Institutional Loyalty and the Design of Partisan Gerrymandering Adjudication in the Federal Courts
In 2019 the Supreme Court held in Rucho v. Common Cause that challenges in federal court to partisan gerrymandering were nonjusticiable political questions. Writing for the 5-4 majority, Chief Justice John Roberts expressed concern that frequently deciding such cases would politicize the Court itself. Such expressions seem to fit well within the characterization of the Chief Justice as an institutionalist concerned with the legitimacy and reputation of the federal courts. This article addresses how the unique design and procedures of gerrymandering litigation in federal courts ought to inform such institutional loyalty arguments. Those features include that such cases are litigated before three-judge district courts, with a direct, mandatory appeal available to the Supreme Court. Large numbers of amicus curiae briefs by individuals and organizations with partisan leanings have also characterized such litigation in the Supreme Court. The article argues that these unique features themselves should be given greater emphasis in assessing whether Chief Justice Roberts; institutionalist concerns are well-founded.
