Vieth v Jubelirer and Partisan Redistricting

In Vieth v Jubelirer, 541 U.S. 267 (2004), a plurality of the U.S. Supreme Court held that partisan gerrymandering claims are non-justiciable and sought to overrule the Court’s prior decision in Davis v. Bandemer. In his concurrence, Justice Anthony Kennedy disagreed that the Court could never devise a test for analyzing such claims.

Facts of the Case

After Pennsylvania’s General Assembly adopted a congressional redistricting plan, four Democratic voters sued to enjoin the plan’s implementation. The suit alleged that the plan constituted a political gerrymander in violation of Article I and theFourteenth Amendment’s Equal Protection Clause. The three-judge District Court dismissed the gerrymandering claim, and the plaintiffs appealed.

Plurality Decision

The Supreme Court affirmed, concluding that the lack of a judicial solution prevented the Court from intervening. Justice Antonin Scalia authored the plurality opinion, which was joined by Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas.

The members of the plurality went on to conclude that all political gerrymandering claims should be deemed nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist. “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,” Justice Scalia wrote.

The justices further concluded that the Court should overruleDavisv.Bandemer. In support, Justice Scalia noted that in the 18 years since the Court decided Davis v. Bandemer, the courts had failed to establish a workable standard. Rather, they simply applied the standard set forth inBandemer’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,” Justice Scalia wrote.

The justices also concluded that the considerations ofstare decisisdid not compel them to allowBandemerto stand. Justice Scalia wrote:

[T]he claims ofstare decisisare at their weakest in that field, where our mistakes cannot be corrected by Congress. They are doubly weak inBandemerbecause 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 uponBandemercould conceivably be frustrated–except the bringing of lawsuits, which is not the sort of primary conduct that is relevant. (Internal citations omitted.)

Concurrence

Justice Anthony Kennedy concurred in the judgment, but did not agree that the Court could never come up with a workable standard for deciding partisan gerrymandering claims. “That a workable standard for measuring a gerrymander’s burden on representational rights has not yet emerged does not mean that none will emerge in the future,” Justice Kennedy argued.

Justice Kennedy further argued that the First Amendment may prove to offer a sounder and more prudential basis for judicial intervention in political gerrymandering cases. “First Amendment analysis does not dwell on whether a generally permissible classification has been used for an impermissible purpose, but concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association,” he wrote. “That analysis allows a pragmatic or functional assessment that accords some latitude to the States.”