28
RUCHO v. COMMON CAUSE
Opinion of the Court
is easy to imagine how different criteria could move the
median map toward different partisan distributions. As a
result, the same map could be constitutional or not depending solely on what the mapmakers said they set out to
do. That possibility illustrates that the dissent’s proposed
constitutional test is indeterminate and arbitrary.
Even if we were to accept the dissent’s proposed baseline, it would return us to “the original unanswerable
question (How much political motivation and effect is too
much?).” Vieth, 541 U. S., at 296–297 (plurality opinion).
Would twenty percent away from the median map be
okay? Forty percent? Sixty percent? Why or why not?
(We appreciate that the dissent finds all the unanswerable
questions annoying, see post, at 22, but it seems a useful
way to make the point.) The dissent’s answer says it all:
“This much is too much.” Post, at 25–26. That is not even
trying to articulate a standard or rule.
The dissent argues that there are other instances in law
where matters of degree are left to the courts. See post, at
27. True enough. But those instances typically involve
constitutional or statutory provisions or common law
confining and guiding the exercise of judicial discretion.
For example, the dissent cites the need to determine “substantial anticompetitive effect[s]” in antitrust law. Post,
at 27 (citing Ohio v. American Express Co., 585 U. S. ___
(2018)). That language, however, grew out of the Sherman
Act, understood from the beginning to have its “origin in
the common law” and to be “familiar in the law of this
country prior to and at the time of the adoption of the
[A]ct.” Standard Oil Co. of N. J. v. United States, 221
U. S. 1, 51 (1911). Judges began with a significant body of
law about what constituted a legal violation. In other
cases, the pertinent statutory terms draw meaning from
related provisions or statutory context. Here, on the other
hand, the Constitution provides no basis whatever to
guide the exercise of judicial discretion. Common experi-