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1/ Political gerrymandering cases are among the only cases under modern law which must be heard by three-judge district court panels and are subject to appeal as of right to the U.S. Supreme Court. For my forthcoming @GeorgetownLJ piece on 3-judge courts: papers.ssrn.com/sol3/papers.cf…
2/ In Shapiro v. McManus, a few years ago, the Court reaffirmed that it must hear an appeal from a three-judge district court unless the appeal does not raise any "substantial" federal questions, meaning it is frivolous or the arguments are squarely foreclosed by precedent
3/ As a result, the Supreme Court was virtually obligated to hear all the political gerrymandering appeals of the past several years. When a case is directly appealed as of right, the parties file a "jurisdictional statement," but aren't required to petition for certiorari
4/ If the Supreme Court had held political gerrymandering claims are justiciable, absent a change in 28 U.S.C. 2284 (which is unlikely), it would've been obligated to hear just about every political gerrymandering appeal for both Congressional and state legislative district lines
5/ I wonder whether 28 U.S.C. 1253 and 2284, which together allow appeals as of right to the Supreme Court in political gerrymandering cases, influenced Chief Justice Roberts' decision to conclude such claims are nonjusticiable.
6/ Without 28 USC 1253 and 2284, political gerrymandering cases would've been heard by judges throughout the country, appealed to 11 different regional circuits, and hardly ever reached the Supreme Court unless the Court affirmatively decided to grant certiorari.
7/ With direct appeal as of right to the Supreme Court in political gerrymandering cases, the very same Justices - sitting in the highest profile court - would eventually be resolving every single political gerrymandering case, consistently choosing between Dem & Rep legislators
8/ I wonder how much of the Chief's conclusion that the federal judiciary should stay out of political gerrymandering disputes was driven by the statutorily contingent fact that it was specifically the Supreme Court that would repeatedly be at the heart of all of them.
9/ Officially, of course, the availability of review as of right in the Supreme Court doesn't impact whether "judicially manageable standards" exist for resolving a political gerrymandering claim.
10/ I don't think the Court would've voluntarily heard so many political gerrymandering cases these past years. The upcoming census suggests a wave of up to 100 new ones. Did Roberts think the Court shouldn't have so much power to pervasively decide the nation's political future?
11/ Had the Court adopted a standard for political gerrymandering, there would've been numerous follow-up issues, questions about application, ambiguities, boundary disputes, and other non-frivolous, substantial questions to litigate in later cases the Court would've had to hear.
12/ Without 28 USC 1253 and 2284, the Court wouldn't have been obligated to hear Rucho & other political gerrymandering cases now. Without mandatory direct appeals as of right, it could've denied cert, allowed the issue to percolate, & let other 3-judge courts try other standards
13/ Chief Justice Roberts might have preferred avoiding the issue of whether political gerrymandering claims are justiciable, allowing the Vieth-generated uncertainty over their justiciability to remain and exercising the passive virtues his opinion in Rucho implicitly embraces.
14/ It may have been far less tenable for the Court to hold political gerrymandering is nonjusticiable if there had been years of experience w/ circuits across the country developing and applying bodies of binding precedent on the issue, not just a few scattered district ct ops
