Court Reporter

At the Supreme Court Wednesday, it was all about Texas and the future

I don't know if it says more about our national politics or our journalism that Anna Nicole Smith's Supreme Court probate case (Tuesday) made the front page of The Washington Post, while the Texas re-redistricting Supreme Court case (Wednesday) was buried on page 8 (accompanied by a page 2 sneer from Dana Milbank, also leading with Anna Nicole). Better visuals, I concede, although Smith's demure black outfit, and her dodging of reporters afterward, didn't help terribly to liven up the copy.

Nonetheless, the next afternoon in the press waiting room – a FEMA-quality trailer complex behind the court building, while the main structure is under renovation – the running gag remained, "We're here one day too late." For Texas reporters who have been covering this mishegas since Tom DeLay engineered the takeover of the state House in 2002, the redistricting argument has long since taken on the air of "We've seen all this somewhere before." (Come to think of it, that applies just as well to Anna Nicole, in spades.)

So once again we trooped in behind the lawyers, this time at least to a much more august venue than the Homer Thornberry eyesore in Downtown Austin. Those of us lucky enough to be able to see the justices (the court is not exactly audience-friendly, and prestige pews were reserved and heavily guarded for a slew of dignitaries, including a goodly portion of the current Texas congressional delegation) were treated to a two-hour, rapid-fire exercise in constitutional law theatrics and several blistering exchanges on the tinier nuances of the Voting Rights Act – which, if the state of Texas gets its way in this case, may well be an endangered species, along with the minority voters it was created to protect.

Along with the Post and The New York Times, Thursday morning's national press take on the hearing was that the (mostly Democratic) plaintiffs are in trouble, because the justices' most aggressive questioning was aimed at lead plaintiff attorney Paul Smith and Nina Perales of the Mexican American Legal Defense and Education Fund. By contrast, Texas Solicitor General Ted Cruz got off relatively lightly, although the most quoted line of the day was Justice Anthony Kennedy's assertion to Cruz that the Legislature's reconfiguring of Rep. Henry Bonilla's District 23 to assure his re-election while leaving a nominal majority (50.9%) of voting age Latinos in the district for PR purposes was an "affront and an insult" to Latino voters. That had been pretty much the argument of Perales, although her favorite adjectives were "gratuitous and cynical." To judge only from Kennedy's questions – and after Chief Justice John Roberts, he was the most talkative of the group – at least the South Texas district lines, which also created Rep. Lloyd Doggett's Austin-hooked, McAllen-anchored "fajita strip" known as CD 25, are getting closely reviewed by the court for potential violation of the VRA.

Watching the Signs

Kennedy is the most closely watched, because on the last major redistricting case, in Pennsylvania (Vieth v. Jubelirer), he was the swingman, who declined to reject "excessively partisan" redistricting in that instance but suggested a case might come to the court in which a standard to limit partisanship could be designed. The speculation is that Kennedy's interest brought the Texas case to the court Wednesday, and in an accelerated schedule that in theory could affect this fall's election, if the court rejects all or part of the current Texas map. The lineup, based on Vieth, looks like this: Roberts (replacing William Rehnquist), Antonin Scalia, Clarence Thomas, and Sam Alito (replacing Sandra Day O'Connor) likely supporting the state's new map; Stephen Breyer, John Paul Stevens, and Ruth Bader Ginsburg, and perhaps David Souter likely rejecting the state's map, with Kennedy somewhere in the middle.

The day-after buzz was that the court doesn't care much for racial re-gerrymandering, and has VRA tools to address it, but doesn't think it can do much about partisan re-gerrymandering. Certainly the sharpest questions, on all sides, had to do with the South Texas cases, and there were also some sparks over former Rep. Martin Frost's Fort Worth-based CD 24, once anchored in that city's black community and now a Republican-solid fiefdom (although still encompassing those same, disempowered inner-city black neighborhoods). But on "partisanship" per se, there was either outright mocking of any potential judicial intervention (Scalia, who has both the personality and the look of a dyspeptic bulldog), or very legalistic skepticism (most notably from Souter, who suggested it is simply neither "possible nor even desirable" to remove partisanship from politics).

But veteran court-watchers, including afterward Dem attorneys Smith and Gerald Hebert, warned strongly that it's a mistake to try to read too closely into the court's legal disposition from a given hearing and the day's prevailing questions. Hebert said that even though he's long known that, he re-learned it again from Vieth. "When that hearing was done, I would have been surprised if we got one vote," he said, "and instead we got four-and-a-half" (i.e., Kennedy's qualified dissent). Solicitor Cruz, on the other hand, stayed hard on message in the hearing and without. "This case is all about democracy, and the right of Texans to have a congressional delegation that actually reflects the choices preferred by a majority of Texas voters" – always neglecting to add, except in those congressional races that continued to elect Democratic candidates in otherwise heavily Republican districts. And Cruz repeatedly pointed to the legal history – "Every court that has looked at this, has rejected the plaintiffs' arguments."

It remains to be seen whether the final court that counts will find its way to a different conclusion, probably sometimes in June or July. Should they uphold the map and the radical Texas process, we could well see a wave of re-redistricting across the country, as both parties seek to maximize their local advantages or counter each other's moves elsewhere. That would be no doubt entertaining for political journalists and provide permanent employment for political operatives of every kind – whether it would be good for the country is another matter altogether.

Nine Justices, No Waiting

Finally, on the Courtwatch insider front, a few intriguing details. Chief Justice Roberts confirmed the impression he gave at his confirmation hearing, like most first-year law students, of being convinced that he's the smartest person in the room, asked many more questions than most of his seniors on the bench, and essentially badgered Perales to demonstrate that any racial motivation could be discerned from frankly partisan lines drawn on a South Texas map. (One could readily conclude that he's never visited South Texas.) His newbie colleague, Sam Alito, asked exactly one question, although he at least appeared to pay attention, more than could be said for Clarence Thomas, stonily silent throughout and giving the impression of wishing he were anywhere but listening to arguments about which he had long since made up his mind.

But the most alarming interlude was that of Ruth Bader Ginsburg, who asked a few early questions in a faint, querulous voice, was not heard from again in the spirited and sometimes crackling debate, and then late in the second hour visibly fell asleep, head deeply bowed, for about 15 minutes. She had sounded ill, frankly, and she looked it, and one can only hope that she wasn't as exhausted over the enormous pile of Texas briefs as she was over the tip of the freighted history represented by this fleeting, animated discussion of the future of Texas politics, as well as of much of the nation. end story

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