University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2005 Rules, the New Standards: Partisan Gerrymandering and Judicial Manageability After Vieth v. Jubelirer Justin Driver Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Justin Driver, "Rules, the New Standards: Partisan Gerrymandering and Judicial Manageability After Vieth v. Jubelirer," 73 George Washington Law Review 1166 (2005). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Rules, the New Standards: Partisan Gerrymandering and Judicial Manageability After Vieth v. Jubelirer Justin Driver* Introduction Since the United States Supreme Court articulated the six factors com- prising political questions in Baker v. Carr,1 legal commentators have pre- dicted that the doctrine would not endure.2 The last four decades have largely vindicated such predictions, as the Court has seldom applied the polit- ical question doctrine, 3 even in instances that many commentators believe cry 4 This infrequent deployment has prompted some ob- out for its application. 6 servers to conclude that the doctrine is all but dead.- In Vieth v. Jubelirer, however, a four-Justice plurality dusted off the second prong of the political question doctrine, urging that courts should not adjudicate partisan gerry- mandering disputes due to the absence of "judicially manageable stan- * Charles Hamilton Houston Fellow at Harvard Law School. Thanks to Jessie Amunson, Rosalind Dixon, Laura Ferry, Heather Gerken, Danielle Gray, Lani Guinier, Mort Horwitz, and Spencer Overton for helpful comments. 1 Baker v. Carr, 369 U.S. 186, 217 (1962). 2 See, e.g., Robert G. McCloskey, Foreword: The Reapportionment Case, 76 HARV. L. REv.54, 59 (1962) ("[W]e may legitimately wonder whether the [political question] doctrine ... will now have a very lively future, for its viability as an aid to a policy of judicial self-restraint would seem to have diminished considerably."); Robert B. McKay, Political Thickets and Crazy Quilts: Reapportionmentand Equal Protection,61 MIcH. L. REV. 645, 656 (1963) ("It has already been noted that the Court so stated, at the level of simple assertion, that standards are not lacking. If that proposition is in fact true, as claimed, then this aspect of the 'political question' problem vanishes."). 3 The few instances in which the Court has invoked the political question doctrine include Nixon v. United States, 506 U.S. 224, 229, 237 (1993) (finding a political question in the context of a judicial impeachment because of a textual commitment to another branch of government), and Gilligan v. Morgan, 413 U.S. 1, 11 (1973) (finding a political question to be present in judicial review of the Ohio National Guard action that resulted in the shooting of four students). 4 The political question doctrine's absence was perhaps most conspicuous in Bush v. Gore, 531 U.S. 98 (2000). See, e.g., Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 NOTRE DAME L. REV. 1093 passim (2001); Laurence H. Tribe, eroG .v hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 HARV. L. REV. 170, 276-87 (2001). 5 Rachel E. Barkow, More Supreme than Court?: The Fall of the Political Question Doc- trine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 317 (2002) ("The demise of the political question doctrine is part and parcel of this larger trend of refusing to accord inter- pretive deference to the political branches."); Peter H. Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 COLUM. L. REV. 1325, 1327 (1987) ("Baker seemed to inter the 'political question' objection to adjudicating cases like Bandemer."); Mark V. Tushnet, Law and Prudence in the Law of Justiciability: The Transformationand Disap- pearance of the Political Question Doctrine, 80 N.C. L. REV. 1203 passim (2002). 6 Vieth v. Jubelirer, 541 U.S. 267 (2004). August 2005 Vol. 73 No. 5/6 1166 2005] Partisan Gerrymanderingand Judicial Manageability 1167 dards. ''7 Whether Vieth signals the return of the political question doctrine, or merely its decennial invocation, the case merits attention in light of the plurality's opinion, which transforms the requirement for judicially managea- ble standards into a requirement for judicially manageable rules. 8 This ero- sion is significant because genuine standards represent the Court's most viable path to meaningful judicial oversight of partisan gerrymandering.9 The distinction between rules and standards enjoys a long lineage, ex- tending at least as far back as the early 1930s. 10 The debate over form, as this distinction is often characterized, has manifested itself in most fields of legal inquiry and, more recently, has entered the field of election law." Accord- 7 Id. at 305-06. The term "judicially manageable standards" is derived from Justice Bren- nan's well-known articulation of the political question doctrine in Baker. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate po- litical department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's under- taking independent resolution without expressing lack of the respect due coordi- nate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifa- rious pronouncements by various departments on one question. Baker v. Carr, 369 U.S. 186, 217 (1962). Although one might contend that the quest for "judi- cially discoverable and manageable standards" contains two distinct steps, the Court has-even at the inception-collapsed discoverability and manageability into one inquiry, as Baker v. Carr itself uses the term "judicially manageable standards" to describe the second prong of the politi- cal question doctrine. Id. at 223. Accordingly, this Article will use the term "judicially managea- ble standards" in place of "judicially manageable and discoverable standards." 8 This does not, of course, mean that rules cannot satisfy the requirement for "judicially manageable standards." As I will discuss further, Baker's call for "standards" represents the "floor"-rather than the "ceiling"-required for adjudication. 9 An exploration of the myriad advantages of judicial oversight of partisan gerrymanders lies beyond the scope of this Article. Suffice it to say, I assume here that such oversight is indeed beneficial. 10 Roscoe Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 TUL. L. REV. 475, 482-85 (1933) (describing rules as "precepts attaching a definite detailed legal conse- quence to a definite, detailed state of facts," and standards as "general limits of permissible conduct to be applied according to the circumstances of each case. The significant thing is the standard, to be applied, not absolutely as in [the] case of a rule, but in view of the facts of each case."). In addition to rules and standards, Pound also described legal directives as "princi- ples," "conceptions," and "doctrines." Id. This Article does not seek to provide an exhaustive account of the nuances separating and uniting rules and standards. For particularly influential treatments of the distinction between rules and standards, see generally HENRY M. HART, JR. & AL3ERT M. SACKS, THE LEGAL PRO- CESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 155-58 (unpublished tenta- tive ed. 1958); MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 15-63 (1987); Louis Kaplow, Rules Versus Standards:An Economic Analysis, 42 DUKE L.J. 557 (1992); Duncan Ken- nedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976); Kathleen M. Sullivan, The Supreme Court 1991 Term, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992). 11 See Richard L. Hasen, The Benefits of "JudiciallyUnmanageable" Standards in Election Cases Under the Equal Protection Clause, 80 N.C. L. REV. 1469 (2002); Spencer Overton, Rules, Standards, and Bush v. Gore: Form and the Law of Democracy, 37 HARV. C.R.-C.L. L. REV. 65 (2002). 1168 The George Washington Law Review [Vol. 73:1166 ingly, the virtues and vices of rules and standards have become familiar.12 Although rules have the advantage of notifying actors about the conse- quences of particular actions and engendering uniformity and stability, they have the drawback of being difficult to formulate and potentially lead to ex- cessive rigidity. Conversely, although standards afford decision makers flexi- bility and individualization, they create a degree of indeterminacy and uncertainty. To be sure, rules and standards are not strictly dichotomous, but rather fall along a continuum, ranging from pure rules at one extreme to pure standards at the other.13 Despite difficulty in drawing clear distinctions, it is worth maintaining the distinction between the two types of legal directives because the choice between the two will often have profound consequences.14 It is more than a little odd, then, for Justice Scalia-a man who has well- 1 5 developed notions about the benefits of rules and the costs of standards - to use the terms synonymously in his Vieth plurality opinion. In his discus- sion of "judicially manageable and discoverable standards," Justice Scalia writes: "It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that re- 16 quirement is that judicial action must be governed by standard, by rule." That last sentence is nothing less than staggering.