Responding to this listserv post by Rick Pildes on the error in Justice Souter’s LULAC opinion, Heather Gerken writes (also on the listserv; reprinted with permission):

Just two quick thoughts on Rick [Pildes’]s interesting post. Though I think Rick is right to believe that this signals an important fault line in the opinion, I’m not yet ready to conclude it portends the type of dramatic change in voting-rights doctrine that Rick suggests (like everyone, however, I need more time to digest the opinions to come to a firm conclusion).
(1) On the academic parlor game — guessing what the glitch means — there are at least two other explanations for the glitch (whether they are more persuasive is not clear, but I think it’s worth putting them out there). The story Rick tells, as I understand it, is that Justice Souter included the sentence because he “heard the music” of Justice Kennedy’s opinion, grasped that the true import of Kennedy’s approach would invalidate District 25, and added the sentence into his join even though Kennedy’s opinion never went that far. (Rick does not specify the precise mechanics, but he writes, “But Justices Souter and Ginsburg understand him to in fact, do exactly that — and they sign an opinion in which they say that District 25 does indeed violate the VRA. How can this be? I believe Justice Souter has rightly heard the music in Justice Kennedy’s opinion, even though Justice Souter did not recognize that Justice Kennedy did not, technically, go so far as to hold that District 25 itself violated the VRA.”). I find this explanation a bit odd. In thinking about the mechanics of the Supreme Court’s drafting process, I think the more likely story is that the first draft of Justice Kennedy’s opinion did strike down District 25, Souter’s opinion joined it, and then for some reason Justice Kennedy eventually trimmed back the opinion so it affected only District 23 (and because of some oversight Justice Souter never amended his to reflect the change). If that’s what happened, it suggests two other backstories.
First, if, as Rick surmises, Justice Kennedy was trying to import a Shaw-like community of interest requirement into the first prong of Gingles, the first draft of the opinion struck down both districts (and Souter’s join would have included the sentence it did). If Justice Kennedy backed off that position, it was because he could not get enough support for that position to justify striking down District 25, something that undermines the possibility that the case signals a sea change in Section 2 doctrine (unless and until Justice Kennedy can get some support from his brethren to the right, who showed little interest here in invalidating a district under Section 2 or in endorsing Kennedy’s reading of the compactness requirement).
Second, while Rick is absolutely right that Justice Souter may be “hearing the music” of Justice Kennedy’s opinion, the reverse may have been true. Justice Souter has repeatedly written against the idea of “trading off” the interests of minority voters (a position he’s held at least since DeGrandy) and seems to think that it matters where in the state a majority-minority district is drawn. I think he’s wrong on this and have repeatedly criticized this position in print. Kennedy’s opinion, however, repeatedly sounds this theme (despite the fact that this notion is squarely in tension with the opinion’s (correct) conclusion concludes that dilution must be measured using a statewide metric). Perhaps Justice Kennedy was trying to win Justice Souter’s vote on District 25 not through Rick’s “import-Shaw-into-Gingles” route, but with a “no-trading-off-minority-interests-in-complying-with-Section-2” strategy. The first draft of the opinion may have invalidated District 25 on these grounds but, for whatever reason, it didn’t get any traction. What we see now are the vestigial remains of that gambit.
(2) If Rick is reading the opinion correctly — that is, if the Supreme Court will read a community of interest requirement into the compactness prong of Gingles going forward — I’m still not persuaded that this “is a statement of profound significance that reflects a dramatic change in direction,” as Rick suggest. Perhaps Rick is merely describing the normative force of the change. But at least as a practical matter, I’m not sure it creates a significant hurdle to voting-rights suits in the future. Imagine you are litigating the case and the judge says, “look, it’s not enough that you show that the voters are of the same race; the Supreme Court now requires them to be a community of interest to satisfy Gingles.” You would respond, I suspect, that the very fact that minority voters can be grouped into a compact district means that they are in a community of interest. In doing so, you’d appeal to the strong, gut-level idea that geography matters, that voters who live in the same region (even if they are from different socio-economic backgrounds) have something in common. In fact, if you were litigating the case, you’d just dust off all the Shaw cases to find some useful rhetoric about the importance of the compactness test in identifying communities of interest. As a practical matter, while Rick’s reading of the case might generate one more expert witness or brief in a trial, I’m not sure whether it will have a profound impact on the ground.