Saturday, October 15, 2022

Chief Justice Roberts: Judicial Restraint and Partisan Gerrymandering

By Anthony C. Jenouri
Anthony C. Jenouri is a third-year law student at Albany Law School. Currently, he is a legal intern at both the Justice Center and Government Law Center. He also served as an intern at the law school’s Immigration Law Clinic, where he drafted habeas corpus petitions to help clients challenge their immigration detention. He was also a semi-finalist in the 2022 Donna Jo Morse Negotiations Competition.
Before law school, Anthony earned his bachelor’s degree from Binghamton University, where he majored in Philosophy, Politics, and Law. He also previously interned for Assembly Member Michael DenDekker at the New York State Assembly, where he served as clerk for the Consumer Affairs and Protection Committee. Upon graduation, Anthony hopes to pursue a career as a legislative counsel.

Chief Justice John Roberts has made it his mission to preserve the Supreme Court’s legitimacy, and he does so by avoiding the hint of partisanship whenever possible. This is partly why, when confronted with an issue as polarizing as partisan gerrymandering, the Chief Justice decided to punt on the issue. Specifically, he held in Rucho v. Common Cause that federal courts may not hear partisan gerrymandering cases because they present nonjusticiable political questions. Instead, such cases must be resolved by the political branches of government, namely the legislative and executive branches.

Critics have been quick to point out how partisan gerrymandering is antithetical to democratic principles. After all, it promotes an electoral system where the legislators are choosing their voters, and not the other way around. And it may seem disingenuous to suggest, as Roberts does, to defer to the legislators, since they are precisely the ones who benefit from keeping gerrymandering legal. While the Chief Justice appears to sympathize with his critics’ concerns, they are not enough to overcome his primary concern: preserving the Supreme Court’s legitimacy.  Allowing courts to intervene in the redistricting process, especially without a manageable legal standard, risks plunging the courts into the political thicket, thus damaging the judiciary’s image as the nonpartisan branch of government.

This paper examines the Chief Justice’s opinion in Rucho to understand how his concern for preserving the Court’s legitimacy informs his judicial decision-making. It also questions whether his approach to judicial restraint is prudent or whether it actually emboldens the extreme polarization he seeks to contain.
To read the paper, open HERE.