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Thursday, June 27, 2019

Democracy and judicial review

Chief Justice Roberts' decision for the Court in the partisan gerrymandering cases accepts that partisan gerrymandering is a bad thing, but insists that it must be left to popular and political processes. He emphasizes the numerous bills introduced in Congress over the years that would address this. Justice Kagan's dissent nails him with the obvious: "[W]hat all these bills have in common is they are not laws" and not likely to become laws, because the politicians who would make these bills into laws are not going to undo the partisan gerrymandering from which they benefit.

I am going to give Roberts a small credit for implementing a neutral theory: These bills have not become law because legislators have not acted because the courts were available as a backstop against the problem. This is a version of the criticism that judicial review worsens the legislative process, because legislators need not take their obligations seriously knowing that the courts will clean up their mess. With the federal courts out of this game, Congress will now take seriously its obligation to address what everyone recognizes is a problem.

Of course, this credit assumes that Roberts would not read "Legislature thereof" in Article I, § 4 to preclude federal action limiting districting just as he read the term to prohibit redistricting commissions.

Posted by Howard Wasserman on June 27, 2019 at 01:05 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink

Comments

rather than a more vague 'federal action'**

Posted by: YesterdayIKilledAMammoth | Jun 28, 2019 6:42:32 AM

Forgive me if I'm wrong, but Art. 1, Sec. 4 makes it fairly clear that only congressional action--a more vague 'federal action'--can alter the states' prescriptions on the times, places, and manners of holding their elections.

Posted by: YesterdayIKilledAMammoth | Jun 28, 2019 6:42:02 AM

Very interesting ruling.Courts are cleaning the mess of legislation, whatsoever.

One may reach the ruling here:

https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf

Thanks

Posted by: El roam | Jun 27, 2019 3:09:53 PM

Roberts' opinion isn't committed to the idea that these potential solutions are up to the task - he just mentions them as alternatives. What he is committed to is that the courts should not interfere. It doesn't follow that other processes will succeed. Not every problem has a lawful solution.

Posted by: Salem Al-Damluji | Jun 27, 2019 2:47:35 PM

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