Document Type

Article

Publication Date

2023

Abstract

The U.S. Supreme Court has come to decide many of the most consequential and contentious aspects of social policy via its interpretations of the U.S. Constitution. Institutional features of the Court create significant pressure on the Justices to justify their decisions as applications of “law” rather than the practice of “politics.” Their perceived failure to do so calls forth criticism sounding in a variety of registers—ranging from allegations of a lack of neutrality, lack of impartiality, or lack of “principle,” to allegations of opportunism, disingenuousness, and hypocrisy. Analyzing the Justices’ choices in relation to interpretational “methodology”—choosing one lens through which to read the document versus another, prioritizing some kinds of arguments over others, etc.—is one important way in which we can locate their decisions on the spectrum from more to less problematic and choose the right register of critique and reaction. This Article lays out a framework for such an analysis anchored in the concept of “methodological gerrymandering.” Grounded in a high-level analogy between electoral districting and constitutional interpretation, “methodological gerrymandering” is based on the idea that analogously to how legislators can “gerrymander” the boundaries of electoral districts to make it very likely that their ideologically-preferred candidates will win elections, Supreme Court Justices can “gerrymander” their interpretive methodology to make it very likely that constitutional doctrine implements their political or ideological preferences for how society should be organized. This Article lays out the key aspects of such “methodological gerrymandering,” explains how these aspects clarify the many critiques that are levied at the Court and show when each is more or less appropriate, and proposes a way to “measure” the phenomenon. It then applies the framework to recent developments at the Court in the context of constitutional equality rights and argues that a number of Justices are engaging in significant levels of methodological gerrymandering in an effort to reassert and bolster problematic social hierarchies along the lines of religion, race, and sex. That multiple members of an institution that is meant to ensure “equal justice under law” gerrymander their interpretations of constitutional equality rights in ways that reassert and bolster the very social hierarchies that have troubled American society since its founding needs to be critiqued in depth. This Article’s discussion is one small part of this critique.

Comments

Methodological Gerrymandering
The Future of the Fourteenth Amendment: Autonomy and Equality Post-Dobbs v. Jackson

Cleveland State Law Review, Vol. 72, Issue 1 (2023), pp. 145-201

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