Allison Haywardโs take on the Supreme Courtโs decision in Randall v. Sorrell is, I think, right on. It is also worth noting that the theme at the heart of Justice Breyerโs opinion โ that is, that the Constitution authorizes, or even requires, judges to evaluate legislative enactments against an amorphous standard of โwhatโs good for democracy and competitive electionsโ โ is one that he and others are sounding in other contexts, as well. Remember, for example, last yearโs Ten Commandments cases. In those cases, Justice Breyer was the โswingโ vote and โ drawing on ideas he laid out in his recent book, Active Liberty โ 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, โdivisive,โ and to invalidate them for that reason. As I have argued, though, judicial predictions or observations about โdivisivenessโ โ or, for that matter, non-competitiveness โ should do minimal work in supplying the Constitutionโs binding content.
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About the Author
Richard Garnett is the Paul J. Schierl Professor of Law at the University of Notre Dame.
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