Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, Dirty Thinking About Law & Democracy in Rucho v. Common Cause (Duke L. Sch. Pub. L. & Legal Theory Series No. 2019-78, 2019).
Abstract: This Essay, a precursor to a larger project, uses Rucho v. Common Cause, to argue that there are two different normative conception of politics in the Court's law and politics jurisprudence. For the conservative Justices on the Court, politics is sordid, partisan, and unfair. Law and politics cases, specifically political-gerrymandering claims, ask the Court to perform a task that courts are ill-equipped to perform, which is to clean up a process that is inherently dirty and to make fair a process that is inherently partial. Rucho, representing the Court's law and politics cases more broadly, is both an affirmation of a traditional conception of politics and also a rejection of a more modern conception that is beginning to find a foothold in American politics — with roots in the Court’s malapportionment jurisprudence — about how representative democratic institutions ought to operate. This more modern approach reflects the beliefs that representative electoral structures and American politics more generally ought to include some basic notion of fairness; a commitment to the public good without the hindrance of partisanship; and a conception of fair play that constrains the behavior of those who design electoral structures. In contrast to the majority in Rucho, proponents of the modern conception envision a role for the Court in enforcing basic rules of fairness and fair play while at the same time indirectly promoting a particular vision of the public good that is not filtered through partisan identity in the design of structures of representation. In order to understand the division in Rucho, why the plaintiffs in Rucho failed to win over the conservatives on the Court, and the Court's law and politics cases more broadly, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist — outside of race and the equal-population principle — that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? This essay explores those issues.