Order List

October 18, 2004 Supreme Court Update
Greetings, Court fans!
Today's order list contains two items of note. First, in five cases led by Jackson v. Perry, 03-1931, the Court issued summary orders vacating a ruling by a three-judge panel of the Eastern District of Texas that upheld Texas' new congressional redistricting plan. Texas gained two U.S. House seats after the 2000 census, but it was up to the fractured Texas state legislature to draw up new district lines, and state Democrats and Republicans were unable to agree. So a court-ordered redistricting plan was used for the 2002 elections, which left the Democrats with a 17-15 advantage in the state's U.S. House delegation. But the Republicans won control of the state legislature that year, and decided to take advantage of their new power to redraw the U.S. House districts along lines more favorable to Republicans -- leading Democratic state reps to camp out in Oklahoma to prevent the state legislature from having a quorum to vote on the Republican plan. College football fans will have a true appreciation for how bitter the fight must have been for Texans to go to Oklahoma. Eventually the Republicans got their way, leaving the Democrats (and other groups) to challenge the plan in court as impermissible "partisan gerrymandering." The challengers also argued that it was unconstitutional to redraw district lines more than once a decade and that the new plan was racially motivated. In January of this year, the district court rejected the challenge, and the Supreme Court declined to stay that ruling pending an appeal.
But now the Court has vacated the ruling and remanded the case for reconsideration in light of its decision in Vieth v. Jubelirer, 541 U.S ___, 124 S. Ct. 1769 (2004). Here is where things get really messy. In Davis v. Bandemer, 478 U.S. 109 (1986), the Court (led by Justice White) held that political gerrymandering cases are justiciable under the Equal Protection Clause, but a majority of the Justices could not agree on just how to evaluate these claims. In Vieth, another challenge to a Republican redistricting plan, a plurality led by Justice Scalia concluded that there is no judicially discoverable or manageable way to deal with political gerrymandering, so therefore Bandemer was simply wrong -- political gerrymandering should not be justiciable. Justice Breyer sided with the plurality to uphold the Vieth redistricting plan, but he did not vote to overrule Bandemer because, someday, a court might unearth some "limited and precise rationale" for evaluating these claims. So, technically, Bandemer is still good law and political gerrymandering claims are still justiciable, but there exists no good way to review these claims. The decisions in the Texas cases came down before Vieth -- the district court expressly concluded that current law made it impossible to strike down the redistricting plan as impermissibly partisan, and the court stated its hope that Vieth would clarify the proper role of the judiciary in political gerrymandering cases. Needless to say, that did not happen, and short of finding the holy grail of judicial review that will satisfy Justice Breyer and the Scalia plurality, it is unclear what the Texas judges are supposed to do in light of Vieth. Chances are, this case will be back in front of the Court -- but not until long after the upcoming election, which will use the Republican plan.
Second, the Court granted cert in another in forma pauperis case, Deck v. Missouri, 04-5293, which concerns whether it is constitutional to conduct capital sentencing proceedings with the defendant shackled and handcuffed in front of the jury. In Deck, the petitioner received two death sentences following his conviction for two murders in 1996. He managed to obtain a new sentencing hearing in a post-conviction appeal, but he was shackled with leg irons and chains for the duration of the second penalty phase, and the jury again sentenced him to death. The Court has previously held that criminal defendants may not normally be shackled during trial. See Estelle v. Williams, 425 U.S. 501, 504-05 (1976) (noting that shackles may be necessary "to control a contumacious defendant") (citing Illinois v. Allen, 397 U.S. 337 (1970)). Now it will consider whether those limits apply to capital sentencing proceedings for an already-convicted defendant.
Finally, last week we reported that the Court granted cert in yet another in forma pauperis case, Cutter v. Wilkinson, 03-9877, but the question presented was then unavailable. It is: "Whether Congress violated the Establishment Clause by enacting the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc-1 through 2000cc-5, which requires state officials to lift unnecessary governmental burdens imposed on the religious exercise of institutionalized persons under their control."
That's all for now. Thanks again for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400