In another of a series of fractured rulings -- this one produced six separate opinions -- the high court found nothing inherently wrong with drawing new congressional districts in mid-decade. While the 2003 Texas redistricting plan had partisan motives of increasing the Republicans' congressional majority, the court said, it did not amount to unconstitutional political gerrymandering.
Justice Anthony M. Kennedy wrote the court's opinion. Agreeing with him that part of the Texas map violated the Voting Rights Act were justices John Paul Stevens, Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer. Dissenting were the four most conservative members: Chief Justice John G. Roberts Jr. and justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas.
In case you're wondering, 6 opinions is a lot when you only have 9 justices.
I haven't read the full opinion yet (and given that it's 123 pages it may be awhile before I do) but it's hard to see how this is anything more than the Supreme Court continue to lurch along a judicially and philosophically incoherant path when it comes to redistricting. The slew of opinions on this issue arise only to a general rule that when it comes to gerrymandering, they'll "know it when they see it." The fact that the Texas map was drawn up as part of the most naked and blatant political power grab in decades, is strangely irrelevent under the Supreme Court's reasoning.
Of course, some of the court's conservatives think this is an issue that should not be addressed by the courts at all:
The consolidated cases appeared to produce a split among the court's conservatives on the issue of federal courts' jurisdiction to review gerrymandering. Justices Scalia and Thomas viewed such cases as "non-justiciable," meaning they should be left to legislatures and kept out of federal courts. But the Supreme Court's two newest members -- Roberts and Alito, both appointed by President Bush -- declined to go that far, although they did not completely close the door on such a finding.
Sometimes, courts have very good reasons for staying out of conflicts that are best resolved by the democratic process. A certain issue may be difficult to resolve, or a court's ruling may not be given the same legitimacy as a legislative solution. But declaring redistricting as "non-justiciable" is ridiculous. For one, the very democratic process that could otherwise be used to correct gerrymandering, is the first casualty of a successful gerrymander. The whole point of gerrymandering is to insulate one party from popular will, making it difficult or impossible for people who are fed up with gerrymandered districts to do anything about it! And secondly, whatever conservatives may think, gerrymandering goes to the heart of the democratic process in that it directly affects the ability of voters to exercise their votes. And last time I checked, the right to vote is one granted to us by the constitution, and one we fought a war or two to hang on to. If issues that impact such an important liberty are "non-justiciable", then I don't know what is justiciable. Easier stuff I guess, like abortion or gay marriage.
Nat-Wu also brought to my attention a quote from another story on this issue:
"Some people are predicting a rash of mid-decade redistricting. I am skeptical," said Richard Hasen, an election law expert at Loyola Law School. "It would be seen as a power grab in a lot of places."
As Nat-Wu rightly points out, the Texas redistricting was a blatant power grab, and yet we have the Supreme Court virtually approving of the effort. Exactly why wouldn't both Democrats and Republicans jump at a chance to rig the system even more at this point? Especially when plans like Gov. Schwarzanegger's redistricting reform proposal are shot down in flames? That's right...there's nothing to stop them.