<x-flowed>         Let me respond to Rick's thoughtful post in this thread, hoping that he and/or others on the list will see something in what I say worth further responding to.

1.  What really bothered me as a social scientist about Vieth was that no justice bothered to address the concrete, quantitative attempts to establish standards for judging partisan fairness, and neither does Pildes.
        A.  For those justices who believe the issue is entirely non-justiciable, there is no problem.  They assume a partisan intent in redistricting but allow any partisan effects whatever.  Since these are the same justices who apparently believe that Section 5 of the Voting Rights Act is unconstitutional if used to justify race-conscious districting that assists minorities, they would presumably agree with the chairman of the Texas House redistricting committee, who said in deposition in Sessions v. Perry that but for Section 5, he'd have tried to eliminate EVERY Democratic district in Texas.  O'Connor, Rehnquist, Scalia, and Thomas would apparently let him.  It's instances like this that convince me that there ought to be some judicial limits to partisan redistricting, though I'm aware of good arguments, e.g., by Dan Lowenstein, on the other side.
        B.  For Breyer, Ginsburg, Souter, and Stevens, especially for Stevens, who's been exploring this position since he was on the 7th Circuit, and for Kennedy, who's an enigma in Vieth, more examination of possible standards should have been expected, and I see no reason why their explorations should have been entirely verbal.  In the reapportionment cases, "one person, one vote" had no practical bite until the Court backed into the deviation-from-the-mean operationalization.  The justices could have chosen the coefficient of variation, the Gini Coefficient, or any of several other measures of inequality, or they could have allowed equal variation in congressional and state districts, or they could have explained the rationale for applying different constitutional provisions to each, or they could have allowed more than 10%, or they could have left the whole muddle to lower courts.  Instead, they adopted two bright-line, quantitative standards.  Why, in Vieth, didn't they at least discuss quantitative standards that have been proposed to operationalize Davis v. Bandemer and which have been widely used in lower court cases?

2.  The convention in explanations of judges' behavior is that we should give priority to principle.  Justice Thomas would like nothing better than to overturn the central holding of Brown v. Board of Education; thus, it's unsurprising that he dissented in Gratz and Grutter.  Partisanship, friendship, the influence of a particular law clerk, etc. are secondary explanatory factors, which come into play only when principles or philosophy don't seem to explain a judge's vote or opinion.
        A.  I should except instances in which two principles clash.  E.g., a justice may deplore a line of cases, but also strongly believe in stare decisis.  Rehnquist has taken such a position in some recent Miranda cases, stating that Miranda is such settled law that he'll go along, even though he thinks Miranda should be overturned; he takes the opposite position in abortion cases, such as Casey.  But these are perhaps close calls, and they may require no special explanation.
        B.  It's the votes that seem to contradict well-established judicial positions that cry out for other explanations, such as partisanship.  For O'Connor in Shaw v. Reno, the most obvious contradictions are in Allen v. Wright on standing and Voinovich v. Quilter on the sufficiency of the Voting Rights Act as a justification for race-conscious districting.   A serious biographer of O'Connor would also have great difficulty considering her positions on all of the post-Shaw racial gerrymandering cases as consistent.  Did she believe Shaw v. Reno was an intent case until Pildes gave her another rationale?  Is Miller v. Johnson consistent with her emphasis on district appearances in Shaw I and II?  Isn't her vote in Cromartie I, as I argued in Colorblind Injustice, interpretable as a go-ahead to the Republican party to use race as a proxy for party, as it subsequently did so blatantly in Texas in 2003, cleverly hidden in an opinion that seemed to help blacks?  Note that if NC 12 had been entirely destroyed, Democrats, though not black Democrats, would have threatened more Republican districts in North Carolina, so the practical partisan effect of the decision was probably marginally to help Republicans.  Note further that In Colorblind Injustice, I suggested partisanship as an explanation ONLY for O'Connor.  Race served for the four others in the Shaw majority.
        C. In Larios, Scalia's vote I take to be for hearing the case in order to overrule it on the grounds that partisanship is a perfectly acceptable motive.  Breyer, Ginsburg, Souter, and Stevens I take to have been willing to go along with Vieth, but Ginsburg and Souter were risk averse about providing a fourth vote for cert.  The more problematic votes are O'Connor, Rehnquist, and Thomas, whose position seems so contradictory to their Vieth stance.  For them, partisanship seems like a very reasonable explanation here.  Thus, I try to use partisanship as a scalpel, not a blunderbuss, as Pildes in effect charges.
        D.  GA v. Ashcroft is a surprising decision, though after Larios, it's unclear how much precedential power it retains.  The position of the four dissenters might be summarized as skepticism about moving away from what they consider a manageable standard -- thus, they can be seen as consistent with their insistence on such standards in Vieth.  It's even more difficult after Larios than it was after Ashcroft to see a principled line in the votes of O'Connor, Rehnquist, Scalia, and Thomas.  Manageable standards?  Racial motives?  Partisan intentions and effects?  My head swirls.  Perhaps Pam Karlan or some other person on the list who's quicker at analysis than I am can offer a consistent explanation for every justice's votes in Ashcroft, Vieth, and Larios.  I invite them to take up the thread.
Morgan

Prof. of History and Social Science, Caltech
snail mail:  228-77 Caltech, Pasadena, CA 91125
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to order Colorblind Injustice:  http://uncpress.unc.edu/books/T-388.html
          "Peace if possible, Justice at any rate" -- Wendell Phillips

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