Rucho is Right—But for the Wrong Reasons
Louis Michael Seidman * | 23.4 | Essay | Citation: Louis M. Seidman, Rucho is Right--But for the Wrong Reasons, 23 U. Pa. J. Const. L. 865 (2021).
Read Prof. Simard’s companion piece on the political question doctrine.
In Rucho v. Common Cause, the Supreme Court ended its long struggle to formulate constitutional standards to regulate political gerrymandering by declaring that it was not up to the job. The Court held that it could not come up with manageable standards governing the controversy and that it therefore posed a nonjusticiable political question. In this brief Essay, I attempt to defend this outcome. The task is not easy, and I hope that the reader will at least give me some points for degree of difficulty. There is no denying that partisan gerrymandering is a very serious evil, and there is no defending Chief Justice Roberts’ dreadful opinion justifying the Court’s refusal to do anything about it. Still, I argue, on balance, we are better off without the Supreme Court mucking around with this problem. Moreover, the reasons why we are better off go beyond this particular issue and impeach some of the standard arguments for judicial intervention more generally.
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*Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center.