Vieth v. Jubelirer (2004)

Vieth v. Jubelirer (2004)

541 U.S. 267

After the Republican-controlled Pennsylvania Legislature adopted a congressional redistricting plan, three registered Democrats sued to enjoin the plan’s implementation, alleging that it constituted a political gerrymander in violation of Article I of the Constitution and the Fourteenth Amendment’s Equal Protection Clause. The three-judge district court dismissed the gerrymandering claim, and the plaintiffs appealed to the Supreme Court.

Judgment of the Court: Scalia, Rehnquist, O’Connor, Thomas.

Concurring in the judgment: Kennedy.

Dissenting opinions: Stevens; Souter, Ginsburg; Breyer.

JUSTICE SCALIA announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE O’CONNOR, and JUSTICE THOMAS join.

Plaintiffs-appellants Richard Vieth, Norma Jean Vieth, and Susan Furey challenge a map drawn by the Pennsylvania General Assembly establishing districts for the election of congressional Representatives, on the ground that the districting constitutes an unconstitutional political gerrymander. In Davis v. Bandemer (1986), this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard to adjudicate them. The present appeal presents the questions whether our decision in Bandemer was in error, and, if not, what the standard should be….

Political gerrymanders are not new to the American scene. One scholar traces them back to the Colony of Pennsylvania at the beginning of the 18th century, where several counties conspired to minimize the political power of the city of Philadelphia by refusing to allow it to merge or expand into surrounding jurisdictions, and denying it additional representatives. The political gerrymander remained alive and well (though not yet known by that name) at the time of the framing. There were allegations that Patrick Henry attempted (unsuccessfully) to gerrymander James Madison out of the First Congress. And in 1812, of course, there occurred the notoriously outrageous political districting in Massachusetts that gave the gerrymander its name—an amalgam of the names of Massachusetts Governor Elbridge Gerry and the creature (“salamander”) which the outline of an election district he was credited with forming was thought to resemble….

It is significant that the Framers provided a remedy for such practices in the Constitution. Article 1, §4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to “make or alter” those districts if it wished. Many objected to the congressional oversight established by this provision. In the course of the debates in the Constitutional Convention, Charles Pinckney and John Rutledge moved to strike the relevant language. James Madison responded in defense of the provision that Congress must be given the power to check partisan manipulation of the election process by the States….

The power bestowed on Congress to regulate elections, and in particular to restrain the practice of political gerrymandering, has not lain dormant. In the Apportionment Act of 1842, Congress provided that Representatives must be elected from single-member districts “composed of contiguous territory.” Congress again imposed these requirements in the Apportionment Act of 1862, and in 1872 further required that districts “contain as nearly as practicable an equal number of inhabitants.” In the Apportionment Act of 1901, Congress imposed a compactness requirement. The requirements of contiguity, compactness, and equality of population were repeated in the 1911 apportionment legislation, but were not thereafter continued. Today, only the single-member-district-requirement remains. Recent history, however, attests to Congress’s awareness of the sort of districting practices appellants protest, and of its power under Article I, §4 to control them. Since 1980, no fewer than five bills have been introduced to regulate gerrymandering in congressional districting.

Eighteen years ago, we held that the Equal Protection Clause grants judges the power—and duty—to control political gerrymandering. It is to consideration of this precedent that we now turn.

As Chief Justice Marshall proclaimed two centuries ago, “it is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison (1803). Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights. Such questions are said to be “nonjusticiable,” or “political questions.”

In Baker v. Carr (1962), we set forth six independent tests for the existence of a political question…. The second [i.e., a lack of judicially discoverable and manageable standards for resolving it] is at issue here, and there is no doubt of its validity…. It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.

Over the dissent of three Justices, the Court held in Davis v. Bandemer that, since it was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided,” such cases were justiciable. The clumsy shifting of the burden of proof for the premise (the Court was “not persuaded” that standards do not exist, rather than “persuaded” that they do) was necessitated by the uncomfortable fact that the six-Justice majority could not discern what the judicially discernible standards might be. There was no majority on that point. Four of the Justices finding justiciability believed that the standard was one thing; two believed it was something else. The lower courts have lived with that assurance of a standard (or more precisely, lack of assurance that there is no standard), coupled with that inability to specify a standard, for the past 18 years. In that time, they have considered numerous political gerrymandering claims; this Court has never revisited the unanswered question of what standard governs.

Nor can it be said that the lower courts have, over 18 years, succeeded in shaping the standard that this Court was initially unable to enunciate. They have simply applied the standard set forth in Bandemer’s four-Justice plurality opinion. This might be thought to prove that the four-Justice plurality standard has met the test of time—but for the fact that its application has almost invariably produced the same result (except for the incurring of attorney’s fees) as would have obtained if the question were nonjusticiable: judicial intervention has been refused. As one commentary has put it, “throughout its subsequent history, Bandemer has served almost exclusively as an invitation to litigation without much prospect of redress.”

… Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by Bandemer exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.

We begin our review of possible standards with that proposed by Justice White’s plurality opinion in Bandemer because, as the narrowest ground for our decision in that case, it has been the standard employed by the lower courts. The plurality concluded that a political gerrymandering claim could succeed only where plaintiffs showed “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” As to the intent element, the plurality acknowledged that “as long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” However, the effects prong was significantly harder to satisfy. Relief could not be based merely upon the fact that a group of persons banded together for political purposes had failed to achieve representation commensurate with its numbers, or that the apportionment scheme made its winning of elections more difficult. Rather, it would have to be shown that, taking into account a variety of historic factors and projected election results, the group had been “denied its chance to effectively influence the political process” as a whole, which could be achieved even without electing a candidate….

In her Bandemer concurrence, Justice O’Connor predicted that the plurality’s standard “will over time either prove unmanageable and arbitrary or else evolve towards some loose form of proportionality.” That prognostication has been amply fulfilled. Because this standard was misguided when proposed, has not been improved in subsequent application, and is not even defended before us today by the appellants, we decline to affirm it as a constitutional requirement.

Appellants take a run at enunciating their own workable standard based on Article I, §2, and the Equal Protection Clause. We consider it at length not only because it reflects the litigant’s view as to the best that can be derived from 18 years of experience, but also because it shares many features with other proposed standards, so that what is said of it may be said of them as well. Appellants’ proposed standard retains the two-pronged framework of the Bandemer plurality—intent plus effect—but modifies the type of showing sufficient to satisfy each.

To satisfy appellants’ intent standard, a plaintiff must “show that the mapmakers acted with a predominant intent to achieve partisan advantage,” which can be shown “by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage.” As compared with the Bandemer plurality’s test of mere intent to disadvantage the plaintiff’s group, this proposal seemingly makes the standard more difficult to meet—but only at the expense of making the standard more indeterminate.

“Predominant intent” to disadvantage the plaintiff political group refers to the relative importance of that goal as compared with all the other goals that the map seeks to pursue—contiguity of districts, compactness of districts, observance of the lines of political subdivision, protection of incumbents of all parties, cohesion of natural racial and ethnic neighborhoods, compliance with requirements of the Voting Rights Act of 1965 regarding racial distribution, etc. Appellants … do not assert that an apportionment fails their intent test if any single district does so. Since “it would be quixotic to attempt to bar state legislatures from considering politics as they redraw district lines,” appellants propose a test that is satisfied only when “partisan advantage was the predominant motivation behind the entire statewide plan.” Vague as the “predominant motivation” test might be when used to evaluate single districts, it all but evaporates when applied state-wide. Does it mean, for instance, that partisan intent must outweigh all other goals—contiguity, compactness, preservation of neighborhoods, etc.—state-wide? And how is the state-wide “outweighing” to be determined? If three-fifths of the map’s districts forgo the pursuit of partisan ends in favor of strictly observing political-subdivision lines, and only two-fifths ignore those lines to disadvantage the plaintiffs, is the observance of political subdivisions the “predominant” goal between those two? We are sure appellants do not think so….

The effects prong of appellants’ proposal replaces the Bandemer plurality’s vague test of “denied its chance to effectively influence the political process” with criteria that are seemingly more specific. The requisite effect is established when “(1) the plaintiffs show that the districts systematically ‘pack’ and ‘crack’ the rival party’s voters and (2) the court’s examination of the ‘totality of circumstances’ confirms that the map can thwart the plaintiffs’ ability to translate a majority of votes into a majority of seats.” This test is loosely based on our cases applying §2 of the Voting Rights Act to discrimination by race. But a person’s politics is rarely as readily discernible—and never as permanently discernible—as a person’s race. Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold. These facts make it impossible to assess the effects of partisan gerrymandering, to fashion a standard for evaluating a violation, and finally to craft a remedy.

Assuming, however, that the effects of partisan gerrymandering can be determined, appellants’ test would invalidate the districting only when it prevents a majority of the electorate from electing a majority of representatives. Before considering whether this particular standard is judicially manageable we question whether it is judicially discernible in the sense of being relevant to some constitutional violation. Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.

Even if the standard were relevant, however, it is not judicially manageable. To begin with, how is a party’s majority status to be established? … [I]f we could identify a majority party, we would find it impossible to assure that that party wins a majority of seats—unless we radically revise the States’ traditional structure for elections. In any winner-take-all district system, there can be no guarantee, no matter how the district lines are drawn, that a majority of party votes state-wide will produce a majority of seats for that party. The point is proved by the 2000 congressional elections in Pennsylvania, which, according to appellants’ own pleadings, were conducted under a judicially drawn district map “free from partisan gerrymandering.” On this “neutral playing field,” the Democrats’ state-wide majority of the major-party vote (50.6%) translated into a minority of seats (10, versus 11 for the Republicans). Whether by reason of partisan districting or not, party constituents may always wind up “packed” in some districts and “cracked” throughout others. Consider, for example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a “natural” packing effect…. [R]equiring judges to decide whether a districting system will produce a state-wide majority for a majority party casts them forth upon a sea of imponderables, and asks them to make determinations that not even election experts can agree upon. For these reasons, we find appellants’ proposed standards neither discernible nor manageable.

We turn next to consideration of the standards proposed by today’s dissenters. We preface it with the observation that the mere fact that these four dissenters come up with three different standards—all of them different from the two proposed in Bandemer and the one proposed here by appellants—goes a long way to establishing that there is no constitutionally discernible standard….

Justice Stevens would … require courts to consider political gerrymandering challenges at the individual-district level. Much of his dissent is addressed to the incompatibility of severe partisan gerrymanders with democratic principles. We do not disagree with that judgment, any more than we disagree with the judgment that it would be unconstitutional for the Senate to employ, in impeachment proceedings, procedures that are incompatible with its obligation to “try” impeachments. The issue we have discussed is not whether severe partisan gerrymanders violate the Constitution, but whether it is for the courts to say when a violation has occurred, and to design a remedy. On that point, Justice Steven’s dissent is less helpful, saying, essentially, that if we can do it in the racial gerrymandering context we can do it here.

… Justice Souter recognizes that there is no existing workable standard for adjudicating [these] claims. He proposes a “fresh start”: a newly constructed standard loosely based in form on our Title VII cases, see McDonnell Douglas Corp. v. Green (1973), and complete with a five-step prima facie test sewn together from parts of, among other things, our Voting Rights Act jurisprudence, law review articles, and apportionment cases. Even if these selfstyled “clues” to unconstitutionality could be manageably applied, which we doubt, there is no reason to think they would detect the constitutional crime which Justice Souter is investigating—an “extremity of unfairness” in partisan competition….

Justice Souter’s proposal is doomed to failure for a more basic reason: No test—yea, not even a five-part test—can possibly be successful unless one knows what he is testing for. In the present context, the test ought to identify deprivation of that minimal degree of representation or influence to which a political group is constitutionally entitled. As we have seen, the Bandemer test sought (unhelpfully, but at least gamely) to specify what that minimal degree was: “[a] chance to effectively influence the political process.” So did the appellants’ proposed test: “[the] ability to translate a majority of votes into a majority of seats.” Justice Souter avoids the difficulties of those formulations by never telling us what his test is looking for, other than the utterly unhelpful “extremity of unfairness.” He vaguely describes the harm he is concerned with as vote dilution, a term which usually implies some actual effect on the weight of a vote. But no element of his test looks to the effect of the gerrymander on the electoral success, the electoral opportunity, or even the political influence, of the plaintiff group. We do not know the precise constitutional deprivation his test is designed to identify and prevent….

We agree with much of Justice Breyer’s dissenting opinion, which convincingly demonstrates that “political considerations will likely play an important, and proper, role in the drawing of district boundaries.” This places Justice Breyer, like the other dissenters, in the difficult position of drawing the line between good politics and bad politics. Unlike them, he would tackle this problem at the state-wide level.

The criterion Justice Breyer proposes is nothing more precise than “the unjustified use of political factors to entrench a minority in power.” While he invokes in passing the Equal Protection Clause, it should be clear to any reader that what constitutes unjustified entrenchment depends on his own theory of effective government….

Justice Kennedy recognizes that we have “demonstrated the shortcomings of the other standards that have been considered to date.” He acknowledges, moreover, that we “lack … comprehensive and neutral principles for drawing electoral boundaries,” and that there is an “absence of rules to limit and confine judicial intervention.” From these premises, one might think that Justice Kennedy would reach the conclusion that political gerrymandering claims are nonjusticiable. Instead, however, he concludes that courts should continue to adjudicate such claims because a standard may one day be discovered.

The first thing to be said about Justice Kennedy’s disposition is that it is not legally available. The District Court in this case considered the plaintiffs’ claims justiciable but dismissed them because the standard for unconstitutionality had not been met. It is logically impossible to affirm that dismissal without either (1) finding that the unconstitutional-districting standard applied by the District Court, or some other standard that it should have applied has not been met, or (2) finding (as we have) that the claim is nonjusticiable. Justice Kennedy seeks to affirm “because, in the case before us, we have no standard.” But it is our job, not the plaintiffs’, to explicate the standard that makes the facts alleged by the plaintiffs adequate or inadequate to state a claim. We cannot nonsuit them for our failure to do so.

Justice Kennedy asserts that to declare nonjusticiability would be incautious. Our rush to such a holding after a mere 18 years of fruitless litigation “contrasts starkly” he says, “with the more patient approach” that this Court has taken in the past. We think not. When it has come to determining what areas fall beyond our Article III authority to adjudicate, this Court’s practice, from the earliest days of the Republic to the present, has been more reminiscent of Hannibal than of Hamlet.

… Reduced to its essence, Justice Kennedy’s opinion boils down to this: “As presently advised, I know of no discernible and manageable standard that can render this claim justiciable. I am unhappy about that, and hope that I will be able to change my opinion in the future.” What are the lower courts to make of this pronouncement? We suggest that they must treat it as a reluctant fifth vote against justiciability at district and state-wide levels—a vote that may change in some future case but that holds, for the time being, that this matter is nonjusticiable….

While we do not lightly overturn one of our own holdings, “when governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.’” Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims.

The judgment of the District Court is affirmed.

JUSTICE KENNEDY, concurring in the judgment.

… While agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases….

There are … weighty arguments [in the plurality opinion] for holding cases like these to be nonjusticiable; and those arguments may prevail in the long run. In my view, however, the arguments are not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander. It is not in our tradition to foreclose the judicial process from the attempt to define standards and remedies where it is alleged that a constitutional right is burdened or denied. Nor is it alien to the Judiciary to draw or approve election district lines. Courts, after all, already do so in many instances. A determination by the Court to deny all hopes of intervention could erode confidence in the courts as much as would a premature decision to intervene….

The plurality says that 18 years, in effect, prove the negative…. [B]y the timeline of the law 18 years is rather a short period. In addition, the rapid evolution of technologies in the apportionment field suggests yet unexplored possibilities. Computer assisted districting has become so routine and sophisticated that legislatures, experts, and courts can use databases to map electoral districts in a matter of hours, not months. Technology is both a threat and a promise. On the one hand, if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow. On the other hand, these new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties. That would facilitate court efforts to identify and remedy the burdens, with judicial intervention limited by the derived standards….

JUSTICE STEVENS, dissenting.

The central question presented by this case is whether political gerrymandering claims are justiciable. Although our reasons for coming to this conclusion differ, five Members of the Court are convinced that the plurality’s answer to that question is erroneous. Moreover, as is apparent from our separate writings today, we share the view that, even if these appellants are not entitled to prevail, it would be contrary to precedent and profoundly unwise to foreclose all judicial review of similar claims that might be advanced in the future. That we presently have somewhat differing views—concerning both the precedential value of some of our recent cases and the standard that should be applied in future cases—should not obscure the fact that the areas of agreement set forth in the separate opinions are of far greater significance.

Although we reaffirm the central holding of the Court in Davis v. Bandemer, we have not reached agreement on the standard that should govern partisan gerrymandering claims. I would decide this case on a narrow ground: … Pennsylvania’s redistricting plan violates the equal protection principles enunciated in our voting rights cases both before and after Bandemer. … The plurality’s contrary conclusion [concerning justiciability] cannot be squared with our long history of voting rights decisions.

… Especially perplexing is the plurality’s ipse dixit distinction of our racial gerrymandering cases…. The critical issue in both racial and political gerrymandering cases is the same: whether a single non-neutral criterion controlled the districting process to such an extent that the Constitution was offended…. [T]oday’s plurality has supplied no persuasive reason for distinguishing the justiciability of partisan gerrymanders. Those cases confirm and reinforce the holding that partisan gerrymandering claims are justiciable.

Elected officials in some sense serve two masters: the constituents who elected them and the political sponsors who support them. Their primary obligations are, of course, to the public in general, but it is neither realistic nor fair to expect them wholly to ignore the political consequences of their decisions. “It would be idle … to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it.” Political factors are common and permissible elements of the art of governing a democratic society.

But while political considerations may properly influence the decisions of our elected officials, when such decisions disadvantage members of a minority group—whether the minority is defined by its members’ race, religion, or political affiliation—they must rest on a neutral predicate. The Constitution enforces “a commitment to the law’s neutrality where the rights of persons are at stake.” Thus, the Equal Protection Clause implements a duty to govern impartially that requires, at the very least, that every decision by the sovereign serve some nonpartisan public purpose….

In sum, in evaluating a challenge to a specific district, I would … ask whether the legislature allowed partisan considerations to dominate and control the lines drawn, forsaking all neutral principles. Under my analysis, if no neutral criterion can be identified to justify the lines drawn, and if the only possible explanation for a district’s bizarre shape is a naked desire to increase partisan strength, then no rational basis exists to save the district from an equal protection challenge. Such a narrow test would cover only a few meritorious claims, but it would preclude extreme abuses, and it would perhaps shorten the time period in which the pernicious effects of such a gerrymander are felt. This test would mitigate the current trend under which partisan considerations are becoming the be-all and end-all in apportioning representatives.

… What is clear is that it is not the unavailability of judicially manageable standards that drives today’s decision. It is, instead, a failure of judicial will to condemn even the most blatant violations of a state legislature’s fundamental duty to govern impartially. Accordingly, I respectfully dissent.

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, dissenting.

… The plurality says, in effect, that courts have been trying to devise practical criteria for political gerrymandering for nearly 20 years, without being any closer to something workable than we were when Davis was decided. While this is true enough, I do not accept it as sound counsel of despair….

Since this Court has created the problem no one else has been able to solve, it is up to us to make a fresh start. I would … preserve Davis’s holding that political gerrymandering is a justiciable issue, but otherwise start anew. I would adopt a political gerrymandering test analogous to the summary judgment standard crafted in McDonnell Douglas Corp. v. Green (1973), calling for a plaintiff to satisfy elements of a prima facie cause of action, at which point the State would have the opportunity not only to rebut the evidence supporting the plaintiff’s case, but to offer an affirmative justification for the districting choices, even assuming the proof of the plaintiff’s allegations. My own judgment is that we would have better luck at devising a workable prima facie case if we concentrated as much as possible on suspect characteristics of individual districts instead of state-wide patterns. It is not that a state-wide view of districting is somehow less important; the usual point of gerrymandering, after all, is to control the greatest number of seats overall. But, as will be seen, we would be able to call more readily on some existing law when we defined what is suspect at the district level, and for now I would conceive of a state-wide challenge as itself a function of claims that individual districts are illegitimately drawn. Finally, in the same interest of threshold simplicity, I would stick to problems of single-member districts; if we could not devise a workable scheme for dealing with claims about these, we would have to forget the complications posed by multimember districts.

For a claim based on a specific single-member district, I would require the plaintiff to make out a prima facie case with five elements. First, the resident plaintiff would identify a cohesive political group to which he belonged, which would normally be a major party, as in this case and in Davis. There is no reason in principle, however, to rule out a claimant from a minor political party…. Second, a plaintiff would need to show that the district of his residence paid little or no heed to those traditional districting principles whose disregard can be shown straightforwardly: contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains…. Third, the plaintiff would need to establish specific correlations between the district’s deviations from traditional districting principles and the distribution of the population of his group…. Fourth, a plaintiff would need to present the court with a hypothetical district including his residence, one in which the proportion of the plaintiff’s group was lower (in a packing claim) or higher (in a cracking one) and which at the same time deviated less from traditional districting principles than the actual district…. Fifth, and finally, the plaintiff would have to show that the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group….

A plaintiff who got this far would have shown that his State intentionally acted to dilute his vote, having ignored reasonable alternatives consistent with traditional districting principles. I would then shift the burden to the defendants to justify their decision by reference to objectives other than naked partisan advantage. They might show by rebuttal evidence that districting objectives could not be served by the plaintiff’s hypothetical district better than by the district as drawn, or they might affirmatively establish legitimate objectives better served by the lines drawn than by the plaintiff’s hypothetical….

The plurality says that my proposed standard would not solve the essential problem of unworkability. It says that “it does not solve the problem [of determining when gerrymandering has gone too far] to break down the original unanswerable question … into four more discrete but unanswerable questions.” It is common sense, however, to break down a large and intractable issue into discrete fragments as a way to get a handle on the larger one, and the elements I propose are not only tractable in theory, but the very subjects that judges already deal with in practice….

JUSTICE BREYER, dissenting.

… By entrenchment I mean a situation in which a party that enjoys only minority support among the populace has nonetheless contrived to take, and hold, legislative power. By unjustified entrenchment I mean that the minority’s hold on power is purely the result of partisan manipulation and not other factors. These “other” factors that could lead to “justified” (albeit temporary) minority entrenchment include sheer happenstance, the existence of more than two major parties, the unique constitutional requirements of certain representational bodies such as the Senate, or reliance on traditional (geographic, communities of interest, etc.) districting criteria.

The democratic harm of unjustified entrenchment is obvious…. Where unjustified entrenchment takes place, voters find it far more difficult to remove those responsible for a government they do not want; and these democratic values are dishonored…. Unless some other justification can be found in particular circumstances, political gerrymandering that so entrenches a minority party in power violates basic democratic norms and lacks countervailing justification. For this reason, whether political gerrymandering does, or does not, violate the Constitution in other instances, gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution’s Equal Protection Clause.

Courts need not intervene often to prevent the kind of abuse I have described, because those harmed constitute a political majority, and a majority normally can work its political will. Where a State has improperly gerrymandered legislative or congressional districts to the majority’s disadvantage, the majority should be able to elect officials in state-wide races—particularly the Governor—who may help to undo the harm that districting has caused the majority’s party, in the next round of districting if not sooner. And where a State has improperly gerrymandered congressional districts, Congress retains the power to revise the State’s districting determinations.

Moreover, voters in some States, perhaps tiring of the political boundary-drawing rivalry, have found a procedural solution, confiding the task to a commission that is limited in the extent to which it may base districts on partisan concerns….

But we cannot always count on a severely gerrymandered legislature itself to find and implement a remedy. The party that controls the process has no incentive to change it. And the political advantages of a gerrymander may become ever greater in the future. The availability of enhanced computer technology allows the parties to redraw boundaries in ways that target individual neighborhoods and homes, carving out safe but slim victory margins in the maximum number of districts, with little risk of cutting their margins too thin…. When it is necessary, a court should prove capable of finding an appropriate remedy….

The bottom line is that courts should be able to identify the presence of one important gerrymandering evil, the unjustified entrenching in power of a political party that the voters have rejected. They should be able to separate the unjustified abuse of partisan boundary-drawing considerations to achieve that end from their more ordinary and justified use. And they should be able to design a remedy for extreme cases.