[EL] Unanimous decision on three-judge-court requirement in Shapiro v. McManus

[Marty Lederman]

Just to be clear:  Yes, I didn't mean to suggest otherwise.  My "short
version" was meant to be tongue-in-cheek, a reflection of a truism of the
constitutional law of our era--i.e., if Justice Kennedy thinks X, then X is
virtually per se not "wholly insubstantial."

On Tue, Dec 8, 2015 at 12:16 PM, Allen Dickerson <
adickerson at campaignfreedom.org> wrote:

> That short version reads the (unanimous) decision too narrowly. The Court
> quoted extensively from its prior rulings, and noted that “constitutional
> insubstantiality [for purposes of a three-judge court] has been equated
> with such concepts as ‘essentially fictitious,’ ‘wholly insubstantial,’
> ‘obviously frivolous,’ and ‘obviously without merit.’ And the adverbs are
> no mere throwaways; ‘the limiting words ‘wholly’ and ‘obviously’ have
> cogent legal significance.’” (page 7; punctuation altered).
>
>
>
> Whether a Justice has embraced the plaintiff’s theory isn’t the standard.
> It’s merely an *example* of claims “easily” clearing this “low bar.”
>
>
>
> Short version: assuming the federal courts have jurisdiction, three-judge
> courts should be convened to hear the merits of redistricting (and, by
> implication, certain campaign finance) challenges as a matter of course.
>
>
>
> Allen Dickerson
>
> Legal Director | Center for Competitive Politics
>
> 124 S. West Street | Suite 201 | Alexandria, VA 22314
>
> O: 703.894.6800 | F: 703.894.6811
>
> adickerson at campaignfreedom.org
>
>
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Smith, Brad
> *Sent:* Tuesday, December 08, 2015 11:36 AM
> *To:* Marty Lederman <lederman.marty at gmail.com>; edu law-election at uci.
> edu law-election at uci. <law-election at uci.edu>
> *Subject:* Re: [EL] Unanimous decision on three-judge-court requirement
> in Shapiro v. McManus
>
>
>
> "Short version:  A redistricting challenge is not "wholly
> insubstantial"--and thus must be heard by a three-judge court--if it is
> based on a theory that Justice Kennedy *a Justice of the Supreme Court*
> has endorsed (at least so long as a majority of the Court has not rejected
> it)."
>
>
>
> -- Fixed it for you.
>
>
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault*
>
> *   Professor of Law*
>
> *Capital University Law School*
>
> *303 E. Broad St.*
>
> *Columbus, OH 43215*
>
> *614.236.6317 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
> ------------------------------
>
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] on behalf of Marty
> Lederman [lederman.marty at gmail.com]
> *Sent:* Tuesday, December 08, 2015 10:42 AM
> *To:* edu law-election at uci. edu law-election at uci.
> *Subject:* [EL] Unanimous decision on three-judge-court requirement in
> Shapiro v. McManus
>
> http://www.supremecourt.gov/opinions/15pdf/14-990_10n2.pdf
>
>
>
> Short version:  A redistricting challenge is not "wholly
> insubstantial"--and thus must be heard by a three-judge court--if it is
> based on a theory that Justice Kennedy has endorsed (at least so long as a
> majority of the Court has not rejected it).
>
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