Washington Last July 1, Sandra Day O'Connor announced her decision to vacate the seat from which she frequently operated as the swing vote on a Supreme Court divided 5-4 on important cases. Anthony Kennedy's past pronouncements suggested he would relish that role. Last Wednesday he played it in cases concerning Texas redistricting.
The cases involved several questions, the most interesting - because it has come to the court before and we now know it will again, and because it revealed a recurring and worrisome kind of judging - was this: Was the redistricting by the Republican-controlled Legislature such a partisan gerrymander as to be somehow unconstitutional?
The court's dusty answer to this question is symptomatic of the difference-splitting that characterized the last years of the Rehnquist court. In a plurality opinion, Kennedy said there may be a "manageable, reliable measure of fairness" in redistricting, but no set of facts has sufficed for the court to discover it.
Antonin Scalia believes it is delusional to think that such a standard can be anything other than judges' cumulative hunches - not a neutral principle found in the Constitution. Joined by Clarence Thomas, Scalia on Wednesday said that no one "has put forth a judicially discernable standard" for deciding when a gerrymander is too partisan. 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.
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 phrase is from Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit, writing in the Stanford Law Review.
Wilkinson identifies difference-splitting in some late Rehnquist court decisions that resulted in "a series of finely spun opinions that increasingly constitutionalized" some volatile political debates. One decision, in 2004, concerned political gerrymandering in Pennsylvania. 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.
In some "finely spun" Rehnquist court decisions, a monument featuring the Ten Commandments on the Texas Capitol grounds was not unconstitutional, but Ten Commandment displays, with other historical documents, in the hallways of two Kentucky courthouses were unconstitutional. The University of Michigan's policy of giving favored minorities 20 extra points on a 150-point admissions index to achieve undergraduate "diversity" was unconstitutional, but its law school's use of race as a "'plus' factor" to achieve "a 'critical mass' of underrepresented minorities" was constitutional - assuming, as O'Connor thought it realistic and pertinent to do, that in 25 years race-conscious admissions policies will not be "necessary."
Wilkinson acknowledges that "splitting differences has real benefits": "The outcomes of cases are often sensible, the court itself is often statesmanlike, and the spacious language of the Constitution is often seductive. Splitting differences allows the court to appear simultaneously cautious and progressive."
And yet: "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."
Wilkinson warns that "methodology matters supremely in the law, if it is not to become the kissing cousin of politics." Granted, "split-the-difference" jurisprudence can be institutional prudence, preserving the court's standing with a public more interested in judicial results than judicial reasoning. But when political reasoning supplants judicial reasoning, courts preserve their popularity by sacrificing their proper function.
"There is," Wilkinson says, "a thin line between the unabashedly pragmatic exercise of splitting differences and the practice of politics itself," so "splitting the difference ought not to be confused with judicial restraint." Eventually, the public will notice, and recoil against, courts supplanting democratic institutions as arbitrators of our differences.