The Supreme Court 2011

The Supreme Court 2011 (Photo credit: DonkeyHotey) License Creative Commons Attribution

The Supreme Court was sharply divided about what to do and reaching for options to deal with a very messy situation.

One option that got a lot of play and seemed attractive to justices on both sides of the court’s ideological spectrum was the possibility of just punting and letting the DC court issue its preclearance ruling, presumably some time in February. The suggestion came first from Justice Alito and later in the argument Justice Sotomayor asked directly, “What’s our absolute drop dead date?”  (Answer: maybe June)  Justice Kagan also raised the possibility.

Another option which came up was the possibility of shifting the burden to the State of Texas for showing that it had a likelihood of success on parts of the map that had been challenged in the section 5 case – a suggestion made by Justice Kagan.

Justice Kennedy also suggested that maybe the appropriate route might be to say that the San Antonio court should limit itself to section 2, equal protection, and other constitutional inquiries while leaving section 5 issues to the DC court (as opposed to having the San Antonio court guess whether there would be problems with the state’s maps).   But the retort to that was that it would sidestep section 5, even if just on an interim basis, and based on the questioning from other justices to the lawyers, it did not appear there would be a broad consensus for that option.

One thing that the justices seemed not very inclined to do was get into the messy business of telling the San Antonio (or future district courts) the details of what it should do on things like coalition districts and population deviations.

The other major thing that did not come up, except for a very brief allusion by the state’s lawyers, was the constitutionality of section 5. However, while the court did not seem interested in taking the issue head on, Justice Kennedy did wrestle publicly on a couple of occasions with how you reconcile the differing treatment of states.

As for the alignment on the court, it largely fell along familiar lines- with the more liberal justices (Sotomayor, Kagan, Breyer, and Ginsburg) having sharp questions about the state’s position and more conservative justices (Scalia, Alito, Roberts, Kennedy) being more skeptical of the plaintiff’s defense of the interim maps, though to differing degrees. (Justice Thomas did not ask any question but given his dissent in NAMUDNO, it can be presumed that he is not very sympathetic to arguments that section 5 prevents use of the state’s maps.)

Let’s just say things keep getting interesting.

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