From today’s transcript in Shapiro v. McManus:
CHIEF JUSTICE ROBERTS: I mean, the other alternative is it’s a three-judge district court, and then we have to take it on the merits. I mean, that’s a serious problem because there are a lot of cases that come up in three-judge district courts that would be the kind of case – I speak for myself, anyway– that we might deny cert in, to let the issue percolate. And now with the three-judge district court, no, we have to decide it on the merits…
JUSTICE BREYER: I as far — as far as I understand it, his strongest argument on the other sidewould roughly go – he didn’t put it this way — like this: On your side is the fact, well, why wouldn’t a three-judge court decide a very important question of law in this area? On the other side of it is that, well, you just have left, in three-judge courts primarily, almost exclusively, reapportionment issues, which are specially political. And to put these all, you know, they are very — because of the opinions you point out in Vieth,– there’s a huge variation of all kinds of different legal claims that might be made. And if there is a set of cases where this Court should be careful as to when and how and which it enters in which order, i.e., discretion, if we accept your view, that set of cases where we should be particularly careful as to how we proceed will be the set of cases where we have no choice 20 and we have to take immediately whatever variations on the theme of disproportionate gerrymandering, da da da, whatever order they happen to arise and whenever they happen to arise, because we have no choice….
CHIEF JUSTICE ROBERTS: So now you have —now you have cases quite often, particularly in the most sensitive ones, decided by a vote of two to one. So I don’t know how that how that particular answer is very responsive to the concern that Justice Breyer has pointed out, which which is one I share….
JUSTICE ALITO: On the issue of political sensitivity, if it goes to a single judge, you will have a decision by a judge who has presumably been selected by the spin of the wheel, or by at random, and then you’ll have an appeal to a court of appeals panel that is presumably chosen at random. Whereas if it goes to a three-judge court, there will be a decision, and it may involve some very sensitive findings of fact by a panel that is handpicked by the chief judge, who is in a position to appoint himself or herself to the three-judge court and select a third district judge who the chief judge believes is likely to agree with or defer to the chief judge. So I don’t see how that how that creates an insulation against the appearance of political favoritism.
There’s a pending challenge to McCain-Feingold’s soft money ban where the parties are fighting about whether they get a three judge court. It could determine the outcome of the case. See my piece, The McCain-Feingold Law May Doom Itself, National Law Journal, Aug. 16, 2015.