The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore

By Richard L. Hasen | Go to book overview
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2
Judicial Unmanageability
and Political Equality

A Misplaced Focus on
“Judicially Manageable” Standards1

The conventional story about the Supreme Court's decision in Baker v. Carr2 to adjudicate disputes over legislative apportionment is that political market failure required judicial intervention. The market failed in the case of unequally populated districts because existing legislators could not be expected to vote themselves out of a job; nor would voters who benefit from the existing apportionment plan elect legislators inclined to do so.3

This market failure story makes an implicit normative judgment that unequally populated districts are improper, a judgment I consider in the next chapter. The story also evinces great trust in the judiciary, a point to which I now turn. If judges are to correct political market failures, their impartiality and general wisdom must make up for a lack of particular competence—as well as lack of accountability—in dealing with political matters.

Opponents of judicial intervention in politics doubted judicial competence in political cases, calling for nonjusticiability because “standards for judicial judgment are lacking.”4 This concern over “judicial manageability” turned out to be seriously exaggerated in the legislative apportionment and districting cases, where the Court's adoption in Reynolds v. Sims of a strict “one person, one vote” standard required little more than knowledge of “sixth grade arithmetic,”5 but it has proven more real in other cases, most recently, as I will explain, in Bush v. Gore.

The Baker Court majority and dissenters apparently failed to appreciate the benefits of judicial unmanageability or initially murky standards for

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