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The limits of law as politics


“Law is politics” was the slogan of the critical legal studies movement back in the 1970s and 1980s. The crits were essentially continuing the jurisprudential tradition associated with what was called “legal realism.” In their crudest forms, legal realism/cls assert that legal decisions are purely political, and that legal rhetoric which claims some sort of autonomous authority for law is nothing but an attempt to obscure this truth.

On this account, judges are nothing but disguised politicians, even if the disguise is effective enough to fool judges themselves.

There are occasions when, even in this very strong form, the account seems more than plausible.

On the other hand:

The Supreme Court will allow Pennsylvania congressional redistricting to proceed, denying the Republican plea to put the decision on hold.

The defendants – top Republican lawmakers – asked the U.S. Supreme Court to step in and put the decision on hold. They argued the state court’s decision lacks clarity, precedent and respect for the constitution and would introduce chaos into the state’s congressional races.

Justice Samuel Alito, who handles emergency appeals from Pennsylvania, rejected the request from the GOP leaders and voters that the court put on hold an order from the state Supreme Court that could now produce new congressional districts in the coming two weeks.

Pennsylvania’s congressional delegation has been 13-5 in favor of Republicans during the three election cycles since the GOP-drawn 2011 map took effect. Democrats have about 800,000 more registered voters than Republicans and hold all three statewide row offices, but Republicans hold solid majorities in both chambers of the Legislature.

The Pennsylvania Supreme Court in January struck down the boundaries of the state’s 18 congressional districts, granting a major victory to plaintiffs who had contended that they were unconstitutionally gerrymandered to benefit Republicans. The decision granted a major victory to plaintiffs who had contended that they were unconstitutionally gerrymandered to benefit Republicans.

The Pennsylvania Supreme Court said the boundaries “clearly, plainly and palpably” violate the state’s constitution, and blocked it from remaining in effect for the 2018 elections. The deadline to file paperwork to run in primaries for the seats is March 6.

The U.S. Supreme Court typically does not review state court decisions based on a state’s constitution, but the Republicans asked the high court to make an exception.

As Scott pointed out last week, any other outcome would have been a travesty, but that’s not to say that, in an era that began with Bush v. Gore and has continued on to Trump v. Sanity, this outcome was by any means foreordained.

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