Thanks for the kind words, Rick.  This accurately describes my interpretation of what happened at and after conference, based on Blackmun's notes (which were difficult to decipher, but I think I got it right) and the internal memos in the file.  The chapter is still at a stage where I can incorporate comments, so if anyone has any suggestions -- or thinks I've missed something significant -- please let me know.

Dan

Daniel P. Tokaji
Assistant Professor of Law
The Ohio State University
Moritz College of Law
614.292.6566
http://moritzlaw.osu.edu/blogs/tokaji/


----- Original Message -----
From: Rick Pildes <PILDESR@juris.law.nyu.edu>
Date: Tuesday, May 23, 2006 7:38 pm
Subject: Justice Souter and Shaw v. Reno

I have just read a draft article by Dan Tokaji that revisits the 
history of one of the most debated voting-rights and 
constitutional law cases of the 1990s, Shaw v. Reno.  Dan cleverly 
examined Justice Blackmun's papers on the Court's internal 
deliberations and made several noteworthy discoveries, including 
this one:  at conference, the Court voted 6-3 to hold that the 
challengers had stated a claim under the Constitution.  Justice 
Souter voted with the majority on this outcome.  The case 
eventually came down as a 5-4 decision, with Justice Souter 
apparently switching his vote during the internal writing process. 
According to Dan, there is no account of the reasons Justice 
Souter decided to switch his vote.  

The draft is posted on SSRN at this link:  
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896560
Richard Pildes
Visiting Professor, Harvard Law School, Feb-June 2006
Cambridge, MA 02138
phone:  617-496-7353
fax:  617-496-4863

Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law