Document Type

Article

Publication Date

4-2020

Abstract

As illustrated by its 2019 decision in Rucho v. Common Cause, the Supreme Court has gerrymandered its justiciability doctrines in a way that protects the political power of white voters. Comparing the Court’s willingness to find racial gerrymanders justiciable with its refusal to find partisan gerrymanders justiciable reveals a lack of doctrinal constraint. That gives the Court the discretionary power to uphold or strike down particular gerrymanders by deeming them racial or partisan in nature. Such discretion is problematic because, when the Supreme Court has exercised discretion in a racial context, it has historically done so to protect the interests of the white majority. And that appears to be what the Court is now doing again in allowing white Republicans to dilute the political power of minority Democrats.

Part I of this Article describes the Supreme Court’s current justiciability rules for gerrymandering claims. Section I.A explains how the Court finds partisan gerrymandering claims to be nonjusticiable political questions. Section I.B explains how the Court finds racial gerrymandering claims to be justiciable. Part II inverts the Court’s justiciability rules, showing how they can be applied in a way that produces the opposite of the results that the Court found them to produce. Section II.A explains how partisan gerrymandering claims can be found justiciable. Section II.B explains how racial gerrymandering claims can be found nonjusticiable. Part III argues that the Court’s gerrymandered justiciability decisions create a sphere of unconstrained judicial discretion that the Court will end up exercising in a way that protects white electoral advantage from the threat of equalization through either partisan or racial gerrymandering. Section III.A argues that the Court’s decisions have the effect of diluting minority votes and reducing minority voting strength. Section III.B argues that such protection of white interests is consistent with the role that the Supreme Court has played throughout the history of race relations in the United States. The Article concludes that neither political nor judicial efforts are likely to secure electoral equality for either political or racial minorities, because the Supreme Court will not compel the mathematical proportionality that offers the only realistic hope of ever achieving the equality needed for genuine democratic self-governance.

Publication Citation

Georgetown Law Journal, Vol. 108, Issue 4, 981.

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