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Scalia, ducks, friends, and redistricting

The Los Angeles Times article, Renewed Focus on Scalia Trip, concerns another of Justice Antonin Scalia's duck hunting trips.

Justice Scalia has been hunting in Mississippi with Judge Charles Pickering and his son Cong. Chip Pickering for years. Yet he refused to recuse himself in the Mississippi redistricting case in which Cong. Pickering's district was in dispute -- Branch v. Smith.

In 1993, Scalia wrote a strong opinion for the Supreme Court in a Minnesota case, saying that state lawmakers and state judges, not federal authorities, had the primary duty to redraw their electoral districts. In the Mississippi case, however, Scalia upheld a move by federal judges to block a state court's plan that was more favorable to Pickering's Democratic opponent.

His legal flip came with an explanation suited to Mississippi but one carrying a touch of irony. Because of the state's history of racism, its state officials cannot make changes in their electoral districts without advance approval from the Justice Department under the terms of the Voting Rights Act of 1965. And when the Bush administration refused to approve a Mississippi state judge's plan that was favored by black Democrats, the high court cleared the way for federal judges to adopt a plan that was favorable to the Republicans.

Scalia's role in a partisan struggle that determined the political fate of a hunting partner created an impression of partiality and Republican coziness, according to various observers.

The Times provides a counterweight to its charge by pointing out that the decision in the case was joined by other members of the Court.

But the Democrats' complaints also may be exaggerated, since it is not clear whether Scalia made a difference in the final outcome. His decision in the redistricting case was backed by the full court in a ruling issued months later. The justices all agreed that the state's failure to win the Justice Department's approval for its new Congressional districts cleared the way for federal judges to step in.

However, in the mid-80's, the Supreme Court heard a case from Alabama which involved the bias of one of the Alabama Supreme Court Justices. Justice Brennan concurred and noted that the decision did not hinge on the decision below being 5-4.

That fact too is irrelevant -- Justice Embry's participation in the court's resolution of the case, while he was fully aware of his interest in its outcome, was sufficient in itself to impugn the decision. The description of an opinion as being "for the court" connotes more than merely that the opinion has been joined by a majority of the participating judges. It reflects the fact that these judges have exchanged ideas and arguments in deciding the case. It reflects the collective process of deliberation which shapes the court's perceptions of which issues must be addressed and, more importantly, how they must be addressed. And, while the influence of any single participant in this process can never be measured with precision, experience teaches us that each member's involvement plays a part in shaping the court's ultimate disposition.

Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986).