Amicus Brief in Political Gerrymandering Cases (Rucho v. Common Cause and Lamone v. Benisek) of Prof. David Orentlicher Supporting Neither Side

Amicus Brief , Nos. 18-422, 18-726, United States Supreme Court

UNLV William S. Boyd School of Law Legal Studies Research Paper

19 Pages Posted: 13 Mar 2019

See all articles by David Orentlicher

David Orentlicher

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: February 21, 2019

Abstract

While this brief takes no position on the merits of the cases, it does present a position on the manner in which the cases should be decided. The Due Process Clause promises litigants that they will receive an impartial hearing before a neutral court. And a neutral court decides cases without any personal, political, or other partiality. However, like other appellate courts, the Supreme Court brings an ideological leaning to its work. This compromises the due process principle of fairness which is critical to the resolution of any legal matter and especially matters such as political gerrymandering that go to the heart of our representative system of government. Accordingly, principles of due process require the Court to ensure that it decides these cases in an ideologically-balanced way.

Scholars and others have proposed a number of approaches to bring ideological balance to the Supreme Court, including changes in the judicial appointment process. The simplest path to ideological balance would be for the Court to follow the example of the jury, and render its decisions unanimously. That way, Justices on both sides of the ideological spectrum would have to support the Court’s rulings.

Keywords: political gerrymandering, due process, Supreme Court, partisan gerrymandering, ideological balance

JEL Classification: K19, K41

Suggested Citation

Orentlicher, David, Amicus Brief in Political Gerrymandering Cases (Rucho v. Common Cause and Lamone v. Benisek) of Prof. David Orentlicher Supporting Neither Side (February 21, 2019). Amicus Brief , Nos. 18-422, 18-726, United States Supreme Court; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3339343 or http://dx.doi.org/10.2139/ssrn.3339343

David Orentlicher (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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