Post Date: April 29, 2005

The following remarks are excerpted from a lecture delivered by Professor Richard Fallon at Harvard Law School in February marking his appointment to the Ralph S. Tyler Jr. Professorship of Constitutional Law. He argues that a recent U.S. Supreme Court case reveals a willingness by the Court to allow a “permissible disparity” between what the Constitution says and the way it is enforced. (From the April 2005 issue of Harvard Law Today.)

Political questions and judicially manageable standards The topic of judicially manageable standards has its home in the political question doctrine, under which the Supreme Court from time to time will say that it has to dismiss a case because there’s something about the case that makes it unsuitable for courts to deal with. One prong of the political question doctrine says that courts will dismiss—refuse to deal with on the merits—cases that don’t lend themselves to resolution under judicially manageable standards.

The most recent Supreme Court encounter with this doctrine came just a little less than a year ago in a case called Vieth v. Jubelirer. Vieth involved a partisan gerrymander by Republicans in the Pennsylvania Legislature who set up the commonwealth’s congressional districts in such a way that it was virtually impossible for Democrats to win a share of seats proportional to their share of the votes. But lest anyone think that the Republicans were bad guys and the Democrats good guys, everyone understood that the Democrats would have been just as delighted to gerrymander the districts to their advantage had they been in charge.

Some citizens brought suit, claiming that what the Republicans had done violated the equal protection clause of the Constitution by denying Democrats, or people who wanted to vote for Democrats, the equal protection of the laws.

The case eventually made its way to the Supreme Court, where it fell to Justice Scalia to write the plurality opinion. Scalia applied the branch of the political question doctrine involving the absence of judicially manageable standards. He considered a half-dozen tests that had been proposed by different people at different times to determine when a partisan gerrymander violates the constitutional command that no one shall be deprived of the equal protection of the laws. And he determined that no single one of them qualified as a judicially manageable standard, mostly because they seemed too vague.

What is most interesting about the case is this: All nine justices agreed that there would be some partisan gerrymanders that violated the equal protection clause. Everybody agreed that gerrymanders violate the equal protection clause at some point. The entire fight was about whether there was some judicially manageable standard that the courts permissibly could use to determine which gerrymanders were permissible and which were not.

“We think not” When Justice Scalia concludes that there aren’t any judicially manageable standards for determining which partisan gerrymanders are impermissible—even though he acknowledges that some gerrymanders really do violate the equal protection clause—two points of broader significance jump right out. First, it is assumed by a clear majority of the justices that there is a gap between constitutional meaning or constitutional rights on the one hand and judicially enforceable doctrine on the other: Some gerrymanders violate the Constitution—as a matter of constitutional meaning—but there is no judicial doctrine under which courts will enforce the prohibition against partisan gerrymanders.

The second thing that’s interesting is that every one of the justices agreed that, in a case in which there are otherwise no judicially manageable standards, it’s the function of judges and justices to try to devise judicially manageable standards. The justices who dissented in Vieth—the ones who concluded that there were judicially manageable standards—all labored mightily to craft the standards under which they thought the case should be decided. And nobody—certainly not Justice Scalia for the plurality—complained that this was something that they weren’t supposed to be doing.

So how does the Supreme Court devise judicially manageable standards when it devises them? Or how does it determine that there are no judicially manageable standards and that the political question doctrine therefore applies?

Justice Scalia’s opinion in Vieth provides some tantalizing hints about the answer to this second question. He makes a great deal about the difficulty of devising a test to identify partisan gerrymanders that would not be vague and possibly unpredictable in application. Then, in a fascinating passage near the end of his opinion, he says this: “Is the regular insertion of the judiciary into districting, with the delay and uncertainty that it brings to the political process and the partisan enmity that it brings upon the courts, worth the benefit to be achieved by one or another of the standards before the Court?” Think about that question: Is it worth it? Scalia answers his own question in a three-word sentence: “We think not.”

That passage speaks volumes. At the end of the day, whether the Court will allow litigation to go forward or instead apply the political question doctrine—due to the absence of judicially manageable standards—will turn largely on how the Court answers the question, Is it worth it, all things considered?

Is enforcing the Constitution always worth it? There may be a bit of an irony here. Somebody might say, well, an all-things-considered judgment about whether it’s worth it or isn’t worth it doesn’t look very much like a judicially manageable standard. But the Court isn’t terribly bothered by that. It’s making its decisions based on some analytic criteria, with some analytic bite, but in the final analysis, it’s making a highly open-ended balancing judgment that enforcing the Constitution in this context is not really worth it. And in doing so, it is producing what I’m going to call an underenforcement of the Constitution. The Constitution prohibits some political gerrymanders, but the Court isn’t going to enforce that prohibition. The Court is going to underenforce the Constitution, due to the absence of judicially manageable standards.

Once we recognize—as the justices all recognized in Vieth—that it is sometimes the role of the Court to try to devise judicially manageable standards, we can begin to see that the role of judicially manageable standards in the political question doctrine is simply the tip of the iceberg of the role of judicially manageable standards in constitutional law. If the Court, in devising constitutional tests—familiar, three- four-, five-part tests—is proceeding with a concern to establish judicially manageable standards, then we can see from the political question doctrine that the decision to adopt any particular test on grounds of its judicial manageability can be partly independent of a judgment about constitutional meaning.

When the Court adopts a judicially manageable standard, it’s not saying this is exactly what the Constitution means. It’s saying this is a manageable standard for implementing the Constitution that somehow sufficiently closely approximates the Constitution’s meaning.

And if close enough is good enough, then it becomes inessential to attend to precisely what the Constitution means. Constitutional meaning may tend to get slighted because close enough is good enough in the effort to design constitutional tests.

The permissible disparity Once you recognize that there can be a permissible disparity between constitutional meaning on the one hand and constitutional doctrine and results in cases on the other hand, it begins to be possible to see how the originalists and [Ronald] Dworkin, for example, could disagree very intensely about what the meaning of the Constitution is, but not have that disagreement about the Constitution’s meaning have practical, on-the-ground results. They may still be able to agree about judicially manageable tests that ought to be followed.

And so here is how I have come to think about originalism—the theory that constitutional meaning depends on the original understanding of various constitutional provisions. Originalism is not a theory of constitutional adjudication. It’s a theory of constitutional meaning. Originalists often say, I’ve got this theory, the great virtue of which is that it is determinate, is historically fixed, and will end judicial subjectivity. I would say, well, maybe yes, if what it took to decide constitutional cases was a theory of constitutional meaning. But if meaning is only part of what goes into the adjudication of constitutional cases, then anybody who wanted to decide constitutional cases pursuant to a theory would need more than a theory of constitutional meaning. He or she would need a theory that subsumes and unites concerns about meaning on the one hand and practical implementation on the other hand.