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2018-19 American Constitution Society Supreme Court Review 293 (2019)


In order to understand the division in Rucho and, as importantly, to understand why the plaintiffs in Rucho failed to win over the conservatives on the Court, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist—outside of race and the equal-population principle—that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? We take up these questions in the pages that follow.

Part I discusses the majority’s reasoning in Rucho. Part II suggests that Rucho reflects a traditional understanding of politics in which dirty partisan politics is rightly a part of the political process. By way of conclusion, the article offers thoughts on the shift from normative theorizing to empiricism in the field of law and politics and, more importantly, why we remain optimistic even in the wake of Rucho.