June 29, 2006

That Texas redistricting case.

Here's Linda Greenhouse's report on the Texas redistricting case:
With only Justice Anthony M. Kennedy joining both parts of the decision, the court looked in two directions..., rejecting the statewide gerrymandering claim brought by Democrats and other plaintiffs while accepting the Voting Rights Act challenge in southwestern Texas, brought by the Mexican American Legal Defense and Educational Fund. The case produced six separate opinions, a total of 123 pages.
That's half of the reason why I did not read and summarize the case for you when it came out yesterday. It's not just that the case is long and fractured. It's that it fails to do anything to clear up the utterly confused standard to be applied in claims of unconstitutional gerrymandering and adds nothing new to the analysis of whether courts should entirely refuse to entertain such claims (by applying the so-called "political question doctrine"). I note that the two new Justices offer nothing new. Here's Chief Justice Roberts, joined by Justice Alito:
... I agree with the determination that appellants have not provided “a reliable standard for identifying unconstitutional political gerrymanders.” The question whether any such standard exists — that is, whether a challenge to a political gerrymander presents a justiciable case or controversy—has not been argued in these cases. I therefore take no position on that question, which has divided the Court, see Vieth v. Jubelirer, 541 U. S. 267 (2004)...
I'll be interested when they do take a position on this issue (which I tormented my students with on the last conlaw exam). Roberts and Alito replaced two Justices who agreed with Thomas and Scalia that political gerrymandering is not justiciable, and Justice Kennedy is holding down a middle position that is keeping the law in this area exceedingly unclear. The outcome in the new case is important, and it affects significant political interests. But as an expression of law it is highly unsatisfying.


Simon said...

I've referred to cases like McConnell and Randall v. Sorrell as trainwrecks, but this case sets the bar at an entirely new level. This is up there with Furman v. Georgia; this is a high speed derailment, jumps the tracks and hits a train coming in the other direction head on kind of train wreck.

Not only is it exceptionally long, as you say, but being written by Justice Kennedy - by a country mile the worst writer on the court, IMHO - it is singularly unreadable. I disagree to some extent with your conclusion that Roberts and Alito "offer nothing new"; for years, the court as been divided into two implaccably opposed camps on this issue, but the addition of two new Justices into the mix has resulted in neither the Scalia/Thomas camp or the Breyer/Stevens camp prevailing: rather, yet another camp seems to have joined the field, one which apparently disagrees with everyone. that may be a bad result, but it is not exactly nothing.

In any event, I couldn't wait. I said my peace on it here. In essence, I would dismiss most of the case per Scalia's opinion, and with regard to the VRA claim, I would hold that the threshold question is whether district 25 was designed for no purpose other than to discriminate against latinos qua latinos (as opposed, for example, against democratic voters), and that case not being proven, affirm the court of appeals.

Ann Althouse said...

Simon: I just meant that Roberts and Alito "offer nothing new" on the political question issue in this case. They specifically decline to.

Simon said...

Right, but by refusing to get into the question, they set themselves apart from every other member of the court, hence, the new camp theory.

Steven said...

Simon, I don't think there's a third group, myself. I'm reading Roberts as saying,

"Alito and I would say that a political gerrymander does not present a justiciable case or controversy, but telling the majority that it got a recent case wrong is not diplomatic. We have to work with these people, after all. And we'd only be votes three and four anyway, so there's no point in rocking the boat.

"Fortunately, since there was no direct challenge to justicability, we have a plausible excuse to say nothing about it. Accordingly, we're taking advantage of the excuse."

Simon said...

I will be absolutely delighted to be proven wrong when the inevitable next round makes it up to the court. :p