The fat lady clears her throat on Texas redistricting: Supremes refuse to block Texas map pending appeal

The US Supreme Court's first action in the appeal of the three-judge panel's decision approving the Texas Legislature's 2003 Congressional redistricting — a case known as Session v. Perry before the panel, and now pending before the Supreme Court under the name Jackson v. Perry — has been to deny an emergency request for a stay of the three-judge panel's order pending its appeal, according to an Associated Press report republished by the Dallas Morning-News, the Houston Chronicle, and of course the ever-vigilant Howard Bashman's How Appealing legal blog.  From the Chron:

The Supreme Court refused today to block a hard-fought Republican redistricting plan in Texas that could cost Democrats as many as six seats in Congress.

The justices will announce later this year whether they will consider an appeal from congressional Democrats and others who claim the map dilutes minority voting strength. In the meantime, they rejected an emergency appeal that sought to stop the state from using the new boundaries in this year's elections.

As is unfortunately typical, this AP report gives a misimpression when it suggests that the US Supreme Court has discretion to refuse to hear the appeal on its merits.  Cases like this one — in contrast to most cases, which the Court decides on their merits only if it first grants a discretionary "petition for writ of certiorari" — are "direct appeals," taken "as of right" without first going through the normal intermediate appellate route, the United States Courts of Appeals.\note1/

The Supreme Court already has pending under submission a similar challenge to partisan gerrymandering from Pennsylvania in Vieth v. Jubelirer, which was argued on December 10, 2003.  If they followed their normal practices, immediately after that oral argument, the Justices presumably took a preliminary "conference vote" on whether to affirm the lower court's decision in Vieth — thereby presumably leaving intact the very permissive standards regarding partisan gerrymandering as established in Justice White's 1986 plurality opinion in Davis v. Bandemer — or whether to write some new restriction against partisan gerrymandering into the law.  The senior Justice in the provisional majority has presumably assigned himself or one of the other Justices voting with him to write a proposed majority opinion reflecting their decision in their post-argument conference.  Unless something very dramatic happens to change the voting line-up from the conference — rarely, but occasionally, a very persuasive proposed dissenting opinion can end up causing Justices to change their provisional votes — Vieth has already been effectively decided.  But only the Justices will know the result until all the proposed majority, dissenting, and concurring opinions have been circulated, final votes have been cast, and the final decision announced.

The three-judge panel in the Texas case ruled — quite correctly, I believe — that the Texas Legislature successfully stayed within the bounds permitted under Bandemer when it redistricted in 2003.  I also believe that if the US Supreme Court intends to write dramatic new law in Vieth that overrules Bandemer and substantially restricts partisan gerrymandering in any important way, then the same Justices who cast preliminary votes to that effect after oral arguments in Vieth almost certainly would have voted to grant the Texas plaintiffs' motion for an emergency stay pending appeal.  If they know the law is about to change in a way that would make what the Texas Legislature did in 2003 illegal, then they almost certainly would have voted to ensure that the 2004 elections in Texas would take place either under whatever new law they intend to announce in Vieth, or else under the pre-existing 2001 map — rather than permitting the 2004 elections to proceed under the Legislature's 2003 map that was approved by the three-judge panel applying the Bandemer plurality standard.

By contrast, if a majority of the Justices have already made the preliminary decision after oral argument in Vieth either to leave Justice White's plurality opinion in Bandemer substantially in place, or to replace it with an even less restrictive standard — for instance, a ruling that such issues are "nonjusticiable political questions," as Chief Justice Rehnquist and Justice O'Connor urged in their dissent in Bandemer — then those same Justices would have voted against staying the result of the three-judge panel's decision in Texas.  They would vote against staying the panel's ruling from Texas because they have already concluded that ruling will almost certainly ultimately be affirmed under the result they've already reached in their still-secret conference vote in Vieth.

Thus, my bottom-line reading of the tea leaves: Today's ruling makes it very unlikely that the Supreme Court is going to reverse the rulings that permitted partisan gerrymandering in either the Pennsylvania or Texas cases.

Another AP story that appears on the CBS News website includes this quote:

Gerry Hebert, who represents Texas congressional Democrats, said Friday: "I still remain confident that justice will prevail. It just didn't today."

Lawyer Hebert, who's been over-the-top in his public pronouncements since he first showed up in this fight, is going to have to have the fat lady actually sit on him before he gets the point, I think.  Earth to Gerry:  Justice just did prevail.

Likewise, the Austin American-Statesman has a quote with this bit of wishful thinking:

But Nina Perales, a lawyer for Hispanic civil rights groups challenging the map, said the court's decision not to grant a stay does not indicate how it might rule when full-blown appeals reach it.

"A stay is an extraordinary remedy, and not getting a stay doesn't really give you much of a clue on how the Supreme Court feels about your case," Perales said.

Normally I'd agree with Ms. Perales.  But the fact that Vieth was just argued last December 10th makes this far from the ordinary situation, and the stakes involved — a likely net swing of several Congressional seats — make it impossible that today's ruling was a casual or routine one by the Court.

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\note1/I've explained this in more detail here. If you take a look at the docket sheet in Vieth, for instance, you'll see an entry dated June 27, 2003, which says "PROBABLE JURISDICTION NOTED." That's the Court confirming for the record that yes, this is a case they have to take as a direct appeal as-of-right. In ordinary cases in which the Supreme Court has discretionary authority whether to consider a case on its merits or not, that line would either say that the petitioner's petition for a writ of certiorari was "granted" or "denied" (as with the January 12, 2004, entry from a random case shown here, for example).

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Update (Fri Jan 16 @ 8:30pm):  The Supreme Court's website has been updated to include this order (.pdf file, 2d page), which reads in full:  "The application for a stay or injunction pending appeal presented to Justice Scalia and by him referred to the Court is denied."  Justice Scalia presumably could have acted alone in deciding this emergency motion in his capacity as Circuit Justice for cases arising out of the Fifth Circuit (which includes Texas).  That he instead referred it to the entire Court is no surprise, however, given the nature of the case and its stakes.  That the entire Supreme Court considered and voted on the stay motion is yet another fact that bodes ill for the Dems.

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Update (Sat. Jan. 17 @ wee-small-hours):  The Brennan Center has most of the briefing filed in the Supreme Court with regard to the stay application here in .pdf form (hat-tip to Rick Hasen's Election Law blog).

The El Paso Times quotes Texas state senator Eliot Shapleigh (D-El Paso):

"I fear for the Voting Rights Act in the future," Shapleigh said.

But Democrats now have few options, he said.

"Ours is a nation of laws. The Supreme Court has ruled. It's time to move on," Shapleigh said. "The lines drawn by the Legislature will be the lines for congressional races."

I found no surprises in other media reports from the San Antonio Express-News, Washington Post, and New York Times; and the Austin American-Statesman and Fort Worth Star-Telegram pretty much just regurgitate the AP story.  In particular, I haven't seen any major-media reports that recognize the possible significance yesterday's ruling in the Texas case may have for the Pennsylvania case as well.

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Update (Sat. Jan 17 @ 5pm):  UCLA Law School Professor Stephen Bainbridge was kind enough to link this post with some encouraging words that will prompt me to toast him with the next good glass of wine I drink.

Prof. Rick Hasen has also been kind enough to link this post and give his take on my tea-leaf reading.  He think I am probably overstating the significance of the Court's ruling yesterday:

There could be factual issues that distinguish Vieth from the Texas case, meaning that the Justices could decide the Texas redistricting is permissible even under a new standard that might be crafted. Or, more likely, the Justices may not be willing to inject more uncertainty into the Texas redistricting process this year, leaving room to make changes for the 2006 elections if necessary.

That is not to say that the Court is in fact likely to give more teeth to partisan gerrymandering in Vieth. Reports from oral argument suggested the Court is likely to either solidify the toothless Bandemer standard or to hold partisan gerrymandering claims nonjusticiable altogether. Indeed, in reviewing the content of the 2004 election law supplement, I was reminded that the two Justices who wanted a hearing in a similar Michigan case — O'Lear v. Miller — were Justices Breyer and Stevens. It appears from the Vieth oral argument that they were the ones pushing for a stronger partisan gerrymandering standard. Probably they attracted two more votes to revisit the issue, but do not have the votes to overturn Bandemer.

In a comment to this post, GregV also follows up on a dialog he and I had been engaged in before yesterday's ruling on a comment to a post over on Charles Kuffner's excellent Off the Kuff blog.  (Yesterday was also the filing deadline, and Kuff also has a good update on who's filed where under the new map in light of yesterday's Supreme Court ruling.)  GregV's questions have certainly pushed me to look harder at the tea leaves; whether I'm actually seeing anything there or just imagining, I leave to you, gentle readers. 

But let's get our fingers busy counting votes:

For Scenario #1, you can postulate Stevens, Breyer, and Ginsburg as your core voters pushing for more federal court power to rein in hyperpartisan gerrymandering — God knows under what kind of standard, but something with more teeth than Bandemere.  It would stun me for Rehnquist, Scalia, or Thomas to buy into that.  Although O'Connor is frankly more likely to have changed her mind since 1986 than Rehnquist (both dissented in Bandemere, arguing that partisan gerrymandering is a nonjusticiable political question outside the ken of federal courts), remember that she's the only Justice who's ever been a state legislator (majority leader in the Arizona state senate); this ought to be something she hangs tough on, if there's anything she sees as a matter of absolute principle.  I certainly could imagine both Souter and Kennedy agreeing to sign on to something tougher than Bandemer in theory.  But if both of them had so voted at the conference after Vieth was argued, why wouldn't they have joined Stevens, Breyer, and Ginsburg to grant the emergency stay motion from Texas?

I tend to discount Scenario #2, simply "majoritizing" Bandemer, or a Scenario #4, as Prof. Hasen proposes, in which the Court remains split with no majority on anything.  Why would the Court bother to grant oral argument in Vieth if that's all they intended to do?  Unless someone leading the charge for one view or the other already believed they had the crucial fifth vote, why not just leave Bandemere in place?  They could have just summarily affirmed in Vieth and saved themselves the trouble (and in the case of Scenario #4, the embarrassment)!   

As for Prof. Hasen's suggestion that there are distinctions between Vieth and the Texas case which might explain why the Court would refuse to interfere in the Texas case while still possibly going beyond Bandemer's toothless restrictions in Vieth, I've now skimmed most of the briefing from both.  Prof. Hasen's a specialist in this field, and has probably read the briefing more thoroughly than I have.  But it seems to me that if anything, the Texas plaintiffs — deliberately and knowledgeably, because there are common counsel for the plaintiffs in the two cases (Paul M. Smith et al. of Jenner & Block) — tried to raise additional grounds in the Texas case, chiefly the "twice-in-a-decade" argument (which the three-judge panel, in my judgment, spent the first quarter of its opinion unanimously nailing to the wall and dissecting until it was dead, dead, dead!).   If a majority of the Court already intends to write new law in Vieth saying that really, really intense political gerrymandering is to be limited somehow, I frankly don't see how they could ignore the Texas case:  if you are going to demonize political gerrymandering, then Tom DeLay just had a star turn as your Darth Vader figure in the Lone Star State, and the panel opinion in Perry completely hinges on the court's fact-finding that partisan goals to create a durable, reliably Republican majority were the sole and overriding basis for the just-passed district map.

For Scenario #3:   If one assumes that O'Connor and Rehnquist haven't changed their minds since 1986, and that they've persuaded, say, Scalia and Thomas to their views on nonjusticiability — not a stretch to imagine at all — then they'd only need one more vote to get to five.  I figure there's no way that Stevens, Breyer, or Ginsburg could be persuaded of nonjusticiability — they've rarely met a claim they didn't like, nor hardly ever agreed to limit the powers of the federal courts vis-á-vis the states.  Nevertheless, If O'Connor and Rehnquist picked up either Souter or (more likely) Kennedy, that could be their fifth vote. 

So yes, based on yesterday's ruling in the Texas case, I'm tending toward predicting a 5/4 or 6/3 decision in Vieth overruling Justice White's plurality from Bandemer and holding that claims of pure hyperpartisan gerrymandering are nonjusticiable political questions — as opposed to claims based on race, which still are going to be red meat for the Voting Rights Act of 1965.  Simultaneously with their announcement of their decision in Vieth, the Texas case (Perry) will be summarily affirmed.

So there.  I'm all the way out on the limb!