14
RUCHO v. COMMON CAUSE
KAGAN, J., dissenting
governance and flagrant infringements on individuals’
rights—in the face of escalating partisan manipulation
whose compatibility with this Nation’s values and law no
one defends—the majority declines to provide any remedy.
For the first time in this Nation’s history, the majority
declares that it can do nothing about an acknowledged
constitutional violation because it has searched high and
low and cannot find a workable legal standard to apply.
The majority gives two reasons for thinking that the
adjudication of partisan gerrymandering claims is beyond
judicial capabilities. First and foremost, the majority
says, it cannot find a neutral baseline—one not based on
contestable notions of political fairness—from which to
measure injury. See ante, at 15–19. According to the
majority, “[p]artisan gerrymandering claims invariably
sound in a desire for proportional representation.” Ante,
at 16. But the Constitution does not mandate proportional
representation. So, the majority contends, resolving those
claims “inevitably” would require courts to decide what is
“fair” in the context of districting. Ante, at 17. They
would have “to make their own political judgment about
how much representation particular political parties
deserve” and “to rearrange the challenged districts to
achieve that end.” Ibid. (emphasis in original). And second, the majority argues that even after establishing a
baseline, a court would have no way to answer “the determinative question: ‘How much is too much?’ ” Ante, at 19.
No “discernible and manageable” standard is available,
the majority claims—and so courts could willy-nilly become embroiled in fixing every districting plan. Ante, at
20; see ante, at 15–16.
I’ll give the majority this one—and important—thing: It
identifies some dangers everyone should want to avoid.
Judges should not be apportioning political power based
on their own vision of electoral fairness, whether proportional representation or any other. And judges should not