WASHINGTON -- Last July 1, Sandra Day O'Connor announced her decision to vacate the seat from which she frequently operated as the swing vote on a Supreme Court divided 5-4 on important cases. Anthony Kennedy's past pronouncements suggested he would relish that role. Last Wednesday he played it in cases concerning Texas redistricting.
The cases involved several questions, the most interesting -- because it has come to the court before and we now know it will again, and because it revealed a recurring and worrisome kind of judging -- was this: Was the redistricting by the Republican-controlled Legislature such a partisan gerrymander as to be somehow unconstitutional?
The court's dusty answer to this question is symptomatic of the difference-splitting that characterized the last years of the Rehnquist court. In a plurality opinion, Kennedy said there may be a ``manageable, reliable measure of fairness'' in redistricting, but no set of facts has sufficed for the court to discover it.
Antonin Scalia believes it is delusional to think that such a standard can be anything other than judges' cumulative hunches -- not a neutral principle found in the Constitution. Joined by Clarence Thomas, Scalia on Wednesday said that no one ``has put forth a judicially discernable standard'' for deciding when a gerrymander is too partisan. The Kennedy position allows people to continue trying to concoct a constitutional violation (of the guarantee of equal protection of the laws), even though the court provides no guidance to lower-court judges. Scalia and Thomas believe redistricting is a ``political thicket'' (Justice Felix Frankfurter's phrase) courts should not enter.
By leaving open the possibility that there is a constitutional answer to the question of what constitutes a ``too political'' gerrymander -- the position seems to be: we don't know what the standard is, but we don't know that it doesn't exist -- the court has again practiced ``split-the-difference jurisprudence.'' That phrase is from Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit, writing in the Stanford Law Review.