Bench Memos

NRO’s home for judicial news and analysis.

More on the Vermont case


Allison Hayward’s take on the Supreme Court’s decision in Randall v. Sorrell is, I think, right on. It is also worth noting that the theme at the heart of Justice Breyer’s opinion — that is, that the Constitution authorizes, or even requires, judges to evaluate legislative enactments against an amorphous standard of “what’s good for democracy and competitive elections” — is one that he and others are sounding in other contexts, as well. Remember, for example, last year’s Ten Commandments cases. In those cases, Justice Breyer was the “swing” vote and — drawing on ideas he laid out in his recent book, Active Liberty — he reasoned that the task of judges who interpret and apply the Establishment Clause is to identify policies or actions that are, or might be, “divisive,” and to invalidate them for that reason. As I have argued, though, judicial predictions or observations about “divisiveness” — or, for that matter, non-competitiveness — should do minimal work in supplying the Constitution’s binding content.


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