The Justices Look at Some Shapely . . . Congressional Districts

By Dana Milbank
Thursday, March 2, 2006

The Supreme Court hosted its own performance of "Beauty and the Beast" this week. On Tuesday, it heard the plea of Anna Nicole Smith, the former stripper and Playboy Playmate seeking a share of her deceased husband's fortune. Yesterday, the justices debated the aesthetics of three congressional districts in Texas.

"Particularly grotesque shapes," judged Justice John Paul Stevens. "Much less compact" than before.

Justice Stephen Breyer offered a partially concurring opinion. "A long walking stick is what it looks like . . . It's not a circle . . . It's not absolutely terrible."

Lawyer Ted Cruz, defending the state of Texas, found the map much more pleasing than the old one, which he said had "fingers" coming out of it. "It's not like they snake around," Cruz argued, rattling off what he called the districts' "perimeter to area score" and using fancy words like "equipopulosity."

Breyer demanded a more precise description of the shapes. "Either it is reasonably compact or it isn't," he said.

The maps of Districts 23, 24 and 25 were indeed odd: an 800-mile swath zigzagging along the Mexican border, a two-headed cat in between Fort Worth and Dallas, and a disfigured candy cane dangling from Austin.

But the geometric discussion evidently did not interest Justice Ruth Bader Ginsburg. At first, she appeared to be reading something in her lap. But after a while, it became clear: Ginsburg was napping on the bench. By Bloomberg News's reckoning -- not denied by a court spokeswoman -- Ginsburg's snooze lasted a quarter of an hour.

It's lucky for Ginsburg that the Supreme Court has so far refused to allow television in the courtroom, for her visit to the land of nod would have found its way onto late-night shows. It's perhaps also lucky for Chief Justice John Roberts, who hectored Nina Perales, a lawyer for a Mexican American group, as if she were an unprepared law student: "Your argument is at cross-purposes. . . . What relevance does that have?"

But most everybody else could have benefited from a glimpse of the high court's proceedings. Yesterday's case on Texas redistricting was about crucial matters: the fate of minority voting rights; the principle of one man, one vote; the balance of power in the House of Representatives; and political gerrymandering that protects 98 percent of incumbents in both parties from challengers.

But the court permits no video or audio recordings. Unlike the White House and Congress, it allows no real-time transcripts. And the court, filled with lawyers of the "Supreme Court Bar," has little room for ordinary citizens, who are routinely turned away and sometimes camp overnight for a chance to see an argument. Most reporters, meanwhile, sat behind pillars yesterday with no view of the justices; a kindly court official held up fingers to indicate which justice was speaking, ranging from one finger for Roberts to nine for Samuel Alito.

Fortunately, watching yesterday's proceedings was fairly simple: It all came down to Justice Anthony Kennedy (four fingers, for those behind the pillars). He was the swing vote in a similar redistricting case two years ago, and if this case was going to go differently, Kennedy would likely play that role again.

The justice, bespectacled and hair askew, played the part, rocking in his chair and pressing both sides of the state legislature's mid-decade redistricting plan, a plan by then-Majority Leader Tom DeLay (Tex.) that led the GOP to pick up six House seats in the state.

Kennedy at first alarmed the Democratic side. Addressing Paul Smith, a lawyer opposed to the Texas plan, he said that if the earlier map was skewed, "it seems to me there is grounds for the new legislature to act."

Smith protested. "But, Your Honor, it wasn't slanted."

As Smith continued to outline his case that the Republicans redrew the map solely for political reasons, Kennedy stopped him. "But you're making assumptions," the justice said. "That's simply not true."

Kennedy whispered with Justice Clarence Thomas, who gave a dismissive shake of the head.

Things looked even worse for the Democrats when Kennedy joined Roberts and Antonin Scalia in a skeptical line of questioning of Perales, another lawyer opposed to the Texas map.

But Kennedy reversed course when Cruz stepped up to argue for Texas. After Scalia immediately signaled his support for the GOP map and Stevens and Breyer raised some doubts, the swing voter cleared his throat. He said he found something in the Texas plan that "to me is a serious Shaw violation" -- referring to an earlier redistricting case.

This caused a hubbub in the gallery. Kennedy wondered if the state had removed enough Hispanics from a district to make sure a Republican won it but left enough "just to make it look good." Said Kennedy: "It seems to me that is an affront and an insult."

Cruz moved on to discuss the district's clean lines, but Kennedy was unimpressed. "Well, of course, the reason the lines are straight is nobody's there," he said. He floated the idea that political considerations -- by all accounts the primary motivation behind the Texas redistricting -- should be "secondary."

Of course, Kennedy may have actually said something slightly different -- but we won't know for sure until the transcript comes out next week.

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