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Sunday, July 02, 2006 

Split the Difference

It's been a busy, busy weekend. The cure for that is a George Will column about the Supreme Court. In his examination of the Court, Will takes a look at the Texas redistricting cases as an example of what's going on at One First Street. Here's Will's take on the outcome...
The Kennedy position allows people to continue trying to concoct a constitutional violation (of the guarantee of equal protection of the laws), even though the court provides no guidance to lower-court judges. Scalia and Thomas believe redistricting is a "political thicket" (Justice Felix Frankfurter's phrase) courts should not enter.
Why is this kind of outcome a problem? Well, here's why...
By leaving open the possibility that there is a constitutional answer to the question of what constitutes a "too political" gerrymander -- the position seems to be: We don't know what the standard is, but we don't know that it doesn't exist -- the court has again practiced "split-the-difference jurisprudence."
That soon-to-be-trademarked phrase came from the brain of Judge J. Harvie Wilkinson of the 4th Circuit Court of Appeals.


Will then pimps Wilkinson's work like crazy. I think he's a fan. The Judge's point is that the late Rehnquist Court constitutionalized issues that should be left to the political realm, not the judicial realm.

For example, take the same issue (redistricting) as thrashed by the Rehnquist Court in 2004...
Four justices said all claims of unconstitutionally partisan gerrymandering are nonjusticiable because there are no truly judicial criteria for adjudicating them. Four other justices suggested various legal theories for adjudicating. Kennedy split the difference: He voted to reject the claim of unconstitutional gerrymandering, but refused to "foreclose all possibility of judicial relief" if some "limited and precise" constitutional violation were "found."

Where can it be "found"? Inevitably, not in the Constitution's text, history and structure but in judges' intuitions about "fairness." Thus does constitutional doctrine become little more than the judiciary's temperament or the temper of the times. But elections, not courts, are supposed to take the nation's temperature.
This example is maddening to me. No one can come up with a sensible judicial test for this. Why? Because it's a political question. Unfortunately, there aren't five Justices on the Court that agree with this point. There are some who think they have a test that will work (nope) and there are some who think they should just sit and wait until someone, anyone comes up with the right test. This leaves us all in a position where we don't know the law, because the Court can't make up its collective mind. Let's go to Harv for a closing...
"Americans deserve not a liberal court, not a conservative court, not even a wise or Solomonic court, but a court that respects the limits of its power and the place of others within the constitutional structure."
What we deserve and what we will get are two very different things.

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