McKay Cunningham
Volume 69, Issue 6, 1509-1544
The Supreme Court has long held that extreme partisan gerrymandering violates equal protection, but has simultaneously dismissed gerrymandering disputes as nonjusticiable political questions. In particular, the Court has maintained that no manageable standard yet exists by which the Court could implement the promise of equal protection to partisan redistricting.
This Article analyzes the manageable standard requirement, revealing the Court’s failure to consistently apply it. Why is “fairness” a manageable standard in one context but not another? How are standards that measure one’s shocked conscious, or weigh the totality of the circumstances manageable? Importantly, when the Court has dismissed cases for lack of a manageable standard, it seemingly did so to preserve confidence in the judiciary.
Recast in this light, the manageable standard requirement serves as proxy for preserving judicial legitimacy. This Article argues that the Court should no longer hide behind the manageability barrier because partisan gerrymandering is an artificial obstacle to democratic governance. Court intervention to ensure democracy’s proper functioning was (1) anticipated by the Framers, (2) memorialized in the Constitution’s form and structure, and (3) exercised by the Court without loss of judicial legitimacy in analogous contexts. This Article posits that judicial intervention to unblock the avenues of political change is one of the Court’s central responsibilities, that in similar contexts the Court has recognized as much, and that it should do so again.