Texas politicians and pundits are all atwitter these days. The
U.S. Supreme Court has vacated the Texas redistricting case and
sent it back to a lower court for reconsideration.
Those who think that the original redistricting decision by the
three-judge lower court was wrong - and that the Texas
redistricting plan was an illegal political gerrymander - are
joyful, hoping for victory in the second round. Editorialists who
didn't like the first result are urging the three-judge court that
will rehear the case to change its mind. And all these pundits see
some significance in the Supreme Court's action. They believe the
decision to remand the case indicates that the high court has some
doubt about the Texas Legislature's redistricting plan and that the
three-judge panel or, eventually, the Supreme Court, just might
review the Texas redistricting plan and declare it
unconstitutional.
These visions are, however, little more than "such things as dreams
are made of." Both procedurally and on the merits, the belief that
the Supreme Court's action predicts the eventual rejection of the
Texas plan is highly speculative and unlikely.
Let's take the procedural issue first. Yes, the Supreme Court
vacated the Texas redistricting case and sent it back it to the
three-judge panel. It did so to allow the panel to consider, in the
first instance, the applicability to Texas of the Supreme Court's
decision last year in a case called "Vieth v. Jubelirer" - a case
about a challenge to the alleged political gerrymandering of
Pennsylvania's Congressional districts. Democratic optimists see
this action as a sign from the high court that Vieth requires the
lower court to change its mind.
That's simply wrong. The Supreme Court follows this procedure - of
granting review, vacating a case and remanding it for
reconsideration in light of an analogous decision that has come
down since the lower court first decided the case - all the time,
and it means absolutely nothing about the merits of the case. It
used this procedure just two weeks before the Texas order in six
other cases.
In fact, this procedure is so common that it even has an
abbreviation: "GVR," meaning grant, vacate and remand. The GVR is
used whenever, as the court itself has said, there is an
"indication" that the intervening case "is sufficiently analogous"
to one coming up from the lower court to require reexamination. It
says nothing about the merits.
Or, as noted Supreme Court commentators have put it: "It seems
fairly clear that . . . the lower court is being told simply to
reconsider the entire case in light of the intervening precedent -
which may or may not compel a different result."
Statistics bear this out. One study of 90 cases in which GVR orders
were entered found that the lower court reinstated its original
decision two-thirds of the time, and that the Supreme Court almost
never reversed the lower court's decision to adhere to its original
views - a pretty good success rate for the prior victor. So the
significance of the GVR order in the Texas case is absolutely
nothing at all, much as those who did not like the original Texas
ruling would wish it otherwise.
But beyond the procedural wishful thinking lies an even greater
problem. As a matter of substantive law, the Vieth case is unlikely
to require rejection of the Texas redistricting plan. Remember, in
the 30 years before Vieth, no court had ever struck down a
congressional redistricting plan on the grounds that such a plan
was purely political gerrymandering.
In the Vieth case, four justices went further and said that
political gerrymandering cases - which, after all, is what the
Democrats say the Texas case is - could never be reviewed and
overturned by a court. A fifth Justice, Anthony Kennedy, said that
"never" was too strong but that, in effect, "hardly ever" was the
right answer - and not until the court system developed some
objective standard of review to say which types of political
gerrymander were "bad" and which were "OK."
This is hardly a resounding signal that the Texas redistricting
plan is invalid. If anything, Vieth is likely to make it harder to
prove political gerrymandering cases, rather than easier, because
even Justice Kennedy thought that the old standard (the one used by
the Texas three-judge panel to uphold the redistricting plan) was
too indefinite and indeterminate.
If Vieth is applied fairly and honestly, using an even more
demanding standard before invalidation, the near certain result is
for the lower court to reaffirm its original decision. The
challengers to the Pennsylvania redistricting plan, after all, lost
their case.
Only a "cockeyed optimist" would see that loss as a portent of
victory in Texas.
First appeared in Austin American-Statesman