SCOTUS decision today on Texas redistricting case is no big deal

In a two-sentence order released today, the United States Supreme Court vacated the January 6, 2004, decision of the special three-judge Voting Rights Act panel from last January, pending before it under the name Jackson v. Perry, that had rejected challenges to the Texas Legislature's 2003 congressional redistricting.  The Supreme Court returned the Perry case to that same special three-judge panel "for further consideration in light of Vieth v. Jubelirer," the Supreme Court's own April 2004 decision in a redistricting case from Pennsylvania.

In an earlier ruling on January 16, 2004, the Supreme Court had refused to block the use of the 2003 map for the 2004 congressional elections, so today's decision cannot directly affect the upcoming election.

So what's this mean?  The Associated Press story on today's ruling, as republished in the online version of the Houston Chronicle (beware, the Chron has a nasty tendancy to edit, replace, or simply make content disappear at the same URL), spins this as if it were a big win for the Dems:

The Supreme Court handed Democrats a victory today, ordering a lower court to reconsider a Texas redistricting plan that could give Republicans six more seats and a firmer hold on their majority in the House.

I suppose from the standpoint of the Democratic plaintiffs, today's ruling is slightly better than a poke in the eye with a sharp stick.  But it's a shallow, technical, procedural, and — in all probability — a purely temporary victory for the Dems that at best gives them one more bite at an apple they've already gone hungry on before.

As I've written many times before (for example, here, here, and here), appeals from rulings of special three-judge Voting Rights Act panels are unusual creatures.  By statute, they skip the normal first level of appellate review in the United States Courts of Appeals, and shoot up directly to the Supreme Court.  Even more oddly, unlike most of the cases that come before the Supreme Court for consideration on a so-called "application for a writ of certiorari," the Supreme Court has no discretion to refuse to hear Voting Rights Act appeals.  That doesn't mean that the Supreme Court always holds oral argument and issues a full written opinion on those appeals — and in fact, usually it doesn't.  But its ultimate rulings on appeals in Voting Rights Act cases are "on the merits," rather than nonprecedential refusals to review the case (which is the correct characterization of the Supreme Court's denial of certiorari in the normal, non-Voting Rights Act cases).

Today's ruling, though, was not the Supreme Court's ultimate decision on the merits of the Texas case, but merely an intermediate and procedural one.  What's more, it was an entirely predictable one that, in and of itself, contains no signals as to what the Supreme Court might ultimately, someday, do with the case.

Instead, the Supreme Court's decision today is an absolutely routine recognition that when the three-judge panel made its decision in the Perry case on January 6, 2004, it did so without the benefit of the Supreme Court's later written opinion from the Pennsylvania case, Vieth.  It is absolutely commonplace — and an efficient use of the Supreme Court's limited time and resources — for it to refuse to make a ruling on the merits when the lower court's decision was written without benefit of an intervening Supreme Court decision.

Unfortunately for the Dems, there's absolutely nothing in the Supreme Court's multiple and fractured opinions from Vieth — none of which commanded a five-Justice majority of the Supreme Court — which makes it at all likely that the Perry three-judge panel will come to any different result than it did last January.  It's unlikely that the three-judge panel will hear more evidence; rather, it will probably simply revise its lengthy opinion to make appropriate references to the various plurality and dissenting opinions from Vieth and then, again, refuse to declare the Texas map illegal. 

At that point, the Dem plaintiffs can be expected to again appeal back to the Supreme Court — and again, that will be an "appeal as of right" that the Supreme Court will, by statute, have to consider on its merits.  But in all probability, unless there's an intervening change in the composition of the Supreme Court or a major change of heart by one of its members who voted in Vieth, the Supreme Court will simply affirm the three-judge panel's decision with a one-sentence order — most likely without hearing oral arguments and most likely without a full written opinion.  Having failed in Vieth to clarify or improve on the dog's breakfast of prior Supreme Court precedents on the permissible extent of partisan gerrymandering, there's absolutely no reason to think that the Supreme Court will try again, a mere year later, unless there's a new face on the Court.  Election law specialist Rick Hasen, whom I regard very highly, is quoted in the AP report with this statement:

"I see this as the Supreme Court punting right before the national election," said Richard Hasen, an election law expert at Loyola Law School. "It buys the Supreme Court another term before it has to rethink the issue. Maybe by then we'll have a new justice or two."

Professor Hasen's more extended analysis is on his blog (hat-tip How Appealing, which also has more links to other press accounts):

What is the lower court to do? The lower court Justices [sic — Prof. Hasen clearly means the judges of the three-judge panel] already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with.

It's possible, I suppose, that the three-judge panel will sit on the remanded case for several months, pushing the next appeal back to the Supreme Court into the October 2005 term — by which time it's also conceivable that one of the present Justices might have retired and that a hypothetical President Kerry might have named and gotten confirmed a successor that would be more sympathetic to the Dems' views, or that (as Prof. Hasen speculates) Justice Kennedy might have changed his mind since Vieth.  But I frankly doubt that scenario, even if Kerry wins the presidential election.  I expect that the three-judge panel will ask for briefing in short order, and then issue its revised decision before the end of 2004 — in which case it will likely be calendared and decided on its merits in the Supreme Court before the end of the current term, by the same Justices who are now sitting.

Predictably — and reprehensibly — the AP report continues to misrepresent the basic facts of the Texas redistricting case:

States must redraw boundaries every 10 years to reflect population shifts found during the census. Five appeals over the Texas boundary-drawing pose an interesting question: Can political leaders of a Legislature force district drawing more frequently than once a decade, to make more seats winnable for members of their party?

This is nonsense.  There has only been one successful congressional redistricting done by the Texas Legislature since the 2000 Census, and that's the redistricting map passed in 2003.  The Dems, and their either ignorant or complicit spinners in the mainstream media, continue to shout the "multiple redistrictings in one decade" meme because it's a great way to villify Tom DeLay and all Texas Republicans — but it's completely bogus.

Bottom line:  Anyone who tries to tell you that today's Supreme Court ruling is surprising and important good news for the Dems doesn't know what they're talking about.  Personally, I'd give far better odds on the Red Sox winning this year's World Series.

Update (Mon Oct 18 @ 3:00pm):  Writing on NRO's The Corner, Jonathan H. Adler's take is very similar to mine (although much pithier).  His bottom line is "much ado about nothing."

A small nit:  Today's order doesn't actually direct "reconsideration," which might imply a need to make changes, but "further consideration."  I'm not sure whether SCOTUS always says "further consideration," but I seem to have a vague recollection that they do, in fact, sometimes say "reconsideration."

Update (Mon Oct 18 @ 3:45pm):  The relentless, counterfactual spin continues, as per the latest AP story, which recites that "Democrats hailed the ruling, calling it proof that the map is unfair to Texas voters":

Texas Democratic Party Chairman Charles Soechting said the ruling should be at the forefront of voters' minds as they cast their ballots in the coming days.

"When the most radical Supreme Court in the nation's history rules that Tom DeLay and his co-conspirator Craddick went too far in their corrupt and ultra-partisan overreach, it is truly breathtaking," Soechting said. "DeLay and Craddick have created the most divided and partisan state government in history. It is time to restore integrity and balance in Austin."

Shame on you, Mr. Soechting!  You're a lawyer, and from what I've heard of you, a good one.  You know what today's ruling means, and what it doesn't mean, and you know today's ruling bears zero resemblance to your characterization of it.  Call Republicans names; characterize the politics of the Supreme Court as you like.  But don't flat-out lie to the public about whether today's ruling was on the merits or not!

Update (Wed Oct 20 @ 11:20pm): The Sox' odds of winning the World Series are getting lots better.  Unfortunately for the Dem plaintiffs in Perry, though, I think the team of nine on the Supreme Court are somewhat more predictable than any team of nine on a baseball diamond.