The Anti-Partisan Principle–Concluding Thoughts
posted by Gerard Magliocca
Before I move on to another topic, I want to wrap this one up by explaining why I am thinking about this issue. Basically, I’m interested in how judges think about cases where the law or action before them is highly partisan. Formally, of course, this should not matter. In practice, though, courts are influenced by this, either because of their own partisanship or because they think that such laws ought to be reviewed more carefully. Now figuring out what effect, if any, this has on real cases will take a while. A good summer research project, you might say.
Consider one possibility though. When the individual mandate was before the Supreme Court, many said that it would be wrong for a group of Justices chosen by one party to strike down the major party program of the other party. One might even say that this concern gave the Chief Justice pause. Where did that idea come from, at least with respect to people who were not just using it as a convenient argument?
Anyway, tomorrow I’ll turn to a set of posts about something that I’m writing about the mechanics of constitutional change.