[EL] Abbott v. Perez, on the oddity of the oral argument revisited

[Pildes, Rick]

Certainly, I assumed such a “strategic” calculation might have been at work.  I did not want to say that in a post while the case was pending.  But even if one makes that assumption there were still, by my count, five substantive issues on the merits:  (1) the intentional discrimination issue; (2) the VRA issues regarding three districts; and (3) the racial gerrymandering issue on one district.

I would be quite surprised if anyone on the Court knew Justice Kennedy’s views on all five of those merits issues in advance of the oral argument (perhaps at the time of the stay, his view on (1) might have become known).  That’s not generally the way the Court works.  But there was one issue on which he had already cast an actual vote – the procedural one.  So I put the odds at close to 0% he would reverse himself there.  Thus it just seemed to me there would be greater odds of winning his vote over on at least one of the five merits issues than on the procedural issue (it is interesting, and significant, that the Court turned out to unanimously agree that HD 90 was a racial gerrymander and not defensible under the VRA – I’ll say more about that later).


Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law, Vanderbilt Hall 507
40 Washington Square South, NY, NY 10012
212 998-6377

From: Adam Bonin [mailto:adam at boninlaw.com]
Sent: Monday, June 25, 2018 10:33 AM
To: Pildes, Rick
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Abbott v. Perez, on the oddity of the oral argument revisited

Having attended that oral argument,I can only say that it felt in the room like the Court's liberal justices were doing everything they could to keep the discussion on jurisdiction because they knew were this was going if it reached the merits.  (The Chief Justice, FWIW, did extend a few extra minutes to each of the attorneys.)

N.B. When you're bringing your 10-year-old daughter to the Court for the first time, because she's expressed interest in seeing what an argument is like and you wind up preparing her well for what a gerrymander is and why it might be good to try to draw districts that encourage inclusive, representative legislatures, and you even prepare her for "there's going to be a balding Justice on the right who'll keep rubbing his brain until three-part questions emerge," and then the Court spends more than half the time on the jurisdictional question instead and RBG only asked two questions (and in the second half) ... well, that's a kid who gets to visit the museum of her choice (Spy) and enjoy a lot of ice cream thereafter.

Adam C. Bonin
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On Mon, Jun 25, 2018 at 10:19 AM, Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:
For now, I want to comment only on one aspect of this decision, since it will take a bit of time to digest the important merits issues decided.  But at the time of the argument, I wrote a post I what I called “The Oddity of the Oral Argument in the Texas Redistricting Cases.”<http://“The%20Oddity%20of%20the%20Oral%20Argument%20in%20the%20Texas%20Redistricting%20Cases,”>  Instead of focusing on the merits, much of the argument centered on whether the case was properly before the Court at all – and I thought that was peculiar because it seemed the Court had already decided that issue, 5-4, when it had granted a stay much earlier in the case.  The Court did indeed divided today 5-4 on that procedural issue.  But as I feared, the Court went on to make a good deal of substantive law on the merits, and almost none of those issues were fully engaged in the oral argument.  It seemed to me unfortunate then, and even more unfortunate now, that such important substantive law about the VRA and redistricting was being made without sustained discussion at oral argument.  That’s not to say anything would have changed about the outcome, we have no way of knowing that.


Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law, Vanderbilt Hall 507
40 Washington Square South, NY, NY 10012
212 998-6377


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