<x-flowed>A few brief comments seem required and then that's it for me on this one --
1. There are only three Justices whose views on Larios we know with any
degree of certainty. All three consider the decision below to make
significant new law on the unconstitutionality of partisan advantage, at
least in the form of selective incubment pairing, as a justification for
population deviations inside the 10% margin. Two endorse that result; one
dissents from it (or technically, just argues the Court ought to address
the issue). Perhaps, though, we should assume that the poor, benighted
Justices Stevens, Breyer and Scalia neglected to read the lower court
opinion and therefore to realize that the case deals with nothing more than
regional differentiations.
2. A Justice's vote in a summary affirmance case has a bit of meaning,
given that a vote is being cast. (a bit, but not much). But you can't
realistically read anything into a Justice's failure to sign a concurrence
or dissent from a summary affirmance. Many Justices have self-imposed
restraints about writing or joining opinions when the Court is merely
issuing orders (stays, affirmances, denials of certs) and not deciding
questions on the merits. No Justice joined Justice Scalia's stay opinion
in Bush v. Gore, for example, though it's clear that 4 others agreed with
the views he took there. Justice Souter, for example, is known not to
write or join these individual Justice statements in most contexts because
he doesn't think individual Justices should express views in such
ways. There are too many reasons for the act of not signing or writing an
individual statement to make that non-action meaningful in any way on the
merits, beyond what the vote itself might mean.
3. I agree with my friend Kousser that a ban on partisanship inside the
10% margin is likely to do more harm than good. The constraint that
imposes on partisan gerrymandering is minimal; the cost of a zero tolerance
policy on population deviations might well be to facilitate partisanship
overall, for just the reasons he says; the elimination of one safe harbor
without its replacement by a bright-line alternative will breed
litigation. All true. Larios is interesting only if (or because) it puts
partisan gerrymandering (at least selective incubment protection) on the
defensive more broadly. Perhaps other contexts are distinguishable;
perhaps there's no judicially manageable way of dealing with this
unconstitutional state action in other contexts. But the state now has to
defend a purpose that is unconstitutional at least in some contexts and
that changes the game considerably. If Larios remains limited to the 10%
margin cases, it won't be anything to celebrate.
4. The fact that some social scientists have come up with formulas that
they believe appropriately determine the fair partisan distribution of
districts hardly means the courts will conclude those formulas reflect the
appropriate normative judgments or that the formulas provide structures for
litigation and proof that give courts confidence they can manage the
problem. There are reasons courts are uncomfortable judging whether the
outcomes of elections are "fair;" three of the four dissenting Justices in
Vieth were not willing to endorse any outcome-oriented approach, and the
one who was, Justice Breyer, doesn't adopt any quantitative formula of the
sort Kousser mentions. There are many law professors on this list who,
unlike me, believe the courts should stay out of partisan
gerrymandering. Perhaps they can better justify and explain the Court's
reluctance to incorporate social-scientific definitions of partisanly
"fair" seat distributions. I'm not sure if Kousser means to cast doubt on
the partisan good faith of judges who conclude the problem is not
justiciable, despite the King etc. options, but again, many academics on
this list about whose partisan preferences even Morgan can't be skeptical
similarly conclude that partisan gerrymandering isn't a problem courts can
manage.
5. Kousser is right that I think it's paranoid to try to explain the
Justices votes in districting cases on the principle that conservative
justices are deciding case by case which outcome furthers the interest of
the Republican Party. That seems to be his working hypothesis. So then,
is Scalia the one Justice Kousser would view as non-partisan, because he
dissented in Larios? Why doesn't O'Connor's vote in Cromartie, which had
the effect of entrenching a Democratic incumbent, counter the partisan
narrative? Are we supposed to understand that the liberals are just as
partisan when they vote on the other side of these cases, as on partisan
gerrymandering and Larios? Or when their votes correlate with desirable
partisan outcomes, are they somehow immune from this analysis? Are we
supposed to believe the 5-4, entirely predictable split in Shaw reflects
the consistent 5-4 divide on race conscious state action -- or that it's
better explained by the partisan struggle to further the interests of one
party? Did the 5-4 divide in Ga v. Ashcroft, in which the conservatives
endorsed the Democratic gerrymander of GA while the liberals voted to hold
it unlawful, somehow have a sinister partisan underside? I'm not saying
judges are immune from partisan considerations, particularly in singular
events where the political stakes are enormously high and the decisions of
little precendential significance for other cases. But these districting
decisions lay down principles that affect dozens of cases. There's no
convincing evidence that Justices are deciding the cases based on which
partisan ox is being gored in each instance.
Rick
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