Roberts, Rules, and Rucho

Abstract

This essay arises out of a symposium exploring the connection between the political question doctrine and judicial legitimacy in the wake of the Supreme Court’s decision in Rucho v. Common Cause, and more specifically a panel devoted to the implications of Rucho for theories of judgment and judging. Chief Justice Roberts’s majority opinion in Rucho emphasizes the need for judicial action to “be governed by standard, by rule” and to be “principled, rational, and based on reasoned distinctions.” Yet our analysis—which compares and contrasts the arguments, reasoning, and rhetoric in Rucho with their counterparts in the Chief Justice’s other opinions—suggests that Rucho ultimately fails its own test. Each justification is one that Chief Justice Roberts has disclaimed or acted contrary to in other cases, leading to the impression that they were cynically, rather than sincerely, deployed. In particular, the argumentative structure in Rucho stands in deep tension with that in Shelby County v. Holder, thereby giving rise to the very appearance of partisan motivation that Rucho decries. The Chief Justice’s ostensible effort to avoid appearing to act out of expediency in the short term thus threatens to undermine the Court’s perceived legitimacy when viewed in the context of his larger body of work.

Keywords: Supreme Court, Rucho, political question doctrine, Shelby County, judicial behavior, judicial opinions, judicial candor, judicial sincerity,

JEL Classification: K00, K10, K4, K40, K41