Rumor Put to Rest
An email conversation about the news of the day.
June 20 2002 7:11 PM


Dear Dahlia,


I have not begun to absorb today's Supreme Court opinions. Atkins v. Virginia—holding by a 6-to-3 vote, that executions of the mentally retarded is "cruel and unusual punishment" is clearly the most important story of the day and a historic event. The fact that we have been virtually alone in the world in executing the mentally retarded has made much of the rest of the world consider us barbaric. I'm glad we have a long weekend before resuming this exchange on Monday, because there is much to think about.

My day has been blown by the court's handing down a decision in a case I argued, Utah v. Evans, so I haven't been able to look carefully at anything else yet. This was a fight between Utah and North Carolina over the last seat in Congress. Utah claimed that the only reason North Carolina won the seat is that the Census Bureau used a method called "hot deck imputation" to account for missing or unreadable data for a number of households. Utah sued the Census Bureau claiming that using this kind of statistical method violates the Census Act and the Constitution because it isn't an "actual enumeration."

North Carolina intervened to defend its 13th seat. This was the state's fifth trip to the Supreme Court in the past decade on redistricting issues, the others all involving racial redistricting. (The Tarheel State has apparently become the Bermuda Triangle of redistricting.)

This decision was close, with five votes to uphold the bureau's decision. The chief justice surprised some press people, who called me today by joining with Justices Stevens, Souter, Ginsburg, and Breyer to uphold the bureau. Had the chief not voted that way, the case apparently would have been a tie, with four votes to affirm the lower court (which had favored the Census Bureau and North Carolina) and four to reverse. Justice Scalia didn't vote on the merits: Because he believes that a court has no authority to order the president to change the result after the Census, he says that the district court had no jurisdiction to rule. The effect of that 4-to-4-to-1 split would be that North Carolina still got the 13th seat—a tie goes to whoever won below. At least that's what we on North Carolina's side thought should happen and why we pressed the jurisdictional argument in hopes of persuading one justice on that basis. The chief's decision to join the majority—which for all I know was his view along—did not change who got the seat in Congress, but it avoided a potentially messy outcome by producing a cleaner result.

Speaking of the chief justice, you ask about reports he is resigning at the end of the week. Those reports are never credible. Justices who step down don't ever tell anyone in advance. The chief seems to love his job and not to have slowed a single step. Although his opinions have mellowed over the years, he's still as brusque from the bench as ever. I don't think he's going anywhere.

If there is a vacancy on the court, White House counsel Alberto Gonzales seems like a very, very likely choice. As long as he doesn't agree to write for Slate's "Breakfast Table." Off-the-top-of-the head Internet writing is not advisable for anyone on a true short-list.

Talk to you Monday.

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.



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