Reconsidering the Rule of Law: Reflections on Power, Politics, and Partisan Gerrymandering

In April 2004, the Supreme Court handed down a highly anticipated decision on partisan gerrymandering in Vieth v. Jubelirer.² As defined by the Court, partisan gerrymandering is "the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes."³ At issue in Vieth was the constitutionality of Pennsylvania's redistricting plan. Although voters in Pennsylvania are fairly evenly split between the Republican and Democratic parties, the redistricting map allocated two-thirds of the federal districts to Republican candidates. Not surprisingly, the Republican party had control of both houses of the state legislature and the office of the Governor when the redistricting plan was formulated and adopted.

In a 5-4 decision, the Supreme Court rejected the partisan gerrymandering claim, effectively leaving in place Pennsylvania's "egregiously partisan congressional districting map."⁴ Although a majority of the Court agreed on the final result, the justices did not agree on the rationale. A four-member plurality, led by Justice Scalia, held that there was a lack of "judicially discoverable and manageable standards" for deciding whether Pennsylvania's redistricting map violated the Constitution.⁵ For this reason, argued the plurality, partisan gerrymandering constituted a non-justiciable "political question" and therefore fell outside the purview of the courts. Justice Kennedy, who provided the fifth vote for the majority, agreed that a constitutionally appropriate standard was not available in this case, but disagreed with the plurality's judgment that such a standard would never be found.⁶

In this paper, I suggest that the Court's opinion in Vieth v. Jubelirer did not simply concern the narrow issue of justiciability. Instead, the plurality's decision also implicated a central and highly contested feature of liberal constitutionalism — the rule of law. Even though Justice Scalia did not specifically refer to the rule of law, he repeatedly raised rule of law concerns in his opinion. In effect, the Court seemed to suggest that judicial intervention in partisan gerrymandering would violate the rule of law.

By contrast, I argue that it was the Court's failure to entertain the partisan gerrymandering claim that violated the rule of law. In particular, I suggest that Justice Scalia's conception of the rule of law is limited in important respects. After analyzing the theory and history of the rule of law, I show that judicial adjudication of partisan gerrymandering is not only fully consistent with, but is also required by, the rule of law.

Vieth v. Jubelirer and the Rule of Law

What is the rule of law? One prominent understanding of the rule of law within American jurisprudence was articulated by Justice Scalia in an influential article. As Scalia put it, the rule of law is best understood as a "law of rules."⁷ Justice Scalia's definition, with its emphasis on concrete standards, best exemplifies what is known as the "formal approach" to the rule of law.⁸ Under the formal approach, the rule of law requires general, public, non-retroactive, clear, consistent, stable, and performable rules that apply equally to public officials and private citizens.⁹

As one might expect, Justice Scalia's plurality opinion in Vieth v. Jubelirer repeatedly emphasizes the need for principled rules in judicial decision-making. Indeed, in a revealing passage, Justice Scalia stated the following:

The "judicial Power" created by Article III, § 1 of the Constitution is not whatever judges choose to do, or even whatever Congress chooses to assign them. 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.¹⁰

According to Scalia, judicial decisions "must be governed by standard, by rule...