Page:Arizona State Legislature v. Arizona Independent Redistricting Comm’n.pdf/72

Rh , with whom joins, dissenting.

I do not believe that the question the Court answers is properly before us. Disputes between governmental branches or departments regarding the allocation of political power do not in my view constitute “cases” or “controversies” committed to our resolution by Art. III, §2, of the Constitution.

What those who framed and ratified the Constitution had in mind when they entrusted the “judicial Power” to a separate and coequal branch of the Federal Government was the judicial power they were familiar with—that traditionally exercised by English and American courts. The “cases” and “controversies” that those courts entertained did not include suits between units of government regarding their legitimate powers. The job of the courts was, in Chief Justice Marshall’s words, “solely, to decide on the rights of individuals,” Marbury v. Madison, 1 Cranch 137, 170 (1803). Tocqueville considered this one reason the new democracy could safely confer upon courts the immense power to hold legislation unconstitutional: “[B]y leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from