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Political questions

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Steve Vladeck reminds us of this remarkable exchange from 2017:

When the Court issued one of the worst decisions in its ignominious history in Rucho v. Common Cause, not a single justice held that extreme partisan gerrymandering was constitutional. Rather, the majority’s justification — invoking a rule invented by the author of Dred Scott for a very different set of facts nearly 175 years ago — was that even if partisan gerryamandering violates the Constitution, it is a “political question” beyond the capacity of the federal courts to resolve. The argument was absurd on its face — as the Court once held in a case Earl Warren thought was the most important of his tenure, if political elites creating rules that effectively eliminate democratic elections and install themselves as permanent rulers isn’t a subject for judicial review, it’s not clear what is an appropriate subject for judicial review. But the holding becomes epically ridiculous when you intervene a few months before an election because a state court’s maps are insufficiently gerrymandered in favor of the Republican Party.

Apropos of Paul’s post below, Mark Graber wrote an interesting and in many ways prescient essay a few years ago noting the potential for instability that high and increasing ideological elite polarization would have on the federal judiciary. And yet things are turning out even worse than they looked in 2013. Graber assumed that we would see a “yo-yo” — the Court lurching from a very conservative to very liberal median vote depending on election outcomes. As of now, the most likely outcome — decades-long control of the Court by a minority faction that feels virtually no restraint because with its own assistance the rules mean that the faction will almost always have enough representation in Congress to block major retaliation. Not guaranteed, but most likely. And that’s how this ill-gotten supermajority is acting.

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