January 13, 2004
Who's afraid of Sandra Day?

I can't tell if Robert Novak is blowing smoke here or not, but it's interesting nonetheless.

Republican joy over a federal court approving congressional redistricting in Texas was diminished by an opening in the decision that could give U.S. Supreme Court Justice Sandra Day O'Connor a chance to reverse it.

The Texas three-judge panel's warning of ''excessive partisanship,'' Republican lawyers fear, will give O'Connor the opportunity to join with four liberal colleagues for another 5-4 decision against conservative interests. O'Connor, a former Republican leader of the Arizona Legislature who was President Ronald Reagan's first nominee for the high court, was the swing justice on recent 5-4 rulings supporting gay rights and campaign finance reform.

A Supreme Court reversal could cost the Republicans eight congressional seats in Texas and perhaps another six seats in Pennsylvania, whose redistricting also might be affected by the same Supreme Court decision.

"Eight seats in Texas" is clearly an overbid, since Ralph Hall switched sides (no great loass there). I presume the other seat he refers to belongs to Republican Henry Bonilla, who was threatened but survived in 2002 against Henry Cuellar. I think that we can all agree that given the GOP's "aggressive partisan effort" defense in the federal lawsuit here, a win for the plaintiffs in Vieth v. Jubelirir, which challenges the constitutionality of aggressive partisan redistricting efforts, would be a big problem for them. I still remain unconvinced that SCOTUS will touch this, but it ain't over till it's over.

Thanks to JD for sending this to me.

Posted by Charles Kuffner on January 13, 2004 to Killer D's | TrackBack

I really do love to watch the Supreme Court moderates in action.

You can usually predict what Scalia, Rehnquist and Thomas will do on the right.

You can usually tell what Stevens and Ginsburg (and usually Breyer) will do on the left.

But to watch Kennedy and O'Connor, and sometimes Souter, is to watch what the best intentions of the Supreme Court really is. It's to see the difference between making the knee-jerk right- or left-wing legislation from the bench versus a deliberate, sober, reflective look at both original intent *and* modern reality in order to determine the most prudent rulings consistent with the Constitution.

Bless the Court's moderates. They hold the balance between sanity and lunacy in many cases. They reminds me of the Justice Novelli character in the "First Monday" series and they are truly the difference makers.

Posted by: Tim on January 13, 2004 8:35 PM

SCOTUS has been taking some pains to rehabilitate themselves after Bush v. Gore. I'm guessing they're all playing extra careful in terms of keeping political ideology and judicial philosophy apart.

And hell, who could have predicted Lawrence v. Texas? Oh, overturning the Texas law sure...but that sweeping a decision?

Traditionally the Supreme Court is a bit more far sighted than your average politician -- a perk of total job security, I suppose. I think they're quite aware that allowing partisans free reign to play with Congressional districts every year or so would cause severe havoc.

Look for them to take the case, and reaffirm the ban on purely partisan gerrymandering. Maybe not rule out mid-cycle redistricting, but certainly slap down the "Hey! We've got a majority in the state Leg! Whoo-heee! It's redistricting time!" viewpoint.

Posted by: Morat on January 13, 2004 9:15 PM

When the DEMS controlled the House for 40+ years, the liberal media, liberal Warren and Burger courts never found "extreme partisanship", the issue was barely justiciable, and let politicians do their thing. Actually, it would be ironic, but O'Connor herself early on objected frequently to the S. Court getting involved in non racial redistricting cases. For her and the libs to change course as the GOP is having an opportunity to redistrict would be outrageous. I doubt O'Connor would be the one to change course of the Supremes. There is a chance the Penn Vieth case goes 9-0, it is so ridiculous. The Texas case...i am not so sure.

Posted by: Don on January 14, 2004 6:42 AM


Again, you are misrepresenting the issues in Vieth. I can only assume that you are speaking about Vieth even though you haven't read the court filings.

Let's assume that the Supreme Court rules fully in favor of the plaintiffs. Futhermore, let's assume that the court signs the plaintiff's brief and makes it the law of the land. Will that help Democrats in Texas? No!

Link to plaintiff's brief.

What I am referencing is numbered page 34. It is page 46 of 62 of the .pdf document.

"By themselves, bad intent and bizarredistrict shapes can never make out a valid claim of partisan gerrymandering"

So even though the Texas Republicans freely admit their intent was partisan, that is not sufficient. What else is needed? The plaintiffs propose the Majoritarian Standard. In short, this requires that the party who receives the majority of congressional votes be denied a majority of congressional seats.

So, Kuff, even if the plaintiffs win lock, stock and barrell in Veith, Texas Democrats will have to show they are a majority party in the state to seek relief under Vieth. Can Democrats demonstrate they are the majority party in Texas?

Posted by: Greg V. on January 14, 2004 9:27 AM

well said, Greg. and while i applaud any judge who does his plain duty and decides cases according to his best understanding of the law, and political considerations be damned, i can't join Tim in applauding the muddle that results from the confusion in the minds of wind vane justices like O'Connor and Kennedy. uncertainty over what the law is, is almost as bad as having no laws at all. for example, look at the dog's breakfast the SCOTUS made of McCain-Feingold. i predict this ruling will be constructively reversed by the SCOTUS within 2 years, whether or not O'Connor retires. Inevitably, groups that have been effectively denied their first amendment rights will form so-called Press arms, and the court will called upon to adjudge who is really the press. This will prove a bridge too far for the court, and their revulsion at seeing what they have wrought will lead them to reverse.

Posted by: abelard on January 14, 2004 10:40 AM

I am pleasantly surprised to see that both liberals and conservatives have posted thoughtful comments here.

I'm not sure the Texas Dems couldn't use a favorable ruling in Vieth, as Greg V. argues. The majoritarian standard would outlaw a districting plan if "the rival party's candidates could be consigned to less than half the seats even if its candidates consistently won a majority of votes statewide" (Brief for Appelants, p. 34; emphasis added). This is a conditional standard; it doesn't require the aggrieved party actually win a majority of votes statewide, only that that if they began to do so, they wouldn't be "consigned" to less than half the seats (i.e., they'd have some reasonable chance of winning most of the seats).

The 2002 Texas districts would pass that test. Even though the GOP did not win most of the seats in that election, they were not "consigned" to that fate. They only failed to win most of the seats because voters in several districts split their tickets, voting Republican for statewide offices but Democratic for their Representative.

The 2004 Texas districts, on the other hand, would appear to violate that standard: even if Texas were to swing back to the Democratic party enough to consistently elect Democrats to statewide office, it's hard to see how the Democrats could elect a majority to Congress under the 2004 districts.

Posted by: Mathwiz on January 14, 2004 3:20 PM


I am not aware of a judicial standard that requires federal judges to make a prediction based upon a hypothetical event occurring. Federal judges are not into hypothetical events or predictions. Please advise me if you know differently.

The question that Mathwiz suggests that I can't see a court answering is, "How many districts would the Democrats win if Democrats won 50% of the vote statewide?"

Posted by: Greg V. on January 14, 2004 5:04 PM

Don't make the mistake of thinking that the Supremes are limited to thumbs-up-or-down on a standard proposed by the parties. They very emphatically are not so limited, and in fact it's not at all infrequent that the Court ends up making new law that's quite a bit different than either side (or any amicus) suggested.

The 1986 Davis v. Bandemer case was a muddled mess in very large part because even if the Justices very much wanted to somehow restrain the excesses of hyperpartisan gerrymandering, they couldn't agree on a standard for how that could practicably be done that still leaves any room for (small-d) democratic politics in the state legislatures. I think that's an intractable problem — there's just no elegant judicial (as opposed to legislative) solution to it.

My own prediction is that all the Vieth case from Pennsylvania is likely to do will be either (a) to turn the standard announced in Justice White's four-judge plurality opinion from Bandemer into a majority opinion, or (b) less likely, overrule Justice White's plurality from Bandemer and take the federal courts even farther out of the process of overseeing gerrymandering by ruling it a "nonjusticiable political question," as Justice O'Connor and Chief Justice Rehnquist wanted to do back in 1986.

Justice White's much criticized plurality opinion standard from Bandemere holds that "unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole," as shown in more than one election, with no hope of the minority party reversing its position in the state legislature even over a series of elections. As a practical matter, nobody anywhere has yet been able to meet that standard, as far as I'm aware; and it specifically anticipates and blesses redistricting that's done for intensely partisan purposes so long as there's some chance of a breath of life in the minority party in the next decade or two. The Republicans in the Texas case just concluded, Session v. Perry, hung their hat entirely on that blessing.

Under Justice White's plurality standard for Bandemer, the Texas plaintiffs are, ummmm, squat-out-o'-luck (to put it politely). But they'd be not only out of luck, but out of the game altogether if gerrymandering is ruled nonjusticiable. Either way, I think it's very unlikely that a majority of the Supreme Court now wants to put the federal courts directly into the business of refereeing the merits of every gerrymander.

Remember, these are appeals as of right that the Supremes have to resolve on the merits, one by one; they can't cruise over them at 40,000 feet the way they do with the normal certiorari petitions for discretionary review. Any conceivable standard that grants relief for either the Pennsylvania or Texas plaintiffs would open the floodgates, and every member of the Court knows that. I just don't think they're going to announce a rule that requires them to micromanage state legislative redistricting efforts in perpetuity.

But I've been surprised before, and recently, I'll have to admit. If, within the next very few days, the Supremes grant the presently pending stay application from the Texas plaintiffs, that probably means a majority has voted — at least in the post-argument conference — to make some startling new law, and at that points all bets are off.

Posted by: Beldar on January 15, 2004 8:31 PM

My own prediction is that all the Vieth case from Pennsylvania is likely to do will be either (a) to turn the standard announced in Justice White's four-judge plurality opinion from Bandemer into a majority opinion, or (b) less likely, overrule Justice White's plurality from Bandemer and take the federal courts even farther out of the process of overseeing gerrymandering by ruling it a "nonjusticiable political question," as Justice O'Connor and Chief Justice Rehnquist wanted to do back in 1986.


Let's assume the court fulfills your more plaintiff-friendly prediction that the court transforms Bandemer from a plurality decision to a majority decision. The best I can tell, this creates essentially no new case law. I mean, courts have applied the Bandemer test for nearly twenty years now. Let me know if I have misunderstood.

Why would the Court have taken Vieth if it didn't intend to do anything? I suspect we'll either get a activist opinion with a Majoritarian test (Plaintiffs win, but no hypotheticals, no predictions) or the court will decide these cases are non-justiciable (the State wins). I lean to the non-justiciable decision for the reasons you articulate. Courts would have to pass judgement on all sorts of redistricting cases if they don't.

Posted by: Greg V. on January 15, 2004 9:08 PM

They don't have a choice whether to take these cases or not. Vieth is a direct appeal. The appeal is as-of-right under 28 U.S.C. § 1253, rather than discretionary (as with normal petitions for certiorari), because this was a decision of a Voting Rights Act of 1965 three-judge panel. That's the same reason it also skips the court of appeals level.

To recast your question slightly: Why didn't they just summarily affirm without oral argument if they didn't want to write some sort of new law or otherwise effect some change in the state of Supreme Court precedent on partisan gerrymandering? That's a very, very good question.

My best guess is that — like the Texas case — Vieth is a very dramatic case of partisan gerrymandering from a big state with lots of Congressmen. It features first-rate briefing from very good lawyers at a large "national" law firm. In short, it's "high profile"; but that alone wouldn't have guaranteed it a close look. A split decision like Bandemer is something of a sore thumb. So my further guess — and we're into serious tea leaf and crystal ball country here — is that someone on the Court who's been itching to "fix" the mess left by Bandemer did some informal private polling and came to the conclusion that there's a decent chance now to either overrule Bandemer altogether or else to turn it into a full-fledged majority opinion, possibly "clarified" or "justified." Said Justice may then have lobbied to have the case taken up for full, rather than summary, consideration.

One possibility I didn't mention, though, is that notwithstanding the oral argument and hooplaw, the Court will summarily affirm in Vieth. That might very well happen if, for example, the hoped-for evolving consensus on the Court hasn't quite evolved enough to pull five votes for a single Justice's opinion.

And yes, you understand correctly (or at least we share a common understanding): If the Court turns Justice White's plurality opinion in Bandemer into a majority opinion, that probably wouldn't be a massive change in the law at all. For lack of more authoritative precedent, lower courts have been treating that plurality opinion as if it were a full-fledged majority opinion anyway.

It's possible, though, that while purporting to transform the Bandemer plurality into a majority opinion, the Court might add some nuance or refinements that are significant. The Grutter v. Bollinger case last term upholding the Michigan Law School's affirmative action case, for example, nominally "majoritized" Justice Powell's lonely-but-persuasive concurrence from the Bakke case years earlier, with its (in my view unfortunate) discussion of "plus factors" and such. Yet Justice O'Connor — the Court's horse-trader, whose background as an Arizona state legislator sometimes shows up very clearly — pulled out of thin air a fairly explicit 25-year "sunset provision" to graft onto Bakke that I, for one, think was hugely important (if rather unprincipled and intellectually dishonest). ("We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Oh yeah? You mean the Constitution is gonna change between the last day of year 25 and the first day of year 26?)

Gah — I'm not sure if I've added any clarity at all to this situation. My apologies if not. I may be guilty of wishful thinking in my guessing, but there's my take, for what it's worth.

Posted by: Beldar on January 16, 2004 12:02 AM

Ahem. "Hooplah," not "hooplaw." Apologies to Dr. Freud.

Posted by: Beldar on January 16, 2004 12:04 AM

Oh, and here's a more detailed explanation of the appeal-as-of-right/certiorari distinction if you're a glutton for arcane Supreme Court procedure.

Posted by: Beldar on January 16, 2004 12:11 AM


You have indeed added clarity to my understanding of this issue. The discussion of Supreme Court procedure is a little over my head (I am not a lawyer), but I understand that the statute requires the SCOTUS to at least consider some voting rights issues.

On to another topic, the Supreme Court has rejected the Democrats' request to delay implementation of the new legislatively passed districts. I infer from your previous comments that this would give you more confidence that the Court is not going to create some startling plaintiff-friendly case law. Am I correct?

Posted by: Greg V. on January 16, 2004 2:56 PM

Yeppers. The fat lady just cleared her throat rather loudly.

Posted by: Beldar on January 16, 2004 4:43 PM