Hearing arguments in a campaign finance case from Vermont on Tuesday and a Congressional redistricting case from Texas on Wednesday, the justices will venture onto a shifting landscape where the controlling legal precedents are either unclear or unstable and the prospect for fundamental change looms on the horizon.
On many of the questions, the new Roberts court will almost certainly be as closely divided as was the Rehnquist court. Two years ago, for example, Justice Sandra Day O'Connor, who was succeeded last month by Justice Samuel A. Alito Jr., cast the decisive fifth vote to uphold major provisions of a new federal campaign finance law. The justices were unable during that same term to agree on a majority opinion in a case from Pennsylvania on whether the Constitution prohibits a partisan gerrymander.
While decisions in the new cases are not likely until June, the arguments this week could offer a hint of the court's direction and appetite for forging a new consensus.
Of the issues before the court, the one with the most visibility involves the Texas Democrats' challenge to the redrawn Congressional district lines that the new Republican majority in the State Legislature pushed through in 2003 at the direction of Representative Tom DeLay, the Texas Republican who was then the House majority leader.
Five incumbent Democrats whose districts were carved up were defeated for re-election. The state's 32-member Congressional delegation, which had a 17-to-15 Democratic majority from districts that a court had drawn for the 2002 election, became lopsidedly Republican: 21 Republicans and 11 Democrats.
To the Democrats, the unusual middecade redistricting was "one of the most notorious partisan power grabs in our history," as one of their briefs tells the justices. To the Republicans, it was simply payback for "an egregious Democratic gerrymander from the 1990's," according to the Texas Republican Party's brief.
"This case is fundamentally about democracy," R. Ted Cruz, the state's solicitor general, asserts in his brief defending the redistricting. The Bush administration, which approved the redistricting despite objections by career lawyers in the Justice Department that the new lines violated the Voting Rights Act, will also argue on the state's behalf.
A decision upholding the new district lines, issued last June by a special three-judge Federal District Court in Austin, generated seven appeals, of which the Supreme Court agreed to hear four. While each appeal has a separate name, the eventual ruling will be known by the name of the one that was docketed first, League of United Latin American Citizens v. Perry, No. 05-204.
Two years ago, when the Supreme Court narrowly upheld a Congressional districting plan in Pennsylvania that Democrats had attacked as a partisan gerrymander, the justices could not even agree on whether such a charge was properly the business of the courts. Four said it was not, and four said it was but could not agree on a test. In the middle was Justice Anthony M. Kennedy, who voted to uphold the districts but said he might join the dissenters the next time if he was persuaded that there was a test that judges could apply to distinguish permissible from impermissible partisanship.
To satisfy Justice Kennedy, the Texas Democrats have come up with a test, proposing that "an unnecessary redrawing of district lines designed solely to replace representatives from one party with representatives from another" should be seen as serving "no legitimate governmental purpose" and therefore as unconstitutional.
While this aspect of the Texas case has received the most attention, the case also presents questions of minority voting rights, raised by lawyers for black and Mexican-American voters, that have important implications for applying the 40-year-old Voting Rights Act in an era when multiethnic coalitions, rather than a single group, are increasingly in a position to determine the outcome of elections.
Such a coalition of black and Latino voters in the Dallas-Fort Worth area helped send Martin Frost, an Anglo Democrat, to Congress for 13 terms. The district was dismantled in the 2003 redistricting, and Mr. Frost, running against another incumbent, was defeated.
One question before the justices is whether black voters, accounting for less than one-quarter of the district's voting-age population, can challenge the new lines under Section 2 of the Voting Rights Act, which guarantees minorities the right to "participate in the political process and to elect representatives of their choice" to no less a degree than "other members of the electorate."
The Federal District Court held that lacking a majority electorate, the black voters were not entitled to invoke Section 2. The court declined to give legal significance to the existence of a "coalition" or "crossover" district in which a minority group can leverage its numbers, through active participation in the primary, to exercise effective control over the outcome.
This is a thorny issue in voting rights law, on which the lower courts have disagreed and the Supreme Court has issued conflicting signals. The justices have set aside two hours for argument in the Texas case, twice the usual time, indicating their interest in addressing the Voting Rights Act issues as well as the partisanship question. The Mexican American Legal Defense and Educational Fund will argue that the 2003 plan violated the Voting Rights Act by decreasing from seven to six the number of districts in South Texas in which Latino voters form an effective majority.
The Vermont campaign finance case, Randall v. Sorrell, No. 04-1528, tests the court's current understanding of its watershed ruling 30 years ago in Buckley v. Valeo, which upheld limits on political contributions but determined that campaign spending was a form of political speech that the First Amendment did not permit the government to curtail.
A majority of the current court has expressed disagreement, or at least discomfort, with one or another aspect of that ruling. Justice Kennedy has called it a "halfway house" that does not provide a coherent framework for addressing the role of money in politics.
But a federal appeals court panel in New York, ruling last year in the Vermont case, went further. A 2-to-1 majority said Buckley v. Valeo had not, in fact, completely shut the door on regulating campaign spending. The appeals court found two justifications sufficiently "compelling" to overcome constitutional objections: deterring corruption, and relieving politicians of the distractions of nonstop fund-raising.
Vermont's spending limits, ranging from $300,000 per election cycle for a governor's race down to $2,000 for a seat in the Vermont House, may well be constitutional, the appeals court said while sending the case back to the Federal District Court in Burlington, Vt., for an examination of whether there were other means, less close to the line, to accomplish the same result.
The Supreme Court agreed to hear challenges to that decision, brought by the Vermont Republican Party, the American Civil Liberties Union and others, without waiting for the lower court proceedings to conclude. Also in the case for the justices' review are the state's very low limits on political contributions, $400 per cycle for statewide offices, and tight restrictions on the ability of political parties to spend money on behalf of their candidates.
Many of the participants in the Vermont case are repeat players from the court's last campaign finance case, two years ago. Senator Mitch McConnell, the Kentucky Republican who was one of the main challengers to the federal campaign finance law in the 2003 case, has filed a brief against the Vermont limits, as has organized labor, represented by the A.F.L.-C.I.O., which also opposed the federal law. And, as in the last case, a group of former leaders of the American Civil Liberties Union have filed a brief in support of Vermont, disavowing the organization's official position before the court that the spending limits are unconstitutional.
The divergence of views, and lack of agreed-upon premises, are striking. Does the Vermont law favor incumbents or hurt them? Will it enhance democracy or disable it? Is Buckley v. Valeo still good law?
Only the justices can answer that last question, and the answer, on the eve of the argument, is far from evident.