Gerrymandering & Justiciability: The Political Question Doctrine After Gill v. Whitford

66 Pages Posted: 6 Mar 2019 Last revised: 10 May 2019

Date Written: March 7, 2019

Abstract

Partisan gerrymandering claims occupy a unique purgatory in constitutional law, floating between justiciable and nonjusticiable. This term, the Supreme Court will finally decide. The issue said to divide the Justices is whether these claims pose a “political question” due to a lack of “judicially manageable” standards. To resolve this, the Court has interrogated numerous gerrymandering standards, questioning whether they can be made administrable or whether they would require the courts to play an inappropriate role in our constitutional scheme.

But the Justices are focused on fixing the wrong set of standards. The problem is not with political gerrymandering claims, but with the political question doctrine itself. No Supreme Court majority has ever found “judicial unmanageability” alone sufficient to render a constitutional claim nonjusticiable under the doctrine. And for good reason: doing so would violate the limits and duties imposed by Article III.

Contrary to Justice Scalia’s characterization in Vieth v. Jubelirer, manageability is not an “independent test” of jurisdiction. It provides no coherent constitutional standard for controlling judicial power. Such an interpretation of the political question doctrine would invite federal courts to opine about abstract questions untethered from actual cases (an arrogation of judicial power) and to refuse jurisdiction over cases for purely discretionary reasons (an abdication of judicial obligations). This should be unacceptable to a Court increasingly disciplined about its jurisdictional jurisprudence and sensitive to its constitutional role.

This Article evaluates the modern political question doctrine, examines its tension with Article III, and recommends that the Court adopt a more limited and precise interpretation of the doctrine. This view of the doctrine reveals the Supreme Court’s debate about partisan gerrymandering claims and the proper role of the federal courts to be a practical (and resolvable) one over constitutional construction rather than a principled (and intractable) one over constitutional meaning. The Article then proposes and explores four paths that the Supreme Court might take this term in Rucho v. Common Cause, and what they mean for the future of partisan gerrymandering claims and the political question doctrine.

Keywords: Gerrymandering, Redistricting, Voting Rights, Election Law, Equal Protection, Political Question Doctrine, Justiciability, Separation of Powers, Federalism, Judicial Manageability, Article III, Jurisdiction, Democracy, Vote Dilution, Standing, Equitable Power

Suggested Citation

Parsons, G. Michael, Gerrymandering & Justiciability: The Political Question Doctrine After Gill v. Whitford (March 7, 2019). Indiana Law Journal, Vol. 95, 2020. Available at SSRN: https://ssrn.com/abstract=3334370 or http://dx.doi.org/10.2139/ssrn.3334370

G. Michael Parsons (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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