Wilkinson identifies difference-splitting in some late Rehnquist court decisions that resulted in ``a series of finely spun opinions that increasingly constitutionalized'' some volatile political debates. One decision, in 2004, concerned political gerrymandering in Pennsylvania. Four justices said all claims of unconstitutionally partisan gerrymandering are nonjusticiable because there are no truly judicial criteria for adjudicating them. Four other justices suggested various legal theories for adjudicating. Kennedy split the difference: He voted to reject the claim of unconstitutional gerrymandering, but refused to ``foreclose all possibility of judicial relief'' if some ``limited and precise'' constitutional violation were ``found.''
Where can it be ``found''? Inevitably, not in the Constitution's text, history and structure but in judges' intuitions about ``fairness.'' Thus does constitutional doctrine become little more than the judiciary's temperament, or the temper of the times. But elections, not courts, are supposed to take the nation's temperature.
In some ``finely spun'' Rehnquist court decisions, a monument featuring the Ten Commandments on the Texas Capitol grounds was not unconstitutional, but Ten Commandment displays, with other historical documents, in the hallways of two Kentucky courthouses were unconstitutional. The University of Michigan's policy of giving favored minorities 20 extra points on a 150-point admissions index to achieve undergraduate ``diversity'' was unconstitutional, but its law school's use of race as a ``'plus' factor'' to achieve ``a 'critical mass' of underrepresented minorities'' was constitutional -- assuming, as O'Connor thought it realistic and pertinent to do, that in 25 years race-conscious admissions policies will not be ``necessary.''
Wilkinson acknowledges that ``splitting differences has real benefits'': ``The outcomes of cases are often sensible, the court itself is often statesmanlike, and the spacious language of the Constitution is often seductive. Splitting differences allows the court to appear simultaneously cautious and progressive.''
And yet: ``Americans deserve not a liberal court, not a conservative court, not even a wise or Solomonic court, but a court that respects the limits of its power and the place of others within the constitutional structure.''
Wilkinson warns that ``methodology matters supremely in the law, if it is not to become the kissing cousin of politics.'' Granted, ``split-the-difference'' jurisprudence can be institutional prudence, preserving the court's standing with a public more interested in judicial results than judicial reasoning. But when political reasoning supplants judicial reasoning, courts preserve their popularity by sacrificing their proper function.
``There is,'' Wilkinson says, ``a thin line between the unabashedly pragmatic exercise of splitting differences and the practice of politics itself,'' so ``splitting the difference ought not to be confused with judicial restraint.'' Eventually, the public will notice, and recoil against, courts supplanting democratic institutions as arbitrators of our differences.
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