June 19, 2018 2:02PM

Must The Court Step In When Other Branches Fail?

As I noted yesterday, the Supreme Court has decided the Wisconsin gerrymandering case of Gill v. Whitford on standing grounds, without reaching the main constitutional issues: the case returns to lower courts for a chance to repair the standing issue with most or all of its central contentions intact. Much the same can be said of the Maryland claims in Benisek v. Lamone, where timing as opposed to standing was the issue.

Along the way, however, Chief Justice Roberts in his opinion for a unanimous Court in Gill paused to linger over one argument that had been raised along the way. This is the argument that the Court must act because political branches have failed to address some serious problem which as a result can be fixed by no institution other than the Court. The Gill Court takes sharp issue with this argument: 

At argument on appeal in this case, counsel for the plaintiffs argued that this Court can address the problem of partisan gerrymandering because it must: The Court should exercise its power here because it is the “only institution in the United States” capable of “solv[ing] this problem.” Such invitations must be answered with care. “Failure of political will does not justify unconstitutional remedies.” Our power as judges to “say what the law is” rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right.

In short, the Constitution empowers the Court to vindicate the sound legal claims of particular plaintiffs, not to step into the role of other branches that are not doing their jobs well. Note that the decision was unanimous: not a single Justice backs the notion that other branches’ irresponsible failure to act on some problem can, by itself and without more, make it legitimate for courts to step in. 

Since there remains some uncertainty on this point in some quarters of the commentariat, it’s good to hear unanimously voiced guidance from the Justices themselves.