Justice Frankfurter’s Misplaced Legitimacy Concerns in the Reapportionment Cases

A major concern expressed during the partisan gerrymandering litigation before the Supreme Court over the past two terms has been that the Court’s public legitimacy may suffer if it holds that federal courts may adjudicate the merits of political gerrymandering claims. For example, at oral argument earlier this week, former U.S. Solicitor General Paul Clement, who was arguing against the justiciability of such claims, ominously warned the Justices that “once you get into the political thicket, you will not get out and you will tarnish the image of this Court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politics.” (I doubt Mr. Clement meant to imply that judging is a form of politics, but that is what he did imply.)In invoking the “political thicket,” Mr. Clement was channeling Justice Felix Frankfurter, who many decades earlier had warned his…

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