The Breakfast Table

Justice DeLayed

Dear Dahlia,

One sentence leaps out in today’s controlling opinion by Justice Kennedy in the Texas redistricting case. He is writing about the decision of the newly installed Republican majority in the Texas state legislature to take the highly unusual step of redistricting the state’s U.S. congressional seats in the middle of a decade—specifically, this one. And he says:

The legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew.

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I would have thought the first part of that sentence would have disposed of the case: If the legislature has decided to undertake an action “for the sole purpose of achieving a Republican congressional majority,” it has right then and there failed the basic constitutional test that all legislative acts must, at the very least, serve some legitimate legislative purpose. An act with the “sole purpose” of achieving a partisan aim does not satisfy that standard.

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What is usually so problematic about judicial review of legislative districting plans is that in most such cases, it’s hard for judges to tell whether partisanship was the “sole” or even the “predominant” basis for the legislature’s action—even when the process smells of politics. Literally thousands of little decisions go into making up a statewide districting plan. Those decisions are made for a vast number of reasons, some partisan, some demographic, others geographic, some aesthetic, some petty, some perhaps even noble.

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How is a court ever to come up with a standard for determining whether the partisan motivations were too overwhelming to be constitutional? Judges aren’t Goldilocks, and they can’t just say, “This one is too hot, and this one tastes too partisan, but this one seems just right.” So, in the absence of a standard to guide the court, it makes sense for judges to stay out.

But what I thought made this Texas case different is that the most salient issue involved a challenge to one big decision ­as opposed to a lot of small complicated ones—the decision to create a whole new plan. And that legislative decision was admittedly done with the “sole purpose” of achieving a partisan aim. To this objection the rest of Justice Kennedy’s critical sentence—”but partisan aims did not guide every line it drewis just no answer. The fact that legitimate nonpartisan aims might have guided some of the countless line-drawing decisions may well have provided a defense to a challenge to how the plan was drawn. But it is simply not responsive to the challenge here: a challenge to the big threshold decision to replace a valid plan with a new one.

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Here the court could have nipped in the bud a very unfortunate precedent for middecade redistricting. All the justices needed to say was this: The decision to redo districts when you don’t have a new decade and a new census as a triggering event is so unusual that when it is attacked as a “solely partisan” undertaking, the state must have some good explanation for its action. A good explanation could include, for example, a claim that there have been such significant population shifts since the beginning of the decade, and thus the state’s current plan is now so far from “one person, one vote,” that it should be revised on the basis of new interim numbers from the Census Bureau. Here, however, the state did not consult any new numbers from Census but used the same old 2000 Census figures upon which the current, valid plan was based. 

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Perhaps Justice Kennedy’s best response is that it seems arbitrary to privilege beginning-of-the-decade districting, which would not be subject to this demand for some nonpartisan justification imposed on the middecade plan. He notes that:

Under appellants theory a highly effective partisan gerrymander that coincided with decennial redistricting would receive less scrutiny than a bumbling yet solely partisan mid-decade redistricting.

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Right. But of course there is a reason for that difference. The Constitution requires that legislatures reapportion every 10 years. Thus it is always a legitimate reason for undertaking that process (and there are good prudential reasons for courts to be reluctant to review how those lines are drawn). Here, at middecade, however, there is no obligation to redo the plan. In light of all that, Justice Kennedy must concede, as he does, that the decision to adopt a new plan was made for the “sole purpose of achieving a Republican congressional majority.”

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Upholding this plan could be an unfortunate precedent for nationalizing races for the state legislature. I suspect that both parties are looking tonight for states where a lot of national money could be poured into state legislative races, enabling their party to gain control of both houses of the state legislature. Then they could do a new partisan redistricting of those states’ congressional delegations without waiting for the next census. The prize would be control of the U.S. House. Nationalorganizations will essentially hijack those state legislative campaigns. They won’t care about state issues, just about doing a biased congressional district plan. Justice Kennedy has long been sensitive to the importance of state autonomy. In the fullness of time he may well find himself unhappy with this significant national party and national organizational intrusion into the political process at the state level. 

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As you know from what I wrote yesterday before this decision came down, I am not entirely comfortable with judges becoming involved in something as potentially political as gerrymandering. It makes me nervous that a majority still left open a small window for judicial intervention. That is a standing temptation for some court, sometime, to intervene for the wrong reasons. Given that the court is not going to rectify this baldfaced action in Texas, it probably would have been better if they had slammed the door entirely by adopting the position of Justices Scalia and Thomas that these cases are simply nonjusticiable political questions. 

If you are not going to do any good, at least don’t do any harm.

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A couple of unrelated, small observations about the redistricting case: First, did you see the charming phrase from Justice Stevens describing the political party to which he belonged when he was appointed by President Ford? He referred to it without saying its name when he noted that for many decades after the Civil War, “the political party associated with the Commander in Chief of the Union Army” had little political influence in Texas.

And then there was this remarkable, eyebrow-raising sentence from Chief Justice Roberts in the part of his opinion rejecting a voting-rights-act challenge to one aspect of Texas’ plan:

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It is a sordid business, this divvying us up by race. 

What does that portend for the reconsideration of the affirmative action decisions in the Michigan cases upholding the use of race in educational admissions? More or less than his decision (noted by you this morning) to join Breyer’s statements on the importance of respect for precedent?

And speaking of statements, I am going to have to find a way, between discussion of the insanity defense and Hamdan, which will both come down tomorrow, to also express my views on constitutional decision-making by the president, often delivered when he “hands down” a newly signed bill. While we have been watching the court this year, the president has been making some interesting constitutional law, to say the least.

Can you give me some advance word on what the court will/should do about military trials when it decides Hamdan tomorrow?

Regards,
Walter

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