Legal Affairs July 2006

Supreme Confusion

The Supreme Court's ruling on the Texas redistricting case illustrates a recurring problem: The Court has a tendency to make things more confusing, not more clear.
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"KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II—A and III, in which STEVENS, SOUTER, GINSBURG, AND BREYER, JJ., joined, an opinion with respect to Parts I and IV, in which ROBERTS, C.J., and ALITO, J., joined, an opinion with respect to Parts II—B and II—C, and an opinion with respect to Part II—D, in which SOUTER and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. BREYER, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C.J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which ALITO, J., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined, and in which ROBERTS, C.J., and ALITO, J., joined as to Part III."

Thus concludes the nine-page summary ("syllabus") of the 132 pages of opinions—six in all, none winning the full assent of more than two justices—of the second big Supreme Court decision this week involving judicial superintendence of the political process.

This was the June 28 decision that rejected, 5-to-sort-of-4, a constitutional challenge to the Texas Legislature's mid-decade partisan gerrymander of the state's 32 congressional districts (holding No. 1) while ruling, by a differently constituted 5-to-4, that the Voting Rights Act requires redrawing one district to give it a Hispanic voting-age majority (holding No. 2).

Two days earlier, the justices had issued a similar, 70-page "cacophony," as Justice John Paul Stevens called it, striking down Vermont's tight restrictions on campaign contributions to, and spending by, candidates for state office: another six opinions, also with none winning more than two justices' full support.

"It is emphatically the province and duty of the judicial department," Chief Justice John Marshall wrote in 1803, in Marbury v. Madison (a unanimous 26 pages), "to say what the law is."

Now we have nine justices who mostly prefer to litter the legal landscape with their own idiosyncratic visions of what the law ought to be.

One cost of this modus operandi is confusion. Another is the ongoing disintegration of the idea that we are governed by the rule of law, as distinguished from the policy and political preferences of shifting coalitions of individual justices.

For example: How much racial gerrymandering does the Voting Rights Act require to create safe seats for black and Hispanic politicians? And at what point does what the Voting Rights Act requires run into what the Constitution's equal protection clause forbids?

Don't expect to find a clear answer in any majority opinion. You'll have to start with Justice Anthony Kennedy. He appears to have seized with enthusiasm the role of retired Justice Sandra Day O'Connor as the oracular tiebreaker in many 5-4 splits. So, for example, Kennedy was the only justice to vote with the majority in both holding No. 1 and holding No. 2 in the Texas case. A sample of his judicial hairsplitting: "In the equal protection context, compactness focuses on the contours of district lines to determine whether race was the predominant factor in drawing those lines .... Under Section 2 [of the Voting Rights Act], by contrast, the injury is vote dilution, so the compactness inquiry embraces ... the compactness of the minority population, not ... the compactness of the contested district."

Clear enough? Now, make yourself a chart, start reading those 123 pages of opinions, and try to count how many other justices agree with Kennedy on any or all of this. Give yourself plenty of time.

John Roberts, the new chief justice, has gamely expressed hope that he might help persuade his colleagues to speak with fewer voices. Good luck. In the words of the late Chief Justice William Rehnquist, the justices are "as independent as hogs on ice."

Why does their independence manifest itself in so many splintered decisions? Part of the reason is the demise of what Justice Oliver Wendell Holmes Jr. long ago derided as the idea that the law is a fixed "brooding omnipresence in the sky." For better or worse, for many decades it has been hard to deny that to a large extent we have a government of men (and women), not laws.

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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