SENATE, et al.


[April 28, 2004]

    Justice Scalia announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice O’Connor, and Justice Thomas join.

    Plaintiffs-appellants Richard Vieth, Norma Jean Vieth, and Susan Furey challenge a map drawn by the Pennsylvania General Assembly establishing districts for the election of congressional Representatives, on the ground that the districting constitutes an unconstitutional political gerrymander. In Davis v. Bandemer, 478 U.S. 109 (1986), this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard to adjudicate them. The present appeal presents the questions whether our decision in Bandemer was in error, and, if not, what the standard should be.


    The facts, as alleged by the plaintiffs, are as follows. The population figures derived from the 2000 census showed that Pennsylvania was entitled to only 19 Representatives in Congress, a decrease in 2 from the Commonwealth’s previous delegation. Pennsylvania’s General Assembly took up the task of drawing a new districting map. At the time, the Republican party controlled a majority of both state Houses and held the Governor’s office. Prominent national figures in the Republican Party pressured the General Assembly to adopt a partisan redistricting plan as a punitive measure against Democrats for having enacted pro-Democrat redistricting plans elsewhere. The Republican members of Pennsylvania’s House and Senate worked together on such a plan. On January 3, 2002, the General Assembly passed its plan, which was signed into law by Governor Schweiker as Act 1.

    Plaintiffs, registered Democrats who vote in Pennsylvania, brought suit in the United States District Court for the Middle District of Pennsylvania, seeking to enjoin implementation of Act 1...The complaint alleged, among other things, that the legislation created malapportioned districts, in violation of the one-person, one-vote requirement of Article I, §2, of the United States Constitution, and that it constituted a political gerrymander, in violation of Article I and the Equal Protection Clause. With regard to the latter contention, the complaint alleged that the districts created by Act 1 were “meandering and irregular,” and “ignor[ed] all traditional redistricting criteria, including the preservation of local government boundaries, solely for the sake of partisan advantage.”

    A three-judge panel was convened.... On trial of the apportionment claim, the District Court ruled in favor of plaintiffs. See Vieth v. Pennsylvania, 195 F. Supp. 2d 672 (MD Pa. 2002) (Vieth II). It retained jurisdiction over the case pending the court’s review and approval of a remedial redistricting plan. On April 18, 2002, Governor Schweiker signed into law Act 34, a remedial plan that the Pennsylvania General Assembly had enacted to cure the apportionment problem of Act 1.

    Plaintiffs moved to impose remedial districts, arguing that the District Court should not consider Act 34 to be a proper remedial scheme, both because it was malapportioned, and because it constituted an unconstitutional political gerrymander like its predecessor. The District Court denied this motion, concluding that the new districts were not malapportioned, and rejecting the political gerrymandering claim for the reasons previously assigned in Vieth I. Vieth v. Pennsylvania, 241 F. Supp. 2d 478, 484—485 (MD Pa. 2003) (Vieth III). The plaintiffs appealed the dismissal of their Act 34 political gerrymandering claim.


    Political gerrymanders are not new to the American scene.... There were allegations that Patrick Henry attempted (unsuccessfully) to gerrymander James Madison out of the First Congress..... “By 1840 the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength.” Griffith 123.

    It is significant that the Framers provided a remedy for such practices in the Constitution. Article 1, §4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to “make or alter” those districts if it wished. Many objected to the congressional oversight established by this provision. In the course of the debates in the Constitutional Convention, Charles Pinkney and John Rutledge moved to strike the relevant language. James Madison responded in defense of the provision that Congress must be given the power to check partisan manipulation of the election process by the States:

“Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling power to the Natl. Legislature?”

Although the motion of Pinkney and Rutledge failed, opposition to the “make or alter” provision of Article I, §4–and the defense that it was needed to prevent political gerrymandering–continued to be voiced in the state ratifying debates. A delegate to the Massachusetts convention warned that state legislatures

“might make an unequal and partial division of the states into districts for the election of representatives, or they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; But the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election.”

    The power bestowed on Congress to regulate elections, and in particular to restrain the practice of political gerrymandering, has not lain dormant. In the Apportionment Act of 1842, Congress provided that Representatives must be elected from single-member districts “composed of contiguous territory.” Congress again imposed these requirements in the Apportionment Act of 1862, and in 1872 further required that districts “contai[n] as nearly as practicable an equal number of inhabitants.” In the Apportionment Act of 1901, Congress imposed a compactness requirement. The requirements of contiguity, compactness, and equality of population were repeated in the 1911 apportionment legislation, but were not thereafter continued. Today, only the single-member-district-requirement remains. Recent history, however, attests to Congress’s awareness of the sort of districting practices appellants protest, and of its power under Article I, §4 to control them. Since 1980, no fewer than five bills have been introduced to regulate gerrymandering in congressional districting. 

    Eighteen years ago, we held that the Equal Protection Clause grants judges the power–and duty–to control political gerrymandering, see Davis v. Bandemer (1986). It is to consideration of this precedent that we now turn.


    As Chief Justice Marshall proclaimed two centuries ago, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison (1803). Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfulness–because the question is entrusted to one of the political branches or involves no judicially enforceable rights. Such questions are said to be “nonjusticiable,” or “political questions.”

    In Baker v. Carr, 369 U.S. 186 (1962), we set forth six independent tests for the existence of a political question:

“[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” 

These tests are probably listed in descending order of both importance and certainty. The second is at issue here, and there is no doubt of its validity. “The judicial Power” created by Article III, §1, of the Constitution is not whatever judges choose to do. It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.

    Over the dissent of three Justices, the Court held in Davis v. Bandemer that, since it was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided,” such cases were justiciable. The clumsy shifting of the burden of proof for the premise (the Court was “not persuaded” that standards do not exist, rather than “persuaded” that they do) was necessitated by the uncomfortable fact that the six-Justice majority could not discern what the judicially discernable standards might be. There was no majority on that point. Four of the Justices finding justiciability believed that the standard was one thing; two believed it was something else. The lower courts have lived with that assurance of a standard (or more precisely, lack of assurance that there is no standard), coupled with that inability to specify a standard, for the past 18 years. In that time, they have considered numerous political gerrymandering claims; this Court has never revisited the unanswered question of what standard governs.

    Nor can it be said that the lower courts have, over 18 years, succeeded in shaping the standard that this Court was initially unable to enunciate. They have simply applied the standard set forth in Bandemer’s four-Justice plurality opinion. This might be thought to prove that the four-Justice plurality standard has met the test of time–but for the fact that its application has almost invariably produced the same result (except for the incurring of attorney’s fees) as would have obtained if the question were nonjusticiable: judicial intervention has been refused. As one commentary has put it, “[t]hroughout its subsequent history, Bandemer has served almost exclusively as an invitation to litigation without much prospect of redress.” To think that this lower-court jurisprudence has brought forth “judicially discernible and manageable standards” would be fantasy.

    Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by Bandemer exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.


    We begin our review of possible standards with that proposed by Justice White’s plurality opinion in Bandemer because, as the narrowest ground for our decision in that case, it has been the standard employed by the lower courts. The plurality concluded that a political gerrymandering claim could succeed only where plaintiffs showed “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” As to the intent element, the plurality acknowledged that “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.”  However, the effects prong was significantly harder to satisfy. Relief could not be based merely upon the fact that a group of persons banded together for political purposes had failed to achieve representation commensurate with its numbers, or that the apportionment scheme made its winning of elections more difficult. Rather, it would have to be shown that, taking into account a variety of historic factors and projected election results, the group had been “denied its chance to effectively influence the political process” as a whole, which could be achieved even without electing a candidate. It would not be enough to establish, for example, that Democrats had been “placed in a district with a supermajority of other Democratic voters” or that the district “departs from pre-existing political boundaries.” Rather, in a challenge to an individual district the inquiry would focus “on the opportunity of members of the group to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly influence the election returns and to secure the attention of the winning candidate.” A statewide challenge, by contrast, would involve an analysis of “the voters’ direct or indirect influence on the elections of the state legislature as a whole.” With what has proved to be a gross understatement, the plurality acknowledged this was “of necessity a difficult inquiry.” 

    In her Bandemer concurrence, Justice O’Connor predicted that the plurality’s standard “will over time either prove unmanageable and arbitrary or else evolve towards some loose form of proportionality.” A similar prediction of unmanageability was expressed in Justice Powell’s opinion, making it the prognostication of a majority of the Court.  That prognostication has been amply fulfilled.

    In the lower courts, the legacy of the plurality’s test is one long record of puzzlement and consternation.....  Because this standard was misguided when proposed, has not been improved in subsequent application, and is not even defended before us today by the appellants, we decline to affirm it as a constitutional requirement.


    Appellants take a run at enunciating their own workable standard based on Article I, §2, and the Equal Protection Clause. We consider it at length not only because it reflects the litigant’s view as to the best that can be derived from 18 years of experience, but also because it shares many features with other proposed standards, so that what is said of it may be said of them as well. Appellants’ proposed standard retains the two-pronged framework of the Bandemer plurality–intent plus effect–but modifies the type of showing sufficient to satisfy each.

    To satisfy appellants’ intent standard, a plaintiff must “show that the mapmakers acted with a predominant intent to achieve partisan advantage,” which can be shown “by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage.” As compared with the Bandemer plurality’s test of mere intent to disadvantage the plaintiff’s group, this proposal seemingly makes the standard more difficult to meet–but only at the expense of making the standard more indeterminate.

    “Predominant intent” to disadvantage the plaintiff political group refers to the relative importance of that goal as compared with all the other goals that the map seeks to pursue–contiguity of districts, compactness of districts, observance of the lines of political subdivision, protection of incumbents of all parties, cohesion of natural racial and ethnic neighborhoods, compliance with requirements of the Voting Rights Act of 1965 regarding racial distribution, etc. Appellants contend that their intent test must be discernible and manageable because it has been borrowed from our racial gerrymandering cases. See Shaw v. Reno, 509 U.S. 630 (1993). To begin with, in a very important respect that is not so. In the racial gerrymandering context, the predominant intent test has been applied to the challenged district in which the plaintiffs voted.  Here, however, appellants do not assert that an apportionment fails their intent test if any single district does so. Since “it would be quixotic to attempt to bar state legislatures from considering politics as they redraw district lines,” appellants propose a test that is satisfied only when “partisan advantage was the predominant motivation behind the entire statewide plan.” Vague as the “predominant motivation” test might be when used to evaluate single districts, it all but evaporates when applied statewide. Does it mean, for instance, that partisan intent must outweigh all other goals–contiguity, compactness, preservation of neighborhoods, etc.–statewide? And how is the statewide “outweighing” to be determined?

    Even within the narrower compass of challenges to a single district, applying a “predominant intent” test to racial gerrymandering is easier and less disruptive. The Constitution clearly contemplates districting by political entities, and unsurprisingly that turns out to be root-and-branch a matter of politics.  By contrast, the purpose of segregating voters on the basis of race is not a lawful one, and is much more rarely encountered. Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it. Moreover, the fact that partisan districting is a lawful and common practice means that there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation; not so for claims of racial gerrymandering. Finally, courts might be justified in accepting a modest degree of unmanageability to enforce a constitutional command which is clear; whereas they are not justified in inferring a judicially enforceable constitutional obligation (the obligation not to apply too much partisanship in districting) which is both dubious and severely unmanageable. For these reasons, to the extent that our racial gerrymandering cases represent a model of discernible and manageable standards, they provide no comfort here....

    The effects prong of appellants’ proposal replaces the Bandemer plurality’s vague test of “denied its chance to effectively influence the political process,”  with criteria that are seemingly more specific. The requisite effect is established when “(1) the plaintiffs show that the districts systematically ‘pack’ and ‘crack’ the rival party’s voters, and (2) the court’s examination of the ‘totality of circumstances’ confirms that the map can thwart the plaintiffs’ ability to translate a majority of votes into a majority of seats.”  But a person’s politics is rarely as readily discernible–and never as permanently discernible–as a person’s race. Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold. These facts make it impossible to assess the effects of partisan gerrymandering, to fashion a standard for evaluating a violation, and finally to craft a remedy. 

    Assuming, however, that the effects of partisan gerrymandering can be determined, appellants’ test would invalidate the districting only when it prevents a majority of the electorate from electing a majority of representatives. Before considering whether this particular standard is judicially manageable we question whether it is judicially discernible in the sense of being relevant to some constitutional violation. Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.

    Even if the standard were relevant, however, it is not judicially manageable. To begin with, how is a party’s majority status to be established?...

    But if we could identify a majority party, we would find it impossible to assure that that party wins a majority of seats–unless we radically revise the States’ traditional structure for elections. In any winner-take-all district system, there can be no guarantee, no matter how the district lines are drawn, that a majority of party votes statewide will produce a majority of seats for that party. The point is proved by the 2000 congressional elections in Pennsylvania, which, according to appellants’ own pleadings, were conducted under a judicially drawn district map “free from partisan gerrymandering.”  On this “neutral playing fiel[d],” the Democrats’ statewide majority of the major-party vote (50.6%) translated into a minority of seats (10, versus 11 for the Republicans). Whether by reason of partisan districting or not, party constituents may always wind up “packed” in some districts and “cracked” throughout others.  Consider, for example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a “natural” packing effect....

  For these reasons, we find appellants’ proposed standards neither discernible nor manageable....


    We turn next to consideration of the standards proposed by today’s dissenters. We preface it with the observation that the mere fact that these four dissenters come up with three different standards–all of them different from the two proposed in Bandemer and the one proposed here by appellants–goes a long way to establishing that there is no constitutionally discernible standard.


    Justice Stevens concurs in the judgment that we should not address plaintiffs’ statewide political gerrymandering challenges. Though he reaches that result via standing analysis, while we reach it through political-question analysis, our conclusions are the same: these statewide claims are nonjusticiable.

    Justice Stevens would, however, require courts to consider political gerrymandering challenges at the individual-district level. Much of his dissent is addressed to the incompatibility of severe partisan gerrymanders with democratic principles. We do not disagree with that judgment, any more than we disagree with the judgment that it would be unconstitutional for the Senate to employ, in impeachment proceedings, procedures that are incompatible with its obligation to “try” impeachments.  The issue we have discussed is not whether severe partisan gerrymanders violate the Constitution, but whether it is for the courts to say when a violation has occurred, and to design a remedy. On that point, Justice Stevens’s dissent is less helpful, saying, essentially, that if we can do it in the racial gerrymandering context we can do it here....

    Justice Stevens’s confidence that what courts have done with racial gerrymandering can be done with political gerrymandering rests in part upon his belief that “the same standards should apply.” But in fact the standards are quite different. A purpose to discriminate on the basis of race receives the strictest scrutiny under the Equal Protection Clause, while a similar purpose to discriminate on the basis of politics does not. “[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting would seem to compel the opposite conclusion.” 

    Justice Stevens relies on First Amendment cases to suggest that politically discriminatory gerrymanders are subject to strict scrutiny under the Equal Protection Clause.  It is elementary that scrutiny levels are claim specific. An action that triggers a heightened level of scrutiny for one claim may receive a very different level of scrutiny for a different claim because the underlying rights, and consequently constitutional harms, are not comparable. To say that suppression of political speech  triggers strict scrutiny is not to say that failure to give political groups equal representation (a claimed equal protection violation) triggers strict scrutiny. Only an equal protection claim is before us in the present case–perhaps for the very good reason that a First Amendment claim, if it were sustained, would render unlawful all consideration of political affiliation in districting, just as it renders unlawful all consideration of political affiliation in hiring for non-policy-level government jobs. What cases such as Elrod v. Burns, 427 U.S. 347 (1976), require is not merely that Republicans be given a decent share of the jobs in a Democratic administration, but that political affiliation be disregarded.

    Having failed to make the case for strict scrutiny of political gerrymandering, Justice Stevens falls back on the argument that scrutiny levels simply do not matter for purposes of justiciability. He asserts that a standard imposing a strong presumption of invalidity (strict scrutiny) is no more discernible and manageable than a standard requiring an evenhanded balancing of all considerations with no thumb on the scales (ordinary scrutiny). To state this is to refute it. As is well known, strict scrutiny readily, and almost always, results in invalidation. Moreover, the mere fact that there exist standards which this Court could apply–the proposition which much of Justice Stevens’s opinion is devoted to establishing–does not mean that those standard are discernible in the Constitution. This Court may not willy-nilly apply standards–even manageable standards–having no relation to constitutional harms.... 


    Justice Souter, like Justice Stevens, would restrict these plaintiffs, on the allegations before us, to district-specific political gerrymandering claims. Unlike Justice Stevens, however, Justice Souter recognizes that there is no existing workable standard for adjudicating such claims. He proposes a “fresh start” : a newly constructed standard loosely based in form on our Title VII cases, and complete with a five-step prima facie test sewn together from parts of, among other things, our Voting Rights Act jurisprudence, law review articles, and apportionment cases. Even if these self-styled “clues” to unconstitutionality could be manageably applied, which we doubt, there is no reason to think they would detect the constitutional crime which Justice Souter is investigating–an “extremity of unfairness” in partisan competition. 

    Under Justice Souter’s proposed standard, in order to challenge a particular district, a plaintiff must show (1) that he is a member of a “cohesive political group”; (2) “that the district of his residence . . . paid little or no heed” to traditional districting principles; (3) that there were “specific correlations between the district’s deviations from traditional districting principles and the distribution of the population of his group”; (4) that a hypothetical district exists which includes the plaintiff’s residence, remedies the packing or cracking of the plaintiff’s group, and deviates less from traditional districting principles; and (5) that “the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group.” When those showings have been made, the burden would shift to the defendants to justify the district “by reference to objectives other than naked partisan advantage.” 

    While this five-part test seems eminently scientific, upon analysis one finds that each of the last four steps requires a quantifying judgment that is unguided and ill suited to the development of judicial standards: How much disregard of traditional districting principles? How many correlations between deviations and distribution? How much remedying of packing or cracking by the hypothetical district? How many legislators must have had the intent to pack and crack–and how efficacious must that intent have been (must it have been, for example, a sine qua non cause of the districting, or a predominant cause)? At step two, for example, Justice Souter would require lower courts to assess whether mapmakers paid “little or no heed to . . . traditional districting principles.” What is a lower court to do when, as will often be the case, the district adheres to some traditional criteria but not others? Justice Souter’s only response to this question is to evade it: “It is not necessary now to say exactly how a district court would balance a good showing on one of these indices against a poor showing on another, for that sort of detail is best worked out case by case.”  But the devil lurks precisely in such detail. The central problem is determining when political gerrymandering has gone too far. It does not solve that problem to break down the original unanswerable question (How much political motivation and effect is too much?) into four more discrete but equally unanswerable questions.

Justice Souter’s proposal is doomed to failure for a more basic reason: No test–yea, not even a five-part test–can possibly be successful unless one knows what he is testing for. He vaguely describes the harm he is concerned with as vote dilution, a term which usually implies some actual effect on the weight of a vote. But no element of his test looks to the effect of the gerrymander on the electoral success, the electoral opportunity, or even the political influence, of the plaintiff group. We do not know the precise constitutional deprivation his test is designed to identify and prevent.

Even if (though it is implausible) Justice Souter believes that the constitutional deprivation consists of merely “vote dilution,” his test would not even identify that effect....   


    We agree with much of Justice Breyer’s dissenting opinion, which convincingly demonstrates that “political considerations will likely play an important, and proper, role in the drawing of district boundaries.” This places Justice Breyer, like the other dissenters, in the difficult position of drawing the line between good politics and bad politics. Unlike them, he would tackle this problem at the statewide level.

    The criterion Justice Breyer proposes is nothing more precise than “the unjustified use of political factors to entrench a minority in power.”  While he invokes in passing the Equal Protection Clause, it should be clear to any reader that what constitutes unjustified entrenchment depends on his own theory of “effective government.” While one must agree with Justice Breyer’s incredibly abstract starting point that our Constitution sought to create a “basically democratic” form of government,  that is a long and impassable distance away from the conclusion that the judiciary may assess whether a group (somehow defined) has achieved a level of political power (somehow defined) commensurate with that to which they would be entitled absent unjustified political machinations (whatever that means).

    Justice Breyer provides no real guidance for the journey....


    Justice Kennedy recognizes that we have “demonstrat[ed] the shortcomings of the other standards that have been considered to date.” He acknowledges, moreover, that we “lack . . . comprehensive and neutral principles for drawing electoral boundaries,”  and that there is an “absence of rules to limit and confine judicial intervention.” From these premises, one might think that Justice Kennedy would reach the conclusion that political gerrymandering claims are nonjusticiable. Instead, however, he concludes that courts should continue to adjudicate such claims because a standard may one day be discovered....

    Justice Kennedy asserts that to declare nonjusticiability would be incautious. Our rush to such a holding after a mere 18 years of fruitless litigation “contrasts starkly” he says, “with the more patient approach” that this Court has taken in the past. We think not. When it has come to determining what areas fall beyond our Article III authority to adjudicate, this Court’s practice, from the earliest days of the Republic to the present, has been more reminiscent of Hannibal than of Hamlet. On July 18, 1793, Secretary of State Thomas Jefferson wrote the Justices at the direction of President Washington, asking whether they might answer “questions [that] depend for their solution on the construction of our treaties, on the laws of nature and nations, and on the laws of the land,” but that arise “under circumstances which do not give a cognisance of them to the tribunals of the country.” The letter specifically invited the Justices to give less than a categorical yes-or-no answer, offering to present the particular questions “from which [the Justices] will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce on.” On August 8, 1793, the Justices responded in a categorical and decidedly “impatient” manner, saying that the giving of advisory opinions–not just advisory opinions on particular questions but all advisory opinions, presumably even those concerning legislation affecting the Judiciary–was beyond their power. “[T]he lines of separation drawn by the Constitution between the three departments of the government” prevented it.  The Court rejected the more “cautious” course of not “deny[ing] all hopes of intervention,” but leaving the door open to the possibility that at least some advisory opinions (on a theory we could not yet imagine) would not violate the separation of powers. In Gilligan v. Morgan, 413 U.S. 1, 7 (1973), a case filed after the Ohio National Guard’s shooting of students at Kent State University, the plaintiffs sought “initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard.” The Court held the suit nonjusticiable; the matter was committed to the political branches because “it is difficult to conceive of an area of governmental activity in which the courts have less competence.”  The Court did not adopt the more “cautious” course of letting the lower courts try their hand at regulating the military before we declared it impossible. Most recently, in Nixon v. United States, the Court, joined by Justice Kennedy, held that a claim that the Senate had employed certain impermissible procedures in trying an impeachment was a nonjusticiable political question. Our decision was not limited to the particular procedures under challenge, and did not reserve the possibility that sometime, somewhere, technology or the wisdom derived from experience might make a court challenge to Senate impeachment all right.

    The only cases Justice Kennedy cites in defense of his never-say-never approach are Baker v. Carr and BandemerBandemer provides no cover. There, all of the Justices who concluded that political gerrymandering claims are justiciable proceeded to describe what they regarded as the discernible and manageable standard that rendered it so. The lower courts were set wandering in the wilderness for 18 years not because the Bandemer majority thought it a good idea, but because five Justices could not agree upon a single standard, and because the standard the plurality proposed turned out not to work.

    As for Baker v. Carr: It is true enough that, having had no experience whatever in apportionment matters of any sort, the Court there refrained from spelling out the equal-protection standard. (It did so a mere two years later in Reynolds v. Sims.) But the judgment under review in Baker, unlike the one under review here, did not demand the determination of a standard. The lower court in Baker had held the apportionment claim of the plaintiffs nonjusticiable, and so it was logically possible to dispose of the appeal by simply disagreeing with the nonjusticiability determination. As we observed earlier, that is not possible here, where the lower court has held the claim justiciable but unsupported by the facts. We must either enunciate the standard that causes us to agree or disagree with that merits judgment, or else affirm that the claim is beyond our competence to adjudicate....   

   But the conclusive refutation of Justice Kennedy’s position is the point we first made: it is not an available disposition. We can affirm because political districting presents a nonjusticiable question; or we can affirm because we believe the correct standard which identifies unconstitutional political districting has not been met; we cannot affirm because we do not know what the correct standard is. Reduced to its essence, Justice Kennedy’s opinion boils down to this: “As presently advised, I know of no discernible and manageable standard that can render this claim justiciable. I am unhappy about that, and hope that I will be able to change my opinion in the future.” What are the lower courts to make of this pronouncement? We suggest that they must treat it as a reluctant fifth vote against justiciability at district and statewide levels–a vote that may change in some future case but that holds, for the time being, that this matter is nonjusticiable.


    We conclude that neither Article I, §2, nor the Equal Protection Clause, nor (what appellants only fleetingly invoke) Article I, §4, provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.

    Considerations of stare decisis do not compel us to allow Bandemer to stand. That case involved an interpretation of the Constitution, and the claims of stare decisis are at their weakest in that field, where our mistakes cannot be corrected by Congress. They are doubly weak in Bandemer because the majority’s inability to enunciate the judicially discernible and manageable standard that it thought existed (or did not think did not exist) presaged the need for reconsideration in light of subsequent experience. And they are triply weak because it is hard to imagine how any action taken in reliance upon Bandemer could conceivably be frustrated–except the bringing of lawsuits, which is not the sort of primary conduct that is relevant.

While we do not lightly overturn one of our own holdings, “when governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.’ ” Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims.

    The judgment of the District Court is affirmed.

    Justice Kennedy, concurring in the judgment.

    A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process. The Court is correct to refrain from directing this substantial intrusion into the Nation’s political life. While agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.

    When presented with a claim of injury from partisan gerrymandering, courts confront two obstacles. First is the lack of comprehensive and neutral principles for drawing electoral boundaries. No substantive definition of fairness in districting seems to command general assent. Second is the absence of rules to limit and confine judicial intervention. With uncertain limits, intervening courts–even when proceeding with best intentions–would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.

    That courts can grant relief in districting cases where race is involved does not answer our need for fairness principles here. Those controversies implicate a different inquiry. They involve sorting permissible classifications in the redistricting context from impermissible ones. Race is an impermissible classification. Politics is quite a different matter.

    A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.

    The object of districting is to establish “fair and effective representation for all citizens.” At first it might seem that courts could determine, by the exercise of their own judgment, whether political classifications are related to this object or instead burden representational rights. The lack, however, of any agreed upon model of fair and effective representation makes this analysis difficult to pursue.

    The second obstacle–the absence of rules to confine judicial intervention–is related to the first. Because there are yet no agreed upon substantive principles of fairness in districting, we have no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights. Suitable standards for measuring this burden, however, are critical to our intervention. Absent sure guidance, the results from one gerrymandering case to the next would likely be disparate and inconsistent.

    In this case, we have not overcome these obstacles to determining that the challenged districting violated appellants’ rights. The fairness principle appellants propose is that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth’s congressional delegation. There is no authority for this precept. Even if the novelty of the proposed principle were accompanied by a convincing rationale for its adoption, there is no obvious way to draw a satisfactory standard from it for measuring an alleged burden on representational rights. The plurality demonstrates the shortcomings of the other standards that have been considered to date....

    Second, even those criteria that might seem promising at the outset (e.g., contiguity and compactness) are not altogether sound as independent judicial standards for measuring a burden on representational rights. They cannot promise political neutrality when used as the basis for relief. Instead, it seems, a decision under these standards would unavoidably have significant political effect, whether intended or not....

   There are, then, weighty arguments for holding cases like these to be nonjusticiable; and those arguments may prevail in the long run. In my view, however, the arguments are not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander. It is not in our tradition to foreclose the judicial process from the attempt to define standards and remedies where it is alleged that a constitutional right is burdened or denied. Nor is it alien to the Judiciary to draw or approve election district lines. Courts, after all, already do so in many instances. A determination by the Court to deny all hopes of intervention could erode confidence in the courts as much as would a premature decision to intervene.

    Our willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims makes it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering. The plurality’s conclusion that absent an “easily administrable standard,” the appellants’ claim must be nonjusticiable contrasts starkly with the more patient approach of Baker v. Carr, 369 U.S. 186 (1962), not to mention the controlling precedent on the question of justiciability of Davis v. Bandemer,the case the plurality would overrule.

    In Baker the Court made clear that the more abstract standards that guide analysis of all Fourteenth Amendment claims sufficed to assure justiciability of a one-person, one-vote claim....In light of Baker and Davis v. Bandemer, which directly address the question of nonjusticiability in the specific context of districting and of asserted violations of the Fourteenth Amendment, the plurality’s further survey of cases involving different approaches to the justiciability of different claims cannot be thought controlling.

    Even putting Baker to the side–and so assuming that the existence of a workable standard for measuring a gerrymander’s burden on representational rights distinguishes one-person, one-vote claims from partisan gerrymandering claims for justiciability purposes–I would still reject the plurality’s conclusions as to nonjusticiability. Relying on the distinction between a claim having or not having a workable standard of that sort involves a difficult proof: proof of a categorical negative. That is, the different treatment of claims otherwise so alike hinges entirely on proof that no standard could exist. This is a difficult proposition to establish, for proving a negative is a challenge in any context.

    That no such standard has emerged in this case should not be taken to prove that none will emerge in the future. Where important rights are involved, the impossibility of full analytical satisfaction is reason to err on the side of caution. Allegations of unconstitutional bias in apportionment are most serious claims, for we have long believed that “the right to vote” is one of “those political processes ordinarily to be relied upon to protect minorities.”  If a State passed an enactment that declared “All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, though still in accord with one-person, one-vote principles,” we would surely conclude the Constitution had been violated. If that is so, we should admit the possibility remains that a legislature might attempt to reach the same result without that express directive. This possibility suggests that in another case a standard might emerge that suitably demonstrates how an apportionment’s de facto incorporation of partisan classifications burdens rights of fair and effective representation (and so establishes the classification is unrelated to the aims of apportionment and thus is used in an impermissible fashion).

    The plurality says that 18 years, in effect, prove the negative. As Justice Souter is correct to point out, however, during these past 18 years the lower courts could do no more than follow Davis v. Bandemer, which formulated a single, apparently insuperable standard. Moreover, by the timeline of the law 18 years is rather a short period. In addition, the rapid evolution of technologies in the apportionment field suggests yet unexplored possibilities. Computer assisted districting has become so routine and sophisticated that legislatures, experts, and courts can use databases to map electoral districts in a matter of hours, not months.  Technology is both a threat and a promise. On the one hand, if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow. On the other hand, these new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties. That would facilitate court efforts to identify and remedy the burdens, with judicial intervention limited by the derived standards.

    If suitable standards with which to measure the burden a gerrymander imposes on representational rights did emerge, hindsight would show that the Court prematurely abandoned the field. That is a risk the Court should not take. Instead, we should adjudicate only what is in the papers before us.

    Because, in the case before us, we have no standard by which to measure the burden appellants claim has been imposed on their representational rights, appellants cannot establish that the alleged political classifications burden those same rights. Failing to show that the alleged classifications are unrelated to the aims of apportionment, appellants’ evidence at best demonstrates only that the legislature adopted political classifications. That describes no constitutional flaw, at least under the governing Fourteenth Amendment standard. As a consequence, appellants’ complaint alleges no impermissible use of political classifications and so states no valid claim on which relief may be granted. It must be dismissed as a result.

    The plurality thinks I resolve this case with reference to no standard, but that is wrong. The Fourteenth Amendment standard governs; and there is no doubt of that. My analysis only notes that if a subsidiary standard could show how an otherwise permissible classification, as applied, burdens representational rights, we could conclude that appellants’ evidence states a provable claim under the Fourteenth Amendment standard.

    Though in the briefs and at argument the appellants relied on the Equal Protection Clause as the source of their substantive right and as the basis for relief, I note that the complaint in this case also alleged a violation of First Amendment rights. The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. Under general First Amendment principles those burdens in other contexts are unconstitutional absent a compelling government interest. “Representative democracy in any populous unit of government is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” As these precedents show, First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.

    The plurality suggests there is no place for the First Amendment in this area. The implication is that under the First Amendment any and all consideration of political interests in an apportionment would be invalid. That misrepresents the First Amendment analysis. The inquiry is not whether political classifications were used. The inquiry instead is whether political classifications were used to burden a group’s representational rights. If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. Of course, all this depends first on courts’ having available a manageable standard by which to measure the effect of the apportionment and so to conclude that the State did impose a burden or restriction on the rights of a party’s voters.

    Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause. The equal protection analysis puts its emphasis on the permissibility of an enactment’s classifications. This works where race is involved since classifying by race is almost never permissible. It presents a more complicated question when the inquiry is whether a generally permissible classification has been used for an impermissible purpose. That question can only be answered in the affirmative by the subsidiary showing that the classification as applied imposes unlawful burdens. The First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association. The analysis allows a pragmatic or functional assessment that accords some latitude to the States.

    Finally, I do not understand the plurality to conclude that partisan gerrymandering that disfavors one party is permissible. Indeed, the Court seems to acknowledge it is not. This is all the more reason to admit the possibility of later suits, while holding just that the parties have failed to prove, under our “well developed and familiar” standard, that these legislative classifications “reflec[t] no policy, but simply arbitrary and capricious action.” That said, courts must be cautious about adopting a standard that turns on whether the partisan interests in the redistricting process were excessive. Excessiveness is not easily determined. Consider these apportionment schemes: In one State, Party X controls the apportionment process and draws the lines so it captures every congressional seat. In three other States, Party Y controls the apportionment process. It is not so blatant or egregious, but proceeds by a more subtle effort, capturing less than all the seats in each State. Still, the total effect of Party Y’s effort is to capture more new seats than Party X captured. Party X’s gerrymander was more egregious. Party Y’s gerrymander was more subtle. In my view, however, each is culpable.

    The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself. Here, one has the sense that legislative restraint was abandoned. That should not be thought to serve the interests of our political order. Nor should it be thought to serve our interest in demonstrating to the world how democracy works. Whether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment, “ ‘We are in the business of rigging elections.’ 

    Still, the Court’s own responsibilities require that we refrain from intervention in this instance. The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper. If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief. With these observations, I join the judgment of the plurality.

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