William & Mary Law Review


Edward B. Foley


It has been notoriously difficult for the United States Supreme Court to develop a judicially manageable—and publicly comprehensible—standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one person, one vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one person, one vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning in sharp contrast to the universalism of the “one person, one vote” principle. Particularism can provide a judicially manageable standard for partisan gerrymandering claims by making the original gerrymander—the one that provided the name for this category of pernicious partisanship—a fixed historical benchmark to judge the distortion of legislative districts.

This particularistic reasoning should be persuasive to Justice Anthony Kennedy, especially if rooted in the First Amendment (home to other well-known examples of particularistic analysis), and if also combined with a cogent explanation why the First Amendment right must remain “judicially underenforced” relative to its potential scope on universalistic grounds, because of the barrier imposed by the political question doctrine’s need for a judicially manageable standard. Particularism, in other words, defines not necessarily the full First Amendment right from a theoretical perspective, but only the judicially enforceable portion of it. Even more important than persuading Justice Kennedy, however, is convincing a Supreme Court controlled by conservative Justices—after Justice Kennedy has been replaced by another Justice like Justices Clarence Thomas, Samuel Alito, or Neil Gorsuch—not to overrule an opinion in which Justice Kennedy has identified a judicially manageable standard for invalidating partisan gerrymanders as unconstitutional. On this crucial point, particularism has distinct advantages over universalism, including facilitating the possibility that the Justice Kennedyauthored precedent quickly becomes imbedded in the nation’s political culture, and because the public easily understands (and embraces) a precedent that renders unconstitutional a district as disfigured as the original gerrymander. A precedent that becomes an integral element of America’s public self-understanding in this way is one that conservatives on the Court would have difficulty overruling and, indeed, little interest in repudiating insofar as it is historically grounded and limited by the kind of particularistic reasoning that conservatives consider acceptable.