Rick Pildes of NYU Law School has these thoughts on today’s decision:
Today's complex opinion in the Texas case is noteworthy for a number of reasons, some more obvious, some more subtle. As a practical matter, Democrats lost the war but won a battle that might have important partisan implications nonetheless. As a legal matter, apart from its significance for current law in the areas of race, politics, and the Constitution, the decision will also have direct implications for current debates in Congress over whether to renew the Voting Rights Act and if so, in what form, both to address possible constitutional challenges to the Act and to deal with the diversity within new minority communities, such as the Latino community, that the Court wrestles with in this case.
1.
Partisan Gerrymandering. This aspect of the case will get the most attention, since it is both the easiest to understand and has the dramatic personality of Tom DeLay at the center. The Court held that the hardball tactics Texas Republicans used to redraw districts to increase Republican power in the US House may have been tough politics, but not in such a way that the Constitution was violated. As between the aggressive Democratic gerrymander of Texas in the 1990s and the Tom DeLay inspired gerrymander of today, the Court majority essentially washed its hands of the matter and concluded there was no constitutional basis for choosing sides in this ugly partisan warfare. The question now will be whether this ruling triggers a similar spiral of other mid-decade redistrictings after this fall's House elections, the answer to which might depend on how close the balance of power turns out to be in the House — and whether Democrats in states like La, New Mexico and some other states are willing to use the same hardball tactics as DeLay prompted in Texas.
Looking forward on this issue, might partisan gerrymandering violate the Constitution in other contexts? Technically, the answer remains yes, as it has for many years now. Practically, though, the opinion makes it less likely the Court will find an actual violation. Chief Justice Roberts and Justice Alito once again signalled their unwillingness to confront precedents they did not have to address; showing a cautious moderation, both refused to take positions on the large question of whether partisan gerrymandering is ever unconstitutional. But Justice Kennedy rejected yet another effort to craft such a standard. Because Justice Kennedy has been more open to the possibility of such a standard, his rejection of every actual standard offered to him, including the one today, makes it harder for plaintiffs to win on partisan gerrymandering claims.
