A. Standards, Standards, and More Standards 1. Totality of Circumstances 2. Vieth: The Plaintiffs Standard 3. Vieth: Looking to Established Law--Stevens and Souter B. Vieth's Holy Grail: A Discernible, Manageable Standard IV. EXPLAINING VIETH'S PASSIVITY: LOOKING FOR VIRTUES? A. Taking a Peek B. Structure v. Rights C. Sending Signals and Keeping Secrets CONCLUSION INTRODUCTION

From the time the Supreme Court officially extended the judicial power to encompass political gerrymandering questions in Davis v. Bandemer, (1) the doctrine has been subject to withering criticism. While gerrymanders as such were no longer shielded from judicial review under the guise of "political questions," the legal standard established in Bandemer was deemed both confusing and confused, a bar too high for litigants to meet in any useful and practical way. In the words of a leading commentator, writing more than a decade ago, "[n]ot only has the new partisan gerrymandering standard yet to be used by any court to invalidate any legislative action, but the Supreme Court also threw its hands in the air when confronted with the most wanton political gerrymander of the 1980s: the infamous Burton gerrymander of California." (2)

In the 2003 Term, the Court set to remedy this condition; the case was Vieth v. Jubelirer. (3) In Vieth, the Court examined Pennsylvania General Assembly's redistricting handiwork after the 2000 census, which was a pastiche of facts and conditions that raised many eyebrows, particularly of those in the Democratic Party. (4) This plan had it all: one-party control of all relevant political posts, a necessary precondition for a partisan gerrymander; pressure from national party leaders on state actors to craft a partisan plan; a process where members of the minority party had very little if any input; and a resulting map that split counties, cities, boroughs and townships in suspicious ways, including one county, Montgomery County, divided up among six different congressional districts. The egregious nature of these facts led one Justice who seemed otherwise unsympathetic to the plaintiffs to confess nevertheless during the oral argument: "I would concede that what happens here is unfair in some common--common parlance. It--it--it looks pretty raw." (5) Similarly, in his concurring opinion, Justice Kennedy maintained that, "[w]hether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment, [w]e are in the business of rigging elections." (6)

The story behind Vieth is not about judicial power. In the wake of Bush v. Gore (7) and Shaw v. Reno, (8) the question of the availability vel non of judicial power to address the supposed infirmities of the political process is no longer considered a serious limitation: Baker v. Carr (9) settled that question long ago and it has not been questioned seriously since. Rather, Vieth raises squarely and forcefully the question of judicial will: (10) should the courts stay in the domain of politics in order to rein in such blatant political acts? In response to this question, the Court in Vieth had two leading choices. The Court could either strengthen its political gerrymandering doctrine or it could retreat from it, eighteen years after the doctrine's inauspicious beginning. But the Court did neither.

The plurality opinion, authored by Justice Scalia, noted that Bandemer "held that the Equal Protection Clause grants judges the power--and duty--to control political gerrymandering." (11) Yet after eighteen years, Justice Scalia remarked, no standards "have emerged," not from the lower courts, commentators, or anywhere else. (12) For this reason, the plurality concluded that these claims must be "nonjusticiable and that Bandemer was wrongly decided." (13) In response, the dissenting Justices argued that such standards do in fact exist, and they offered three different examples. (14) In the middle was Justice Kennedy, who was not quite ready to bar all political gerrymandering questions, but who had yet to find a standard that met with his approval. (15) To the plurality, this meant that its opinion controlled for the foreseeable future and that these claims were off-limits from review. (16) Dissenting Justices argued otherwise. (17)

Vieth is a curious case on many fronts. It is amply clear that the Supreme Court stands at the epicenter of the electoral world, firmly in control of all questions political. (18) Support for this proposition is plentiful, of which Bush v. Gore is only the latest example. Whether redistricting, racial gerrymandering, or ballot access, the Court is generally ready and willing to strike a blow in the name of democracy. In this vein, the mere mention of a lack of "judicially manageable standards" should strike us as odd and misplaced; if the Court ever felt shackled by an alleged lack of such judicially manageable standards, Baker v. Carr and its progeny should have put those concerns to rest. Questions of standards, process, or doctrinal consistency seldom offer any practical resistance.

And yet, somehow, they offered all the resistance needed in Vieth. Such resistance must reflect the plurality's implicit assumption that political gerrymandering questions are different from redistricting questions. This is, however, a questionable assumption that the plurality never really justified. While there may be a constitutionally significant distinction between gerrymandering and redistricting, the distinction is not facially apparent. As the late Robert Dixon argued, "districting is gerrymandering." (19) It is inherent in the redistricting process that lines on a map, even if drawn by an impartial and objective independent commission, will ultimately harm one party and benefit the other. (20) Thus, to adjudicate districting questions is essentially to adjudicate gerrymandering questions writ large. This point is directly linked to both Baker and its immediate progeny. By refusing to act, state legislatures at the time were in fact gerrymandering their states, in the sense that their districts were not reflective of the voting population, and the voting public did not have any way to influence the outcome of elections.

The Vieth plurality's retreat on the grounds that standards for adjudication are lacking is suspect for a second reason. We live in a constitutional world where courts comfortably balance state interests and apply strict scrutiny or rational basis tests. Such standards did not descend from the heavens on marble tablets; they were developed by prior courts, for reasons that might or might not make any sense at the present time. This is true about judicially developed standards in general. (21) An apt example is the Court's early reapportionment jurisprudence. The lessons of these early cases are clear, as the Court in Reynolds v. Sims (22) and subsequent cases created and enforced standards where none previously existed. In so doing, these cases offer a working model for the gerrymandering cases. After all, if the Court could implement and enforce the equipopulation standard in reaction to grossly malapportioned districts, it should not be terribly challenging for the Court to implement and enforce an analogous standard, similarly created out of thin air, in the political gerrymandering cases. Hence, can we accept the plurality's reasoning at face value? (23) Is it true that no manageable standards avail in this area? And, if manageable standards in fact exist, what explains the Court's stubborn refusal to constitutionalize the hated gerrymander?

This Article examines these questions and concludes that Vieth is a subversive opinion, best understood as signaling a retreat from the Court's aggressive posture of years past. This argument is anchored by the Court's historical treatment of the political question doctrine. From Luther v. Borden (24) to Colegrove v. Green (25) to Bush v. Gore, the prudential strand of the doctrine has played a central role in shaping the law of democracy. In other words, the Court has acted or chosen not to act for extralegal reasons. This is not intended as a criticism of the Court's political question jurisprudence; in matters of law and politics, public opinion must play an important role. Vieth sits comfortably within this political...