As Rick noted in the flurry of posts following Friday’s Supreme Court redistricting decision, the San Antonio three-judge court must now put pen back to paper to come up with three new interim 2012 maps.  And it’s been instructed to apply two different standards in evaluating the remaining issues: deferring to Texas’s enacted map except where 1) there’s a “likelihood of success on the merits” of a constitutional or section 2 claim, and where 2) there’s a “reasonable probability” that a plan will not be precleared, meaning that the section 5 issues are “not insubstantial.”  And since Rick closed with a call for further takes on what the distinction between these standards might entail…

The “likelihood of success on the merits” standard, as Rick says, has a long history in the preliminary injunction context.  It’s why the Court thought it fairly plain for the San Antonio court to apply on remand.

I think that the “reasonable probability” / “not insubstantial” standard is also grounded in longstanding practice.  Specifically, there’s a long history of deciding whether a claim is “not insubstantial” in deciding whether it’s necessary to convene a three-judge court to review a constitutional challenge to state law.  Now, as Michael Solimine has written, the three-judge court is relatively rare.  But it’s still the standard vehicle for hearing statewide redistricting cases: the San Antonio court is itself an example.  Back in May, Judge Garcia had to determine whether the issues presented in the complaint were sufficiently “substantial” to convene a three-judge court.  And he had a hefty history to rely on in applying that standard.

As interpreted in the three-judge court context, the “not insubstantial” standard is in line with the “not frivolous” threshold Rick mentioned in his post.  “[‘I]nsubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ and ‘obviously without merit[.’] . . . A claim is insubstantial only if ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.'”  Goosby v. Osser, 409 U.S. 512, 518 (1973) (internal quotations omitted).   In this context, the low bar also fits the Court’s admonition on Friday that the San Antonio court must defer to Texas’s enacted plans if a preclearance challenge has “no reasonable probability of success” (emphasis mine), and the concerns that it would have if §5 required ignoring Texas’s enacted plan “without any reason to believe those state policies are unlawful” (emphasis again mine).

There’s no doubt that the Court could have been clearer about the standard to be applied — and it’s likely that the lack of clarity, as Rick suggests, is intentional.  (Of course, in addition to a substantive compromise, the Court was also working at light speed, which is bound to leave imprecision even in the face of complete agreement.) Still, if the Court is attempting to achieve consistency in referring to long-established standards of assessing the merit of various claims, the “not insubstantial” standard has a distinguished history in this very context.  And here, that should not be all that comforting for Texas.