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104 Kentucky Law Journal 561 (2015/16)


The political gerrymander has few friends among scholars and commentators. Even a majority on the Supreme Court agreed that the practice violates constitutional and democratic norms. And yet, this is one of the few issues that the US. Supreme Court refuses to regulate. The justices mask their refusal to regulate this area on a professed inability to divine judicially-manageable standards. In turn, scholars offer new standards for the justices to consider. This is not only a mistake but also misguided. The history of the political question doctrine makes clear that the discovery of manageable standards has never controlled the Court's prior decisions to venture into the field of politics. Further, existing doctrine makes clear that the question of whether politics play an excessive role in redistricting could be easily handled by the Court.

Thus the question at the heart of this Article: how to explain the judicial refusal to decide political gerrymandering questions in a world where the Court intervenes just about everywhere else? This Article concludes that the Court, and particularly Justice Kennedy, is worried about an assumed flood of litigation that would follow judicial intervention in this area. But this is not a new worry. This is the very concern that drove critics of the reapportionment revolution, a time when the Court happily created a standard out of thin air and declared unconstitutional all state legislatures at once. Rather than standards, Justice Kennedy needs a dose of history.