“This Is Not Law”: On Judicial Review in Rucho

Political gerrymandering is an inherently thorny topic for a bicameral legislative system. Whether the lines drawn on districting maps are rigged unfairly by one party calls into question the fairness of the People’s power to vote. This unfairness sounds sonorously in the souls of all Americans, as noted by both opinions in Rucho v. Common Cause, No. 18–422, U.S. Supreme Court, June 27, 2019.

In Rucho, the Supreme Court faces this political fire head on and draws a line of its own, delineating how the judicial power enumerated in Article III is limited vis-à-vis political questions that are nonjusticiable (i.e., not “properly suited for resolution by the federal courts”). Majority Opinion [hereinafter Maj.] at 2. Rucho therefore reveals a controversy not only over legislators drawing districting lines but also over the Court delineating where the “certain limits not to be transcended” lie for the judiciary. Marbury v. Madison, 5 U.S. 137, 176 (1803).

I find the majority’s approach to justiciability and separation of powers more constitutionally sound and persuasive than the dissent’s pragmatic extension of judicial power over political questions.

I

Five observations on the judicial power’s role in the American constitutional system of government frame my analysis.

First, federal judicial power is a child of the Constitution. It is wholly rooted in Article III. Prior to the Constitution, there were no federal courts at all. After its ratification, state judges were newly bound to the Constitution, federal laws, and treaties as “the supreme Law of the Land.” U. S. Const. art. VI cl. 2.; cf. Cooper v. Aaron, 358 U.S. 1, 18 (1958). Anything in state constitutions or laws repugnant to this supreme law is void. Id.; cf. Marbury (holding “a [federal] law repugnant to the constitution is void”). 5 U.S. 137 at 180.

Second, federal judicial power is no small power. “It is,” in the words of Marbury cited in both the majority and dissent opinions, “emphatically the province and duty of the judicial department to say what the law is.” Maj., 34; Diss., 31. As the highest court in the land, the Supreme Court thus says what the supreme law is for the nation.

Third, this supreme law receives a supreme expositor in the Supreme Court. In Marbury, the first case in which the high court declared a federal statute unconstitutional and thus void, the principle that “the federal judiciary is supreme in the exposition of the law of the Constitution” found expression as “a permanent and indispensable feature of our constitutional system.” Cooper, 358 U.S. at 18.

Fourth, the judicial power enumerated in Article III is not alone. It coexists with the legislative (art. I) and executive (art. II) powers in a system of checks and balances. Justice Marshall’s comments in Marbury on the President’s discretionary power being nonjusticiable are one expression of the Court’s recognition of this intentional separation of powers. 5 U.S. at 165-166.

Fifth, as Justice Marshall also observed in Marbury, the Constitution provides the departments of government not unlimited but limited powers. Such a distinction “is abolished,” he warned, “if those limits do not confine the person on whom they are imposed.” Id. at 176. Thus the judicial power, notwithstanding its supreme-expositor-of-supreme-law status, remains a constitutionally limited power to be checked and balanced by the others.

II

Turning to Rucho, the majority poses the issue in separation-of-powers terms: “whether such [partisan gerrymandering] claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.” Maj. at 7. After surveying the Court’s past cases involving partisan gerrymandering in Gill v. Whitford, the majority zeros in on justiciability as a remaining “threshold question.” Maj. at 14.

There are several steps in the majority’s justiciability argument that Article III does not provide the proper legal jurisdiction for the Court to resolve the political question of partisan gerrymandering:

(1) Although partisan gerrymandering claims sound in a desire for proportional representation (Maj. at 16),

(2) “the Constitution supplies no objective measure” for drawing districting maps fairly. Id. at 20. The majority repeatedly applies a factor from Baker v. Carr –whether there exists a lack of judicially discoverable and manageable standards for resolving the controversy (Maj. at 7)—as a saw by which to reject judicial attempts to wade into political waters without constitutional authorization. Any attempt to supply such a measure “poses basic questions that are political, not legal,” reasons the majority. Id. at 19.

(3) Further, the tests proposed by the appellees all fall short of meeting the Baker factor for a discernable and manageable standard. Maj. at 22; cf. 15.

(4) The sole Constitutional provision that addresses the matter (Art. I § 4 cl. 1) assigns it to the political branches. Maj. at 29.

(5) Because there is no constitutional directive regarding partisan gerrymandering and no legal standard to guide the Court in apportioning political power between the two parties, the controversy is therefore nonjusticiable and better suited to resolution politically than legally. Maj. at 33-34.

For the majority, then, the supreme expositor of the Constitution’s duty regarding political gerrymandering is to say that “this is not law” but politics. Maj. at 34.

III

The pros of the majority opinion relate to the foundations noted above:

(1) it turns to the Constitution first and finds there no directly applicable provision;

(2) it exercises the kind of restraint necessary in a system of governance formed by enumerated and separated powers to maintain each power’s “certain limits not to be transcended,” as Justice Marshall noted in Marbury;

(3) it honors the Court’s authority as the supreme interpreter of the supreme law;

(4) it respects the other enumerated powers in the Constitution. See Baker (stating six factors for justiciability all of which respect constitutional separation of powers); and

(5) it appropriately recognizes that judicial power is limited by political power vis-à-vis political questions.

The dissent calls out the chief con of the majority’s argument: this perennial controversy is unlikely to be resolved by the political branches. Trusting politicians to come up with a fair process for drawing districting lines is to chase a chimera. The dissent thus highlights the dark practical reality created by the Court’s refusal to hear the political question: because extreme political gerrymandering is left unchecked by judicial review, “we the People” lose their most fundamental power in American governance: to vote fairly. The dissent presents a second con: in its view, a test that satisfies the Baker factor not only exists but has been deployed successfully by lower courts.

The feature most striking about the dissent is its precious little appeal to the Constitution, prior case law on justiciability, or sensibility that there exist “certain limits not to be transcended” even by the supreme expositor of the Constitution. The dissent grounds its argument more in the vox populi than on the lex principium. For this reason, it misses the wisdom of the John Jay's reply to President George Washington regarding the President's request for advisory opinions: the Constitution’s lines of separation between the three departments of government provide “checks upon each other” and “strong arguments against the propriety” of the Court crossing its line by issuing advisory opinions and, as the Court likewise holds in Rucho, making political questions justiciable.