Decision’s out (PDF)! It’s unanimous, written by Breyer, favoring the Commission, an outcome for which I had advocated. Unfortunately, nothing about tests for symmetry, which I proposed in the NYT and in an upcoming Stanford Law Review article.
More thoughts…The opinion is very short (barely over 10 pages) and is narrowly written, as Amy Howe as SCOTUSBlog writes. It doesn’t seem to do much more than state that population deviations of up to 10 percent are acceptable. It does as little as possible, while still upholding the Commission’s work. Several people, including me, filed briefs arguing that statistically, there was no measurable partisan offense. But the Court ruled in a way that did not require them to take a position on whether an injury had occurred.
The narrowness of the opinion might reflect a new direction for the Chief Justice. On the one hand, Supreme Court opinions are unanimous, or nearly so. But in recent years they haven’t shrunk back from a series of 5-4 votes on controversial cases that roll back worker rights, voting rights, and other areas of standing law.
This redistricting case could have been such a situation. FantasySCOTUS had it as being anywhere from 5-4 (favoring Harris) to a 9-0 majority. As written, the opinion stayed well clear of matters regarding the Voting Rights Act, an area where the most conservative wing (Thomas, Alito, Roberts) don’t accept current law. Now that conservatives are probably headed for being in a 5-4 minority, Roberts may discover a new-found love for consensus – as a means of slowing down any advance for liberal priorities.
I initially became interested in this case as a means of advocating for a gerrymandering standard. With today’s decision, that didn’t work out. However, other cases are coming down the pike:Whitford v. Nichol in Wisconsin, and Shapiro v. McManus in Maryland (for a description, see pp. 36-41 of my article). The time is ripe for the Court to take up this question. If not this year, then next year. Onward!