Con Law Center Articles and Publications
In finding that extreme partisan gerrymandering is a nonjusticiable political question in Rucho v. Common Cause, the Supreme Court fixated upon the lack of judicially manageable standards to evaluate their constitutionality. The decision culminated in the Court’s recent reinforcement of that manageability focus in partisan gerrymandering cases, with Chief Justice Roberts even calling efforts to numerically calculate the extremity of such gerrymandering “sociological gobbledygook.”
Such belabored fears about manageability misread the questions in the political question doctrine. The doctrine requires the Justices to initially ask, as a normative matter, whether the judiciary should resolve the controversy in our constitutional system, and only then to consider practical manageability concerns. The Court has taken the reverse approach, failing to acknowledge the damage extreme partisan gerrymandering does to our representative democracy of separated powers.
The Court has also used an incoherent understanding of manageability that moves the goalposts for those that would measure and control partisan gerrymandering. In turn, the Court has first demanded more precise standards, then required more malleable ones. That impossibly exacting standard for standards is out of step with constitutional jurisprudence of similarly broad impact, such as Second and Fourth Amendment law, reapportionment cases, and racial gerrymandering.
The Rucho Court should have tackled the normative question directly, finding that extreme partisan gerrymandering is an existential threat to our tripartite government. It exacerbates legislative gridlock, forcing an overburdened judiciary to act as the primary agent of legal change. The Court should then have relaxed its demands for manageable standards. Manageability is a sliding scale; where an issue is normatively vital to democracy’s future, the Justices should experiment with malleable standards. Adjudicating these cases with imperfect standards would have unleashed human capital to help repair the partisan rot in our democracy.
Iowa Law Review
Michael Gentithes, 105 Iowa Law Review 1081 (2020)