The Costs of “Discernible and Manageable Standards” in Vieth and Beyond

Joshua S. Stillman

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Judges have the often unenviable task of having to answer very difficult legal questions. Some apprehension toward this task is understandable, so how might a judge duck the task of writing a new doctrinal test to resolve the hard question and similar claims in the future? Aside from using familiar mechanisms of avoidance, such as the judiciability doctrines of standing, mootness, and ripeness, a judge also can craft a doctrinal test that will be all but impossible for a plaintiff to meet in practice (hereinafter a “stringent doctrinal standard”), such as the rational basis review test for the constitutionality of economic legislation.

In 2004’s Vieth v. Jubelirer,1 a four-Justice plurality avoided formulating a doctrinal standard by which to adjudicate partisan gerrymandering due to a claimed lack of judicially discernible and manageable standards. The lack of discernible and manageable standards forms one subcategory of the prudential political question doctrine (PPQD), through which the Court avoids answering constitutional questions for prudential reasons. Unlike the classical political question doctrine, the prudential political question doctrine makes no reference to the constitutional vesting of final decisionmaking authority over a particular legal question in a coordinate federal branch. The Vieth plurality opinion is unique in the modern era of the political question doctrine (PQD) because it relies on the manageability and discernibilty factors of the prudential political question doctrine (PPQD) as sufficient grounds to avoid a merits decision.

Accepting arguendo that judicial avoidance is sometimes legitimate, this Essay uses Vieth as a case study to demonstrate that how a court implements a policy of judicial avoidance has far-reaching and important consequences that ought to be considered by a court before selecting one method over another. This Essay then examines whether the PPQD is a legitimate tool of avoidance, in part by comparing it to the alternative avoidance mechanism of a stringent doctrinal standard. Ultimately, this Essay argues against the use of the PPQD by examining its negative effects for future litigants and concluding that stringent doctrinal standards impose fewer costs.  However, no complete theory of judicial avoidance is proposed here; rather, the comparison between the two means of avoidance is designed only to help analyze the merits of the PPQD.

Vieth and the PPQD’s Flaws

In Vieth in 2004, the Court revisited the issue of partisan gerrymandering for the first time in eighteen years. Yet, rather than adopting one of the many standards suggested at that time, the Vieth plurality ultimately opted to exit the field of policing gerrymandering entirely.

Justice Scalia’s plurality opinion laid out a vision of the PPQD very much in line with the perennial American discomfort with an unconstrained, unelected judiciary:

“The judicial Power” created by Article III, § 1, of the Constitution is not whatever judges choose to do . . . . It is the power to act in the manner traditional for English and American courts. . . . [J]udicial action must be governed by standard, by rule. [Congressional laws] can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.2

Justice Scalia then attempted to demonstrate that, although the Court was unanimous in finding that an excess of partisan animus in districting could violate the Fourteenth Amendment, “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged.”3 The plurality made this decision based not on a “doctrinal” rule but on a gestalt impression of the wisdom of judicial intervention in this particular area of law. However, the essential problem with the plurality’s opinion is that it presents itself as the former, rather than the latter.

This creates serious costs for future litigants. Future litigants might take the Court at its word and continually expend resources trying to hit the justiciability mark by suggesting new doctrinal tests that better balance discernibility and manageability when in fact no such mark exists. Braver litigants will instead argue that the Court’s substantive notions of discernibility and manageability are erroneous. But because litigants are responding to “doctrinalized” PPQD rationales rather than confessedly prudential judgments, these strategies result in wheel-spinning and the insulation of the Court from criticism of the prudential considerations implicit in the Vieth plurality opinion.

In Vieth, the plurality could be read as arguing that because no evidence had been put forth in the last eighteen years that any manageable standards exist, manageable standards do not exist. Because this reasoning is logically invalid, it may encourage litigants to propose new standards to try to demonstrate to the Court its fallacy. If what is really occurring is a failure of plaintiffs’ proposals to measure up to a preexisting standard of manageability and discernibility, there is no reason to stop making proposals until the standard is met.

The other available option after Vieth, which was taken by certain amici in a subsequent gerrymandering case, is to argue that the Court’s substantive notions of manageability and discernibility are mistaken. This option arises from reading the Vieth plurality opinion as saying that, given the vagueness of the constitutional guarantee in Vieth, any discernible standard will not be sufficiently manageable; hence, the constitutionality of partisan gerrymandering is definitively nonjusticiable. But litigants reading the Vieth plurality in this manner will face similar hurdles. They will argue that the plurality’s notions of manageability and discernibility cannot be squared with the many times and circumstances when the Court has adopted a standard. As one amicus brief in a subsequent partisan gerrymandering case protested, “[j]udicial standards . . . should [not] be evaluated . . . against abstract ideals of doctrinal perfection neither available nor applied in enforcing the Constitution’s other fundamental structural commitments.”4

By inviting future litigants to argue for a new understanding of manageability that has the power to explain the entirety of constitutional law, litigants are sent on a wild goose chase, similar to the search for new individual manageable standards. The PPQD thus diverts litigants to arguing the arcane questions of what manageability and discernibility are, rather than how an individual case should be decided. Lawyers and judges are unaccustomed to conducting in-court legal debate about issues at such a high level of abstraction.

The Rational Basis Review Standard

Judges have a better option when they wish to avoid issues for prudential reasons but cannot justify this decision on universally applicable “doctrinal grounds,” such as those upon which the PPQD purports to be based. Namely, judges can craft a stringent doctrinal standard, such as the rational basis review standard for the review of economic and social legislation under the Equal Protection Clause. The rational basis test looks to whether the legislation bears a “rational” relationship to a “legitimate” government interest; both of these key terms have been interpreted extremely deferentially to the government. The option of using a stringent doctrinal standard presents none of the costs of the PPQD outlined in the previous Part and also preserves the Court’s ability to act in egregious cases, an option the PPQD shuts off by stating that an issue is definitively nonjusticiable for all time. In other words, a stringent doctrinal standard does not present the same visible legitimacy costs to changing course because the Court has not said it will never rule on the issue at hand.

Though stringent doctrinal standards and a PPQD holding similarly deny claims without engaging in an in-depth substantive review of them, they produce different effects down the road. A merits holding based on a standard very favorable to the actor whose conduct is challenged presents a standard that can be prodded, tested, argued against, and questioned by new sets of facts. PPQD holdings are not susceptible to these kinds of challenges because there is no announced standard to meet at all.

Despite the fact that rational basis review is one of the hardest standards for a plaintiff to meet in all of constitutional law, the standard is not contentless. Because it is based on overtly announced principles—circumscribing the outer limits of deference to legislative judgment, namely legitimacy of aims and minimal rationality—such principles at least provide argumentative wiggle room. And given the sheer breadth of cases the doctrine covers, it should not be surprising that it has occasionally been used to strike down legislation.

For instance, Justice Kennedy’s majority opinion in Romer v. Evans5 applied the rational basis standard to strike down an amendment to the Colorado state constitution.6 He admitted that “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous,” it will generally be upheld.7 Nonetheless, Kennedy wrote against a backdrop of developed constitutional doctrine about legitimate interests such as public health and safety and economic improvement. These past data points allowed Kennedy to conclude that disadvantaging one particular group of citizens could not serve as a legitimate interest.8 As Kennedy wrote:

[Even broad laws] can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. [This law,] however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them . . . injuries that outrun and belie any legitimate justifications that may be claimed for it.9

Stringent Doctrinal Standards Are Superior to the PPQD

As in the partisan gerrymandering context, rational basis review requires some underlying vision of what a “legitimate” government interest is, and also requires unelected judges to impose this vision on the democratically elected branches. But if the Vieth PPQD plurality opinion had been written not about partisan gerrymandering in 2004 but about review of economic legislation in the late 1930s, it may have entirely precluded the possibility of later holdings like Romer. Rather than simply adding teeth to a preexisting substantive standard, a litigant would have had to either propose an entirely new acceptable standard or argue that the Court’s abstract notions of discernibility and manageability were erroneous.

These are very different types of arguments than those made in Romer. Post-Vieth arguments lack the footholds of a robust case law applying principles, such as legitimacy and rationality, from which litigants could argue by analogy, distinguish, and hold the Court accountable for its past pronouncements by requesting that it apply similar principles in the case at bar. A stringent doctrinal standard such as rational basis review thus preserves for the Court the option of applying the doctrine more aggressively when confronted with egregious cases. In addition, substantive standards—even when vaguely worded or difficult to meet in practice—can deter rights violations by being internalized by political actors. By contrast, a PPQD holding both effectively and symbolically gives political actors carte blanche.

Perhaps most importantly, a stringent doctrinal standard does not entail the same costs engendered by the PPQD’s disingenuous claim of being “doctrinal.” While a stringent doctrinal standard accomplishes a similar retreat from active adjudication as PPQD, it does not impose the wasteful cost of inviting litigants to continually propose new doctrinal standards in the hope of finding one that is perfectly discernible and manageable. Nor does the stringent doctrinal standard invite litigants to argue for entirely new theoretical conceptions of manageability or discernibility. As with any merits standard, litigants could always propose a replacement test or levy doctrinal critiques based on highly abstract concepts of manageability and discernibility. But unlike in PPQD cases, their ability to do so is not a condition of the justiciability of their claims.



Copyright © 2009 New York University Law Review.

Joshua S. Stillman received his J.D. from New York University School of Law in 2009.

Thanks to Professor Samuel Issacharoff, Professor Richard Pildes, Aaron Clark-Rizzio, Jacob Karabell, Bill Magrath, Rachel Meyer, Ben Stillman, Rebecca Talbott, Marian Ullman, and the New York University Law Review.

This Legal Workshop Editorial is based on the following Student Note: Joshua S. Stillman, The Costs of “Discernible and Manageable Standards” in Vieth and Beyond, 84 N.Y.U. L. REV. 1292 (2009).

  1. 541 U.S. 267 (2004).
  2. Id. at 278 (plurality).
  3. Id. at 281.
  4. Brief of Samuel Issacharoff, Burt Neuborne & Richard H. Pildes as Amici Curiae in Support of Appellants at 27, League of United Latin American Citizens v. Perry, 548 U.S. 399 (No. 05-204), 2006 WL 53993, at *27.
  5. 517 U.S. 620 (1996).
  6. Romer is often considered to have used a more rigorous version of the rational basis test, commonly referred to by commentators as “rational basis with bite.” While the Court has not acknowledged a formal difference between these two tests, commentators generally differentiate between them on the basis that in traditional rational basis review, the Court itself will supply hypothetical government interests that would legitimize the law, while in rational basis with bite, the Court looks only to the actual interests considered by the legislature. Even if rational basis with bite differs in application from traditional rational basis, Romer is relevant here because formally the two tests comprise a single doctrine with an identical formulation that focuses on the same values, namely legitimacy of aims and rationality of means.
  7. 517 U.S. at 632.
  8. Id. at 635.
  9. Id. (emphasis added).

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