One of the most-watched set of Supreme Court cases last term involved efforts by reformers to enlist the federal judiciary in the fight to rein in what some people believe is problematically aggressive partisan gerrymandering. In Rucho v. Common Cause, an emphatic but closely divided (5-4) Court, led by Chief Justice Roberts, ruled that claims that partisan gerrymandering (by states or by Congress) runs afoul of the United States Constitution are “political questions” that lie outside the courts’ competence and beyond their jurisdiction, and are thus “nonjusticiable”; such questions must be resolved by institutions other than the federal courts. It is possible, of course, that the Court will change its mind down the road. After all, a decade-and-a-half ago, in Vieth v. Jubelirer, the Court split 4-4 on whether such claims could be adjudicated in federal court, with Justice Kennedy in the middle concluding that such challenges could not be resolved by federal judges at that time, but that percolation in the lower courts and the academy might alter things; Justice Kavanuagh—Justice Kennedy’s replacement—didn’t seem as conflicted, and fully joined Chief Justice Roberts’ majority opinion in Rucho. But if doomsayers are correct that big-data analysis makes elected legislatures ever more accurate in predicting partisan vote patterns—which reduces the risk of backfire for the party engaged in partisan line-drawing—and if governors (who, unlike the legislators, are elected at-large in statewide contests and thus are not themselves the products of partisan gerrymandering) cannot impose some check on the process, the Supreme Court (especially if there are membership changes in the liberal direction) may not stay out of this game forever. But a big issue looms: Can anything helpful be done in the meantime?
Anticipating this question, Chief Justice Roberts in Rucho said that his ruling that these disputes are nonjusticiable political questions does not “condemn complaints about districting to echo into a void.” He observed that Congress has power to oversee the line-drawing of House of Representative districts, and can displace what aggressive state legislatures might try to do in that realm. Moreover, he pointed out, “in 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution (emphasis added),” which, he argued, involves a different situation from that presented in Rucho insofar as “state statutes and state constitutions can provide standards and guidance [that the federal Constitution does not] for state courts to apply.” And other states, the Chief Justice pointed out, are “placing power to draw electoral districts in the hands of independent commissions.” (On that topic, this past column might be of interest.)
It is thus clear that state electorates and state supreme court justices—who, like governors, are bodies composed or elected statewide and thus not borne of gerrymandering schemes—can play a meaningful role, using state law to regulate gerrymandering, even as to congressional districts.
But a nice question emerges from the juxtaposition of the Rucho Court’s political-question holding and its mention of the function that state courts might perform: Can state courts invoke the federal Constitution to redress gerrymandering? To put the query another way, does the fact that partisan gerrymandering claims under the federal Constitution are nonjusticiable in federal court mean that they can’t be adjudicated in state court?
To answer that question, let us begin by noting that the Court has itself made clear that so-called justiciability hurdles imposed by Article III of the Constitution to regulate access to federal courts—hurdles such as standing, ripeness, non-mootness—do not apply to state courts. As the Supreme Court observed three decades ago in ASARCO v. Kadish: “established traditions and . . . our prior decisions recogniz[e] that the state courts are not bound by Article III, and yet have it within both their power and their proper role to render binding judgments on issues of federal law, subject only to review by this Court.”
Nonetheless, the ASARCO Court implicitly acknowledged that having state courts decide federal law in a context that would be unreviewable by the U.S. Supreme Court is problematic. The ASARCO majority (justifiably or not) finessed that question by manipulating the justiciability hurdle at issue there, the fact that the original plaintiff may have lacked Article III standing to sue in federal court, by recharacterizing the case as it came to the Court as involving a new federal plaintiff—the defendant below—who clearly did have the right to invoke a federal forum.
In the context of the political-question doctrine (as distinguished from standing), the U.S. Supreme Court could not creatively manipulate things to review a state supreme court decision invoking federal law to regulate partisan gerrymandering; unlike standing, political-question doctrine focuses on the nature of the dispute, not the identity of the parties, and no inversion of party sequence can alter the fundamentally nonjusticiable (according to Rucho) character of the substantive claim.
But the bigger problem for state courts that might want to invoke federal law as they seek to regulate gerrymandering does not have to do with the difficulties of U.S. Supreme Court review of their actions; it derives from the essence of the Rucho opinion itself. And here we see an inherent tension/confusion within Supreme Court political-question doctrine; sometimes the Court has invoked political-question rhetoric in a way that leads observers to conclude the Court has abstained (for constitutional prudential reasons) from deciding a claim on the merits, when in fact the Court has rejected the claim as legally insufficient. This is, I think, what happened in Rucho.
Let us examine the nub of Chief Justice Roberts’ reasoning for why the Rucho plaintiffs could not get the relief they sought to redress what they said was constitutional unfairness: “Deciding among [the] different visions of fairness [that people may advocate for in districting] poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal courts” (emphasis added).
Parsing this language carefully, we see, on the one hand, that the passage ends with mention of the limited competence of “federal courts,” not all courts. That sounds like abstention by one particular set of government actors—the federal judiciary. On the other hand, in the italicized language, Chief Justice Roberts says not only that the federal Constitution lacks any “clear, manageable and politically neutral” principles to govern judicial resolution, but that the Constitution lacks any “discernable legal standards.” Discernible means detectable, perceptible, observable. If the Constitution contains no discernable legal standards to regulate an activity, there is nothing observable in the Constitution that limits the activity. It would be one thing if the Constitution explicitly said “legislatures regulating the time, place and manner of elections shall not be excessively influenced by partisan politics” and federal courts stayed out because they didn’t feel comfortable drawing lines to decide when influence was “excessive.” But that is not what Chief Justice Roberts found. He concluded, after canvassing the usual constitutional sources of text, structure and history, that the Constitution lacks any “discernable” standard, much less one that is judicially manageable. (Elsewhere he reinforced this distinction between discernibility and manageability by reminding that the challengers failed to identify a constitutional standard that is “judicially discernible and manageable” (emphasis added)). To say that there is no visible/discernible standard is to say there is no (constitutional) law here to apply—which is why the Chief Justice said the question presented was not a “legal” one—and therefore the challenged conduct, while perhaps very bad, is not (constitutionally) unlawful. (To be clear, I am not saying I agree with Chief Justice Roberts’ conclusion that no provision of the federal Constitution substantively constrains gerrymandering. I think at the very least if majority rule were frustrated over a sustained period of time—which frustration, rather than a generic concern with partisanship, is the real constitutional value at stake—the Guarantee Clause would apply. But for present purposes I am not critiquing the Chief’s conclusion so much as trying to understand it on its own terms.)
The confusion over these two quite different ideas that swirl around in political-question rulings—the absence of any legal norm, and the absence of a judicially manageable test to apply—really traces back to carelessness by the great Justice William Brennan when he discussed and summarized political-question thinking in the seminal Baker v. Carr case, where he mushed together “a lack of judicially discoverable and manageable standards for resolving” a particular claim (emphasis added). Chief Justice Roberts used “discernible” rather than “discoverable,” but the idea is the same—and it is a different idea from that of “manageab[ility].” (The Court has been careless about keeping separate the very distinct concepts of abstention and ruling on the merits in other political-question contexts too, including the important Nixon v. U.S. judicial impeachment case about which I wrote a column a few months back.)
If one agrees that declaring there is no discernible standard in the Constitution is tantamount to saying the Constitution simply provides no law to apply to this situation, then that is a decision on the meaning and the merits of the federal Constitution, and it would be binding on state courts, even though state courts are not limited by Article III justiciability constraints. In that event, while state courts could process partisan gerrymandering claims under state statutes and state constitutional provisions, they likely wouldn’t be permitted to do so, given Rucho, in the name of the federal Constitution. State courts that want to insulate their decisions from federal reversal should, therefore, make quite clear that any rulings they render regulating partisan gerrymandering rest on independent and adequate state-law grounds.