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Article

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Rashomon and the Roberts Court, 68 Ohio St. L. J.1213 (2007)

Abstract

As the opening quip of Pam Karlan’s article suggests, it is difficult to make sensible predictions about the future of the Roberts Court’s election law jurisprudence based upon the two cases decided during its first year. Even law professors are cautious about drawing inferences from two data points. And given the many opinions rendered in Randall v. Sorrell and League of United Latin American Citizens v. Perry (LULAC), such an exercise is more likely to involve chaos theory than geometry.

A few years ago, I argued that the Supreme Court was in the midst of a doctrinal interregnum. During those last years of the Rehnquist Court, the Court was aware that a new, cohesive majority would emerge at some point in the future. Due to the vagaries of politics and the timing of retirement decisions, however, no one knew precisely who would be in that majority. For this reason, the Court was trapped in a holding pattern: aware of “the imminence of a paradigm shift, but . . . not sure where the next analytic road [would] lead[,] . . . [it was] content with going through the motions, patching the holes in the existing foundation, holding the doctrinal edifice together a little while longer.”

The doctrinal interregnum continues. We are still at least one presidential election away from knowing which coalition will choose the path the Court will take as it wends its way through the political thicket.

Date of Authorship for this Version

2007

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