A Troubling Dissent, NY TIMES Editorial, June 11, 2004

The Supreme Court did the right thing this week by staying out of a Colorado redistricting dispute. It properly deferred to the Colorado Supreme Court's ruling resolving the matter. What is troubling, however, is a dissent by Chief Justice William Rehnquist and two of his colleagues that argues for diving into the conflict. Given these justices' eagerness to defer to the states in other matters, the dissent smacks of partisan politics and raises new concerns about the court's neutrality.

After the 2000 census, Colorado redrew its Congressional lines in a way that produced some real contests. One district was divided so evenly that Bob Beauprez, a Republican, won by only 121 votes. But when Republicans won the State Senate last year, they drew new lines that were more favorable to their party. The state's attorney general, a Democrat, challenged them in court.

The Colorado Supreme Court, in a well-reasoned decision, held that the redistricting violated the Colorado Constitution. It said the constitution required that redistricting be done every 10 years, after the census, but no more. The United States Supreme Court has long held that when a state supreme court resolves a case based on the state's constitution, respect for the state's judiciary requires the federal courts to stay out of the matter. A majority did just that this week, when it let the Colorado Supreme Court's ruling stand.

But Chief Justice Rehnquist's dissent, joined by Antonin Scalia and Clarence Thomas, is bluntly dismissive of the Colorado Supreme Court. In the dissenters' view, the court was merely "purporting" to decide the case exclusively according to state law. They would have accepted the case so the United States Supreme Court could have considered reversing the Colorado Supreme Court and reinstating the pro-Republican redistricting plan.

The dissent attracted little notice because it fell one vote short of the four votes needed to review a case. But it is disturbingly reminiscent of the court's ruling in Bush v. Gore, in which five justices who had long been extremely deferential to state power suddenly overruled the Florida Supreme Court's interpretation of Florida election law.

Cases like these quite naturally invite skepticism. As the court learned in 2000, it does grave harm to its reputation if it appears to be deciding election-law cases for partisan advantage. In cases of this sort, the court must make a special effort to show that it is acting on the basis of legal principle, the only basis for a court to act. By departing from his deeply held belief in state autonomy to side with the Republican Party in a redistricting case, Chief Justice Rehnquist has once again invited the public to question this court's motives.