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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, June 28, 2006 ::
    The Texas redistricting case, LULAC v. Perry

    OK, I'm not really qualified to comment on those parts of the controlling opinion that are based strictly on the Voting Rights Act. I'll note only that the Chief, dissenting on the VRA parts of the opinion, and joined by Justice Alito, flatly accuses the majority of misreading the District Court opinion under review, and of holding that district lines that are otherwise minority-advantageous violate the VRA because they are deficient on "style points" (Roberts's words.)

    Fun end-of-term stuff, and rather far from the Marshallian consensus-building of Roberts's first few weeks in office!

    Bottom line, politics dep't: District 25 will have to be tweaked, but all the rest of the plan is good to go. On the whole, the result is favorable to Texas Republicans. Now, back to the law.

    The rest of the decision is about the application of the Equal Protection Clause to political gerrymandering. The very idea may well seem daft, because it potentially envisions the Supreme Court using the EP Clause to adjust party balances in political outcomes.* No wonder the case in which the Court first held that political gerrymandering is justiciable, Davis v. Bandemer, did not produce agreement on what standard to use in this newly-opened territory for EP jurisprudence.

    Today, Scalia and Thomas, in partial concurrence & partial dissent, say flat-out that political gerrymandering should be held to be a non-justiciable "political question," and they criticize the majority rather sternly for neither doing so nor, on the contrary, laying down a test, so that states can know if their district lines violate EP or not. The middle course -- maintaining the gerrymandering is justiciable but holding that plaintiffs have not made out a case of it here, while giving not the remotest hint of what such a case would look like -- is, say our heroes, "not an available disposition of this appeal."

    Roberts and Alito do not join Scalia and Thomas in calling for the overruling of Bandemer right now, but they leave the door open do it, noting that this issue "has not been argued in these cases." Even Kennedy, writing the controlling opinion, appears at any rate disinclined to entrench EP-based judicial control of gerrymandering any further:
    In Davis v. Bandemer, 478 U. S. 109 (1986) , the Court held that an equal protection challenge to a political gerrymander presents a justiciable case or controversy, but there was disagreement over what substantive standard to apply. That disagreement persists. A plurality of the Court in Vieth v. Jubelirer would have held such challenges to be nonjusticiable political questions, but a majority declined to do so. We do not revisit the justiciability holding but do proceed to examine whether appellants’ claims offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution. [Internal cites omitted.]
    The conclusion is that they do not, but no guidance is given on how they could. Why not? That looks like a job for Obvious Man: no one EP standard for gerrymandering would command five votes on this Court. Reason enough, I think Scalia would say, to pull out of EP review of gerrymandering altogether. Indeed, he is charitable enough to note that Kennedy's opinion here "ably demonstrates" the perpetual elusiveness of a "judicially discernable standard" for such claims.

    So I think that in a case where the issue is raised and briefed, a majority now exists to overrule Brandemer.

    *Some would say that happened in Bush v. Gore, but the majority holding there was driven by vote-dilution concerns filtered through the Court's one-person-one-vote EP cases, not by political gerrymandering concerns.

    :: David M. Wagner 12:10 PM [+] ::

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