I’ve noted how interesting and mysterious it is that Justice Thomas signed onto Justice Kagan’s opinion in today’s racial gerrymandering case. Given Justice Thomas’s views on Section 2 of the Voting Rights Act, and his view of the clearly erroneous standard (especially as he dissented in Easley v. Cromartie), it is not that surprising that he concurred in the judgment here. What is surprising is that he joined in Justice Kagan’s opinion, giving her a fifth vote and making her opinion a majority opinion for the Court.
But also it is a surprise is that Justice Kagan did not get Justice Kennedy’s vote. Kennedy was the vote with the four liberals in the Alabama’s and Virginia’s redistricting cases (with Thomas in the dissent). Kennedy was responsible for reviving these claims for use by liberals for a new purpose (as explained here).
Here is my guess about why Justice Kennedy did not vote with Justice Kagan on District 12 (he did, and the Court was unanimous, on District 1, finding the VRA was a pretext for what the legislature did):
It appeared before this case, that according to Easley v. Cromartie, in a racial gerrymandering case where the question is race or party, it is plaintiffs’ job to come up with an alternative redistricting plan that achieves the same political goals but with “greater racial balance.” (I think that is a nonsensical standard from Justice Breyer in this case, but there is is.) There’s no question that in today’s case, the plaintiffs could not produce such a map. Justice Kagan dealt with this issue by essentially rereading Easley v. Cromartie to not require that plaintiffs produce such a map.
I don’t think Justice Kagan’s reading of Easley‘s requirement is the best one, and I can understand Justice Alito’s complaint that the majority threw away Easley like a disposable paper plate or napkin. Justice Kennedy could well agree with Justice Alito.
He also may agree with Justice Alito that the Kagan majority opinion waters down the race or party test. There’s language in Justice Alito’s opinion pushing the race or party point (and now I believe there is conflicting language on this from Kagan). Perhaps Justice Kennedy agreed with Alito on this point too.
This latter point seems somewhat less likely, however, because Justice Kennedy in the 2006 LULAC case seemed to endorse the proxy approach to race and party (as I explain here).
So my guess remains that it is the Easley test, abandoned by Kagan, that cost Justice Kennedy.