Gerrymandering presented a ‘political question doctrine’ deemed outside Supreme Court jurisdiction

An example of gerrymandering

In Rucho vs. Common Cause, the Supreme Court held that the question of whether partisan gerrymandering in North Carolina and Maryland violated the Constitution was a political question over which federal courts lacked jurisdiction. The result was a long time in coming but was clearly correct. As Chief Justice John Roberts ably demonstrated, there were no neutral and objective judicially manageable standards by which a federal court could resolve questions of political gerrymandering. Beyond that, however the decision may portend the much needed revitalization of the political question doctrine that the Court might apply to other legal questions as well.

First, here is a little background on the political question doctrine. Justice Elena Kagan’s dissent in Rucho assumes that if there is a constitutional violation, there must be a judicial remedy. However, if the political question doctrine has substance, the opposite is true. The political question doctrine holds that there are some legal questions that courts can’t resolve even if they are convinced that the legislative or executive branch – or a state institution – resolved  them in a manner that was clearly incorrect. In other words, there is no instant replay. Just as there was a consensus that referees missed a blatant instance of pass interference in the 2019 NFC Championship game (affecting the outcome and denying the New Orleans Saints a trip to the Super Bowl), so it is with law. There are some legal, often constitutional errors, that are beyond the judicial capacity and authority to correct.

The political question doctrine has evolved in the federal courts since the very beginning of the republic. Chief Justice John Marshall may have recognized it in Marbury vs. Madison. It had most frequently been applied in the area of foreign affairs and war but not exclusively. The great case that attempted to analyze and define the political question doctrine was Baker vs. Carr presenting the question of whether equal protection-based challenges to malapportionment of state legislatures presented non-justiciable political questions.

Writing for the Court, Justice William J. Brennan made a valiant attempt to deduce principles from the chaotic political question decisions that had accumulated over 150 years. He concluded the political question doctrine generally involved questions of separation of powers, but not always. He indicated six reasons why the Court had found political questions in the past. The only criteria pertinent to the reapportionment issue presented in Baker as well as the partisan gerrymandering issue raised in Rucho was the absence of judicially manageable standards. In other words, the Court’s obligation, as stated in Marbury vs. Madison, was to resolve legal disputes through the application of pre-existing law. If there were no judicially manageable standards, hence no law to apply, federal courts had no business resolving the dispute regardless of how important it might seem.

Applying this principle to the reapportionment dispute, Justice Brennan concluded there were judicially manageable standards since the Court was accustomed to applying the Equal Protection Clause to a variety of issues. This was one of the greatest mistakes in constitutional history. In dissent, Justice Felix Frankfurter vainly argued that there was no constitutionally mandated or discoverable benchmark for proper apportionment. He argued that political question analysis should turn on the nature of the issue at stake rather than the legal theory underlying the challenge. Political thinkers had disagreed throughout history, including American history, as to what was the best way to apportion a legislature and the Constitution itself provided no guidance. Thus there were no judicially manageable standards. The Court would simply have to choose among several contested alternatives, which it did two years later in Reynolds vs. Simms when it chose one person one vote as the appropriate constitutional benchmark. Thus Baker vs. Carr effectively diminished the role of the political question doctrine. Instead, future courts acted on the assumption that if they could figure out a way to justify their decisions no matter how unpersuasive or how lacking in constitutional pedigree, then by definition, the case was justiciable and it presented no political question.

However, the one area following Baker in which there was serious judicial concern as to the lack of judicially manageable standards was challenges to partisan gerrymandering. Over a period of almost 50 years, the Court heard several challenges to partisan gerrymandering but never invalidated a legislative districting plan on that ground. In 1986, in Davis vs. Bandemer, (Justice Sandra Day O’Connor writing for three justices) argued that challenges to partisan gerrymandering constituted a nonjusticiable political question due to lack of judicially manageable standards. Eighteen years later in Vieth vs. Jubelirier, Justice Antonin Scalia made the same argument, this time on behalf of four justices. However, Justice Kennedy held out hope that a judicially manageable standard might yet be discovered though he conceded that the Court had failed to find one so far.

The search for such a standard seemed hopeless given that the Court had long made it clear that any standard that at least implicitly assumed or led to proportional representation between political parties was forbidden. The Court did not want to be faced with a flood of challenges to redistricting plans, recognizing that the losers of elections would have an incentive to file such lawsuits. Finally, the Court had long declared that some degree of partisanship in redistricting was constitutionally appropriate. Thus the question became one of degree: “how much is too much.”

After five decades of searching for a standard, Chief Justice Roberts was finally able to assemble a majority that concluded “enough is enough.” There is no judicially manageable standard here. This is a non-justiciable political question.

The political question doctrine was the constitutionally appropriate manner to dispose of the ever increasing judicial challenges to redistricting based on partisanship. That, in itself, was a major achievement. But beyond the immediate case and issue, hopefully Ruche will lead to a revitalization of the political question doctrine after its diminishment in Baker vs. Carr 60 years earlier. As Justice John Marshall Harlan declared in his dissent in Reynolds vs. Simms, “The Constitution is not a panacea for every blot on the public welfare.” The political question doctrine aids the Court in its appropriate constitutional role of resolving disputes through the application of pre-existing legal rules as opposed to making up from whole cloth legal rules to resolve disputes. Hopefully, after Ruche, we will see more of the political question doctrine in the future. If so, it will help return the Court to its proper place in our constitutional system.