Inevitably, the second speaker for the other team would get up and respond to each of the arguments I’d laid out, with arrows connecting those arguments. And then my debate partner, roommate, and best friend, David Panton, would continue the argument, extending the arguments I had made, and also making sure to mention a word or two about the initial long-forgotten arguments presented by the first speaker. The effect, in a debate round, is that we would subsume the flow. The prime minister’s speech would be orphaned; we would totally reframe the debate, and thirty-two of the forty minutes in the round would occur on the terrain we wanted.
This was much the same approach that we took in our Supreme Court brief, posing five brand-new questions that encompassed all of the complicated noise of the plaintiffs’ many, many questions, but boiling the case down to its essence so the justices could best understand it. Intricate in detail, this brief remains the most complicated brief, factually and legally, on which I have ever worked.
Typically, Supreme Court arguments began at 10:00 or 11:00 a.m., and they usually extend for an hour. Given the complexity of this case, the Court set the argument for 1:00 p.m. and scheduled it for two hours. Rather than the typical thirty minutes to present our side, I was allocated a full hour, although I ceded ten minutes to the U.S. Department of Justice, which supported the State of Texas. The central claim that the plaintiffs presented was that the U.S. Constitution prohibits an overly partisan gerrymander. There was more than a little irony in the Texas Democratic Party’s presenting this argument after perpetuating for decades some of the most egregious partisan gerrymanders in the country.
In defending the State of Texas, I could have chosen to dispute the premise: to argue, no, the plan wasn’t really that political. To be sure, there were other causes or purposes for the lines that were drawn. But making that argument would not have been credible, and I have long believed the greatest asset any advocate has is his or her credibility. Accordingly, I conceded flat-out: of course, this map is political. It was drawn by elected politicians.
Much as in Humphrey Bogart’s Casablanca, “I’m shocked, shocked to find that gambling is going on in here!”—it should come as no surprise that elected politicians are, well, political. So I argued that to the Court. Of course elected officials are political, and the Framers of the Constitution knew precisely what they were doing when the Constitution gave the responsibility of redistricting to state legislatures. Though this might astonish some modern reporters, politics was not invented in the age of Trump. As long as there have been elections, politicians have been political.
Redistricting is not some novel phenomenon. Indeed, the very word “gerrymander” comes from Elbridge Gerry, a signer of the Declaration of Independence and a delegate to the 1787 Constitutional Convention, whose Massachusetts congressional district was so convoluted that it resembled a salamander.
The Framers knew well that elected politicians would be political, but they also knew that leaving redistricting decisions to elected legislators ensured that the People would ultimately decide. The leading alternative to the state legislatures’ drawing maps is to have federal judges draw the maps. But if a judge draws a map inconsistent with the will of the voters, there is no remedy. The voters have no avenue of accountability over the federal judiciary. That’s why the Framers allocated the decision to elected legislators instead.
Two moments from the oral argument were particularly noteworthy. One in a positive way; the other, not so much. During my argument, Justice Stevens, who was quite critical of my position, began a question to me by commenting that I made a “very persuasive argument in your brief, which I found to be very helpful.…” The visual completed it: as he was saying this, he held up our brief, smiled, and shook his head ruefully, because it was clear he was trying to articulate arguments as to why we were wrong. It was kind of him to say (even though he voted against us), and it remains the only Supreme Court argument I’ve seen where a justice has directly complimented one of the briefs before the Court. It was a generous sentiment for which I was grateful.
The other notable moment concerned Justice Ruth Bader Ginsburg. Midway through my argument, she put her head down on the bench and fell asleep. For roughly ten minutes, Justice Ginsburg slept. Her doing so made national news at the time. When I returned to Austin the next week, I went to teach my weekly class at the University of Texas School of Law on Supreme Court litigation. My students had seen the news about Justice Ginsburg’s falling asleep at the argument. Laughing, I admitted to them that I had been the counsel at the podium when she did so. I went on to tell them, “That’s the objective to which every advocate aspires, to render your adjudicator unconscious.” “And,” I joked, “there is a method to accomplish that task: You simply speak in soporific tones, and gently rock side-to-side, and the justice will drift off to sleep.”
As it so happened, Justice Ginsburg did not need to be awake to vote against my position. But, when the Court handed down its decision, Texas prevailed 5–4. On practically every question before the Court, Texas won, with the Court concluding that the Texas redistricting map should not be set aside merely because the Texas Legislature had made political determinations in drawing it. The Court did strike down one specific district in Texas, which resulted in the map being slightly redrawn, but overall it was a near-total victory.
Many aspects of redistricting litigation are less than ideal. As Chief Justice Roberts wrote in a different case concerning affirmative action, “it is a sordid business, this divvying us up by race.” And observers
