THE REV. JESSE JACKSON was fuming recently about Justice Clarence Thomas and the prospect of the Supreme Court considering several pending voting-rights challenges to congressional redistricting.
"We'll lose 5-4, and Clarence Thomas will cast the deciding vote against our interests," Jackson said.
If Thursday's rulings on state redistricting are an indication, Jackson's prediction may hold true. In two rulings, the court limited minorities' use of the Voting Rights Act. Thomas cast votes against the plaintiffs in each case.
But Thomas and his ideological comrade, Justice Antonin Scalia, went much further than the moderately conservative opinions of the majority. In a 59-page concurring opinion joined by Scalia, Thomas wrote that he would have thrown out the redistricting challenges entirely. He said the Voting Rights Act should apply only to the ability of minorities to cast ballots, not to how meaningful those ballots can be.
Although Thomas' opinion has little immediate practical significance, it alarmed at least four justices who wrote an unusual, separate dissent. His views, they said, would be a radical departure from 25 years of legal precedent, as well as Thomas' own rationale of leaving policy decisions up to Congress.
Brenda Wright, of the Lawyers Committee for Civil Rights Under Law, said Thomas' opinion seemed to have distanced himself and Scalia from the rest of the court.
"If anything, they've probably marginalized themselves," she said. "Their position is so extreme it appears to have left them isolated from all of the other members of the court. There's almost no chance any other justice will join them."
The case at issue was from Bleckley County, Ga., where black voters had challenged the county's one-person commission on the basis of the 1965 Voting Rights Act. The single-member governing body impermissibly diluted the strength of black voters because a black would never be elected in the white majority rural county, they said.
By a 5-4 vote, the Supreme Court said the act could not be used to challenge the size of governing bodies on the basis of vote dilution. Writing for the majority, Justice Anthony Kennedy said it would have been impossible to measure dilution because there wasn't any reasonable alternative size by which to judge the effects of the one-person board.
Thomas and Scalia agreed with the result, but not with the rationale.
Section 2 of the act states that "No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote" on account of race.
Beginning in 1969, the Supreme Court issued a series of decisions interpreting that wording broadly, defining "voting" as "all action necessary to make a vote effective." Other rulings said that "standard, practice or procedure" includes such methods as the establishment of at-large election districts and redistricting, which judges have often found to have been illegal because they diluted minority voting strength under the act.
Thomas said such judgments involve "political philosophy" analysis that courts are ill-equipped to undertake. ". . . We have converted the Act into a device for regulating, …