Justice Scalia is not shy about expressing his opinion. He had plenty to say in the oral argument yesterday in the Harris redistricting case. He spoke at today’s Fisher affirmative action argument as well. But at yesterday’s Evenwel oral argument (the one person, one vote case), he was silent.
Now silence from a Justice doesn’t necessarily mean anything. Consider Justice Thomas, who never talks, but who has been the person most active on the Court in getting the Court to reconsider this one person, one vote issue (Thomas alone dissented from a cert denial in a 2001 case raising the same issue).
But given that it is Justice Scalia, it does suggest he is not heavily invested in this case, and therefore not a likely vote to upset the apple cart. If he thought that plaintiffs had a good theory, I would have expected him to go after Texas or the U.S. at arguments. Scalia might believe (1) there’s not good originalist argument here; (2) plaintiffs’ arguments go against principles of federalism; (3) Burns and other cases are precedent that should be followed here; or (4) all or none of the above.