Strong critics of gerrymandering and other examples of political self-dealing can count an attentive audience—politicians using power to keep power, such as in drawing lines or raising money. There is no denying the legitimacy of the concern. But sometimes the attack can be taken up with zeal, and the proposed solution takes the form of aggressive constitutional innovation. The argument is made, and the Supreme Court is called on to agree, that regular constitutional process and ordinary politics must yield to extraordinary mechanisms installed in their place.

In the Arizona case, the Court ruled that legislatures could be ousted by initiative from the redistricting process  Arizona did not impose checks on legislative self-dealing; it relieved legislators of any role altogether. The Court had to know that it was sanctioning the substitution of one form of politics for another-- the politics of direct democracy for that of the legislative process. To accomplish the flip, it had to deify direct democracy, by referring to it as a conduit for the expression of the popular will, and to render so harsh a judgment on legislatures and their anti-democratic ways that legislators were disqualified from further participation in drawing district lines.

In choosing this direction, the Court appears to have bought into what John Sides and Eric McGhee refer to as the “zombie myths” about the grossly anti-competitive effects of this mode of political self-dealing. Because it was redressing what it takes to be a major evil, the majority could sanction drastic measures on an enterprising construction of the constitutional text, concluding that “legislature” meant no role for the legislature. In sum, the Court treated the case before it as presenting a major dysfunction of governing institutions, justifying an extraordinary response, and it acted accordingly.

Earlier today, Rick Pildes  commented on the Election Law Blog on the Arizona redistricting case, and I replied.