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

Abstract

In Rucho v. Common Cause, the Supreme Court held that partisan-gerrymandering claims present political questions beyond the jurisdiction of the federal courts. The decision marks the first time that a majority of the Court has used the political question doctrine to dismiss a claim based on the supposed unmanageability of legal standards alone. Despite this development being essential to the Court’s holding, its significance went largely unexplored and uncontested. This Article deconstructs Rucho’s articulation and application of the political question doctrine and makes two contributions. First, the Article disentangles the political question doctrine from neighboring justiciability doctrines. The result is a set of substantive principles that should guide federal courts as they exercise a range of routine judicial functions—remedial, adjudicative, and interpretive. Rather than unrealistically attempting to draw crisp jurisdictional boundaries between exercises of “political” and “judicial” power, the political question doctrine should seek to moderate their inevitable (and frequent) clash. Standing doctrine should continue to guide courts in determining whether they have authority over a case involving a political question. But the political question doctrine should guide courts in determining how to navigate areas of overlapping constitutional authority covered by the question. Second, the Article challenges the assumption that manageability can and should provide a standalone test of jurisdiction. Rucho’s “manageability exception” to Article III actively undermines the separation of powers principles it purports to protect. Treating manageability as an independent test of jurisdiction invites federal courts to opine about abstract questions not presented by the case or controversy before them and to abdicate their duty to decide cases properly before them without any constitutional command to the contrary. Rucho offers a profound illustration. Chief Justice Roberts asserts that partisan-gerrymandering claims are not “resolvable according to legal principles,” but his opinion fails to set out any legal standard rooted in the Constitution for deciding when a claim is or is not “manageable.” The result is a decision as hollow as it is hypocritical. This Article proposes a new approach to the political question doctrine, explains where the Court went wrong in Rucho, and explores what it could mean for the future of partisan-gerrymandering claims and justiciability doctrine alike.