More on the Texas redistricting cases

Luis Fuentes-Rohwer, Associate Professor of Law at Indiana University, Bloomington, has these thoughts on the Texas redistricting cases:

Thicket: Something suggestive of a dense growth of plants, as in impenetrability or thickness

If there was every any doubt, none should remain after the Court’s decision in LULAC v. Perry: the law of democracy is one messy thicket indeed and the Court is stuck in it. Over the space of 6 opinions and 132 pages, the Court managed to announce the following: (1) a majority is yet to find a suitable standard for judging political gerrymandering questions (this is still a whopper of a claim to me, but maybe, if the justices repeat it enough times, it might become true); (2) the fact that a legislative majority enlisted the redistricting machinery of the state mid-decade adds nothing to the previous point; and (3) the state can’t essentialize Latinos – or Blacks, or anybody else, I imagine.

For one who came of age in the voting rights field during the dark ages of Shaw v. Reno and its progeny, the nuance of this last point is breath-taking and exhilarating: not all Latinos are the same for purposes of representation, and redistricters may not treat them as if they are. The point is especially remarkable coming from Justice Kennedy, the same Justice, I trust, who penned Presley and Miller, among others, and it makes me wonder what it portends for the future challenge to the constitutionality of the Voting Rights Act. In particular, and as Adam Cohen conjectured in the New York Times some weeks ago, we must wonder how shifting to the center of the Court and becoming the deciding vote on these important issues will affect Justice Kennedy. If LULAC teaches us anything, it is that we might not be able to read Justice Kennedy on race as well as we thought we could.

What is remarkable about LULAC is how the case failed to advanced our understanding of the fundamental conflicts in the law of democracy. What do we know today that we did not know prior to LULAC? Nothing. Take, for example, Kennedy’s anti-essentialist point. This is a point that flows directly from the Shaw line of cases, as a number of us argued five years ago. Consider also the political gerrymandering non-argument. As of today, the Court is still lacking in standards for adjudicating political gerrymandering controversies, under the guise that such standards are nowhere to be found. So for all the waiting, all the arguments, and all the time and expense, the Court offered nothing new. This is hardly an endorsement of the Court and its role in the law of democracy.

I am intrigued by the implications of the case for the role Court as democratic engineer. And to me, the answer is crystal clear: it is time for the Court to bow out as gracefully as judicially possible from the political gerrymandering stage. To be sure, Baker v. Carr began an important and needed experiment in the law of democracy. Unfortunately, it is now clear that a distinctive part of the experiment has ended in disappointment and Justice Frankfurter’s worst fears have come to pass. I never thought I’d say this, but Justice Frankfurter was right after all.

My dissatisfaction with the Court’s political gerrymandering jurisprudence is not dependent upon its inability to discover standards. Anyone familiar with the progression from Colegrove v. Green to Baker and Reynolds should be puzzled at best that the Court cannot find standards to navigate the gerrymandering terrain. It should be clear, as I have written elsewhere, that equal population is not a standard whose constitutional pedigree is evident. The Court pulled it out of thin air. The same can be said of the Shaw line of cases, and of the mother of all judicial interventions, Bush v. Gore. A professed inability to discover standards rings hollow indeed. As I have recently argued at length, the question of standards seldom offers much practical resistance, unless the Court wants it to. In light of Baker and Reynolds, Bush v. Gore, and tiered review, among others, it is not persuasive to argue that standards are unavailing for adjudicating partisan gerrymandering claims.

The one clear lesson that we should learn from LULAC is that the Court has nothing to contribute here. We would expect to find the Court interpreting the Constitution and developing standards as it deems necessary and as demanded by some accepted norm of constitutional interpretation. Instead, we find the Court in a public display of incompetence, fracturing along competing lines while asking for help in locating these hard-to-find standards. This is not the behavior of a Court in charge of the thicket as guided by Constitutional norms, but rather, of a Court that has nothing to offer.

It is time to call it a day. The extension of the Baker v. Carr experiment into the thickest of thickets has ended badly, and it is now time for the Court to pack its bags and go home. The experiment had great promise and accomplished much in areas that were more easily penetrable. But it has now become clear that the Court is throwing its weight in the political thicket at will, arbitrarily, and with little semblance of rationality, irrespective of doctrine, precedent or history. The Court is in charge of politics, but only when it chooses to be. And worse yet, the reasons that it offers for refusing to intervene in political controversies – and particularly gerrymandering cases – are not very persuasive.