Amicus Brief in Political Gerrymandering Cases (Rucho v. Common Cause and Lamone v. Benisek) of Prof. David Orentlicher Supporting Neither Side

Abstract

While this brief takes no position on the merits of the cases, it does present a position on the manner in which the cases should be decided. The Due Process Clause promises litigants that they will receive an impartial hearing before a neutral court. And a neutral court decides cases without any personal, political, or other partiality. However, like other appellate courts, the Supreme Court brings an ideological leaning to its work. This compromises the due process principle of fairness which is critical to the resolution of any legal matter and especially matters such as political gerrymandering that go to the heart of our representative system of government. Accordingly, principles of due process require the Court to ensure that it decides these cases in an ideologically-balanced way. Scholars and others have proposed a number of approaches to bring ideological balance to the Supreme Court, including changes in the judicial appointment process. The simplest path to ideological balance would be for the Court to follow the example of the jury, and render its decisions unanimously. That way, Justices on both sides of the ideological spectrum would have to support the Court’s rulings.