“Judicial Intervention as Judicial Restraint”

Guy-Uriel Charles and Luis Fuentes-Rohwer have a new piece forthcoming in the Harvard Law Review, on partisan gerrymandering and justiciability:

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.

Guy and Luis have been incredibly insightful observers of the judicial regulation of the electoral process for some time.  I’m really looking forward to reading this.

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