I'm no fan of the Shaw line of cases, but Justice Thomas in
dissent seems surely right in saying that the majority here
is not engaging in a "clearly erroneous" analysis of the
district court decision, which is supposed to be the most
deferential standard of appellate review.  Judges typically
don't (as Justice Breyer did here) take page after page
reanalyzing the facts and criticizing the district court's
findings under a clearly erroneous standard.  They instead
seize on any evidence supporting the district court's
findings and affirm.

So it looks like the majority has implicitly decided that
these cases are essentially up for de novo review (the least
deferential standard of review), at least when the question
is whether race or politics predominates when the two are
intertwined.

Is this a good development from the point of view of those
who oppose Shaw?  Not necessarily.  The Court may now engage
in this kind of review when a three judge panel finds that
race does *not* predominate.

Moreover, the more searching review is sure to impose a
burden on the Court in the next decade, given that these
cases come up on direct review from three judge panels
without intermediate appellate courts to help.

--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu