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Concluding that the issue is not justiciable, the U.S. Supreme Court on April 28 declined to disturb a Pennsylvania plan to redraw its congressional district boundaries. Vieth v. Jubelirer, No. 02-1580. The fragmented 5-4 ruling saw the court produce a four-justice plurality opinion, one concurrence and three separate dissents. In what was denominated as a political, not racial, gerrymandering suit, the plaintiffs argued that the statewide redistricting was done with the intent to maximize Republican voting strength. The plurality, led by Justice Antonin Scalia and including Chief Justice William H. Rehnquist and justices Sandra Day O’Connor and Clarence Thomas, opined that the claims were nonjusticiable because there are no discernible and manageable standards for adjudicating them. In so doing, it rejected rules the court had developed for handling such cases in Davis v. Bandemer, 478 U.S. 109 (1986). “How is a party’s majority status to be established?” Scalia asked. “To think that majority status in statewide races establishes majority status for district contests, one would have to believe that the only factor in determining voting behavior at all levels is political affiliation. That is assuredly not true.” In one of the dissents, Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, wrote that the Davis finding that the issue was justiciable should be preserved, but that the court should start anew by adopting a five-part test for pleading a prima facie case of political gerrymandering. Elements of that claim would include a showing that the plaintiff belonged to a cohesive political group, that the district he resided in was drawn with no heed paid to contiguity, compactness, political subdivisions or geographical boundaries, and that there was some relationship between those deviations from traditional boundary criteria and the distribution of his population group. Justice Anthony M. Kennedy concurred in the judgment, but said that a rationale may yet be found for adjudicating such cases. Justices John Paul Stevens and Stephen G. Breyer dissented separately. ENVIRONMENTAL LAW Overturning a 9th U.S. Circuit Court of Appeals ruling, the justices on April 28 ruled that the federal Clean Air Act pre-empts a set of Southern California regional air quality regulations. Engine Manufacturers Ass’n v. South Coast Air Quality Mgmt. Dist., No. 02-1343. The regulations, enacted to control air pollution in the Los Angeles metropolitan area, were aimed at curbing public and private auto fleet purchases of certain noncompliant motor vehicles. Affirming a federal district court ruling that upheld the measure, the 9th Circuit said that the regulations applied only to the purchase of vehicles that were already certified for sale in California. As such, the regulations were not “standards” as defined and pre-empted by the Clean Air Act. Reversing by an 8-1 vote, the Supreme Court said that the circuit court had confused the setting of standards with the enforcement of standards. It ruled that Clean Air Act � 209-which prohibits the adoption or attempted enforcement of state or local emissions standards for new motor vehicles or new motor vehicle engines-also applies to the California ordinance. Justice Antonin Scalia authored the court’s opinion. Justice David H. Souter stood alone in dissent. TAXATION In consolidated cases, on April 21 the court agreed to hear oral argument next term on whether the due process clause requires that an “original” report by the tax court’s special trial judge, which is made to the chief judge, must be made public by being included in the record or be disclosed to the parties. Ballard v. CIR, No. 03-184; Estate of Kanter v. CIR, No. 03-1034. Both suits involve schemes arranged by the late tax attorney Burton Kanter that were said to have resulted in the fraudulent nonpayment of income tax. The defendants insisted that the entire report from the special trial judge should be included in the public record. The 7th and 11th circuits disagreed, finding the procedure unusual, but nonoffensive to traditional notions of fairness.

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