On Thursday, the Court decided Alexander v. South Carolina Conference of the NAACP. This redistricting case was unique in that it was brought directly under the Constitution, rather than under the Voting Rights Act. The Court split 6-3 along the right-left divide. The majority held that race did not predominate in drawing the congressional district. Justice Alito's majority opinion afforded a presumption of good faith to the legislature. At most, the Court found, the legislature sought to decrease the political power of Democrats. I don't have much to say about these doctrinal points in the majority, or Justice Kagan's dissent.
Instead, I train my focus where it usually goes: Justice Thomas's concurrence. He wrote "separately to address whether our voting-rights precedents are faithful to the Constitution." Thomas explains that the Court "has no power" to decide these redistricting claims under the Constitution. Thomas's opinion received the usual blowback in the press, but as usual, he shifts the Overton window, and now we are talking about whether the VRA may be unconstitutional.
First, Justice Thomas explains that there are no judicially manageable standards to resolve such racial gerrymandering claims. Here, Thomas echoes Rucho: "Determining the proper shape of a district is a political question not suited to resolution by federal courts." In this regard, Justice Thomas sees no difference between political and racial gerrymanders.
