WASHINGTON—Why can’t the Supreme Court simply interpret the Constitution and stop making law?

The question usually signals that the court has (from the viewpoint of those who ask it) rendered another “wrong” decision. And it always reminds me of the late Arthur S. Miller.

Miller, who taught constitutional law at George Washington University, used to say that judges—especially Supreme Court justices—can’t avoid making law. “Every case that gets to that level of litigation,” he contended, “always has two inconsistent principles floating around, one of which has to be chosen by the judges and each of which has equal persuasiveness.”

What brings Miller to mind this time is Monday’s (June 28) Supreme Court decision to order a review of North Carolina’s 12th Congressional District, a piece of craftsmanship that practically redefines the word gerrymander.

The district, which was drawn for that express purpose, meanders around a narrow, 160 mile path from Durham, through Greensboro and Wintson-Salem to Charlotte. At places it is no wider than the interstate it follows in its mission of piecing together a black voting majority.

Is such a thing constitutional? The court said, 5 to 4, that it has its doubts. “Redistricting legislation that is alleged to be so bizarre on its fact that it is unexplainable on grounds other than race,” Sandra Day O’Connor wrote for the majority, demands close scrutiny.

This from a court that had in previous cases given clear approval for the creation of black-majority congressional districts. Future constitutionality of such torturous districts, the court seemed to say this week, will also require some non-racial rationale.

Art Miller would have laughed out loud. For all the scouring of the Constitution’s language and legislative records and Supreme Court precedents, Miller would argue, the court’s ruling had essentially nothing to do with the Constitution and everything to do with what, in their collective judgment, the justices thought was reasonable and right.

He used to call devotion to the Constitution America’s secular religion and, as with more orthodox religions, its adherents are at pains to find textual support their rulings. You’d be hard put to find the specific constitutional prohibition against school segregation, or the specific basis for equal-time or fairness doctrines, or the specific enunciation of the right to privacy that legitimizes abortion.

And yet it would be easy to find a civic majority to support each of these ideas. It is at least arguable that all are “right” decision—at least in lay terms.

I’m not sure that is the case with Monday’s redistricting ruling. Not only is the question—of whether the race-based gerrymandering violated the rights of white voter—constitutionally obscure; it is equally cloudy as a civic principle.

It is easy enough to conclude that since minorities are under-represented in the Congress, it make sense to find ways to enhance their electoral chances. The clearest way of doing that is to redraw congressional districts to produce so-called minority-majority electorates. That’s what happened following the 1990 census, and the result is 13 new black (and six now Hispanic) members of Congress.

But the same process, while making it possible to elect more minorities, reduces the influence of minorities in the districts were whites are a majority.

It’s another manifestation of an old dilemma. We argue, with passion and principle, that school districts ought to be drawn in ways that maximize racial mixing (because we value school integration). We argue with equal passion and principle that political boundaries ought to be drawn in ways that maximize racial isolation (because we value political power).

The same people who press for country-wide school districts will denounce city-county “ungovernment” as a plot to deny blacks their political rights.

Art Miller would find nothing inappropriate about any of this. Politics is not about consistency but advantage. His caution was to those who so earnestly believe they could find the right answers to these perplexing—and shifting—questions by recourse to the intent of “the framers.”

“Nonsense!” he’d shout. “You’re just not going to find the answers, because they aren’t there. Every generation of Americans writes its own Constitution.”