Judicial Intervention As Judicial Restraint

55 Pages Posted: 8 Sep 2018

See all articles by Guy-Uriel E. Charles

Guy-Uriel E. Charles

Duke University School of Law

Luis E. Fuentes-Rohwer

Indiana University Maurer School of Law

Date Written: August 27, 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.

Suggested Citation

Charles, Guy-Uriel and Fuentes-Rohwer, Luis E., Judicial Intervention As Judicial Restraint (August 27, 2018). Harvard Law Review, Forthcoming; Duke Law School Public Law & Legal Theory Series No. 2018-53. Available at SSRN: https://ssrn.com/abstract=3239681

Guy-Uriel Charles (Contact Author)

Duke University School of Law ( email )

Box 90360
Science Drive & Towerview Rd.
Durham, NC 27708
United States

Luis E. Fuentes-Rohwer

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-5003 (Phone)
812-855-0555 (Fax)

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