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Courts have generally deferred to the chambers of Congress to set their own rules, and it’s not clear that the federal judiciary would want to intervene in this case either — though no challenge to the filibuster has reached the Supreme Court.

“The history of this kind of litigation is the courts have stayed away from the merits of the filibuster. They tend to find just on different grounds reasons not to consider the merits,” said Michael J. Gerhardt, director of the Center for Law and Government at the University of North Carolina School of Law.

Asked about the likelihood of courts taking the case, Emmet Bondurant, the lead attorney in the case, pointed to Supreme Court decisions overturning the line-item veto and how Congress chooses to seat its members as evidence the court will rule on internal congressional matters.

Common Cause is leading the lawsuit. The group used to strongly support the filibuster rule, but said it’s changed its stance after a long review of the history of the practice.