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 the Court's definitive position on political gerrymandering questions. Yet the Court splintered along familiar lines and failed to offer a definitive answer. This Article focuses on the plurality opinion, and particularly 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 send us in a futile quest for standards, Vieth is best understood as inviting such an inquiry.

Number of Pages in PDF File: 53

Keywords: law of democracy, gerrymandering, political questions, judicial review

Accepted Paper Series