Electing Judges, Judging Elections, and the Lessons of Caperton
Electing Judges, Judging Elections, and the Lessons of Caperton
Pamela S. Karlan, 123 Harv. L. Rev. 80 (2009)
Across a variety of domains, a central problem in the law of democracy concerns articulating when and how courts should intervene. Caperton echoes several key elements of the Court’s prior decisions, such as the relationship between the justiciability of constitutional claims and the availability of clear-cut rules for adjudicating them; the salience of appearance and “expressive harms” in the regulation of politics; and the effect of judicially announced rules on the broader political culture. Most fundamentally, Caperton continues the Court’s problematic insistence on addressing structural problems through the lens of protecting individual rights.