BREAKING NEWS: Scalia requests response from plaintiffs
Mon November 28, 2011 4:39 pm

This is a significant development. It means that Justice Scalia did not deny the State's request for a stay (nor did he grant it).  He has asked the plaintiffs to respond by 4 p.m. on Thursday. It will take five justices, Scalia included, to grant a stay.

I spoke earlier with General Abbott about the state's strategy in the redistricting case. Abbott conceded that, in normal circumstances, the granting of a stay "is not a high probability event." However, he says that certain aspects of the case--particularly language in the dissent by Judge Jerry Smith of the Fifth Circuit--could tip the case in the State's favor. The comments below are from my conversation with Abbott.

Smith "openly urged the Supreme Court to grant a stay."

To this point in the case, "no court has made a finding or issued an order that has found the map(s) to violate any law in any way."

A lower court cannot overturn or issue a remedy without concluding that a wrong occurred. The state should get a remand from the Supreme Court to the trial court. The trial court cannot create a map out of whole cloth without a finding that something wrong occurred.

The trial court dictated a remedy without finding any violation of the law, therefore usurping the will of the legislature.

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