League of United Latin American Citizens [LULAC] v. Perry embraced, in the context of partisan gerrymandering, Felix Frankfurter’s conclusion that the Supreme Court should not enter the political thicket of legislative apportionment. Two years earlier in Vieth v. Jubelirer, the Court split 4–1–4 on the justiciability of partisan gerrymandering. O’Conner and the three conservatives held it was nonjusticiable. Each of the four moderate liberals offered a test showing it was justiciable. Kennedy dissented from the conservatives while simultaneously rejecting each of the four tests offered. He announced he was waiting for a better test. When far superior tests were offered in LULAC, he rejected them too.
Scot Powe & Steve Bickerstaff,
Anthony Kennedy's Blind Quest,
Mich. L. Rev. First Impressions
Available at: http://repository.law.umich.edu/mlr_fi/vol105/iss1/16