Poor Justice O'Connor! For the past three years, she's struggled ineffectually to split the difference between four liberal Justices, who think that the Constitution doesn't prevent the states from drawing voting districts on the basis of race, and four conservative Justices, who think it does. But last week, in striking down majority black congressional districts in Texas and North Carolina, she found an ingenious solution to her dilemma.
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.