Fishkin on the SCOTUS AZ Redistricting Decision

At Balkinization:

Constitutional problem-solving plays a complex role in constitutional interpretation and adjudication. It is not a license to read principles into the Constitution that are not there, or to ignore principles that are there. It is not a license to override clear commands: even if widespread age discrimination is a pressing constitutional problem, this is not a good enough reason to disregard the rule that the President must be 35 years old. Instead, constitutional problem-solving is something courts do when interpretive work is called for, at the same time that they are doing other forms of interpretive work. In Legislature v. AIRC, despite the dissent’s insistence that the term “Legislature” is completely unambiguous, the real question in the case, and it is not a particularly easy question, is whether that term ought to be read institutionally or functionally. If read functionally—the legislature is the power that legislates—then the Arizona commission is fine; if read institutionally, the Elections Clause requires the Arizona State Legislature to have the authority over districting and the AIRC would lose.

It was lost on none of the Justices writing in Legislature v. AIRC that the institutional reading favored by the dissenters would hard-wire into our constitutional order a commitment to allowing partisans (the legislators) to draw Congressional district lines, with only the judiciary even potentially left to stand in the way of egregious gerrymanders (and likely not even that). The only question was whether acknowledging this bolstered the majority’s constitutional interpretation or revealed its illegitimacy.

Courts can try to go about the work of constitutional interpretation clause by clause and word by word, viewing small units like the word “Legislature” like little scientific specimens, as if interpretation were a science. They can consult dictionaries and the rest of the textualist tool chest. But I actually do not think it is possible to avoid thinking about the larger constitutional problems that an interpretation either helps solve or makes worse. If judges are being honest with themselves, they acknowledge that this is part of what they’re doing. The real question is which constitutional problems they think are worthy of attention.


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