Countering Gerrymandered Courts

I have posted a new draft on SSRN: “Countering Gerrymandered Courts: A Comment on Miriam Seifter’s ‘Countermajoritarian Legislatures'” (forthcoming Columbia Law Review Online, 2022).

Miriam Seifter’s “Countermajoritarian Legislatures” (forthcoming Columbia L. Rev. 2022, link here) makes a series of important observations, with a thoughtful synthesis with practical impact on constitutional doctrine. Seifter builds on a well-known fact: Gerrymandering is especially anti-democratic in many state legislatures. She notes that major areas of federal and state constitutional law turn on a mistaken assumption that legislatures are more democratic than the courts, especially controversial in the recent litigation – and surely future contests — over presidential elections. Then she adds her key insight: State legislatures are usually more anti-democratic due to gerrymandering than their governors and judges, who are (generally) elected state-wide, and thus, courts and policy-makers should rely more on those branches to protect democratic norms and institutions.

This comment offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into anti-democratic districts. The problem is that some states do use districts for their state judicial elections, and there are growing concerns about both parties using gerrymandering for their advantage.

This comment begins with some observations about the democracy and hypocrisies in the Supreme Court’s recent reflections on state legislatures vs. courts. Then it summarizes the mid-nineteenth-century’s rise of judicial elections along with local judicial districting. Today, state court seats have become the new battleground of gerrymandering by both parties. Then this comment identifies a problem: the exception for state judicial districts not to follow the “one-person/one-vote” rule; and a countervailing trend: elected judges are similar enough to other elected officials to be subject to other election rules (e.g., the Voting Rights Act), but are different enough to have special First and Fourteenth Amendment rules to protect “the rule of law” and the “integrity” of the courts. Following those doctrinal tends, this comment suggests some possible solutions: 1) more federal judicial oversight, against the “political question” assumptions hinted by the “independent state legislature” doctrine; 2) end the Baker v. Carr exception; 3) adopt a special rule against partisan gerrymandering for judges; 4) and the most manageable solution: a bright-line against all state court districting, so that all state judicial districts must be state-wide. This last proposal replaces one prophylactic rule (one-person/one-vote) with another as the best way to counter the anti-democratic gerrymandering of state courts and to protect against asymmetric beanball against democratic norms.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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