I have this piece up at SCOTUSblog entitled, “Symposium: Why not continue the political struggle in partisan-gerrymandering cases?” It begins:
“In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.” So wrote Justice Felix Frankfurter in his dissenting opinion in Baker v. Carr in 1962.
It was, of course, a dissent. A majority of the Supreme Court in short order reorganized state legislatures according to its own understanding of fair representation — that population should be roughly equal in each legislative district. And the majority’s basis for doing so, Frankfurter’s dissent chided, “ultimately rests on sustained public confidence in [the Court’s] moral sanction.”
The political process is a messy thing. It is laborious to educate the public on a matter and convince them of that matter’s significance. It is time-consuming to wait through election cycles to enact political changes. Impatient litigants demand the federal courts to intervene when the political process moves too slowly.