On the first day of the new term, the Supreme Court revisited the question that undid Lani Guinier: How much racial gerrymandering does the Constitution permit, and the Voting Rights Act require? In her opaque majority opinion in Shaw v. Reno last June, Sandra Day O'Connor flirted with, and then retreated from, the argument that the Constitution always forbids states from carving out black and Hispanic electoral districts, even as a remedy for past discrimination.
Even in the context of the Supreme Court tussles that have provided political entertainment since at least the 1930s, the 1987 saga of Robert Bork, Douglas Ginsburg and Anthony Kennedy broke new ground. What made the play rougher this time was the heightened consciousness of the power stakes, a more aggressive deployment of the interest groups, and a great sophistication in media use. If the overworked term “watershed” still conveys some meaning, it applies here to the future direction of confirmation politics.