Say Hello To The House Of Lords

supreme court graphic : Map and flag of Texas with gavel.
Attorney Andrew Cohen analyzes legal issues for CBS News and

The United States Supreme Court on Wednesday doomed us all to a whole new generation of political power grabs that are notable as much for their brazenness as they are for their crushing impact on political minorities. The Justices refused to call a spade a spade; refused to declare unconstitutional (or even really consider on the merits) the Tom DeLay-inspired 2003 Congressional redistricting plan in Texas that was proudly hailed by Republicans at the time as their way to cement into place their recent electoral gains in that state.

As a result of the ruling, the door now opens even wider for any state, every state, to change its Congressional districts at any time — even in the middle of a decade and in between censuses — depending upon the might and whim of the political party in charge of the state legislature. This is true, according to the Court's majority, even if the motivation for the mid-decade gerrymander is motivated overwhelmingly, as it was in Texas, by partisan interest in creating what one Justice called a "stranglehold" on political power. Buckle up. In the wake of the ruling, Congressional districts could shift from election to election — and from one party's advantage to the other — like sand in the desert.

Justice Anthony Kennedy, again emerging as a critical swing vote, declared that the Texas redistricting plan was not automatically unconstitutional just because the motives behind it were impure. "… Partisan aims did not guide every line" the legislature drew in 2003, Kennedy wrote, and "a number of line-drawing requests by Democratic state legislators were honored." Besides, Kennedy ruled, opponents of the 2003 plan failed to "show a burden, as measured by a reliable standard, on [their] representational rights." In other words, even if he were convinced that a mid-decade gerrymander were purely partisan, Justice Kennedy would not overthrow it unless its opponents also convinced him that they were harmed by it.

Supreme Court Redistricting Ruling
This tough standard prompted Justice John Paul Stevens, who wrote the main dissent in the case, to howl. It wasn't necessarily how the Texas Republicans manipulated the district map in 2003 to achieve a gross political advantage, Justice Stevens wrote, it was the fact that they redrew the map in the first place when they had no duty to do so that was relevant in determining the constitutionality of their efforts. Justice Stevens noted that the lower court had identified plenty of reasons why the redistricting was designed purely to seize "'between five and seven seats from Democratic incumbents.'" He called Justice Kennedy's "representational rights" test "not only inconsistent with the constitutional requirement that state action must be supported by a legitimate interest, but also provides an insufficient response to the appellants' claims on the merits."

Indeed, what is particularly disappointing about the result is that the Justices still weren't willing or able to come up with a workable legal standard they could apply to these sorts of cases. In 1986, Justice Kennedy noted, the Court's majority held that it could evaluate on the merits a claim that a partisan gerrymander had violated constitutional rights. Back then, Kennedy noted, "there was disagreement over what substantive standard to apply. … That disagreement persists." But after rejecting the proposed standard offered by the folks who sued to invalidate the 2003 Texas plan, the Justices failed or refused to agree upon or otherwise offer any other sort of test that might be applied.

So in these vital redistricting cases, which affect the lives of millions of people who live and work in the districts immediately affected, and which also impact the rest of us by shaping at any given time the majority in the House of Representatives, the Court is for the time being satisfied with acknowledging a right without a remedy; a claim without a test to satisfy it. Justice Stevens wasn't the only one who complained about the Court's cop-out. Justice Antonin Scalia, writing also for his right-wingman, Justice Clarence Thomas, noted that "we again dispose of this claim in a way that provides no guidance to lower-court judges." Of course, Justices Scalia and Thomas voted to dismiss outright the objections to the 2003 plan as "nonjusticiable" political questions that are beyond the scope of the Court's jurisdiction.

Nor does there appear to be any help on the horizon. The two newest Justices on the Court, Justices Samuel A. Alito, Jr. and John G. Roberts, Jr. both declared that they were not willing to concede that partisan gerrymandering cases like this one even are within the Court's purview to evaluate. That position is sure to make conservative lawyers and judges and politicians all over the country drool with glee. Could the Court be poised in the right circumstances to become even more detached from these sorts of cases than Wednesday's lame effort suggests? Absolutely. Just watch.

So what happens now? It depends upon the state. If one party dominates the state legislature and wants to redistrict in 2007 to help solidify electoral gains, there doesn't appear to be much in this ruling to stop that effort — especially if the lawyers and politicians doing the gerrymandering make sure that there are at least a few non-partisan components to the plan. Republican-controlled legislatures could cement into place GOP majorities and vice versa for Democrat-controlled legislatures until the House of Representatives would be as static a political body as the House of Lords.

That, of course, would be the complete opposite of what the Founding Fathers had in mind when they came up with a bicameral system of legislative governance. But, hey, they are all dead anyway, right? I heard one legal or political expert Wednesday morning pooh-pooh the idea that Court's ruling would encourage, or at least not discourage, political majorities from making it harder for political minorities to achieve parity from state to state. Too much of an unseemly power grab, this guy said. Right. If our recent history teaches us anything, it is that there is no such thing as an "unseemly" power grab to our current generation of politicians. And if the Court's ruling teaches us anything, it is that the Justices aren't quite ready to do anything about it.