Gerrymandering and Conceit: The Supreme Court's Conflict With Itself

Hastings Law Journal (2018 Forthcoming)

38 Pages Posted: 21 Jun 2017 Last revised: 15 Sep 2017

See all articles by McKay Cunningham

McKay Cunningham

Concordia University School of Law

Date Written: June 20, 2017


In November 2016, a federal court struck as unconstitutional Wisconsin’s redistricting map under both the First Amendment and the Equal Protection Clause. The court’s decision in Whitford v. Gill marks the first time a federal court invalidated a redistricting map as unconstitutional for partisan gerrymandering in over thirty years. Wisconsin has appealed the decision to the United States Supreme Court, which recently granted review. The Supreme Court has long held that extreme partisan gerrymandering violates equal protection but has simultaneously refused to determine the merits of gerrymandering disputes, instead labeling them as non-justiciable political questions. In particular, the Court has maintained that no manageable standard yet exists by which the Court could implement the promise of equal protection to partisan redistricting.

This Article analyzes the manageable standard requirement, revealing the Court’s failure to define the term and that the Court has applied the manageability requirement haphazardly. Scores of court-made standards either over- or under-enforce the constitutional norm they purport to implement. Why is “fairness” a workable standard in one context but not another? How are standards that measure one’s shocked conscious, or weigh the totality of the circumstances judicially manageable? Importantly, a common thread connects the Court’s use of the manageability requirement to its insecurity in exercising judicial review, indicating that the Court often applies the manageability requirement when particularly insecure in exercising the judicial function.

Recast in this light, the question of Court engagement in gerrymandering disputes turns on the propriety of Court intervention to address artificial obstacles that disrupt democratic functionality. The Court should no longer hide behind the manageability barrier because court intervention to ensure democracy’s proper functioning was (1) anticipated by the Framers, (2) memorialized in the Constitution’s form and structure, and (3) exercised by the Court without loss of judicial legitimacy in analogous contexts. This Article posits that judicial intervention to unblock the avenues of political change is one of the Court’s central responsibilities, that in similar contexts the Court has recognized as much, and that it should do so again in Whitford.

Keywords: Gerrymander, Partisan, Constitution, Whitford, Gill

Suggested Citation

Cunningham, McKay, Gerrymandering and Conceit: The Supreme Court's Conflict With Itself (June 20, 2017). Hastings Law Journal (2018 Forthcoming). Available at SSRN: or

McKay Cunningham (Contact Author)

Concordia University School of Law ( email )

501 W. Front St
Boise, ID 83702
United States

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