Rucho v. Common Cause: how long must we keep a straight face?

Your periodic reminder that Rucho is one of the worst decisions in the largely ignominious history of the Supreme Court:

North Carolina Republicans just passed their new state House gerrymander that makes it impossible for Dems to win a majority in this key swing state.

The GOP will likely even win a veto-proof 3/5 majority outside of Dem wave years.

Interactive version: https://t.co/EqHzvsBEBg https://t.co/OS4xSAgKCU pic.twitter.com/SFqIq1pfLN— Stephen Wolf (@PoliticsWolf) October 25, 2023

To recapitulate:

• The idea that a party gerrymandering itself into a permanent legislative supermajority complies with the explicit constitutional guarantee of a “republican form of government” or the equal protection of the laws guaranteed by the 14th Amendment deserves the Charles Black treatment. And one way you can tell this is true is that not one member of the Rucho majority was willing to actually argue that extreme partisan gerrymanders are constitutional.
• The idea that the federal judiciary cannot remedy one of the most transparent and consequential constitutional violations imaginable because of an 1849 opinion written by the auteur of Dred Scott v. Sandford with a very different set of facts at a time in which the federal government had far less enforcement capacity is not one anyone should be bound to give the slightest respect.
• The most relevant precedent is not Luther v. Borden but Baker v. Carr, in which the Supreme Court rejected the holding that the only remedy to a party using deliberately unrepresentative disctriting to create permanent supermajorities is to vote out the party is to vote them out. Given that the overruled holding was based on some of the most transparently specious reasoning in the known history of human discourse, and John Roberts’s holding in Rucho is based on the same premise, Baker should have been controlling in Rucho as well.
• Applying the political questions doctrine to extreme partisan gerrymandering is outright perverse. Incumbent politicians removing themselves from democratic accountability is the paradigmatic case of judicial intervention being justified. If the courts aren’t going to intervene in a case of flagrantly unconstitutional and undemocratic self-dealing there’s no point to having judicial review at all.
• Rucho is not the product of any actual lack of judicial capacity — it’s the product of Republican elites believing that the guaranty clause properly guarantees a Republican form of government. That’s it.