At Volokh Conspiracy, following up on my post on the partisan gerrymandering cases, Ilya Somin: Questioning the Political Question Doctrine. From the introduction:
For many decades, the Supreme Court has chosen to avoid addressing some issues by ruling that they are "political questions," and therefore not fit for resolution. Last week, in Rucho v. Common Cause, the Court concluded that political gerrymandering falls within that category. In cases such as Baker v. Carr (1962), the Court has said that political questions are issues that lack "judicially administrable standards" or ones where the decision in question has been left to the "nonjudicial discretion" of another branch of government.
I have been teaching the political question doctrine in introductory constitutional law classes since 2002. But the more I think about it, the less sense it makes. …
And from later on, this point, which I wish I'd made:
No one interprets the political questions doctrine as forbidding judicial consideration of all issues that are governed by standards with potentially fuzzy boundaries, as opposed to bright-line rules. Indeed, even the late Justice Scalia often joined decisions applying such standards, despite his commitment to a legal philosophy that stresses the virtues of bright-line rules. But the doctrine simply doesn't tell us how much fuzziness is too much. Thus, judges have little to go on besides their intuition and (in many situations), their ideological predilections.
To put it a different way, the "judicial administrability" prong of the political question doctrine itself isn't judicially administrable. Alternatively, if judges are capable of applying this incredibly vague standard, after all, then they are also capable of applying pretty much any other mushy standard, including figuring out how much political gerrymandering is too much.
And I did think of this point, but Professor Somin says it better:
The courts do not need a special "political question" doctrine to rule that a given law or regulation is constitutional because it falls within the authorized powers of that branch of government and nothing else in the Constitution forbids it. In fact, courts uphold legislation on that basis all the time, usually without any reference to the political question doctrine.
RELATED: Thanks to Richard Pildes for mentioning my post in the Election Law Blog's discussion of the partisan gerrymander cases.
ALSO RELATED: On the merits, John Vlahoplus comments:
House seats were originally at large in some states. And Senate seats remain at large, so that one party often wins both of a state’s Senate seats despite the state having a reasonably large opposing party. Gerrymandering, while offensive, is at least better than at large elections in which one party could often win all seats.
Posted at 6:13 AM