A Republic, If the Courts Can Keep It?


Laurence Claus

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This contribution to a conference celebrating Andrew Coan’s Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard Univ. Press, 2019) makes three primary points.

First, I explain why the Supreme Court’s flawed reasoning in INS v. Chadha supports Coan’s judicial capacity theory of Supreme Court decision making.

Second, I show why judicial capacity concerns do not support the Supreme Court’s decision in Rucho v. Common Cause to treat the constitutionality of partisan gerrymandering as a nonjusticiable political question. The Court could and should have announced a bright line rule against any partisan calculation in districting decision making, and let lower courts adjudicate the pure question of fact that such a rule would raise. Recent scholarship is converging in this direction. The weakness in Justice Kagan’s dissent lay in conceding any place for partisan calculation in districting. Predominant purpose tests, pulled across from racial affirmative action cases, do not fit partisan gerrymandering. Even the Court’s staunchest opponents of racial affirmative action concede that the goals of that action may be laudable; those opponents just contend that weightier moral reasons call for race neutrality in almost all circumstances. No one on the Court uses “laudable” to describe the goals of partisan gerrymandering. Partisan reasons are not redeemed by being low impact. Partisan reasons should have no impact on governing actions.

Third, I argue that the Court should have identified a nonjusticiable political question not in Rucho, but, as other recent scholarship has suggested, in Shelby County v. Holder. Congress’s provision for preclearance in the Voting Rights Act serves not only to uphold the promises of the fourteenth and fifteenth amendments, but also to fulfill the national government’s constitutional duty to guarantee every state in the Union a republican form of government. The Court has long held that it will not second guess the judgment of the elected branches about what republican form requires.