Document Type
Article
Publication Date
2018
Abstract
This paper examines the Court's decision in Gil v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should intervene to prevent partisan gerrymanders, not only because partisan gerrymandering is harmful, but also because of what partisan gerrymandering communicates about the normativity of the manipulation of electoral rules for partisan gain.
Citation
Guy-Uriel Charles & Luis E. Fuentes-Rohwer, Judicial Intervention As Judicial Restraint, 132 Harvard Law Review 236-275 (2018)
Library of Congress Subject Headings
Gerrymandering, Apportionment (Election law), Election districts, Political questions and judicial power
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, Election Law Commons, Law and Politics Commons, Law and Race Commons
Available at: https://scholarship.law.duke.edu/faculty_scholarship/3898