Rick Pildes offers the following thoughts in response to Heather Gerken, who was in turn responding to Rick’s earlier listserv post:

I feel obliged to respond to Heather Gerken, which I can do quite briefly, regarding Justice Kennedy’s views in the Texas case and the future of the VRA. To my mind, nose-counting and speculation about opinion drafts miss the essential point I mean to convey. We all assume Justice Kennedy defines the center — is the defining Justice — in closely contested VRA cases before the Court. And the central theme of “the music” played in his opinion is that, as he puts it in one passage: “We do a disservice to these important goals [of the VRA] by failing to account for the differences between people of the same race.” In this case, he does not address whether failing to do so might violate the Constitution; he comes close to saying it violates the VRA (whether he did so conclude in an earlier draft is also not particularly significant, in my view), but does not actually so hold. But the precise legal resolution is not important. What’s important is the principle or viewpoint expressed in that passage and similar ones. That viewpoint is going to have ramifications throughout the Court’s interpretation and application of the VRA, not just on the narrow issue of whether districts must be “coherent” as well as “compact.” Sometimes, this viewpoint will get expressed in terms of how racially-polarized voting should be defined, the conventional definition of which I believe will come under increasing pressure; sometimes I believe it will come in through how the “totality of the circumstances” is analyzed; sometimes it will emerge through Kennedy’s application of Shaw; sometimes, through how Section 2 is interpreted in other ways. The viewpoint essential to his opinion in Texas will find various specific legal expression, not all of which can be anticipated at this stage. But this is not a throwaway view in this particular case. It’s a foundational principle.
As long as Justice Kennedy remains at the center of the Court on VRA issues, that is why I believe this decision is pregnant with profound implications. I do agree with Heather that if Justice Kennedy turns out not be at the center of the Court — if, for example, Justice Scalia turns out to be more receptive to maintaining prior interpretations of the VRA than does Justice Kennedy, then of course, all bets are off.