Branch v. Smith, 538 U.S. 254, 24 (2003)

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Cite as: 538 U. S. 254 (2003)

Opinion of Scalia, J.

The dissent does contemplate a role for federal courts in redrawing congressional districts, but only "after a State has been redistricted" in the first instance. Post, at 300. It is not entirely clear which entities the dissent considers competent to do this initial redistricting—certainly the legislature, and perhaps also state courts, but only if such "courts are part of the 'manner provided by the law thereof.' " Post, at 300, n. 1. But the dissent also says that "a court should enforce § 2a(c) before a 'State is redistricted in the manner provided by the law thereof,' and a court should enforce § 2c after a State" has been initially redistricted, post, at 300— which (if one takes the words at face value) leaves no room for any court to do the initial redistricting. We assume the dissent does not mean precisely what it has said.

The dissent implicitly differentiates between federal and state courts—effectively holding that state courts may undertake the initial redistricting that would satisfy § 2a(c)'s prerequisite, but federal courts may not. It presumably rests this distinction upon the belief that state courts are capable of redistricting " 'in the manner provided by the law thereof,' " whereas federal courts are not. See post, at 300, n. 1. To read that phrase as potentially including state— but not federal—courts, the dissent takes the word "manner" to refer to process or procedures, rather than substantive requirements. See ibid. (If the State's process for redistricting includes courts, then and only then may courts redistrict, rendering § 2a(c) inapplicable.) But such a reading renders the phrase "in the manner provided by the law thereof" redundant of the requirement that the State be "redistricted." Of course the State has not been redistricted if districts have been drawn by someone without authority to redistrict. Should an ambitious county clerk or individual legislator sit down and draw up a districting map, no one would think that the State has, within the meaning of the statute, been "redistricted." In our view, the word "manner" refers to the State's substantive "policies and prefer-

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