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

[Scarberry, Mark]

Is it enough, in the language of ABA Model Rule 3.1, that there is a "good faith argument for ... reversal of existing law"? According to the Rules, a claim backed by such an argument is not "frivolous," for professional responsibility purposes. That can't be right, can it?

Mark Scarberry
Pepperdine University School of Law

Sent from my iPad

On Dec 8, 2015, at 9:29 AM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

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<mailto: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<tel:703.894.6800> | F: 703.894.6811<tel:703.894.6811>
adickerson at campaignfreedom.org<mailto:adickerson at campaignfreedom.org>


From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto: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<mailto:lederman.marty at gmail.com>>; edu law-election at uci. edu law-election at uci. <law-election at uci.edu<mailto: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<tel:614.236.6317>

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Marty Lederman [lederman.marty at gmail.com<mailto: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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