Judicial Intervention As Judicial Restraint

Abstract

This paper examines the Court's decision in Gill v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should intervene to prevent partisan gerrymanders, not only because partisan gerrymandering is harmful, but also because of what partisan gerrymandering communicates about the normativity of the manipulation of electoral rules for partisan gain.