This post responds to comments by Bob Bauer and Dan Lowenstein on Bush v. Gore and the use of murky (or "judicially unmanageable") standards.

Here is what Bob wrote most recently:

Fair enough: but if the Court in Bush v. Gore did what it should not have done--create a new standard unmoored in social consensus--why not cordon off the decision rather than encourage its extension by lower courts?  In fact, the Court actively promoted a limited reading: why would its critics, yourself included, aggressively seek a more expansive one--or at least a potentially more expansive one flowing from lower court experimentation? Why not end the mischief at its source? The answer for some is, that the case proves irresistibly useful to achieving certain results. Hence a case criticized as an episode in brazen result orientation becomes the basis for still more of the same. I do not see how that makes sense--much less promotes respect for law, or for the proper boundaries for judicial intervention in democratic life.
***
Dan wrote:

A small question for Rick.  Why do you include Reynolds v. Sims as a
case that set murky standards?  The one person, one vote rule seems pretty clear to me.  Indeed, as I have argued elsewhere, pluralist critics of Reynolds were wrong to criticize Reynolds as an impediment to group-based political competition.  Reynolds was a one-time shock that might be thought of as moving where the ball was on the field, but it left the competition to go on largely as before.  It was Stewart's supposedly more restrained insistence on rationality that invited continuous judicial intervention into districting.
***

Let me respond to Dan's question first, because it will help answer Bob's questions too.  My list of cases (Reynolds, Shaw, Bush v. Gore) was not a list of cases in which I said the court DID set murky standards.  It was a list of cases where, if the court was going to create a new equal protection standard out of whole cloth, it SHOULD use murky standards.

My work criticizes Reynolds precisely for not moving slowly through the political thicket by examining various ways of implementing more equipopulous voting standards.  I think the country would have benefited from a period in which Stewart's exceptionally mushy standard had been put in place.  Then lower courts could have taken various strategies in trying to operationalize the new standard, and the court would have much more information, and a better menu to choose from, in crafting either a strict or a more flexible one person, one vote rule.
Had the Court done so, I argue, we would not have ended up with cases like Avery, applying one person, one vote on the local level, thereby (as Richard Briffault and Bruce Cain have ably shown) thwarted the ability to form effective regional governments.

This is not to say that the Court in Reynolds, Shaw, and Bush v. Gore was RIGHT to create the new equal protection standard.  That is a difficult question, and one that I tackle in another chapter with reference primarily to social consensus but also to a core of certain political equality rights that do not depend upon social consensus.  But once the Court, for good or for ill, goes down the road of creating a new contested political equality right, it should do so with murky standards.

The appropriate role for the lower courts (and now this is more directly responsive to Bob) is to try out the new standard in various ways, bringing in policy and facts in particular factual contexts that would not necessarily have been apparent to the Supreme Court at the time it creates the new right. After a period of lower court experimentation, the Court can then judge how best to operationalize the new right.

I should note that I do NOT believe the Court in cases like Bush or Shaw PURPOSELY chose a murky standard for these reasons.  But I do believe the murky standards in such cases can serve salutary purposes.