Rules, the New Standards: Partisan Gerrymandering and Judicial Manageability After Vieth v. Jubelirer

Abstract

Since the United States Supreme Court articulated the six factors comprising political questions in Baker v. Carr, legal commentators have predicted that the doctrine would not endure. The last four decades have largely vindicated such predictions, as the Court has seldom applied the political question doctrine, even in instances that many commentators believe cry out for its application. This infrequent deployment has prompted some observers 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 gerrymandering disputes due to the absence of "judicially manageable standards. '' 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 manageable standards into a requirement for judicially manageable rules. This erosion is significant because genuine standards represent the Court's most viable path to meaningful judicial oversight of partisan gerrymandering.

The distinction between rules and standards enjoys a long lineage, extending at least as far back as the early 1930s. 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." Accordingly, the virtues and vices of rules and standards have become familiar. Although rules have the advantage of notifying actors about the consequences of particular actions and engendering uniformity and stability, they have the drawback of being difficult to formulate and potentially lead to excessive rigidity. Conversely, although standards afford decision makers flexibility 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.