If, as we fear, state and local governments follow the precedent of Texas and engage in unnecessary, wasteful, and acrimonious redistricting using inaccurate population data to benefit partisan interests, we would like to believe the justices will regret their decision in LULAC v. Perry. But we doubt that will happen because there was also an air of unreality about the challenge to the 2003 gerrymander. This is, after all, the Court (and a justice) that assisted George W. Bush into the White House. Could anyone believe it was realistic to expect it (or him) to unseat six Republican Congressmen to assist Nancy Pelosi into the Speaker's Chair?

Indeed, there's nothing in LULAC to prevent Texas Republicans from taking yet another bite at the redistricting apple in time for the 2008 election—say by adjusting some lines ever so slightly so as to make it easier to defeat one or more potentially vulnerable Democratic incumbents.

The Court's difficulty is understandable. Gerrymandering is a challenge to democratic self-government, but judicial intervention requires a judicially manageable theory of democracy compatible with the Constitution and our political institutions. It remains to be seen whether the Court can agree upon such a theory. Vieth and LULAC suggest that the outlook is not promising.

The Supreme Court's opinions in LULAC v. Perry, the Texas redistricting case, confounded expectation. While many believed that the Court would develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but there is no law to govern them.

The truly unprecedented development in the case for me was Justice Scalia's vote to uphold what he considered a racial classification under the Equal Protection Clause, but one that survived strict scrutiny. This essay tries to explain why his opinion is important, both in its own right and with respect to its implications for how he might consider the upcoming challenges to the newly reauthorized Voting Rights Act.