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1

JUDICIAL INTERVENTION AS JUDICIAL RESTRAINT

Guy-Uriel E. Charles* & Luis E. Fuentes-Rohwer**

In Gill v. Whitford,1 the Supreme Court turned aside the most promising vehicle for

adjudicating partisan gerrymandering claims since the Court first fully addressed the issue more

than thirty years ago in Davis v. Bandemer.2 Though the Court has long been deeply divided on

the constitutionality of partisan gerrymandering, especially on the threshold question of

justiciability, Justice Kennedy, the decisive fifth vote and the Court’s resident super median,3

previously signaled, explicitly and strongly, his willingness to adjudicate these claims if putative

plaintiffs would present him with judicially manageable standards.4 The plaintiffs in Gill took up

that challenge.

The Gill plaintiffs filed suit against a redistricting plan from the State of Wisconsin that, by

almost all measures, constituted a successful attempt by the Republican Party to minimize the

ability of Democrats to translate their electoral votes into legislative seats. The plaintiffs,

–––––––––––––––––––––––––––
*
Edward & Ellen Schwarzman Professor of Law, Duke University.
**
Professor of Law and Harry T. Ice Faculty Fellow, Indiana University Bloomington, Maurer School of Law. We
received great feedback, on very short notice, from Stuart Benjamin, Corinne Blalock, Joseph Blocher, James Boyle,
Curtis Bradley, James Gardner, Don Herzog, Jay Krishnan, Margaret Lemos, Richard Pildes, Steve Sanders, and
Timothy Waters. Casandra Laskowski, Reference Library and Lecturing Fellow at Duke Law School, helped us
tremendously by tracking down important sources. Ellie Hylton and Bailey Sanders provided invaluable research
assistance. We are extremely grateful to the staff of the Harvard Law Review for superb comments on earlier
drafts.
1
138 S. Ct. 1916 (2018).
2
478 U.S. 109 (1986).
3
Lee Epstein & Tonja Jacobi, Super Medians, 61 Stan. L. Rev. 37 (2008).
4
See, e.g., Vieth v. Jubilerer, 541 U.S. 247, 306 (Kennedy, J., concurring in the judgment).

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2

armed with a new test -- the efficiency gap5 -- prevailed in the lower court.6 Moreover, the

issue of partisan gerrymandering appeared to have finally galvanized broad popular support.

The stars seemed nicely aligned as Gill looked like the perfect opportunity for the Court to

address the political gerrymandering question once and for all.

As further evidence of what seemed -- without the jolt of reality conferred only by hindsight

-- to be the Court’s intention to strike down egregious political gerrymanders, the Supreme

Court agreed to hear a political gerrymandering case from Maryland, Benisek v. Lamone.7 The

Court also had a third case pending from North Carolina, Rucho v. Common Cause,8 in which a

three-judge court concluded that North Carolina’s 2016 redistricting plan was a partisan

gerrymander in violation of the Equal Protection Clause, the First Amendment and the Elections

Clause.9 The Maryland case was particularly noteworthy because the plaintiffs challenged a

district gerrymandered by the Maryland Democratic Party. Taken together, Gill and Benisek

presented the Court with gerrymandering claims by both major political parties and would have

provided cover from cries of partisan favoritism. The cases also presented the Court with two

different types of gerrymandering claims. The Gill plaintiffs focused on how their state’s plan

–––––––––––––––––––––––––––
5
The “efficiency gap” is a measure of partisan symmetry. “The efficiency gap assumes that the strategy of the
dominant party, the party in control of the districting, is to group its voters as efficiently as possible and to group
the voters of the out party as inefficiently as possible.” James A. Gardner & Guy-Uriel Charles, Election Law in the
American Political System 309 (2018). It measures the extent to which the dominant party maximizes the way it
distributes its voters in voting districts and minimizes the out party’s electoral changes by grouping their voters in a
way that wastes their votes as much as possible. The efficiency gap was introduced by a political scientist,
Professor Eric McGhee, see Eric McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39
Legis. Stud. Q. 55 (2014), and extended into law by Professor McGhee and Professor Nick Stephanopoulos, see
Nicholas O. Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev.
831 (2015); Nicholas O. Stephanopoulos & Eric McGhee, The Measure of a Metric: The Debate over Quantifying
Partisan Gerrymandering, 70 Stan. L. Rev. 1503 (2018).
6
See Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis.2016).
7
138 S. Ct. 1942 (2018).
8
279 F. Supp. 3d 587 (M.D.N.C. 2018).
9
U.S. Const. art. I, § 4.

affected political power throughout the state and the Benisek plaintiffs focused on how the

composition of a particular district affected their right to vote. In addition, the two cases

presented the Court with two different constitutional theories of the problem, one based upon

the Equal Protection Clause and the other focused on the First Amendment. Between them, Gill

and Benisek covered the waterfront of possibilities and provided the Court a range of options

for a narrow or broad intervention. And if the Court wanted to strengthen its justifications for

intervention and further expand its options, it had an ace in the hole with Common Cause v.

Rucho, which combined all of the issues presented in Gill and Benisek in a single case. It

seemed plausible, conceivable, and even ineluctable that the Court was about to subject the

increasingly despised partisan gerrymander to meaningful judicial review.

To the surprise of many, the Court did not rule on the constitutionality of political

gerrymandering claims. The Court anticlimactically resolved Gill on standing grounds. Writing

for a unanimous Court,10 Chief Justice Roberts explained that according to the plaintiffs’ theory

of their constitutional injury -- that they were “placed in legislative districts designed to ‘waste’

their votes in elections where their chosen candidates will win in landslides (packing) or are

destined to lose by closer margins (cracking)” -- they must allege and prove their constitutional

injury at the district level.11 The Court remanded the case to allow plaintiffs to show standing.12

The Court’s decision in Benisek was even more prosaic. It simply affirmed the lower court’s

–––––––––––––––––––––––––––
10
Justices Thomas and Gorsuch joined all but the last part of Chief Justice Roberts’s opinion, which remanded
the case and gave the plaintiffs another opportunity on remand to demonstrate standing. Justices Thomas and
Gorsuch would have dismissed the plaintiffs’ claims.
11
Gill, 138 S. Ct. at 1930 (“To the extent the plaintiffs’ alleged harm is the dilution of their votes, that injury is
district specific.”).
12
Id. at 1923.

decision to deny the plaintiffs’ motion for an injunction.13 And the Court vacated the lower

court’s decision in Rucho and remanded the case for reconsideration in light of its decision in

Gill.14 Bubbles burst.

As if the Court’s decisions in Gill, Benisek, and Rucho were not enough to cast a pall

indicating something other than the festive parade expected to accompany the resolution of

the cases, Justice Kennedy announced his retirement from the Court at the end of the Term.

Justice Kennedy’s departure, and the unlikely prospect that his replacement will join the Court’s

liberal bloc on this issue, seem to signal the end of the road for political gerrymandering claims

for the foreseeable future.

To us, however, it is too premature to write-off judicial supervision of political

gerrymandering claims. There are clearly some Justices who do not believe that political

gerrymandering claims are justiciable, particularly Justices Thomas and Gorsuch. There are also

clearly some Justices who believe that these cases are justiciable, particularly Justices Breyer,

Ginsburg, Kagan, and Sotomayor. As importantly, there is no doubt that Chief Justice Roberts is

not yet convinced that the Court bears an institutional responsibility to address the problem of

partisan gerrymandering. Indeed, he seemed disdainful of the proposition, which he attributed

to the plaintiffs, that “the Court should exercise its power here because it is the ‘only institution

in the United States’ capable of ‘solving this problem.”15 We presume that this is one of the

reasons why Justice Kagan spent part of her concurring opinion in Gill articulating the harms

–––––––––––––––––––––––––––
13
Benisek, 138 S. Ct. at 1945.
14
Rucho v. Common Cause, No. 17-1295, 2018 WL 1335406, at *1 (U.S. June 25, 2018).
15
Gill, 138 S. Ct. at 1929.

caused by partisan gerrymandering and making the case in favor of judicial intervention.16

Nevertheless, notwithstanding Chief Justice Roberts’s, and perhaps Justice Alito’s,

skepticism about the utility of judicial supervision of partisan gerrymandering claims, it is also

true and significant that they did not vote in Gill to hold partisan gerrymandering claims

nonjusticiable. Rather than dismiss the case, as Justices Thomas and Gorsuch urged, they

joined the liberal Justices and agreed to send the litigants back to the lower court to resolve the

standing issues. The fact that the Court decided the case on standing grounds and provided

political gerrymandering plaintiffs another opportunity to make their case is indicative that

some of the Justices who are skeptical of judicial supervision are nevertheless worried, and

rightly so, about the implications of nonintervention. They are not yet persuaded that there is a

problem to which the Court ought to provide a solution; but they also have an intuition that

nonintervention is a significant abdication of judicial responsibility. They need more time to

further contemplate a justification for engagement for what they clearly view as a

consequential decision. Deciding Gill on standing grounds and remanding the case is a holding

pattern maneuver.

Although our argument differs from that offered by the literature, we join a growing

consensus among an impressive group of election law scholars who argue that partisanship is a

–––––––––––––––––––––––––––
16
We seem to have taken a step backwards. Instead of arguing about whether political gerrymandering claims
are best adjudicated under the First or Fourteenth Amendments, or whether the efficiency gap adequately
captures the harm of political gerrymandering, we are debating whether political gerrymandering claims cause
constitutional harms at all and whether those harms are sufficient to compel the Court to intervene.

problem in districting and that the Court is authorized by the Constitution to intervene.17 We

advance two claims. First, in Part I, we provide a comprehensive account of the Court’s

skepticism of judicial supervision of democratic politics, an account that we call the narrative of

nonintervention. We situate Gill v. Whitford and the Court’s recent political gerrymandering

cases within this narrative and argue that the debate over standing, jurisdiction, or judicially

manageable standards is a red herring. The Court has previously offered the same set of

objections in analogous contexts; specifically, when it refused to intervene to protect African

Americans against widespread racial discrimination in the political process and when it refused

to intervene to address the problem of grossly malapportioned districts. Judicial intervention in

those prior moments was not determined by standing doctrine, the absence or presence of

judicially manageable standards, or jurisdiction. The Court’s reluctance to intervene was a

function of the Court’s institutional calculus that it ought to protect its standing and

institutional capital when it engages in what look like political fights. The lesson of Part I is that

the Court’s refusal to intervene to address the problems of racial disenfranchisement and

malapportionment -- its narrative of nonintervention in those contexts -- yielded to the current

conditions of governance, to the political realities of the moment. In both the race and

malapportionment contexts, the Court overcame its initial skepticism and responded to the

needs of the time.

–––––––––––––––––––––––––––
17
See, e.g., Christopher S. Elmendorf, From Educational Adequacy to Representational Adequacy: A New
Template for Legal Attacks on Partisan Gerrymandering, 59 Wm. & Mary L. Rev. 1601 (2018) ; Levitt, Intent is
Enough, supra___; Levitt, The Partisanship Spectrum, supra ___; Nicholas O. Stephanopoulos, The Causes and
Consequences of Gerrymandering, 59 Wm. & Mary L. Rev. 2115 (2018); Daniel Tokaji, Gerrymandering and
Association, 59 Wm. & Mary L. Rev. 2159 (2018); Kang, supra note 5353. There are some important dissenting
voices. Among the most creative and compelling see Franita Tolson, Benign Partisanship, 88 Notre Dame L. Rev.
395 (2012); Franita Tolson, Partisan Gerrymandering as Safeguard of Federalism, 2010 Utah L. Rev. 859.

In Part II we argue that the Court’s posture of nonintervention in the political

gerrymandering cases should yield as a consequence of the political reality of our moment, a

political environment characterized by extreme partisan polarization. Though strong normative

arguments support the justiciability of partisan gerrymandering claims, we argue, on utilitarian

grounds, that the Court ought to occasionally make strategic interventions in the domain of law

and politics, such as limiting partisan gerrymandering, where doing so are reasonably likely to

avoid future problems that would lead to greater interventions. Thus, the Court ought to

articulate a principle against partisanship in the construction of electoral structures because

curbing partisan gerrymandering would have the benefit of curtailing a lot of other kinds of

manipulations in the electoral system that are driven by the same type of partisan impulse that

motivates partisan gerrymandering claims. The other kinds of manipulations we have in mind

include voter identification rules, voter registration rules, voter purge practices, racial

gerrymandering claims, election administration practices, disputes about location of polling

places and the like. For ease of exposition, we refer to these types of claims as secondary

claims or secondary disputes.18 Ironically, and contra the narrative of nonintervention, judicial

intervention in this context is an act of judicial restraint because it obviates the need for the

Court to later take sides on substantive partisan disputes that are arguably the result of

partisan manipulation of electoral rules by unconstrained state actors. Counterintuitively, this is

–––––––––––––––––––––––––––
18
Justice Kagan astutely noted her concerns with the secondary effects of partisan gerrymandering in Gill. As
she stated, “the evils of gerrymandering seep into the legislative process itself,” which makes it harder for the
political process to “negotiate[e] and compromise” and to reach “pragmatic, bipartisan solutions to the nation’s
problems.” Gill, ____. Among the “evils of gerrymandering,” is the desire to manipulate electoral rules, not just
electoral districts, to maintain political power at all costs.

an argument for a utilitarian or instrumental conception of judicial restraint. The Court can do

a little now -- rein in partisan gerrymandering claims -- so it can do a lot less later -- deter some

forms of bad behavior it would otherwise have to deal with on the merits.

I. Gill v. Whitford and the Narrative of Nonintervention

Gill v. Whitford is nominally a case about standing. Gill is best understood within a line of

cases in which the Court articulates its reservations about policing the political process and its

justifications for its posture of nonintervention. We call this articulation the narrative of

nonintervention. Gill thus reflects two sentiments in tension with one another. On one hand,

rooted within the narrative of nonintervention, the Court is skeptical that judicial review of

partisan gerrymandering claims is necessary. On the other hand, the Court seems to intuit that

judicial abdication would be problematic and is trying to come to terms with the implications of

nonintervention for the democratic process and for the Court as an institution. The Courts is

ambivalent about the proper course, and Gill is a prudential reflection of this ambivalence.

Section I.A explains the contours of the narrative of nonintervention. Section I.B turns to Gill

and explains the Court’s standing analysis as a function of its ambivalence, the pull of the

narrative of nonintervention and the fear of its implication. Section I.C critiques the narrative

of nonintervention as devoid of analytic content. The point of the narrative is simply that the

Court is concerned about its standing and its political capital.

A. The Narrative

There is a story that the Court tells itself, and us, when it does not want to supervise the

ground rules of democratic politics. It goes something like this. The Court cannot intervene in

political cases because to do so would be to unjustifiably insert itself in political and policy

decisions that are reserved for the democratic process and not for judges. It cannot intervene

because the Constitution only protects individual rights and does not permit judges to concern

themselves with the distribution of power among groups or with the design of democratic

institutions. It cannot intervene except where intervention is necessary to protect racial

minorities but not political parties. It cannot intervene where it does not have an ex ante rule

that cabins their discretion. The Court told us this story, in a slightly modified version, when it

was asked to protect rights of political participation against racial discrimination; when it was

asked to address malapportionment; and when it was asked to address partisan

gerrymandering. The Court’s core concern is not about individual rights, race, or rules, but that

it is bad for the Court if it engages in the politics of the people by supervising the ground rules

of democratic politics. We call this story the narrative of nonintervention.

The narrative has taken so strong a hold in the legal imagination that it is hard to remember

a world without it. We can trace its roots to Justice Holmes in the anticanonical Giles v.

Harris.19 In Giles, a black voter from Alabama, Jackson W. Giles, sued county election officials

for denying him and other black voters the right to register and to vote in violation of the

Fourteenth and Fifteenth Amendments. At the beginning of the twentieth century, the state of

Alabama amended its constitution as part of a statewide scheme to deprive African Americans

of the right to vote and to effectively nullify the Reconstruction Amendments. The

disenfranchisement was effectuated through the application of literacy tests that were

–––––––––––––––––––––––––––
19
189 U.S. 475 (1903). For the first and most thorough examination of Giles, See Richard H. Pildes, Democracy,
Anti-Democracy, and the Cannon, 17 Const. Comment. 295 (2000). Professor Pildes argues that Giles should be
restored from obscurity and ought to be central to the constitutional law and race and law fields.

discriminatorily applied so that they would have minimal impact on white voters and maximum

impact on the state’s African American population and through grandfather clauses that would

have the effect of exempting whites but not African Americans from certain requirements.

In an opinion by Justice Holmes, the Court dismissed Mr. Giles’s claims on jurisdictional

grounds. Justice Holmes argued that the Court did not have the power to provide the equitable

relief requested by the plaintiff. Justice Holmes stated that “equity cannot undertake . . . to

enforce political rights.”20 According to Justice Holmes, the plaintiffs alleged “that the great

mass of the white population intends to keep the blacks from voting.”21 If so, Justice Holmes

concluded, “relief from a great political wrong . . . by the people of a state and the state itself,

must be given by them or by the legislative and political department of the government of the

United States.”22

The Court explicitly voiced its ambivalence in 1946, in the better known Colegrove v.

Green.23 In Colegrove, Justice Frankfurter famously concluded that the Court did not have

jurisdiction to address Illinois’s malapportioned congressional districts. Justice Frankfurter

approached the issue with his characteristic bluntness. He stated that malapportionment

claims did not implicate individual rights, such as the denial of the franchise on the basis of

race.24 Rather, citing Giles,25 the case was an attempt to vindicate “a wrong suffered by Illinois

–––––––––––––––––––––––––––
20
Id. at 487.
21
Id. at 488.
22
Id.
23
328 U.S. 549 (1946).
24
Id. at 552.
25
Id. at 552.

as a polity.”26 Consequently, the case would not be resolved “by verbal fencing about

‘jurisdiction.’”27 These disputes are about “politics, in the sense of party contests and party

interests.”28 As such, the Court should stay away because “[i]t is hostile to a democratic system

to involve the judiciary in the politics of the people.”29 He concluded that the “Constitution has

left the performance of many duties in our governmental scheme to depend upon the fidelity

of the executive and legislative action, and ultimately, on the vigilance of the people in

exercising their political rights.”30 Justice Frankfurter’s message was clear and direct: in order to

preserve the Court’s standing and legitimacy as a legal institution, the Court “ought not enter

this political thicket.”31

The Court overcame this ambivalence in Baker v. Carr32 with a mere turn to the Equal

Protection Clause. The plaintiffs in Baker argued that Tennessee’s malapportioned state

legislative districts were justiciable under the Fourteenth Amendment, and in an opinion by

Justice Brennan -- and over a vociferous dissent by Justice Frankfurter -- the Court agreed.33 But

Baker did not fully expiate the Court’s ambivalence nor did Baker indicate how far the Court

would go in policing the ground rules of democratic politics.

–––––––––––––––––––––––––––
26
Id.
27
Id. (“This is one of those demands on judicial power which cannot be met by verbal fencing about
‘jurisdiction.’”).
28
Id. at 554; see also id. at 553 (“Nothing is clearer that this controversy concerns matters that bring courts
into immediate and active relations with party contests. From the determination of such issues this Court has
traditionally held aloof.”).
29
Colegrove, 328 U.S. at 553 - 54.
30
Colegrove, 328 U.S. at 556.
31
Id. at 556.
32
369 U.S. 186 (1962)
33
Baker, 369 U.S. at 237.

Gaffney v. Cummings,34 a 1973 challenge to a Connecticut bipartisan gerrymander, is an apt

example. The Court in Gaffney seemed bemused by the claim that the redistricting plan in

question violated the Equal Protection Clause because it “was drawn with the conscious intent

to . . . achieve a rough approximation of the statewide political strengths of the Democratic and

Republican Parties.”35 The majority explained that it “would be idle, we think, to contend that

any political consideration taken into account in fashioning a reapportionment plan is sufficient

to invalidate it.”36 The Court was skeptical of the plaintiffs’ claim, but not because political

gerrymandering claims were non-justiciable37 -- the preoccupation with the justiciability of

political gerrymandering claims is a later development. The Court was skeptical of the

plaintiffs’ claim because those claims amounted to a complaint that the plaintiffs were assigned

to electoral districts simply to produce an intended political outcome. The Court could not

imagine a situation where partisan politics were removed from the design of electoral

districts.38 To sustain their complaint, plaintiffs were required to show not simply that the

political process produced a political outcome, but that the line-drawers minimized or cancelled

out their political strength. Because the Connecticut redistricting plan provided plaintiffs with

rough proportional representation, the plaintiffs could not make such a showing.

Thirteen years later, when the Court next addressed a partisan gerrymander in Davis v.

–––––––––––––––––––––––––––
34
412 U.S. 735 (1973).
35
Id. at 752.
36
Id.
37
Id. at 754 (“What is done in so arranging for elections . . . or allocate political power, is not wholly exempt
from judicial scrutiny.”).
38
Id. at 735 (“Politics and political considerations are inseparable from districting and apportionment.”).

Bandemer,39 the Justices seemed less amused and more frustrated. In Bandemer, plaintiffs

challenged the State’s apportionment plan on partisan gerrymandering grounds. They argued

that their voters were diluted by Republican partisans in charge of the redistricting process.40

Importantly, a majority agreed that the claim was justiciable. But the Court could not agree on

much more. Writing for a plurality, Justice White concluded that the plaintiffs could not show

that they were subject to unconstitutional treatment. To prove a constitutional violation,

Justice White argued that the plaintiffs would have to show both discriminatory intent and

discriminatory effect. Justice White thought a showing of discriminatory intent “should not be

very difficult to prove.”41 The question for the justices -- a question that remains to this day --

was in proving unconstitutional discriminatory effect. According to the plurality, discriminatory

effect “occurs only when the electoral system is arranged in a manner that will consistently

degrade a voter’s or a group of voters’ influence on the political process as a whole.”42 The

plaintiffs in Bandemer could not prevail because they could not show that their influence was

consistently degraded.

The conclusion that political gerrymandering claims were justiciable provoked a very sharp

and influential response by Justice O’Connor. Her argument against justiciability relied upon a

series of dichotomous principles, which have set the terms for the debate over judicial

–––––––––––––––––––––––––––
39
478 U.S. 109 (1986).
40
Bandemer, 478 U.S. at 113- 115.
41
Davis v. Bandemer, 478 U.S. 109, 129 (1986). Justice White thought proving discriminatory intent ought to
be easy to prove because the “reality is that districting inevitably has and is intended to have substantial political
consequences.” Reprising his theme from Gaffney, Justice White stated, “[p]olitics and political considerations are
inseparable from districting and apportionment.” Consequently, plaintiffs should be able to show intentionality,
which ought to be a fairly low threshold.
42
Bandemer, 478 U.S. at 132.

supervision of democratic politics and have also served as a rough guide indicating when

judicial supervision of democratic politics is warranted. These principles largely mirrored the

concerns of Justice Frankfurter, the chief advocate of judicial abstention and Justice O’Connor’s

intellectual forebear, who made the case successfully against supervision in Colegrove v. Green

but famously lost in Baker v. Carr.

Bandemer evidenced and presaged what would become a fundamental and long-lasting

divide on the Court with respect to two essential questions: whether these claims are

justiciable and if so, what is the nature of the constitutional harm. That divide was in full

display eighteen years later,43 in Vieth v. Jubilerer.44 Building on Justice Frankfurter, Justice

O’Connor’s opinion in Bandemer articulated four sets of dichotomous principles, which Justice

Scalia would later rehearse with almost perfect pitch in his plurality opinion in Vieth.

1. Law and Politics. -- The first set is the law-politics tension. Justice O’Connor argued that

political gerrymandering claims were nonjusticiable because they were inherently about

partisan politics not law. In her view, the “legislative business of apportionment is

fundamentally a political affair, and challenges to the manner in which an apportionment has

been carried out -- by the very parties that are responsible for this process -- present a political

–––––––––––––––––––––––––––
43
Justice Scalia authored the opinion that announced the judgment of the Court but the reasoning of a
plurality of Justices. Four Justices, Chief Justice Rehnquist and Justices Scalia, O’Connor, and Thomas, concluded
that political gerrymandering claims were non-justiciable. And four Justices concluded that political
gerrymandering claims were justiciable. That group consisted of Justices Stevens, Breyer, Souter, and Ginsburg.
Justice Kennedy wrote separately to explain that even though he agreed that the plaintiffs claim ought to be
dismissed, he would not foreclose the possibility that the Court might eventually develop judicial manageable
standards. Consequently, he was not prepared to conclude that political gerrymandering claims were non-
justiciable.
44
541 U.S. 247 (2004).

question in the truest sense.”45 Like the Court in Gaffney, she could not imagine that

redistricting could be non-partisan or apolitical. “The opportunity to control the drawing of

electoral boundaries through the legislative process of apportionment is a critical and

traditional part of the politics in the United States.”46 Fundamental choices about governance

belong to the political process and not to the courts.47 One can hear echoes of Frankfurter in

Colegrove, stating emphatically that it “is hostile to a democratic system to involve the judiciary

in the politics of the people.”48 And like Justice Frankfurter before her, Justice O’Connor

worried that to “turn these matters over to the federal judiciary is to inject the courts into the

most heated partisan issues.”49

Justice Scalia would pick up the same law-politics refrain in Vieth. He began his analysis by

quoting Chief Justice Marshall’s famous proposition in Marbury50 -- ”it is emphatically the

province of the judicial department to say what the law is” -- but his main point is

Frankfurterian. Shadowing Frankfurter, Justice Scalia wrote that “[s]ometimes the law is that

the judicial department has no business entertaining the claim of unlawfulness -- because the

question is entrusted to one of the political branches or involves no judicial enforceable

rights.”51 Or as Frankfurter would put it, the “Constitution has many commands that are not

–––––––––––––––––––––––––––
45
Bandemer, 478 U.S. at ___ (O’Connor, J., concurring).
46
Id. at 145.
47
Id. (“I do not believe, and the Court offers not a shred of evidence of suggest, that the Framers of the
Constitution intended the judicial power to encompass the making of such fundamental choices about how this
Nation is to be governed.”).
48
Colegrove v. Green, 328 U.S. 549, 553 - 54 (1946) (“It is hostile to a democratic system to involve the
judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially
political contest be dressed up in the abstract phrases of the law.”).
49
Bandemer, 478 U.S. at 145.
50
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
51
Vieth v. Jubelirer, 541 U.S. 267, 277 (2004).

enforceable by courts because they clearly fall outside the conditions and purposes that

circumscribe judicial action.”52 Redistricting belongs to the political process and a political

process naturally produces political outcomes.53

2. Individual Rights and Structure. -- The second set of dichotomous principles is the

individual rights-structural rights divide. Noninterventionists have generally argued that the

only proper purpose of judicial review of democratic politics is to vindicate violations of

individual rights of liberty, autonomy, or dignity.54 Correspondingly, noninterventionists have

also argued that judicial review should not be deployed to guard against the maldistribution of

political power among groups or to direct the manner in which political power is exercised

through the institutions that structure and shape democratic politics. This is because the

maldistribution of political power or the institutional arrangements of democratic politics

reflect structural rights, which are not protected by the Constitution.

Justice O’Connor sided with the noninterventionists and argued that the Constitution is only

concerned with individual rights violations in the domain of law and democracy. In her view,

the Framers did not carve out a role for courts to adjudicate structural rights.55 Accordingly,

–––––––––––––––––––––––––––
52
Colegrove, 328 U.S. at 556.
53
For powerful and persuasive rebuttals to the view that partisanship is a necessary condition of the
redistricting process, see Justin Levitt, Intent is Enough: Invidious Partisanship in Redistricting, 59 Wm. & Mary L.
Rev. 1993 (2018); Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government
Partisanship, 116 Mich. L. Rev. 351 (2017).
54
See, e.g., Baker, 369 U.S. at 186 (Frankfurter, J., dissenting) (noting that malapportionment claims are “a
wholly different matter from denial of the franchise to individuals because of race, color, religion or sex.”); see
generally, Richard H. Hasen, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v.
Gore, 10 (2003).
55
Bandemer, 478 U.S. at 147 (O’Connor, J., dissenting) (noting that group rights do not present a harm that the
Constitution recognizes because “no group right to an equal share of political power was ever intended by the
Framers of the Fourteenth Amendment”).

political gerrymandering claims are not protected by the Constitution because political

gerrymandering claims do not vindicate individual rights but call into question the distribution

of power among groups and the institutional arrangements that channel political power in the

polity.56 Consequently, courts do not have a legal basis for arbitrating political power among

groups or for restructuring political institutions.57 Aware of the weight of reapportionment

cases, she argued that those cases were inapposite here because the “right asserted [in those

cases] was an individual right to a vote whose weight was not arbitrarily subjected to

‘debasement.’”58

This rights-structure distinction also made its way in Vieth. The plaintiffs in Vieth argued

that the Constitution was violated when the state created district lines with a predominant

intent to gain partisan advantage. Additionally, the plaintiffs claimed that in order to be

constitutionally actionable a political gerrymandering claim must not only contain an element

of discriminatory intent but also effect. They argued that the effects standard was met when

district lines cracked and packed voters because of the voters’ political identity and where the

totality of circumstances show that the voters are less able to translate their votes into

legislative seats. Justice Scalia took issue with the plaintiffs’ effects standard on the ground

that “it rests upon the principle that groups . . . have a right to proportional representation.”59

–––––––––––––––––––––––––––
56
Id. at 149 (“The rights asserted in this case are group rights to an equal share of political power and
representation.”).
57
Id. at 147 (“If members of the major political parties are protected by the Equal Protection Clause from
dilution of their voting strength, then members of every identifiable group that possesses distinctive interests
should be able to bring similar claims. Federal courts will have no alternative but to attempt to recreate the
complex process of legislative apportionment . . . in order to reconcile the competing claims of political, religious,
ethnic, racial, occupational, and socioeconomic groups.”).
58
Id. at 149.
59
Vieth, 541 U.S. at 288.

This is not a constitutional principle, he argued, because the Constitution “guarantees equal

protection of the law to persons, not equal representation in government to equivalently sized

groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews,

Republicans or Democrats, must be accorded political strength proportionate to their

numbers.”60

3. Race and Politics. -- The third set is the race-politics dichotomy. The animating move of

the race-politics dichotomy is the idea that race is simply different (or maybe an exception).

Within the parameters of this dichotomy, claims that allege racial discrimination in the political

process are justiciable but claims that allege political or partisan discrimination are not. A

central question is whether racial identity and partisan identity are sufficiently similar such that

the Constitution should treat racial and partisan gerrymanders symmetrically. Justice

O’Connor reasoned that the Court’s precedents on racial vote dilution and racial

gerrymandering do not authorize the Court to resolve partisan gerrymandering claims. Justice

O’Connor offered three reasons to distinguish claims by racial group from claims by parties.

First, citing Justice Frankfurter’s dissent in Baker, Justice O’Connor argued that the

Fourteenth and Fifteenth Amendments were promulgated specifically to address the problem

of racial discrimination, and with respect to the Fifteenth Amendment, specifically the problem

of racial discrimination in voting. Consequently, they provide a textual directive to courts and a

justification for courts to supervise the use of race in the design of electoral districts.61 Justice

Scalia similarly argued in Vieth that a purpose to discriminate on the basis of race is a violation

–––––––––––––––––––––––––––
60
Id.
61
Bandemer, 478 U.S. at ___ (O’Connor, J., dissenting).

of the Constitution whereas “a similar purpose to discriminate on the basis of politics” is not.62

Additionally, “our country’s long and persistent history of racial discrimination in voting -- as

well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest

scrutiny for discrimination on the basis of race” support the supposition that racial and political

gerrymanders are not subject to the same level of scrutiny.63

Second, Justice O’Connor explained that racial groups are different from parties because

racial minorities “are a discrete and insular group vulnerable to exclusion from the political

process by . . . [a] dominant group.”64 Unlike racial groups, the major political parties are “the

dominant groups,” able to protect themselves in the political process. Moreover, race is an

immutable characteristic, whereas partisan identity is not.65 Third, she maintained that

protecting political parties from the diminution of their political power would enshrine a right

of proportional political representation, a right not found in the Constitution.66 Therefore,

Justice O’Connor concluded that racial identity and partisan identity are not comparable

identity categories for constitutional purposes. The Court has a constitutional reason for

guaranteeing the political equality of racial groups that it does not have for political groups.

4. Rules and Standards. -- Finally, the fourth set of tensions is best articulated as a rules-

standards distinction. The language the Court uses, “judicially manageable standards,” seems

to focus the inquiry on the existence of “standards” as opposed to “rules” to adjudicate political

–––––––––––––––––––––––––––
62
Vieth, 541 U.S. at 293.
63
Id. (quoting Shaw v. Reno, 509 U.S. 630, 650 (1993)).
64
Bandemer, 478 U.S. at 152 (O’Connor, J., dissenting).
65
Id. at 156.
66
Id. at 156 - 57.

gerrymandering claims. But the language of “judicially manageable standards” is a term of art.67

Notwithstanding the phrase “judicially manageable standards,” the Court’s jurisprudence is

actually looking for ex ante rules to cabin the discretion of courts and preclude judges from

using their public policy preferences to decide claims of political rights. As Justice Scalia would

declare emphatically, but also confusingly, in Vieth, the judicial power under Article III requires

that “judicial action must be governed by standard, by rule.”68 “Rule” is meant to qualify

“standard.” Given that there is no rule available, that is, a “reasoned distinction[]” to constrain

judicial discretion and policy preferences, the federal courts do not have power to hear these

claims.69

This was a leading theme in Justice O’Connor’s opinion in Bandemer, where she derided

“the nebulous standard a plurality of the Court fashions today,”70 a standard that allowed the

Court to enact its public policy choices into law. The Bandemer plurality argued that it was

simply following the path of Baker v. Carr, which made reapportionment claims justiciable and

subject to equal protection standards. But in her view, Baker was not the proper precedent.

Baker adopted a nebulous “arbitrary and capricious” standard that “threatened to prove

unmanageable,” save for the fact that “the difficulty was pretermitted when a relatively simple

and judicially manageable requirement of population equality among districts was adopted

. . . in Reynolds v. Sims.”71 Baker, like the plurality in Bandemer, relied upon a nebulous

–––––––––––––––––––––––––––
67
See Luis Fuentes-Rohwer, Who's Afraid of the Hated Political Gerrymander, 104 KY. L.J. 561 (2016).
68
Vieth, 541 U.S. at 278.
69
Id.
70
Bandemer, 478 U.S. at 145 (O’Connor, J., dissenting).
71
Id. at 149.

standard, whereas Reynolds fashioned a rule. From Justice O’Connor’s perspective, the best

the plurality could do was to emulate Baker, which was not good enough. Thus, political

gerrymandering claims are not justiciable because no rule was available.72

B. Gill as Placeholder

Using the framework of the narrative of nonintervention, we can better understand the

Court’s decision in Gill v. Whitford. Nominally, Gill is a standing case. In order to have standing,

a plaintiff must show that (a) she has suffered an injury in fact; (b) that the defendant caused

the plaintiff’s injury; and (c) that the injury is redressable if the plaintiff prevails. The most

important element is the injury-in-fact requirement, which the Court has interpreted to mean

that the plaintiff must plead and show that the defendant’s conduct has infringed upon “a

legally protected interest.”73 Chief Justice Roberts relied upon the plaintiffs’ own theory and

articulation of their constitutional harm to argue that the plaintiffs’ “legally protected interest”

was the dilution (to borrow from the racial gerrymandering context) or debasement (to borrow

a term from the reapportionment context) of their vote for partisan purposes. Because

Republicans were in charge of the redistricting process, they placed plaintiffs, who identified as

Democrats, inside and outside of legislative districts -- packed and cracked them -- in order to

maximize the electoral power of the Republican Party and thereby minimize the plaintiffs’

voting power. The Court then went on to conclude unanimously that in order to have standing

to challenge the redistricting plan, plaintiffs must show that they lived in districts that were

–––––––––––––––––––––––––––
72
Id. at 147 (noting that the “Equal Protection Clause does not supply judicially manageable standards for
resolving purely political gerrymandering claims”).
73
Gill, 138 S. Ct. at 1929 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

either packed or cracked and that the cracking or packing resulted in the debasement or

dilution of their vote. Chief Justice Roberts argued that the plaintiffs did not show that they

resided in districts that were packed or cracked, so they did not prove that they suffered an

injury in fact. Consequently, they did not have standing to bring this claim.

Though a case about standing, Gill bears the markers of the narrative of nonintervention.

The Court relied on both the law-politics and individual rights-structural rights dichotomies,

particularly the latter, as necessary complements of its standing argument. Invoking both the

individual rights-structural rights and the law-politics distinctions, Chief Justice Roberts stated

that the plaintiffs’ case “is a case about group political interests, not individual legal rights.

. . . The Court’s constitutionally prescribed role is to vindicate the individual rights of the

people appearing before it.”74 In stating the importance of standing, the Court invoked the law-

politics distinction: standing is a “threshold requirement [that] ‘ensures that we act as judges,

do not engage in policymaking properly left to elected representatives.’”75 And in support of

the argument that standing is “district specific,” the majority quoted the reapportionment

cases to argue that “the right to vote is ‘individual and personal in nature.”76 Importantly, the

Court stated numerous times that the standing inquiry is not focused on structural harms such

as the plaintiffs’ “‘collective representation in the legislature’” or their interest in “influencing

the legislature’s overall ‘composition and policymaking,’” or their “abstract interest in policies

adopted by the legislature.”77

–––––––––––––––––––––––––––
74
Id. at 1933.
75
Id. at 1923 (quoting Hollingsworth v. Perry, 570 U.S. 693, 700 (2013)).
76
Id. at 1929 (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)).
77
Id. at 1931.

Yet, the Court’s standing analysis left open some unanswered questions. Two particular

points are worth noting. First, scholars of the law of democracy universally agree that vote

dilution claims are structural claims and not individual rights claims.78 Take for example the

cracking claim -- the contention that the State broke apart a group of voters who would

otherwise have constituted a majority of voters in the district and as consequence made it

impossible for these voters, who are now a numerical minority, to elect their candidate of

choice. A cracking claim is only sensible as a group right.79 As long as an individual is not

denied the right to vote, all claims about the composition of the electorate, including racial

gerrymandering, malapportionment, and partisan gerrymandering, are structural claims.80 The

individual rights-structural rights distinction is not a coherent distinction.81

Second, Gill is unclear about the relationship between standing and the constitutional harm.

As Professors Issacharoff and Karlan stated in an analogous context, “a coherent concept of

standing grows out of a clear definition of the relevant injury.”82 We put the cart before the

–––––––––––––––––––––––––––
78
Perhaps the foundational article here is Lani Guinier, Groups, Representation, and Raceconscious Districting:
A Case of the Emperor’s Clothes, 71 Tex. L. Rev. 1589 (1993); see also Heather Gerken, Understanding the Right to
an Undiluted Vote, 114 Harv. L. Rev. 1663 (2001); Samuel Issacharoff & Pamela S. Karlan, Groups, Politics, and the
Equal Protection Clause, 58 U. Miami L. Rev. 35 (2003).
79
This is also true for packing claims.
80
See, e.g., Richard H. Pildes, The Theory of Political Competition, 85 Va. L. Rev. 1605 (1999); Samuel
Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stan. L. Rev.
643 (1998).
81
For an important account see Richard H. Pildes The Constitutionalization of Democratic Politics, 118 Harv. L.
Rev. 28 (2004).
82
Samuel Issacharoff & Pamela S. Karlan, Standing and Misunderstanding in Voting Rights Law, 111 Harv. L.
Rev. 2276, 2288 (1995).

horse when we talk about standing without a clear definition of the injury.83 Gill is an anomaly

in the Court’s law and politics jurisprudence as the first case [check] where the Court has

addressed the question of standing without first addressing whether there is a constitutional or

legal claim. Prior to Gill, standing doctrine had not been determinative in any of the Court’s

forays into the political thicket. Standing did not matter when the Court decided the

reapportionment cases; or when the Court intervened in the 2000 presidential election in Bush

v. Gore.84 Standing did not matter when the Court recognized “an analytically distinct” claim in

Shaw v. Reno, the racial gerrymandering case.85 Indeed, in the Shaw line of cases, the Court

first decided whether there was a constitutional injury -- which the majority understood as an

“expressive harm” -- and then two years later, in United States v. Hays,86 addressed the

standing question.

How then can we make sense of the Court’s decision in Gill to decide the case on standing

grounds? In our view, the Court’s standing analysis reflects a skepticism of some members of

the Court and a deep disagreement about the justiciability of the plaintiffs’ claim, a skepticism

rooted in the narrative of intervention. Standing doctrine is a prudential artifact that allows the

justices to take up and evade questions as they deemed necessary and appropriate.87 Justice

Roberts’s opinion is peppered with aphorisms that serve as admonitions about the limits and

–––––––––––––––––––––––––––
83
Justice Kagan recognized this problem in her concurring opinion when she noted that the lower court will
have to decide what evidence is relevant for the plaintiffs to show standing “without guidance from this Court
. . . [on] the elements [that] make up a vote dilution claim in the partisan gerrymandering context.” Gill, 138 S. Ct.
at 1937 (Kagan, J., concurring).
84
531 U.S. 98 (2000).
85
509 U.S. 630 (1993).
86
515 U.S. 37 (1995).
87
Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the
Political Question Doctrine, 80 N.C. L. Rev. 1203 (2002).

limitations of the Court’s power.88 A unanimous decision on standing by a Court that is clearly

divided on the justiciability of these claims reflects a Court that is not yet ready to square up to

the justiciability question. Characterizing Gill as a standing case blithely masks the Court’s deep

ambivalence and disagreement with respect to the merits of the case.

Ambivalence, however, has two sides. Though it is true that the Court has strong

reservations about entering this part of the political thicket, it is also true that the Court is not

yet ready to abdicate this field altogether. The Court could have followed the nonintervention

script and dismiss these cases on the ground that there are no judicially manageable standards.

In the alternative, it could have remanded the case to the lower court with instructions to

dismiss on jurisdictional grounds, as Justices Thomas and Gorsuch believed was required by

longstanding precedents. Instead, the Court gave political gerrymandering plaintiffs, not just

the Gill plaintiffs, another bite at the apple on the theory that “[t]his is not the usual case. It

concerns an unsettled kind of claim this Court has not agreed upon, the contours and

justiciability of which are unresolved.”89

Deciding Gill on standing grounds and remanding the case is a holding pattern maneuver.

The Court is deadlocked on justiciability, ambivalent about where to go next. Chief Justice

Roberts acknowledged as much.90 Though the Court is clearly not yet persuaded that there is

–––––––––––––––––––––––––––
88
See, e.g., Gill, 138 S. Ct. at 1929 (“Our power as judges . . . is . . . grounded in and limited by the necessity of
resolving, according to legal principles, a plaintiff’s particular claim of right.”); id. (noting that standing functions to
“ensure that the Federal Judiciary respects ‘the proper -- and properly limited -- role of the courts in a democratic
society’” (quoting Allen v. Wright, 468 U.S. 737, 750 (1984))).
89
Id. at 1933 - 34.
90
As he stated, “[o]ver the past five decades this Court has repeatedly asked to decide what judicially
enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. . . . Our
efforts to sort through these considerations have generated conflicting views both of how to conceive of the injury
arising partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury.” Id.
at 1926.

an injury or that it has a role to play in addressing that injury, it also has some intuition that

nonintervention is a significant abdication of judicial responsibility. In order to follow that

intuition, it needs to shed the burden of the narrative of nonintervention.

C. The Critique

This narrative of nonintervention has served as a conceptual and ultimately doctrinal

straightjacket for proponents of judicial review of partisan gerrymandering claims. The

narrative of nonintervention relies upon these supposedly categorical distinctions that are

presented as outcome-determinative when they are not. Examples of the permeability of the

categories, and how they simply reflect a default assumption of nonintervention, abound.

Take first the race-party pairing, the argument that the Court is authorized to protect racial

minorities but not political parties. In Giles v. Harris, the Court refused to intervene in order to

protect the rights of African Americans. But in Lane v. Wilson, 91 a case indistinguishable from

Giles, Justice Frankfurter wrote an opinion preventing Oklahoma from doing to African

American voters precisely what it allowed Alabama to do in Giles.92 Justice Frankfurter

attempted to distinguish the two cases on the ground that one was about racial discrimination,

–––––––––––––––––––––––––––
91
307 U.S. 268 (1939).
92
In Lane, an African American citizen of Oklahoma, I. W. Lane, sued county officials for denying him the right
register and vote because he was black. Mr. Lane was the victim of a registration scheme that used a grandfather
clause to allow white voters to register for life but to disenfranchise black voters. The grandfather clause was
struck down in Guinn v. United, but it was essentially reenacted with the same effect. Following Guinn, Oklahoma
enacted a statute that allowed those disenfranchised by the grandfather clause the opportunity to register if they
did so between April 30 and May 11, 1916. If they failed to register during that time period, they were
disenfranchised for life.

Lane, and the other was about political participation, Giles.93 Given the factual similarities

between the two cases, that distinction is patently unpersuasive.94 Moreover, even if Justice

Frankfurter could distinguish Giles from Lane, he could not distinguish it from Gomillion v.

Lightfoot, a case in which African American plaintiffs challenged Alabama’s redistricting scheme

that removed almost all of the black residents from the City of Tuskegee.95 Justice Frankfurter

authored the opinion for the Court in Gomillion and reversed the lower court’s decision that

the plaintiffs’ complaint was non-justiciable. Justice Frankfurter concluded that the plaintiffs

were entitled to vindicate their right to vote and right to equal treatment guaranteed by the

15th and 14th Amendments, respectively. Following Gomillion, there was no longer any doubt

that race cases, even those alleging political rights, such as the right to vote, were firmly within

the Court’s ambit.96

Turn now to the rules-standard dichotomy. Why was race on one side of the dichotomy in

1903 but on the other side in 1939 when the Court decided Lane v. Wilson, or in 1960 when it

–––––––––––––––––––––––––––
93
Lane, 307 U.S. at 274 (“The basis of this action is inequality of treatment . . . not denial of the right to vote.”).
94
For an argument that Justice Frankfurter’s attempt to distinguish Giles and Lane is unpersuasive, see Guy-
Uriel Charles, Judging Politics, 103 Mich. L. Rev. 1099, 1122-1123 (2005).
95
364 U.S. 339 (1960).
96
The inability to distinguish the race case from the politics or party cases is the reason why many scholars
have argued that the distinction between racial gerrymandering and political gerrymandering is incoherent. See
e.g., Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Race and Representation Revisited: The New Racial
Gerrymandering Cases and Section 2 of the VRA, 59 William & Mary L. Rev. 1559 (2018); Richard L. Hasen, Race or
Party, Race as Party, or Party all the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and
Voting Cases, 59 William & Mary L. Rev. 1837 (2018); Samuel Issacharoff, Gerrymandering and Political Cartels,
116 Harv. L. Rev. 593, 630-31 (2002). For a wonderful rejoinder, see Ellen D. Katz, Reviving the Right to Vote, 68
Ohio St. L.J. 1163 (2007) (defending the racialization of partisan claims).

decided Gomillion v. Lightfoot?97 Why was malapportionment on one side of the dichotomy in

1946 in Colegrove, but on the other side in 1962 in Baker when the Court decided that

malapportionment cases were justiciable? We cannot explain these cases on rules-standards

terms. Note that Holmes’s reason for noninterference in Gill is almost identical to that

provided by Frankfurter more than forty years later in Colegrove v. Green, except for the fact

that Colegrove was about malapportionment and not race. It is the same story that O’Connor

and Scalia told in Bandemer and Vieth, respectively, except that those cases were not about

race and malapportionment, which were now within the purview of judicial review, but about

partisan gerrymandering, which was decidedly not. In 1903 the Court would not intervene to

protect African Americans against the deprivation of their political rights; until the Court did,

because this was a problem of the political process; until it was not. In 1946, the Court would

not intervene to protect voters against the debasement of their vote by malapportionment;

until it did, because relief must be given not by the courts but the political process; until the

Court decided that it would provide relief.

The argument about judicially manageable standards is inapposite here because the Court

did not develop or rely on any new standards in Lane and Gomillion. Rather, they simply told

the local white communities so feared by Holmes in Giles to stop discriminating. The Court also

did not develop judicially manageable standards between Colegrove and Baker. Recall Justice

O’Connor’s point that when the Court decided that malapportionment claims were justiciable

in Baker it did so without a judicially manageable standard. The Court did not “discover” one

until Reynolds v. Sims, two years later.

–––––––––––––––––––––––––––
97
364 U.S. 339 (1960).

Consider these cases in the context of the politics-law dichotomy. If the Court’s change in

posture in Lane, with respect to race, and Baker, with respect to malapportionment, was not a

function of the “availability of judicially manageable standards,” does this then mean that the

Court was doing politics in Lane and Gomillion? No one today lauds Holmes’s decision in

Giles.98 By contrast, the Court’s decisions in Lane and Gomillion have no detractors. Similarly,

though no one today questions the appropriateness of judicial review of malapportionment,

are we to conclude that Baker is an unconstitutional intervention in democratic politics because

there were no judicially manageable standards when the Court decided the case?

Finally, take the rights-structure divide. Recall Justice O’Connor’s characterization of the

reapportionment cases in Bandemer as cases that vindicate individual rights and not structural

rights. This characterization is understandable, though it is striking. It is understandable

because a contrary conclusion would compel Justice O’Connor to concede the argument to

Justice White in Bandemer that the reapportionment cases were controlling precedent and

thus political gerrymandering cases ought to be justiciable. Given the similarities between

reapportionment claims and partisan gerrymandering claims, opponents of judicial review of

partisan gerrymandering claims are continually tasked with distinguishing these two types of

claims. We can understand why Justice O’Connor would view the reapportionment cases as

individual rights cases.

However, Justice O’Connor’s characterization of reapportionment claims as individual rights

claims is a reclassification of the reapportionment cases and betrays a core element of Justice

–––––––––––––––––––––––––––
98
See, e.g., Pildes, supra note 19,

Frankfurter’s objection, in Colegrove and Baker, to judicial intervention in reapportionment

context. Frankfurter’s main argument against justiciability was that reapportionment claims

were structural claims, claims that challenged the structural arrangements of representative

institutions. As he argued in Colegrove, the basis for the harm was not that an individual was

deprived of a right to vote, but that the polity suffered harm as a polity.99 As many

commentators have argued, Frankfurter was certainly right that apportionment claims (along

with race claims and political gerrymandering claims) are structural claims and not individual

rights claims.100 By reclassifying the reapportionment cases as individual rights claims in her

Bandemer opinion, Justice O’Connor essentially moved the goalposts.

The narrative of nonintervention is like a fairy tale. Like a good fairy tale, it contains an

important lesson, which is that the Court must be concerned about its legitimacy and political

capital.101 Not surprisingly, Justice Frankfurter famously articulated the point in his dissent in

Baker: “The Court's authority—possessed of neither the purse nor the sword—ultimately rests

on sustained public confidence in its moral sanction. Such feeling must be nourished by the

Court's complete detachment, in fact and in appearance, from political entanglements and by

abstention from injecting itself into the clash of political forces in political settlements.”102

–––––––––––––––––––––––––––
99
Colegrove, 328 U.S. 549, 552 (1946) (“This is not an action to recover for damages because of the
discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private
wrong, but a wrong suffered by Illinois as a polity. In effect this is an appeal to the federal courts to reconstruct
the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation.”).
100
See, e.g., Heather K. Gerken, Lost in the Political Thicket: The Court, Election Law, and the Doctrinal
Interregnum, 153 U. Pa. L. Rev. 503, 512 (2004)
101
As John Hart Ely put it, the Court’s concern is that the idea that it should supervise the ground rules of
democratic politics is “unusually calculated to get the Court in trouble, dangerously to decrease its prestige.” John
Hart Ely, Democracy and Distrust: A Theory of Judicial Review 121 (1980).
102
Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter J., dissenting). This led Justice Clark to retort,
“[n]ational respect for the courts is more enhanced by the forthright enforcement of . . . [representational] rights

Chief Justice Roberts also articulated his worry in Gill in similar terms. As he stated at oral

argument, unless the Court can explain to the “intelligent man on the street” why it is

adjudicating partisan claims, the Court risks “caus[ing] very serious harm to the status and

integrity of the decisions of this Court in the eyes of the country.”103

However, the narrative does not decide actual cases. It simply reflects the Court’s

conclusion that the Constitution does not provide judicially manageable standards for resolving

political gerrymandering claims, a conclusion whose terms are offered as a magical incantation

designed to ward off the evil spirit of judicial intervention. Because the categories do not do

the analytical work that the Court assumes that they do, the narrative of nonintervention sends

putative plaintiffs on a fool’s errand. As the Court appears to cry out for satisfactory standards

(or putative plaintiffs), like a parent attempting to placate a fussy baby, plaintiffs willingly offer

anything and everything that has the possibility of bringing respite, only to have the baby

petulantly spit out any and all offerings while demanding more.

II. Judicial Supervision of Democratic Politics in the Age of Partisanship

Scholars of law and democracy have advanced a number of justifications for judicial

supervision of the ground rules of democratic politics. These justifications share one common

theme: they identify a pathology within the political process and urge the Court to provide a

remedy because the political process is unable to fix itself. However, these theories

misinterpret the lesson of the narrative of nonintervention. While these theories do a very

–––––––––––––––––––––––––––
rather than by rendering them nugatory through the imposition of subterfuge.” Baker v. Carr, 369 U.S. 186, 262
(1962) (Clark J., concurring).
103
Gill v. Whitford, Transcipt Oral Argument at 37-38.

good job of articulating why political gerrymandering is bad for the political process, they are

nonetheless unresponsive to the Court’s core concern. The Court is not asking whether judicial

engagement would be good for the political process -- in fact, it eschews that inquiry -- rather it

is asking whether judicial engagement is bad for the Court. Additionally, they treat the Court as

if it resides outside the political process, unaffected by the pathology identified within the

system. This is a view of the Court as “a deus ex machina, an exogenous force, the god that

would deliver us all from the predicaments created by our rulers.”104 Professors Eric Posner

and Adrian Vermeule identify this problem as the inside/outside fallacy.105 As a consequence,

the theories are incomplete in at least two respects, they are not responsive to the Court’s core

concern -- that intervention is bad for the Court -- and they do not avoid the inside/outside

fallacy.

In this Part we respond to both shortcomings. We argue that if the justices are concerned

about judicial restraint and how the mass public perceives the Court, they must, paradoxically,

curb partisan gerrymandering as a way of limiting the partisan manipulation of electoral rules

across other domains of election law. This is because in a political environment characterized

by tribal or negative partisanship,106 political elites have an incentive to rig electoral rules to

–––––––––––––––––––––––––––
104
Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Reynolds Reconsidered, 67 Alabama L. Rev. 485, 525 (2015).
105
See Eric A. Posner & Adrian Vermuele, Inside or Outside the System, 80 U. Chi. L. Rev. 1743 (2013). As they
explain, the fallacy occurs when theorists adopt “an external perspective that attempts to explain the behavior of
actors within the constitutional order as endogenous product of self-interested aims, and an internal perspective
that assumes the standpoint of the judge and asks how the judge ought to behave so as to promote the well-being
of the constitutional system and the nation.” Id. at 1744; see also id. at 1745.
106
Professor Justin Levitt defines tribal partisanship as a preference for “public action purely because the policy

maximize a favorable outcome.107 Political losers will turn to the courts to vindicate their rights.

As a consequence, the courts will be continually enmeshed in partisan fights. A rule against

partisan excess in the gerrymandering context might not simply limit partisanship in

gerrymandering but it might also eliminate it in related domains, which would save the Court

from having to referee these secondary partisan fights. Just as importantly, the Court cannot

evade questions of partisan bias as simply as some justices might wish. Chief Justice Roberts

openly worried that judicial involvement might lead “the intelligent man on the street”108 to

perceive the Court as partisan. Chief Justice Roberts should worry instead about

noninvolvement as a signal to political elites and the mass public that the Court is in fact an

accomplice in “the new politics of voter suppression.”109 In enforcing a rule against

partisanship, ironically, the Court will also protect itself against charges of partisanship. Thus,

prohibiting partisanship in gerrymandering is not simply a normative good; it is also an exercise

–––––––––––––––––––––––––––
in question is perceived to benefit those with a shared partisan affiliation, or because the policy in question is
perceived to injure partisan opponents, wholly divorced from - - or stronger yet, contrary to - - the policymaker’s
conception of the policy’s other merits.” Levitt, supra note ___, at 1798.
107
We are not the first to be concerned with the problem that extreme polarization poses the various domains
of election law. See, e.g., Levitt, supra note 53; Kang, supra note 53; Samuel Issacharoff, Outsourcing Politics:
Political Parties and the Theory of the Firm, 54 Hous. L. Rev. 845 (2017); Heather K. Gerken, Playing Cards in a
Hurricane: Party Reform in an Age of Polarization, 54 Hous. L. Rev. 911 (2017); David Schleicher, Things Aren’t
Going that Well over There Either: Party Polarization and Election Law in Comparative Perspective, 2015 U. Chi.
Legal F. 433; Justin Levitt, The Partisanship Spectrum, 55 Wm. & Mary L. Rev. 1787 (2014); Richard H. Pildes,
Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804
(2014); Richard H. Pildes, Why the Center does not Hold: The Causes of Hyperpolarized Democracy in America, 99
Cal. L. Rev. 273 (2011); Daryl J. Levinson & Richard H. Pildes, Separation of Parties not Powers, 119 Harv. L. Rev.
2311 (2006); Samuel Issacharoff, Collateral Damage: The Endangered Center in American Politics, 46 Wm. & Mary
L. Rev. 415 (2004). But whereas others worry about the effects of hyperpartisanship on the political process, we
are concerned with the consequences of hyperpartisanship for the Court itself.
108
Transcript of Oral Argument at 37, Gill v. Whitford, 137 S. Ct. 2268 (2017) (No. 16-1161).
109
Spencer Overton, Stealing Democracy: The New Politics of Voter Suppression (2007); see Carol Anderson,
One Person, No Vote: How Voter Suppression Is Destroying Our Democracy (2018); Tova Andrea Wang, The
Politics of Voter Suppression: Defending and Expanding Americans' Right to Vote (2012).

of judicial restraint by limiting the Court’s prospective entanglement in partisan fights.

Our argument is divided in two parts. The first part describes the realities of modern

democratic practices in our hyper-partisan age. The second part turns Justice Frankfurter’s

presumption on its head. Whereas Justice Frankfurter famously worried about the dangers of

intervention, we argue that judicial supervision of political gerrymandering claims is a

prudential move that could curb the deployment of partisanship in areas outside of the domain

of political gerrymandering.

A. Parties and Partisanship in Modern American Politics

Classical democratic theory envisions campaigns and elections as real contests of ideas that

ought to turn on substantive issues.110 Voters are expected to vote for candidates and parties

depending upon the candidates’ and parties’ stance on the issues of the day.111 Additionally,

in the classical account, the voter is positioned horizontally vis-a-vis her representative. There

is a clear sense of who is the principal—the voter—and who is the agent—the

representative.112 Minimalist democratic theories expect much less of voters.113 The role of

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110
See, e.g., James A. Gardner, What Are Campaigns For?: The Role of Persuasion in Electoral Law and
Politics 13 (2009) (“We take it for granted today that campaigns for elective office ought to be deliberative.
Candidates, we believe, ought to inform voters of the facts, offer thoughtful positions on serious issues, and work
hard to persuade voters of the merits of their positions and qualifications so as to earn any support they receive.”)
111
Chris Achen and Larry Bartels refer to this as the “folk theory” of democracy. Christopher H. Achen & Larry
M. Bartels, Democracy for Realists: Why Elections Do Not Produce Responsive Government (2016).
112
See, e.g., D. Theodore Rave, Fiduciary Voters? 66 Duke L.J. 331, 342 (2016); Samuel Issacharoff & Daniel R.
Ortiz, Governing Through Intermediaries, 85 Va. L. Rev. 1687, 1636-39 (1999).
113
See generally, Giovanni Sartori, Democratic Theory (1962); Robert Dahl, A Preface to Democratic Theory
(1956); Joseph Schumpeter, Capitalism, Socialism and Democracy (1942).

voters in the minimalist account is to choose among competitors vying for the right to exercise

political power.114 In either the classical or minimalist account, authority flows from principal

to agent. The principal is thought to have the capacity to hold the agent accountable, or

retroactively approve the decisions of the agent by making a merit-based evaluation of the

agent’s decision.115 Not to tax our linguistic syntax and our conceptual categories too

significantly, modern democratic theory assumes that the voter is “agentic,” a political agent

capable of making and expected to make merit-based decisions.

Notwithstanding the expectations of democratic theory, its assumptions are severely

strained by the realities of contemporary democratic practice. Democratic politics have

become so partisan and tribal that, on average, voters are unlikely to make merit-based

evaluations of their political rulers. Because voters increasingly frame their political evaluations

through a partisan lens, we cannot expect them to serve the basic checking function that our

theories of democracy expect of voters.

American political parties and American political elites are more divided along partisan and

ideological lines than they have been in a very long time.116 Moreover, and perhaps more

importantly, though there are important dissenting voices,117 there is a growing literature

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114
See, e.g., Schumpeter, supra note __, at 269.
115
See generally, Hanna Fenichel Pitkin, The Concept of Representation 47 1967; Morris Fiorina,
Retrospective Voting in American National Elections (1981); Jane Mansbridge, Rethinking Representation, 97 Am.
Pol. Sci. Rev. 515, 516 (2003)
116
See, e.g., Nolan McCarty, Keith T. Poole & Howard Rosenthal, Polarized America: The Dance of Ideology
and Unequal Riches (2006); Joseph Bafumi & Robert Y. Shapiro, A New Partisan Voter, 71 J. Pol. 1 (2009).
117
See id.; Morris P. Fiorina & Samuel J. Abrams, Disconnect: The Breakdown of Representation in American
Politics (2009); Matthew Levendusky, The Partisan Sort: How Liberals Became Democrats and Conservatives
Became Republicans (2009); Paul DiMaggio, John Evans, & Bethany Bryson, Have American’s Social Attitudes

demonstrating that polarization among the mass public increasingly mirrors polarization among

the elite.118 Americans have sorted themselves into partisan camps.119 Taking their cues from

the ruling class, voters have aligned their political ideology with the appropriate political party.

On average, conservatives are also Republicans and liberals are also Democrats.120 There is also

very strong evidence that the more politically knowledgeable or engaged members of the

public are undeniably polarized and virtually indistinguishable from political elites.121

Additionally, our partisan identities also correspond with our social and demographic

identities.122 On average, you are likely a Democrat if you are a person of color (black, Latino,

Asian, or Native American), or a gender minority, or Jewish, or secular, or young.123 Conversely,

–––––––––––––––––––––––––––
Become More Polarized, 102 Am. J. Soc. 690 (1996) (concluding that there has not been great polarization in
public opinion on social issues since the 1970s.).
118
As one scholar stated clearly and emphatically: “America is polarized. Our political parties are highly
polarized and the American electorate is highly polarized. . . . . The polarization of the American electorate is real
and widespread. . . . American is a politically divided nation, it has been so for some time, and has become more
so in recent decades.” James E. Campbell, Polarized: Making Sense of a Divided America 1 (2016); see also Alan I.
Abramowitz, The Polarized Public: Why American Government is So Dysfunctional (2013). One of the best
explanations of the phenomenon of polarization is provided by Lilliana Mason and her account of social
polarization. She argues that Americans are only mildly polarized in their policy preferences. However, Americans
manifest a distinctive prejudice and anger toward members of the other party “that grows out of the increasing
alignment between our partisan, ideological, racial, and religious social identities.” She observes that an
“electorate that increasingly treats its political opponents as enemies, with ever-growing levels of prejudice,
offensive action, and ager, is a clear sign of partisan polarization occurring within the citizenry.” Lilliana Mason,
Uncivil Agreement: How Politics Became our Identity 77 (2018).
119
Fiorina, Abrams & Pope, supra note Error! Bookmark not defined., at 99; Levendusky, supra note Error!
Bookmark not defined.; Marc J. Hetherington, Resurgent Mass Partisanship: The Role of Elite Polarization, 95 Am.
Pol. Sci. Rev. 619 (2001).
120
See, e.g., Levendusky, supra note Error! Bookmark not defined.; Campbell, supra note 92.
121
Alan I. Abramowitz, The Disappearing Center: Engaged Citizens, Polarization, & American Democracy
(2010).
122
For thorough treatments see Alan I. Abramowitz, The Great Alignment: Race, Party Transformation, and
the Rise of Donald Trump (2018) and Mason, supra note 92.
123
On the relationship between religion and partisan identity see Geoffrey Layman, The Great Divide:
Religious and Cultural Conflict in American Party Politics (2001); Geoffrey Layman, Religion and Political Behavior
in the United States: The Impact of Beliefs, 61 Pub. Op. Q. 288 (1997); James Davison Hunter, The Culture Wars:
The Struggle to Control the Family, Art, Education, Law, and Politics (1992). On the relationship between race
and partisan identity see generally Edward G. Carmines & James Stimson, Issue Evolution: Race and the
Transformation of American Politics (1989); Maurice Mangum, The Racial Underpinnings of Party Identification

you are likely a Republican if you are white, or older, or an evangelical protestant, or live in

certain parts of the country.124 As the author of a recent and comprehensive study explained:

The American electorate has sorted itself into two increasingly homogenous

parties, with a variety of social, economic, geographic, and ideological cleavages falling

in line with the partisan divide. This creates two megaparties, with each party

representing not only policy positions but also an increasing list of other social

cleavages. Parties, then, draw convenient battle lines between an array of social

groups.125

Political scientists and political psychologists have identified two different types of partisan

divisions. The first is ideological polarization, which describes the fact that Americans are

predictably divided along ideological and partisan lines. The second is affective or social

polarization, which describes the fact that Americans are at least as much divided by their

socio-demographic identities as their policy divisions.126 The title of a recent paper identified

the emotion that opposing partisans have for each other as “fear and loathing.”127 And if the

title were not sufficiently alarming, the well-respected researchers went on to conclude that

“[c]ompared with the most salient social divide in American society -- race -- partisanship elicits

more extreme evaluations and behavioral responses to ingroups and outgroups.”128 Partisan

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and Political Ideology, 94 Soc. Sci. Q. 1222 (2013). On gender see Barry C. Burden, The Social Roots of the Partisan
Gender Gap, 72 Pub. Op. Q. 65 (2008); Karen M. Kaufmann, Culture Wars, Secular Realignment, and the Gender
Gap in Party Identification, 24 Pol. Behav. 283 (2002).
124
See sources cited supra note Error! Bookmark not defined..
125
Mason, supra note 92, at 19 - 20.
126
See, e.g., Mason, supra note 92; Shanto Iyengar & Sean J. Westwood, Fear and Loathing Across Party Lines:
New Evidence on Group Polarization, 59 Am. J. Pol. Sci. 690 (2015); Shanto Iyengar, Gaurav Sood & Yphtach Lelkes,
Affect, not Ideology: A Social Identity Perspective on Polarization, 76 Pub. Op. Q. 405 (2012).
127
Iyengar & Westwood, supra note Error! Bookmark not defined..
128
Id. at 703.

animus rivals and perhaps surpasses racial animus in both belief and motivation for behavior.

This is because of the non-applicability of egalitarian norms. These norms, which are supported

by large majorities, discourage the manifestation of behavior that may be construed as

discriminatory. In contemporary America, the strength of these norms has made virtually any

discussion of racial differences a taboo subject to the point that citizens suppress their true

feelings. No such constraints apply to evaluations of partisan groups.129 Put differently, though

not less alarmingly, “American partisans today are prone to stereotyping, prejudice, and

emotional volatility.”130 These phenomena are “increasing quickly” and are defined by

“prejudice, anger, and activism on behalf of that prejudice and anger.”131 Partisans hate each

other.

Not surprisingly, partisans respond to facts differently and interpret facts consistently with

their partisan priors. As a political scientist strikingly noted, “partisanship is a powerful and

pervasive influence on perceptions of political events.”132 We increasingly live in a political

environment in which it makes less and less sense to inquire about what Americans think of a

particular public policy issue. Voters understand their position on the issues of the day through

their partisan identities and take their cues on public policy issues from political elites.133

–––––––––––––––––––––––––––
129
Id. at 704.
130
Mason, supra note 92, at 4.
131
Id.
132
Bartels, supra note Error! Bookmark not defined., at 120.
133
See, e.g., James N. Druckman et al., How Elite Partisan Polarization Affects Public Opinion, 107 Am. Pol. Sci.
Rev. 57, 74 (2013); Peter K. Enns & Gregory E. McAvoy, The Role of Partisanship in Aggregate Opinion, 34 Pol.
Behav. 627 (2012); Geoffrey Evans & Mark Pickup, Reversing the Causal Arrow: The Political Conditioning of
Economic Perceptions in the 2000 - 2004 U.S. Presidential Election Cycle, 72 J. Pol. 1226 (2010); Jennifer Jerit &
Jason Barabas, Partisan Perceptual Bias and the Information Environment, 74 J. Pol. 672 (2012); Larry M. Bartels,
Beyond the Running Tally: Partisan Bias in Political Perceptions, 24 Pol. Behav. 117, 120 (2002); Paul Goren,
Character Weakness, Partisan Bias and Presidential Evaluation, 46 Am. J. Pol. Sci. 627 (2002); Brian J. Gaines et al.,

Political psychologists and political scientists have explained the role of partisanship on political

decisionmaking as largely attributable to partisan motivated reasoning.134 According to one

prominent study, “partisans in a polarized environment follow their party regardless of the type

or strength of the argument that the party makes. Moreover, when individuals engage in

strong partisan motivated reasoning, they develop increased confidence in their own opinions.

This means they are less likely to consider alternative positions and more likely to take action

based on their opinion.”135 Thus, the relevant inquiry is not, what do Americans think about a

particular issue but, what do Republicans and what do Democrats think? Furthermore, what

the rank-and-file Republican or Democrat thinks about a particular public policy issue is often

strongly influenced if not determined by the cues the rank-and-file receive from partisan elites

and how the issue has been framed by these elites.136

To be sure, the use of partisanship as a basis for evaluation can be normatively defended.137

For example, parties are useful heuristics that minimize the voter’s information deficit.

However, when partisanship becomes the exclusive basis for substantive evaluations, voters

are not expected to provide democratic accountability. My party is correct -- because it is my

–––––––––––––––––––––––––––
Same Facts, Different Interpretations: Partisan Motivation and Opinion on Iraq, 69 J. Pol. 957 (2007).
134
See, e.g., Toby Bolsen et al., The Influence of Partisan Motivated Reasoning on Public Opinion, 36 Pol.
Behav. 235 (2014). For a particularly insightful exploration of the phenomena see Dan M. Kahan, Ideology,
Motivated Reasoning and Cognitive Reflection, 8 Judgment and Decision Making, 407 (2013).
135
James N. Druckman et al., supra note Error! Bookmark not defined., at 74.
136
On the role of elite opinion on foreign policy see Richard A. Brody & Catherine R. Shapiro, Policy Failure and
Public Support: The Iran-Contra Affair and Public Assessment of President Reagan, 11 Pol. Behav. 353 (1989).
137
See, e.g., NANCY ROSENBLUM, ON THE SIDE OF ANGELS: AN APPRECIATION OF PARTIES AND PARTISANSHIP (2010); Lisa
Disch. For a parsimonious review see Thomas J. Leeper and Rune Slothuus, Political Parties, Motivated Reasoning,
and Public Opinion Formation, 35 Advances in Political Psychology, 129 (2014).

party -- right or wrong.138 Thus, voters cannot be counted to be an effective check on the

exercise of power by political elites. Indeed, representatives and institutions of representation

are not expected to conform to the preferences of the citizen. Instead the citizen is expected to

be responsive to the political preferences of her political leaders.139 The voters’ role here is

purely instrumental: to allow political elites to lay claim to the legitimate exercise of power

because they tallied more votes than their political opponents.

Within its proper framework, partisanship is instrumental to democratic politics by, inter

alia, organizing ideas, mobilizing people, achieving policy goals, giving a voice to citizens, and

providing a vehicle to ambitious political elites to channel their political goals.140 In this view,

partisanship serves the aims of democratic politics, not the other way around. Partisanship

ought to facilitate representation.141

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138
For a trenchant take on the accountability problem with respect to economic performance, see Christopher
J. Anderson, The End of Economic Voting?: Contingency Dilemmas and the Limits of Democratic Accountability, 10
Ann. Rev. Pol. Sci. 271 (2007). As one political scientist remarked, dryly, “[i]f partisans simply bend reality to make
it fit their preconceptions, holding incumbents accountable . . . seems rather difficult.” Martin Bisgaard, Bias Will
Find a Way: Economic Perceptions, Attributions of Blame, and Partisan-Motivated Reasoning During Crisis, 77 JOP
849 (2015).
139
See Don Herzog, Happy Slaves: A Critique of Consent Theory 179-81, 209 (1989).
140
For an introduction see generally, John H. Aldrich, Why Parties: The Origin and Transformation of Political
Parties in America (1995); see also Nathaniel Persily & Bruce Cain, The Legal Status of Political Parties: A
Reassessment of Competing Paradigms, 100 Colum. L. Rev. 775 (2000) (examining the place of political parties
within the legal landscape).
141
The legal status of parties and thus partisanship must be dependent upon its functional utility for
democratic politics. See, e.g., Nathaniel Persily, Toward a Functional Defense of Political Party Autonomy, 78
N.Y.U. L. Rev. 750 (2001); see also Joseph Fishkin & Heather K. Gerken, The Party’s Over: McCutcheon, Shadow
Parties, and the Future of the Party System, 2014 Sup. Ct. Rev. 175.

From this perspective, we can easily link the problem of partisanship to the problem of

political gerrymandering. Leaving aside the material harm that partisan gerrymandering might

cause,142 partisan gerrymandering violates a norm of constitutional morality because the

practice communicates to political elites that the only thing that matters is partisanship and

also because it treats citizens as mere instruments to the ambitions of political elites.

Partisanship becomes its own self-justifying appeal. Instead of partisanship being instrumental

to the political representation of citizens, citizens become instrumental, as ciphers devoid of

political agency, to the acquisition of political power by political elites.143

It is true that one can then say that gerrymandered districts are responsive to the

preferences of the majority of citizens and representative of the views of the electorate.144 But

as Hanna Pitkin has noted, there is a “difference between changing subjects to suit [the] ruler,

and changing the ruler to suit his subjects.”145 And, “[a]djusting what is to represent until it is

aligned with what is to be represented may be a part of the activity of representing, but the

converse adjustment is not. The leader who molds his followers to suit his aims and interests is,

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142
This is the harm inherent to malapportionment, or vote dilution more generally. See Stephen
Ansolabehere and James M. Snyder, Jr., The End of Inequality: One Person, One Vote and the Transformation of
American Politics 17 (2008) (documenting the material harms to American politics from malapportionment and
the “resulting dramatic changes in political power and public policies that resulted from the Court’s decisions”).
143
This is a form of paternalism that is despotic because it deprives the represented of their autonomy. See
Nadia Urbinati, Representative Democracy: Principles and Genealogy 103 (2006) (explaining this Kantian account
of representation).
144
See, e.g., Nathaniel Persily, In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to
Incumbent-Protecting Gerrymanders, 116 Harv. L. Rev. 649 (2002).
145
Pitkin, supra note __, at 108.

if anything, making them represent him.”146 Partisan gerrymandering gets it backwards: it does

not ask representatives to conform to the preferences of the electorate or face their

retrospective judgment but rather, representatives choose the electorate to conform to their

preferences.

Election law has long been concerned with this instrumental view of representation.147

Reynolds v. Sims, in which plaintiffs challenged the malapportionment of Alabama’s state

legislative districts,148 evinced a clear concern for the political agency of the represented.

“Legislators,” Chief Justice Warren wrote for the Court, “are elected by voters.”149 In a key

passage, Chief Justice Warren argued that “representative government is in essence self-

government . . . and each citizen and every citizen has an inalienable right to full and effective

participation.”150 More importantly, Chief Justice Warren explained that “[t]o the extent that a

citizen's right to vote is debased, he is that much less a citizen.”151

Reynolds has been criticized for its reliance on an individual rights framework, and perhaps

rightly so.152 But Reynolds is iconic in part because it is animated by the classical account of

representation in which voters are expected to have the capacity to choose and in fact choose

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146
Id. at 110.
147
For a critical account see Bertrall L. Ross II, The Representative Equality Principle: Disaggregating the Equal
Protection Intent Standard, 81 Fordham L. Rev. 175 (2012).
148
377 U.S. 533 (1964).
149
Reynolds, 377 U.S. at 562.
150
Reynolds, 377 U.S. at 565.
151
Id. at 567.
152
See, e.g, Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593 (2002).

their representative. “As long as our is a representative form of government,” the Court stated,

“and our legislatures are those instruments of government elected directly by and directly

representative of the people, the right to elect legislators in a free and unimpaired fashion is a

bedrock of our political system.”153 Reynolds, like the Court’s apportionment cases and its racial

gerrymandering cases, reminds us that judicial intervention is necessary whenever the

government attempts to change the subjects to suit the ruler, as opposed to allowing the

subjects to pick their rulers. This is the traditional way of thinking about problem of partisan

gerrymandering. In the following part we offer a new way of justifying judicial intervention that

links partisan gerrymandering to the broader questions in election law.

B. Judicial Intervention as Restraint, Nonintervention as Partisan

Models of judicial review in the field of election law generally depict the Court as democratic

savior, willing and able to save our politics from its worst excesses. However, as we show in

Part I, the Court has been at times reluctant, almost callously so, to address the structural

pathologies of the democratic process. This reluctance, prominently articulated by Justice

Frankfurter, counsels against the Court placing itself as referee of partisan politics because to

do so would harm the Court. Justiciability of law and politics claims would involve the Court

continually in partisan disputes, which would threaten its legitimacy.

However, the proposition that the Court can refrain from refereeing partisan disputes by

abstaining from supervising the ground rules of democratic politics is belied by our partisan era.

Given the hyperpartisanship of our current political environment, in which political elites

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153
Reynolds, 377 U.S. at 562.

attempt to manipulate or rig electoral rules, norms, and practices in order to maximize their

desired political outcomes, the courts will be continually enmeshed in partisan fights. This is

the political reality of our moment. Partisans will manipulate electoral lines, implement strict

voter identification rules, purge voting rolls, change voting hours, move polling places, modify

registration rules, etc., all for the purposes of partisan gains. Like birds of a feather,

manipulative devices flock together.

A central lesson from the Court’s experience with reapportionment frames our argument.

Reflecting in his memoirs on what he considered to be the greatest case of his judicial tenure,

Chief Justice Earl Warren did not cite Brown v. Board of Education, the case that many consider

the most important and consequential case of the Warren Court, but Baker v. Carr and the one-

person, one-vote cases.154 Chief Justice Warren reasoned, if African Americans had been

“accorded the right to participate in government,” the Brown decision would have been

unnecessary. More specifically, he explained that if Congress had passed remedial voting

legislation prior to Brown, “blacks and other minorities would have achieved their rights by the

middle of the twentieth century.”155 And crucially for our purposes, “much of the emotional

heat undoubtedly would have been avoided.”156

Warren drew from this experience that courts may impose limits on the political process

even if indifferent or unconvinced that malapportionment violates the Constitution. The Court

–––––––––––––––––––––––––––
154
Earl Warren, The Memoirs of Earl Warren 306 (1977).
155
Id. at 306-07.
156
Id. at _307. Scholars have made similar claims about the Court’s approach to racial equality in Brown v.
Board, 347 U.S. 483 (1954). Akhil Reed Amar, The Warren Court and the Constitution (With Special
Emphasis on Brown and Loving), 67 SMU L. Rev. 671 (2014) (stating that the Court in Brown fashioned sub-
rules to guide judges, litigants and other actors charged with implementation in order to effectively implement a
broad rule of racial equality.)

may not even be motivated by the harm of malapportionment as such. Rather, the Court may

be concerned that malapportioned districts will lead to discrimination against African American

voters in the political process; or that African American voters may not be able to press their

claims in legislative arenas. As a consequence, the Court might need to adjudicate these

disputes in the future, perhaps at a cost to the institution.

This lesson from the reapportionment cases is equally applicable in the gerrymandering

context. A Court unconvinced by the substantive harms of partisan gerrymandering might

nevertheless impose constitutional constraints on the practice. Without constraints, there will

likely be secondary effects of partisanship -- substantive disputes that would likely not arise

except for the fact that the Court did not move to rein in partisan gerrymandering. These

secondary disputes will likely make their way from the political process to the courts for

adjudication and resolution. Within this framework, a Court concerned with its institutional

credibility and hesitant to involve itself in partisan disputes is faced with two realistic choices. It

can abstain from adjudicating the ground rules but address the secondary substantive cases

that flow out of its refusal to set clear ground rules. Alternatively, it can set clear ground rules,

which would likely result in fewer secondary disputes in the political process and therefore

fewer cases flowing from the political process to the courts for adjudication. This means that

the minimalist move -- a little now to avoid more later -- might be for the Court to set ground

rules in order to limit or avoid these secondary claims. The Court should curb partisan

gerrymandering to limit the propensity of political elites to manipulate election rules for

partisan gains and thereby averting the need for the Court to adjudicate what will clearly be

political disputes. Judicial restraint, in other words, counsels in favor and not against the

justiciability of partisan gerrymandering claims.

Our argument is framed around two crucial points. First, the posture of nonintervention

underestimates the expressive and consequential dimensions of partisan gerrymandering as a

normative political practice. Political gerrymandering is the most salient and perhaps most

consequential expression and representation of the manipulation of electoral rules for partisan

gain. If the Court does not rein in partisan gerrymandering, it will communicate to political

elites not just that partisan gerrymandering is normatively acceptable, but also that partisan

manipulation of electoral rules is permissible, as long as they can get away with it.157 By

addressing the most visible manifestation of partisan-motivated manipulation, the Court can

and will constrain the propensity of political actors to manipulate electoral rules for partisan

gain by communicating its intent to strike down electoral rules motivated primarily by partisan

motivation. Intervening now will allow the Court to play a less interventionist role down the

road because fewer or different cases will be presented for review. Thus, judicial supervision of

partisan gerrymandering claims bears the hallmarks of judicial restraint.

Second, judicial supervision in the field of law and democracy affects the behaviors of

political elites and constrains their options.158 Noninterventionists, such as Justice Frankfurter

in the reapportionment cases, have long worried that political elites will ignore judicial

–––––––––––––––––––––––––––
157
See Ansolabehere and Snyder, supra note , at 18 (“It is vitally important that the courts remain open to
appeals in cases involving political representation, as difficult as it may be to resolve the claims. The threat of
judicial intervention hangs above the legislatures like the sword of Damocles. Removing that threat only invites
those in power to do what they can to remain there.”).
158
See, e.g., Ansolabehere and Snyder, supra note , at 18; see also Morgan Kousser, Reapportionment Wars:
Party, Race, and Redistricting in California, 1971-1992 in Race and Redistricting in the 1990s, at 134, 186 (Benard
Grofman ed., 1998)

directives that are inimical to the interests of those elites. But Justice Frankfurter was wrong.

Political elites complied with the directive of one-person one vote. The Court’s racial

gerrymandering cases are also instructive. In Shaw v. Reno and its progeny, the Court sent a

message to political elites that it would strike down districts that were excessively

gerrymandered along racial lines. Notwithstanding the political incentives, political elites

responded and complied with the Court’s message and refrained from constructing extreme

racial gerrymanders. This is understandable because, as observers of the Court’s political

equality cases have remarked, “the possibility of judicial review exerts a pressure on the

legislatures to behave.”159 Moreover, political elites are risk-averse. They are not likely to

enact self-interested rules that they know are likely to be struck down by the courts. If the

Court communicates to legislatures that it is serious about eliminating the partisan

manipulation of electoral rules, political elites and legislatures, notwithstanding the political

incentives, will strike different bargains.

This last point makes clear the need for judicial intervention in our partisan age, where the

impulse of political elites to use electoral rules to acquire and secure political power is almost

irresistible and self-reinforcing. Though standard democratic theory focuses us on the

importance of ideas, contemporary democratic practice emphasizes the importance of winning

at almost all cost. Winning is all that matters.160 This is particular true in the context of

elections. Voter turnout in our current political environment is the pivot around which

–––––––––––––––––––––––––––
159
See, e.g., Ansolabehere and Snyder, supra note , at 286.
160
Mason, supra note 92, at 139 (stating that “the current alignment of social identities within the two parties
is promoting a greater focus on partisan victory than on good of the nation”).

everything turns.161 Political campaigns in the age of partisanship are less about persuading

voters to join your side, but as Jim Gardner has very persuasively demonstrated, campaigns and

elections are tabulatory events: convincing more of the people who are already on your side to

turn out to vote than the ones who are one the other side.162 Importantly, anger and emotion

are important to political participation.163

Because elections are more about turnout than persuasion, because voters are differentially

situated on the basis of their partisan identity, and because winning is all that matters, partisan

elites have an incentive to use election law, practice, and custom strategically and for rent-

seeking purposes -- to acquire political power. Any electoral legal rule, practice, or custom that

is outcome-determinative, that will allow political elites to acquire and maintain political

power, is ipso facto a candidate for manipulation. As Professor Barbara Sinclair stated in a

comprehensive analysis of political polarization in Congress but articulating a generalizable

principle: “Each side really does see the other’s policy and electoral success as disastrous for

the country; and this sometimes generates a feeling that anything goes, anything is justified to

avert such a catastrophe.”164

This observation is particular apt in the domain of election law where the rules are directly

relevant to the acquisition of political power. Election law can be used to maximize the

probability that one’s partisans will turn out and minimize the probability that the other side’s

–––––––––––––––––––––––––––
161
As Professor Sinclair has noted, the strategy in federal elections in the last few election cycles has been
about turning out the base. Barbara Sinclair, Party Wars: Polarization and the Politics of National Policy Making
349 - 50 (2006).
162
See Gardner, supra note 148.
163
Mason, supra note 92, at 86 (stating “anger and enthusiasm are the primary emotional drivers of political
action”).
164
Sinclair, supra note Error! Bookmark not defined., at 346.

partisans will turn out. Given the importance of turnout, given that elites have become quite

sophisticated at identifying likely partisans, and given that we can predict the effect of electoral

rules on turnout -- on our team and theirs -- the opportunity for rent-seeking by political elites

is ubiquitous. For example, we know that on average, photo voter identification requirements

are likely to have a negative differential impact on the socio-demographic group that tends to

identify with the Democratic Party than on those who tend to identify with the Republican

Party.165 Because political elites know, ex ante, the likely distributional effects of electoral rules

and with minimal restraint, the insiders will attempt to manipulate electoral rules to allow them

to maintain or acquire more power.

As partisans press their advantage and increasingly change the electoral rules and the norms

to maximize partisan gain, the political process losers will turn to the courts for redress. They

will turn to the courts whether or not the courts provide a realistic opportunity for redress; the

partisans will view these fights as existential. Recall Professor Sinclair’s observation, that each

side really does see the other side’s success as disastrous for the country. Moreover, political

losers might feel especially aggrieved to the extent that a particular outcome was achieved by

changing or manipulating electoral rules. Additionally, as Professor Gillian Hadfield stated in a

slightly different, though no less apt context, “people who feel as though the rules don’t care

about them, don’t care about the rules.”166 Thus, not only will partisans press their claims in

the courts, they might do so with greater expectation and desperation. They will expect that

–––––––––––––––––––––––––––
165
Bernard L. Fraga & Michael G. Miller, Who Does Voter ID Keep from Voting?, manuscript (July 23, 2018).
166
Gillian K. Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Invent it for a Complex
Global Economy 79 (2017).

courts’ response will be commensurate to the threat -- to the rule of law, to individual rights of

political participation -- posed by “the other side,” as they see it. Legal arguments that were

“off the wall,” will move to “on the wall.”167

A posture of nonintervention on the ground that the Court is preserving its legitimacy or

neutrality in the age of partisanship presumes that the Court sits outside the political process

and will not be influenced by that process. That presumption is false. Federal judges are

nominated by a political process that is increasingly viewed through the lens of partisan

polarization. There is growing empirical evidence of rising dissatisfaction with the Supreme

Court and the dissatisfaction is associated with partisan polarization.168 In fact, a pair of

researchers concluded that the public sees the Court as highly politicized and prefers justices

chosen on political and ideological grounds.169 You have your justices, we have our justices and

the goal is to have more justices than you do. The polarization over the Court is likely to

increase as we currently have -- not surprisingly, in light of the polarization of the judicial

nominating process -- ideological and partisan alignment among the Justices; the Court’s

conservatives were appointed by Republican presidents and the Court’s liberals were

appointment by Democrat presidents.

The perception of the Court as political is now a staple of intellectual elites and increasingly

–––––––––––––––––––––––––––
167
See Jack M. Balkin, From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream, The
Atlantic (June 4, 2012), https://www.theatlantic.com/national/archive/2012/06/from-off-the-wall-to-on-the-wall-
how-the-mandate-challenge-went-mainstream/258040/ (“Off-the-wall arguments are those most well-trained
lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and
therefore may become law, especially if brought before judges likely to be sympathetic to them.”).
168
169
See, e.g., Brandon L. Bartels & Christopher D. Johnston, Political Justice? Perceptions of Politicization and
Public Preferences Toward the Supreme Court Appointment Process, 76 Pub. Op. Q. 105 (2012).

of legal elites as well. One need only peruse journalistic accounts of recent Court cases to see

how intellectual elites view the Court. The titles alone tell the story. After Husted v.

Randolph,170 the Ohio voter purge case, we saw the following examples: “Supreme Court’s

conservative justices uphold Ohio’s voter purge system.”171 Or: “The Supreme Court’s Husted

Decision Will Make It More Difficult for Democrats to Vote.”172 A brief internet search uncovers

many other examples. They are now commonplace. The most damning piece came from

scholars Lee Epstein and Eric Posner, writing in the opinion pages of the New York Times. They

asked, “If the Supreme Court Is Nakedly Political, Can It Be Just?”173 They documented how the

Court “has come to be rigidly divided by both ideology and party” and wondered whether it

could “sustain public confidence for much longer.” The justices are now exactly where

Frankfurter did not want them to be.

Consider in this vein the recent battles over confirmation. The sudden death of Justice

Scalia led to a sudden and perhaps surprising though ultimately inescapable change in the

norms of the Senate. Then-President Obama sent a nominee to the Senate, but Republican

leaders refused to grant him a hearing. Some Republican Senators took their opposition further

and promised to block any nominee sent to the Senate by a future President Clinton. The

debate over the nomination of Judge Kavanaugh to replace Justice Kennedy on the Court is in

–––––––––––––––––––––––––––
170
138 S. Ct. 1833 (2018).
171
German Lopez, Supreme Court’s conservative justices vote to uphold Ohio’s voter purge system, Vox (June
11, 2018, 2:13 PM). https://www.vox.com/policy-and-politics/2018/6/11/17448742/ohio-voter-purge-supreme-
court-ruling.
172
Jeffrey Toobin, The Supreme Court’s Husted Decision Will Make It More Difficult for Democrats to Vote, The
New Yorker (June 11, 2018), https://www.newyorker.com/news/daily-comment/the-supreme-courts-husted-
decision-will-make-it-more-difficult-for-democrats-to-vote.
173
Lee Epstein & Eric Posner, If the Supreme Court Is Nakedly Political, Can It Be Just?, N.Y. Times (July 9,
2018), https://www.nytimes.com/2018/07/09/opinion/supreme-court-nominee-trump.html.

line with this recent history. One wonders if the Democrats regain control of the Senate,

whether they will retaliate if a Supreme Court vacancy arises under a Republican president.

Some law professors have suggested “Democrats may have to turn to more radical measures --

like adding more justices to the court . . . -- when they come back into power in order to make

up for the Merrick Garland nomination that was blockaded by McConnell in 2016.174 Two

prominent Yale law professors, Ian Ayres and John Witt, have recently argued that Democrats

should add two seats to the Court when they regain the Presidency and the Senate as the

Party’s response to the “Garland travesty.”175 The game is now afoot.

Another prominent law professor, Harvard’s Mark Tushnet, wrote soon after the end of the

Term a brief if scathing account of the Court’s jurisprudential turn.176 In a blog post entitled,

“The Standing-on-One-Leg Version of Constitutional Law, circa and post-2018,” he described

the state of constitutional law as follows:

1. Statutes, policies, and practices that strengthen the Republican Party, and those that

weaken the Democratic Party, are constitutionally permissible.

2. Statutes, policies, and practices that strengthen the Democratic Party are

unconstitutional.

–––––––––––––––––––––––––––
174
Richard L. Hasen, The Only Thing that Might Stop Trump From Replacing Kennedy with a Scalia Clone, Slate
(June 27, 2018, 3:40 PM), https://slate.com/news-and-politics/2018/06/trump-will-replace-kennedy-with-a-scalia-
clone-only-one-thing-might-stop-him.html.
175
See Ian Ayres & John Fabian Witt, Democrats Need a Plan B for the Supreme Court. Here’s One Option,
Wash. Post (July 27, 2018), https://www.washingtonpost.com/opinions/democrats-need-a-plan-b-for-the-
supreme-court-heres-one-option/2018/07/27/4c77fd4e-91a6-11e8-b769-
e3fff17f0689_story.html?noredirect=on&utm_term=.6e91478387d8. Professors Ayres and Witt recognize that the
Republicans will likely retaliate should they regain control. But they explain, “[b]y connecting the proposal to the
constitutional wound of the Senate’s failing to consider the nomination of Merrick Garland in 2016, Democrats can
apply crampons to stop the partisan slide to ever more justices.”
176
Mark Tushnet, The Standing-on-One-Leg Version of Constitutional Law, circa and post-2018, Balkinization
(June 27, 2018, 3:53 PM), https://balkin.blogspot.com/2018/06/the-standing-on-one-leg-version-of.html.

3. If leading Republicans are indifferent about a statute, policy, or practice, and leading

Democrats favor it, and if the statute, policy, or practice does not strengthen the

Democratic Party, the statute, policy, or practice might or might not be constitutionally

permissible.

4. If leading Republicans are indifferent and leading Democrats oppose a statute, policy,

or practice, it might be unconstitutional.

All the rest is commentary.

The Roberts Court is increasingly regarded as a Republican Court by the journalists who

report its cases and by some of the legal elites who comment on its rulings. Given the flow of

public opinion from elites to the mass, it won’t be long before the public also forms a view of

the Roberts Court as a Republican Court, which Republicans will find congenial and Democrats

will not. The potential harm to the Court is real and maybe even probable. The Court cannot

put its head in the sand and be agnostic about the state of American politics. And if Justice

Kagan’s recent public comments are indicative, these issues are not too far from the minds of

the Justices.177

Even if the Court is ambivalent about limiting political gerrymandering, it ought to do so in

order to address the second-order effects of this expression of partisanship, the manipulation

of electoral rules for partisan gain. Partisan gerrymandering is the most salient expression of

–––––––––––––––––––––––––––
177
Justice Kagan stated that the partisan battles over the judicial confirmation process makes the justices look
like “junior varsity politicians.” She went on to lament that the confirmation of the justices along partisan lines
“makes it seem that we’re an extension of the political process.” She went on to say, “long term I think that’s very
unhealthy for the Court.” See Jamie Ehrilch, Kagan: Confirmation Gridlock Makes Supreme Court Look Like ‘junior
varsity politicians,” CNN (July 25, 2018, 3:51 PM), https://www.cnn.com/2018/07/25/politics/kagan-kavanaugh-
junior-varsity-politicians/index.html.

the normativity of partisanship as a justification for constructing electoral rules in order to

maintain or acquire political power. In the context of election law, political gerrymandering is

the quintessential and most vexing deployment of partisanship as the central vehicle of

acquiring political power. Whether the Court believes it or not, the practice of creating

electoral districts simply for the purpose of partisan advantage sends a clear message to

political elites that partisanship is justifiably the coin of the realm. There are spillover effects

for other areas of election; the failure to hold the line on partisan manipulation in the domain

of political gerrymandering sends a message of tacit approval of the manipulation of electoral

rules for maintaining or acquiring partisan power in other domains.178 The failure of the Court

to rein in the practice of political gerrymandering will only encourage political elites to press

their partisan advantage further.179 Recall here Shanto Iyengar and Sean Westwood’s claim

that partisan animus surpasses racial animus in both belief and motivation because there are

no norms to constrain partisan impulse. Fundamentally, both nonintervention and judicial

supervision are interventionist choices that matter for our constitutional democracy. The

question is not whether or not to intervene, but whether to intervene a little -- by shutting the

door on rigging electoral rules for partisan gain -- or a lot -- by adjudicating secondary claims.

–––––––––––––––––––––––––––
178
Michael Kang has made an argument along the same lines. See Kang, supra note 53.
179
The similarities to the reapportionment revolution are unmistakable. See Alexander Keyssar, The Right to
Vote: The Contested History of Democracy in the United States 233 (“It was unrealistic to expect that an
undemocratic distribution of power could be reformed democratically. Consequently, if the judiciary did not act, it
if failed to establish a yardstick for assessing the democratic content of electoral structures, the door would be
open to a wide range of abuses.”).

Conclusion

Soon after the Supreme Court ushered a new era of judicial supervision of democratic

politics, some Justices immediately recognized that “[t]he question of the gerrymander is the

other half of Reynolds v. Sims.”180 Half a century later, the question remains. The political

gerrymandering cases are the logical extension of the reapportionment revolution and the

Reynolds’ promise of substantial equality. However compelling judicial intervention was in

Baker, it is even more so now.

As we have argued here, judicial abstention cannot be justified by the narrative of

nonintervention. Limiting partisan gerrymandering is important for its own sake. But it is also

important to save the Court from having to adjudicate second-order partisan cases that are the

product of manipulation of electoral rules for the purposes of partisan gain. The Court will

increasingly be thrust in the middle of contentious partisan disputes over electoral laws. This is

no longer 1986, when Bandemer was decided, or 2004, the year of Vieth. “Sometimes,” as

John Ely aptly put it, “more is less.” 181 The Court has intervened successfully in the political

process before. The Court’s intervention in Baker and Reynolds are widely regarded as its finest

hour, rivaled perhaps by its intervention in Brown. It can and should do so again. It ignores this

important role in our politics at its own peril.

–––––––––––––––––––––––––––
180
Whitcomb v. Chavis, 403 U.S. 124, 176 (1971) (Douglas, J., dissenting).
181
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 125 (1980).

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