Good for the Goose, Good for the Gander
The Supreme Court's redistricting decision today is really many different rulings in one. And it is clear even from a cursory read of the 132-page ruling-- six of the nine Justices wrote their own opinions-- that there is nothing close to unanimity on how to proceed in these sorts of political cases much less how to fairly or completely resolve the partisan dispute the Texas cases represent. In the end, the law of the land, as expressed today by a thin majority of the Court, is that a political party in power in a state may solidify its power in Congress by enacting intensely partisan redistricting at any time unless opponents of the power play can prove a burden on their "representative rights," whatever that means.
Justice Anthony Kennedy, who again emerged from the mist of the Court as the swing vote in the case, declared that since the Democrats had gerrymandered in Texas in the 1990s (and for generations before then) it was not necessarily unfair for the Republicans to have turned the tables on them in 2003. And he refused to apply a legal test offered by opponents of the 2003 GOP redistricting because the test would not also have dissolved the 1991 Democrat redistricting. "A test that treats these two similarly effective power plays in such different ways does not have the reliability appellants ascribe to it." Besides, Justice Kennedy noted, the Tom-Delay-inspired redistricting plan at least "closely" reflected "the distribution of state party power" as opposed to the Democrats' plan in 1991 that seemed to "entrench()" an electoral minority."
Justices Stevens, writing the main dissent, saw the case is much starker terms. It was not an arguable point, Justice Stevens said, that the 2003 redistricting effort by the GOP was motivated by "purely partisan desire to 'minimize or cancel out the voting strength of racial or political elements of voting population.'" Accordingly, he would not have required opponents of the new plan to meet some additional burden of proving that the results of the gerrymandering impacted those "representative rights" that Justice Kennedy mentioned. And he chided the Court's majority for wussing out on offering lower courts, who now surely will be innundated with gerrymandering cases, a workable legal standard.
To give you a sense of the breadth of the Court's view of the issue, two Justices, Thomas and Scalia, would have automatically dismissed the case as beyond the scope of the courts to resolve. And at least three Justices, including the two newest Justices, Samuel Alito and John Roberts, left open the possibility that the Court one day could come up with a legal test to be applied to these sorts of cases. The net result? Go to law school and become an expert in gerrymandering cases. If you do, you surely won't be out of the work for the next decade or so.
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