Let’s Define Our Terms, Gentlemen: Are We Talking About Unconstitutional Gerrymandering, Or…

I’m not sure quite what to make of the Supreme Court granting cert appeal in the Texas gerrymandering case. To provide the background, the Supreme Court in 2004 issued Vieth v. Jubelirer, a fractured opinion about political gerrymandering, and ordered a re-hearing of the Texas case based on the opinion. The Court upheld, by a 5-4 margin, a Pennsylvania gerrymander. Only 4 justices, however, joined Scalia’s opinion that constitutional claims based on political gerrymanders were non-justiciable because there was no principled way of determining when a gerrymander went beyond constitutional bounds. While Kennedy agreed that the complaint should be dismissed he filed a concurrence arguing that there may be unusual cases in which gerrymanders were unconstitutional. What’s curious is that the Court will generally grant an appeal only if there’s a conflict with a lower court or there is the possibility of the law changing, and the lower courts upheld the gerrymander (which would be consistent with the outcome in Vieth.) So what’s up? Here are a couple possibilities:

• The optimistic scenario is that the Texas redistricting was so egregious that it’s the case that will shock Kennedy’s conscience enough to rule a gerrymander unconstitutional. (Indeed, if an unusual mid-decade gerrymander done in collaboration with the national Republican leadership is held to be constitutional, then Kennedy might as well just join Scalia and rule that political gerrymander claims are beyond the jurisdiction of the courts; I’m not sure what could possibly qualify as an unconstitutional gerrymander.) Or, perhaps more plausibly, the 4 dissenters in Vieth may have voted to grant cert hoping that Kennedy could be convinced.

• The pessimistic scenario would be that Kennedy has come to agree with Scalia that it’s hopeless, and will finally rule that the claims are non-justiciable (or that the four members of the Vieth plurality believe that they can convince Kennedy.) But it doesn’t seem likely that Kennedy has changed his mind that quickly.

So while I don’t really have it in me to be optimistic, I have to think there’s a non-trivial chance the DeLay gerrymander will be overturned; it’s hard to see why the Court would have taken the case just to uphold it, although it could be that the Vieth dissenters have miscalculated or the Court wants to further clarify its position. The final thing to note is that, while Atrios is almost certainly right that Alito would vote to uphold the gerrymander, since O’Connor joined Scalia’s opinion in Vieth (as did Rehnquist) it wouldn’t affect the current balance of the Court.

…more detailed analysis about the complex bundle of cases SCOTUSblog.

…Althouse suggests that we may be seeing what’s behind door #2.

…ReddHedd discusses the civil rights angle.