Reconsidering the Rule of Law: Reflections on Power, Politics, and Partisan Gerrymandering

This Article argues that the Supreme Court’s partisan redistricting decision in Vieth v. Jubelirer implicated a central feature of liberal constitutionalism — the rule of law. Specifically, I claim that the plurality’s decision in Vieth embodied the conventional understanding of the rule of law in American jurisprudence. Under the conventional view, the rule of law is viewed as being primarily concerned with ensuring predictability. A stable set of general rules is indispensable for enabling individuals to coordinate their activities and make plans for the future. In Vieth, a four-member plurality, led by Justice Scalia, held that there was a lack of “judicially discoverable and manageable standards” for deciding whether Pennsylvania’s redistricting map was unconstitutional. In keeping with the conventional understanding of the rule of law, Justice Scalia’s plurality opinion in Vieth repeatedly emphasized the need for principled and predictable judicial decision-making. This Article argues, however, that the conventional understanding of the rule of law is overly narrow. Although predictability is an important value, I show that the conventional view largely overlooks a fundamental purpose of the rule of law — protecting citizens from the abuse of power by the government. In other words, the primary objective of the rule of law is not predictability; it is protecting citizens against the arbitrary and tyrannical exercise of state power. This conception of the rule of law, which can be traced back to Locke, has important implications for deciding when and how the rule of law has been violated by judicial or legislative action. Although the Court’s refusal to intervene in Vieth may be viewed as upholding the rule of law, this Article shows that the judicial refusal to intervene can, paradoxically, also amount to a violation of the rule of law. In addition, this Article considers whether the practice of partisan gerrymandering itself constitutes a rule-of-law violation