Reconsidering the Law of Democracy: Of Political Questions, Prudence, and the Judicial Role

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. …