If you read both the Breyer majority
opinion and the mild dissent from Thomas, in light of (my analysis of)
the previous "racial gerrymandering" cases (in Colorblind
Injustice), Cromartie II isn't so difficult to understand, and
SOC's silent consent to the majority opinion isn't, either.
Republican redistricters in 2001 will now be able to claim that by
packing blacks and Latinos into as few districts as possible, and
dispersing the rest in small numbers in safely Republican districts,
they're acting for predominantly partisan reasons. That should have
been enough to convince the only member of the Supremes who's actually
sat in a legislature during a redistricting, and the key to whose
otherwise seemingly contradictory stances was Republican partisanship, to
go along.
For Breyer, Ginsburg, Souter, and Stevens, this was just an
opportunity to emphasize facts, rather than empty slogans, in a racial
gerrymandering case, and to make it possible for redistricters of
whatever political stripe in 2001 to deal with the most important schisms
in politics with some degree of openness.
Electoral lawyers should note, however, that neither
opinion rejected Vera's "race as a proxy" language,
which should assure your prosperity in the coming decade, because you can
litigate either way. Speaking of another team, potential expert
witnesses may be in demand, for the Supremes may now pay closer attention
to facts than they often did in the 90s -- when SOC used words like
"segregated" and "Balkanized" to apply to 57% black
districts -- and should be very careful, for the Supremes may analyze
your every word.
Historians of the racial gerrymandering decisions will
wonder, however, just why SOC was convinced of the partisan purposes of
the NC legislature in 1997, when the case for a predominant partisan
intent was at least as strong in Shaw v. Hunt and Bush v.
Vera. My explanation is that by Cromartie II, she fully
understood the partisan implications of giving Republicans the proper cue
for the 2001 redistricting.
Morgan
Prof. of History and Social Science, Caltech
snail mail: 228-77 Caltech, Pasadena, CA 91125
phone 626-395-4080
fax 626-405-9841
"Peace if
possible, Justice at any rate" -- Wendell Phillips