University of Chicago law professor Richard Epstein joined Chicago’s Morning Answer to unpack recent Supreme Court cases on racial gerrymandering, executive authority, and the limits of presidential power — arguing that the Court is grappling with problems of its own making.
Epstein said the Court is likely to sharply limit or even eliminate the use of race as a factor in congressional redistricting, describing the Voting Rights Act disputes as a “nightmare” created by conflicting precedents. “The equal protection clause gives you only the faintest guide,” he said, noting that previous rulings allowed race-based districting while prohibiting explicit political bias, a contradiction that has invited chaos. “The result is a system where massive gerrymandering is tolerated while small population variances are treated as scandalous.”
He dismissed Justice Ketanji Brown Jackson’s suggestion that minority voters face modern-day barriers akin to physical disabilities under the ADA. “That’s absurd,” Epstein said. “There is no law or regulation anywhere in America that treats black voters differently from white voters, and black voter participation in many Southern states exceeds that of whites.”
Epstein argued that the Court’s 2019 Rucho v. Common Cause decision — which removed federal oversight of political gerrymandering — was a critical mistake that should be revisited. Without judicial scrutiny, he said, both parties can entrench themselves by manipulating district maps. He proposed a return to multi-member districts or nonpartisan map-drawing algorithms to restore fairness.
Turning to executive authority, Epstein said the courts are right to constrain President Trump’s attempts to deploy the National Guard for immigration enforcement. “He’ll lose that case — and he should,” Epstein said. “The president can’t act unilaterally unless local authorities have lost control. The Constitution doesn’t make him a king.”
He also rejected sweeping interpretations of the “unitary executive” theory, warning that unchecked presidential power would erode the separation of powers. “The Constitution is silent on removal authority and intentionally complex,” he said. “To claim it grants absolute control over every executive function is to ignore the design of limited government.”
Despite his criticism of Trump’s legal strategy, Epstein said the greater danger lies in the judiciary’s reluctance to enforce consistent standards. “We’ve reached a point where courts tolerate blatant political manipulation in one context and overreach in another,” he said. “That’s the real constitutional crisis — not one man’s exercise of power, but the system’s failure to apply the rules evenly.”