Here are reports from two students (in Elec. Law)  who were there. First, one of them, then the other:

Busy day for election law!  ...  I was able to take notes in the courtroom, so they are rather lengthy, and I apologize if unorganized....  I also got to talking to the chairman of the redistricting committee of the Mississippi legislature while I was waiting to get my coat afterward, so it was interesting to hear his perspective of how it really works and what he would like to see happen.

Paul Smith was counsel for the plaintiff voters.  O'Connor started it off, but unfortunately, I missed part of what I think was her biggest statement because it was right when we were being ushered in the door.  She was saying something about the judiciary staying hands off, which maybe indicates that she's sticking with her Davis v. Bandemer position, or at least might not be amendable to broadening the opportunity for courts to find partisan gerrymandering.  The only other times she spoke up, as I recall, were to ask for examples of states where Smith's majoritarian standard (i.e. if a state has 50% of voters of one party, not having the to opportunity to win 50% of seats) has persisted over 5 years.  He didn't specifically know of any, but cited FL, MI, and TX as states where the leadership of the state legislature gives the opportunity for this. O'Connor's response was that if the state is really 50/50, then the inequality wouldn't persist because the state legislature would not stay in the hands of one party.  Smith's response was that the state legislatures gerrymander for themselves too.

On justiciability-- there were 2 counsel for the defendants, one of which seemed to indicate (in response to a question by Stevens) that it would be permissible for a legislature to consider no other purpose but partisan advantage, the other of which (in response, again to Stevens) said that Bandemer left the "door ajar" so that there could be an unconstitutional political gerrymandering, but that there hasn't been because our political system incentivizes using other considerations as well.

Rehnquist and Scalia clearly think there are all sorts of problems with the plantiffs' position and courts being in this.  Rehnquist: plantiffs are "pulling this out of a hat" to come up with the majoritarian standard because "democracy" is not in the Constitution and property owners used to be the only ones to vote.  Scalia: political party can change (unlike race), can't tell until election is over and using projections is just a guess, problematic where more than 2 viable parties (like MN)-- would the test be proportionality, it's political to choose amongst the criteria (defendants position was that none of the traditional districting criteria are truly neutral), using votes to determine partisanship is problematic because people vote for candidates not parties.

Stevens seemed to be trying hard to revive the Powell approach from Bandemer (but, neither of the counsel for the defendants was familiar with it!)[to which Roy adds:  !!!!!].  That would be rejecting Smith's majoritarian standard, but I guess is similar to what the plaintiff's argument was in the original complaint. There was a lot of interplay between Stevens and Breyer on this point. Stevens seemed to say that the test would be if there was a showing of no justification except districting for partisan advantage, then there would be a burden shift to the defendant to show that a neutral consideration played a role.  As neutral criteria, he listed historical boundaries, compactness, continuity, and incumbency.  He thinks that this comes from a duty to govern impartially, and if the exclusive motive was partisan advantage, then it would be an unconstitutional gerrymander.

Breyer seemed to agree with Stevens.  His major problem with the plaintiff's position was with the idea of experts making predictions about what will happen (although Smith made the point that waiting for effect is problematic, not just time-wise, but because the lines themselves cause changes in voting-- like lower turnout if it's not a competitive race). However, Stevens' focus on legislative intent addressed the problem of relying on experts to predict results (of course Scalia had a problem with the idea of courts deciding legislative intent).  Breyer said it could be a three-part inquiry, looking at what happens (I'm not sure if he meant how the maps are drawn, or retrospectively after elections), seeing what experts say will happen, and asking if there is no objective explanation. He also said that there could be the same standard (if partisan advantage was the predominate criteria) as for racial districting, but this seemed to go further than Stevens (who kept saying if partisan advantage was the "exclusive" criteria).  Breyer also made the point about the use of computers being a problem because they allow interference with the principle of majority governance more than had been possible before.

Ginsburg and Souter were relatively quiet.  Souter brought up the problem of District Courts actually deciding these cases.  He said that looking for traditional districting principles won't necessarily solve the problem because they can be used in a way that still gives partisan advantage and also that looking at competitiveness doesn't work because there are some areas that aren't going to be competitive no matter how the districts are drawn.  The only thing I noted Ginsburg asking was if this was worse that the Indiana districting in Bandemer.  Smith said it was, or at least there is more information here, and that this would be what would come out at trial.  Neither of these two said much, if anything, after Stevens and Breyer articulated what they thought a judicially manageable standard could be, so it's hard to gauge exactly what they think of that.

Kennedy, I thought, was the hardest to read.  He was fairly quiet.  To Paul Smith he argued that there are no sources for fairness/how to decide what's fair.  Smith responded with the traditional districting criteria (compactness, contiguity, etc).  Kennedy said that legislators always are considering political factors and that choices amongst the traditional criteria are no different.  However, another notable comment was after the first counsel for defendants responded to Stevens' by saying that there will always be an explanation beyond just partisan advantage.  Kennedy compared to the racial gerrymandering cases, saying that there courts have found that race was the predominant factor.
    Thomas, as usual, sat quietly.

... My guess would be that if Stevens/Breyer can pull together a majority, it would have to be with Kennedy's vote....  I also wonder what the impact would be if Stevens' idea of partisan advantage as the "exclusive" consideration made it in (as opposed to predominate consideration).  It seems like this would be virtually impossible to show, especially considering he thinks that incumbency is a neutral consideration (so protecting incumbents would rebut the allegation that partisan advantage was the exclusive consideration).  I'm also not sure where the Scalia camp would go-- would they knock down Bandemer and say that it's a political question or would they continue to leave the "door ajar"?

Here are my notes and thoughts (some are a little disjointed) on today's oral arguments:

Questions for the Appellants- Attorney Paul Smith

• We were admitted during the middle of the questioning for Mr. Smith .... The questioning was particularly focused on what Smith viewed as a viable alternative to how districts are created.
• The most active in this round of questioning were Justices Breyer, Stevens, Scalia, and O'Connor.  Justices Rehnquist, Ginsburg, and Souter also asked questions.  Kennedy and Thomas did not ask questions.  (Thomas looked annoyed and acted as if he really didn't want to be there.)
• Rehnquist began the barrage of questioning by asking Smith what types of standards he would establish for creating districts.  Smith (who at times was not the most articulate) danced around the question and went back to his premise that it was not democratic for a party to receive the majority of the vote in the state but be relegated to a non-representative (meaning proportional) number of districts or seats.  Smith denied that he was advocating a proportional plan, nevertheless he thought it was unfair for a party to get less than the majority votes, but receive 2/3 of the seats.
• Scalia started with asking Smith about the process of determining who is a republican voter or a democratic voter.  He stated that you really can't tell who is what and who voted which way until after the election.  Scalia pointed out that sometimes even those who are registered with one party sometimes split their votes. (This point was brought up in the brief for the appellees).
• There was questioning around the differences between political gerrymandering and racial gerrymandering.
• Scalia also wanted to know how Smith's alternative dealt with states where there were three or more viable parties such as the state of MN.

Questions for the Appellees - Krill and Pallone

• In this round of questioning Justices Stevens, Scalia and Breyer dominated questioning time. At one point there seemed to be a heated exchange between Stevens and Scalia.  In classic SCT. Fashion the exchange took place with questions (back and forth) between the justices and the attorneys for the appellees.
• The thrust of Krill's argument was that political gerrymandering is a political choice and there is no role for the judiciary to play.
• Stevens began the questioning with a hypothetical- "Supposed the majority party in a state legislature voted to provide a pay increase to only majority party members.  If there intent is only political- because they are attempting to benefit the majority.  Is this allowable?"- Stevens was setting the table for his argument that strictly political governance and decisions should not be allowed.  He believed that these districts should not be supported if they were drawn for strictly political benefit.  He argued that there should be neutral justifications or criteria (as argued by Justice Powell in a previous case).
• The justice also wanted to know the standards for justiciability- what would trigger judicial review?
• Breyer returned to the differences between political and racial gerrymandering and argued that if the courts found standards to handle positive racial discrimination then it should be able to set up standards for political gerrymandering.
• Stevens and Scalia argued back and forth about neutral criteria.  Scalia argued that neutral criteria such as compactness, etc. could be used in a political manner and therefore it was not neutral.
• Pallone argued that courts should only enter the discussion on these districts when the minority party is shut out altogether.
• Arguments shifted on Powell's focus on intent and how to ascertain intent.  Scalia argued that you can't.  Stephens retorted- "how was intent found in the race cases?"

I  [we!]  hope this was helpful....