The Court was presented with truly excellent arguments in the redistricting case. This might have been expected but it was enjoyable nonetheless. What was more surprising (to some) was that having been assumed to be most interested in "political gerrymandering" claims about mid-decade redistricting--and much less so in Voting Rights Act claims--the Court devoted much more time to the latter than to the former.  This may mean little--or it may suggest that disappointment, on at least this feature of the case, awaits critics of mid-decade redistricting.

     Justice Kennedy's position was closely watched, of course, since his position could well, in the wake of his controlling role in Vieth v. Jubelirer, 541 U.S. 267 (2004) decide the outcome. His first questions suggested skepticism that the state legislature could somehow not permissibly "compensate" for the gerrymandering excess of under the prior 1991 plan. Kennedy also expressed concern that with a flat ban on mid-decade redistricting, legislatures might be encouraged, in the confidence that they could proceed without check for ten years, to throw caution to the winds in pursuing political objectives in the course of "regular" redistricting.  This, Kennedy stated, would be potentially "very dangerous."

     Later, in response to a statement by Paul Smith, Justice Kennedy questioned, also skeptically, whether it was true to say that the Texas legislature, acting for political reasons, had taken into consideration none of the traditional factors that must guide redistricting choices.  Mr. Smith responded by saying that while this might not be true, it did not save the State, since the same factors had been weighed in the design of the court-drawn plan.  Justice Souter pursued this point at a later stage, asking whether partisan motivation was improper if other ordinary-course considerations had entered into the creation of the legislative plan.  Mr. Smith replied by saying that it was not enough for the State to defend its position by pleading that "we didn't go as crazy as we could have."

     Justice Ginsberg also drew a distinction between the court-drawn plan and the one devised by the legislature: she asked whether it could be fairly said that the legislature had "re"-redistricted if it had acted in 2003, on the 2000 census, for the first time. While Justice Ginsberg asked little therafter, and later remarks by Kennedy were ambiguous or perhaps more comforting to critics of mid-decade redistricting, it was striking that counsel Smith, arguing first for the appellants, had to steer the Court to the part of his argument concerned with the partisan gerrymandering portion of his case.  Smith began his argument with the emphasis on the purely "political" motivation of the plan, but the Justices showed only so much interest in pursuing this line of argument, at least for the better part of the two hours set aside for the case.

     Ted Cruz, arguing for the State, argued that the prior Democratic plan, which he characterized as largely maintained in place by the court-drawn plan, was so severely anti-majoritarian that the Texas legislature was well justified in devising a new, "compensatory" plan. The appellants' position, he argued, would induce minorities to deadlock state legislative plans, knowing with full certainty that courts stepping into supply a plan will typically leave the political biases of previous plans largely intact.  Congress, he insisted, would have the authority--the sole constitutional authority--to intervene if the problem of mid-decade redistricting becomes widespread.

     Justice Stevens asked if "compensatory" partisan gerrymandering might be constitutionally tolerable, whenever accomplished, if it was subject to the condition that any new district be no less compact than its predecessor.  Justice Kennedy indicated some interest in this position--how much was not clear.  Mr. Cruz argued that this was a course that Congress could choose, not a requirement of the constitutional law. And at this point, some could have taken Justice Kennedy to suggest that political motivations might well shape redistricting, even when pursued "mid-decade," but that other considerations would have to be "primary." It was difficult to put too much weight on these comments, or any other, to conclude that he had found the standard he found lacking in Vieth for judging these kinds of cases.  Certainly the Justice could have been understood to suggest that pure politics, and nothing more, would be the offense behind the Texas plan, not its timing; but the question of whether other factors in the redistricting decisions had been considered--and the extent to which they were considered--was raised and answered (differently) by the two sides, and it was not clear that Kennedy, in the particular case, had a view or was prepared to hint at it.

     Much of the rest of the argument was devoted to the consideration of voting rights claims specific to particular districts.  Justices Stevens and Souter pressed for and received the acknowledgment that political motivations were not a defense to a section 2 VRA violation. Chief Justice Roberts was very engaged with-that is to say, highly critical of--the suggestion that the Bonilla district had been improperly engineered, mainly for "appearance purposes," with what counsel termed a "razor-thin" Latin majority. He asked repeatedly for a number that would distinguish a majority that was "real" from one fabricated for political appearance.

Bob Bauer