KRIEGER, Heike - NOLTE, Georg - ZIMMERMANN, Andreas (Eds.). The International Rule of Law. Rise or Decline?, Oxford University Press, Oxford, Oxford-RU, 2019, 400 páginas

• Autor: Zlata Drnas de Clément
• Páginas: 335-338

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JURISPRUDENCIA

speaks nothing to our ability to enjoin the government from exercising its discretion

in violation of plaintiffs’ constitutional rights.

4.

In sum, resolution of this action requires answers only to scientific questions,

not political ones. And plaintiffs have put forth sufficient evidence demonstrating

their entitlement to have those questions addressed at trial in a court of law.

As discussed above, the majority reaches the opposite conclusion not by

marching purposefully through the Baker factors, which carve out a narrow set of

nonjusticiable political cases, but instead by broadly invoking Rucho in a manner

that would cull from our dockets any case that presents administrative issues “too

difficult for the judiciary to manage.” Maj. Op. at 28. That simply is not the test.

Difficult questions are not necessarily political questions and, beyond reaching

the wrong conclusion in this case, the majority’s application of Rucho threatens to

eviscerate judicial review in a swath of complicated but plainly apolitical contexts.

Rucho’s limitations should be apparent on the face of that opinion. Rucho ad-

dresses the political process itself, namely whether the metastasis of partisan poli-

tics has unconstitutionally invaded the drawing of political districts within states.

Indeed, the Rucho opinion characterizes the issue before it as a request for the Court

to reallocate political power between the major parties. Rucho, 139 S. Ct. at 2502,

2507, 2508. Baker factors aside, Rucho surely confronts fundamentally “political”

questions in the common sense of the term. Nothing about climate change, however,

is inherently political. The majority is correct that redressing climate change will

require consideration of scientific, economic, energy, and other policy factors. But

that endeavor does not implicate the way we elect representatives, assign govern-

mental powers, or otherwise structure our polity.

Regardless, we do not limit our jurisdiction based on common parlance. Instead,

legal and constitutional principles define the ambit of our authority. In the present

case, the Baker factors provide the relevant guide and further distinguish Rucho. As

noted above, Rucho’s holding that policing partisan gerrymandering is beyond the

courts’ competence rests heavily on the first Baker factor, i.e., the textual and histor-

ical delegation of electoral-district drawing to state legislatures. The Rucho Court

decided it could not discern mathematical standards to navigate a way out of that

particular political thicket. It did not, however, hold that mathematical (or scientif-

ic) difficulties in creating appropriate standards divest jurisdiction in any context.

Such an expansive reading of Rucho would permit the “political question”

exception to swallow the rule.

Global warming is certainly an imposing conundrum, but so are diversity in higher

education, the intersection between prenatal life and maternal health, the role of religion

in civic society, and many other social concerns. Cf. Regents of the Univ. of Cal. v. Bakke,