Justice's Kennedy's opinion, rejecting the claim against mid-decade redistricting, opens with a history apparently meant to stress that there is no real unfairness here, as the Court sees it, on the facts.  The "proper framework for the case", the Court states, is what the Democrats did in l990, "using then-emerging computer technology to draw district lines with artful precision."  Martin Frost is specifically credited with this, and the Court proceeds then to imply that against this background, the partisan revenge exacted by the Republicans, once they had regained control of the State House, was at least understandable.  This is an odd bit of realpolitik, even if understandable in a raw political sense, and what follows in Justice Kennedy's opinion does not add much.  He is not prepared to say that there is no standard--no "manageable, reliable measure of fairness"-- by which partisan gerrymandering may be determined unconstitutional, but it is not one that he is prepared to construct on these facts. 

   What are the elements of Kennedy's  more formal analysis?  He states that legislatures, when acting to replace a court-drawn plan, should not be subject to a "presumption of impropriety."  And he expresses some perplexity over the significance of partisan motivation as the "sole" basis for evaluating the constitutionality of the gerrymander.  In part, this is because he does not see the motivation in Texas, judged by the content of the legislative plan, as "solely" partisan: "some local interests were considered, and the requests of some democratic state legislators were "honored." 

   More important, Kennedy cannot see motive as dispositive, believing that the inquiry must focus on "a burden, measured by a reliable standard, on the complainants' representational rights."  This standard, he writes, cannot rest on some proportional test for representation, but at the same time, he does find comfort in the improved position of the Republicans, relative to their demonstrated electoral strength statewide, and once again, the Democratic plan of l990 makes, by oblique reference, another appearance: it was not as fair, Kennedy writes.  The Justice also questions the effects of building a test on intent, worrying that "one effect" of any such focus might be to "encourage partisan excess at the outset of the decade", since then the claim of "sole" partisan motivation would be inapposite, and conjecturing that it would also encourage opposition parties to block legislative deals and gamble on judicial plans in preference to "negotiation with their political rivals."

   So there is Justice Kennedy, for all that: unmoved by the facts of the case and still groping for a standard. 

   We will continue to post on the case.

Bob  Bauer