April 28, 2004

Meandering about gerrymandering. I haven't chewed over the new gerrymandering case, Vieth, enough to want to take position. It's hard to say whether we are better off being told the courts ought never to consider a challenge to political gerrymandering (as Justice Scalia wrote for a plurality) or thinking that there is a remote possibility, but don't count on it (Justice Kennedy's fifth vote which produced the outcome). Will the legislators do better knowing their decision is the last call or if they know there is a very, very, very slight chance of judicial supervision? That's a close question about human nature and political practice, but perhaps the deciding factor is the huge waste of resources that goes into litigating cases that amount to nothing.

In any event, Prof. Grofman should feel complimented that Justice Scalia thought his wisecrack about Bandemer (the earlier gerrymandering case) worth quoting in full. It goes like this:
As far as I am aware I am one of only two people who believe that Bandemer makes sense. Moreover, the other person, Daniel Lowenstein, has a diametrically opposed view as to what the plurality opinion means.

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