Tolerating Texas Rules

The Supreme Court makes clear it won't do anything about partisan redistricting.

IN THEIR splintered opinion last week on Texas's infamously partisan redistricting plan, the Supreme Court's nine justices issued six different opinions. Successive sections of Justice Anthony M. Kennedy's opinion for the court, which upholds the plan against constitutional challenge but strikes down one district under the Voting Rights Act, have dramatically different coalitions behind them -- and some sections represent nobody but himself. Yet from this cacophony of shifting majorities, concurrences and dissents, one thing emerges clearly: The Supreme Court will do nothing to rein in even the worst excesses of partisan gerrymandering.

The court's opinion does not say this in so many words. Indeed, to the chagrin of Justices Clarence Thomas and Antonin Scalia, it once again formally leaves open the question of whether any gerrymander could be bad enough to warrant judicial intervention. But if Texas's case is not bad enough, then the one that is can exist only in some place other than the real world.

The 2003 Texas plan -- undertaken in an unprecedented fashion in the middle of a decennial census cycle and pushed behind the scenes by former House majority leader Tom DeLay (R-Tex.) -- had no purpose other than maximizing Republican representation in the state's congressional delegation. Justice Kennedy backhandedly acknowledges this point, noting that the legislature undertook redistricting "with the sole purpose of achieving a Republican congressional majority." Nor is there any serious dispute about the steps the legislature took to achieve this goal: pitting Democratic incumbents against one another and packing their districts with conservative voters, cramming minority voters into other districts. The result was six new Republican seats in the House of Representatives. Indeed, the most Justice Kennedy can muster in defense of the plan is that it replaced an earlier Democratic gerrymander and that "partisan aims did not guide every line [the legislature] drew."

That shouldn't be enough to insulate a gerrymander from judicial scrutiny. As Justice John Paul Stevens wrote in dissent, "By taking an action for the sole purpose of advantaging Republicans and disadvantaging Democrats, the State of Texas violated its constitutional obligation to govern impartially." The justices' failure to respond makes clear once and for all that the remedy for this country's redistricting mess is not going to come from the judiciary.

A political solution will be difficult. Voters in two key states recently rejected ballot initiatives for redistricting reform. Legislators, meanwhile, are unlikely champions of reforms designed to make their own races more competitive. Computer technology allows politicians unprecedented precision in making seats "safe" for one party or the other. Why would they give that up?

But pushing them to do so is an even more urgent task now than before the court's ruling. The court has, perhaps unwittingly, sent one other clear message to politicians of both parties eager to see how many extra seats they can create for their own side: Do it now, while you have the power.