Page:Arizona State Legislature v. Arizona Independent Redistricting Comm’n.pdf/76

Rh going on to affirm the Kansas Supreme Court, was written by Chief Justice Hughes and announced by Justice Stone. Justice Frankfurter, joined by three other Justices, held there was no standing, and would have dismissed the petition (leaving the judgment of the Kansas Supreme Court in place). Justice Butler, joined by Justice McReynolds, dissented (neither joining Hughes’s opinion nor separately discussing standing) and would have reversed the Kansas Supreme Court.

That adds up to two votes to affirm on the merits, two to reverse on the merits (without discussing standing) and four to dismiss for lack of standing. Justice Stanley Reed, who was on the Court and apparently participated in the case, is not mentioned in any of the opinions recorded in the United States Reports. So, in order to find Coleman a binding precedent on standing, rather than a 4-to-4 standoff, one must assume that Justice Reed voted with Hughes. There is some reason to make that assumption: The four Justices rejecting standing went on to discuss the merits, because “the ruling of the Court just announced removes from the case the question of petitioners’ standing to sue.” 307 U. S., at 456 (Black, J., concurring). But then again, if nine Justices participated, how could it be that on one of the two issues in the case the Court was “equally divided and therefore … expresse[d] no opinion”? Id., at 447.

A pretty shaky foundation for a significant precedential ruling. Besides that, the two dissenters’ mere assumption of standing—neither saying anything about the subject nor joining Hughes’s opinion on the point—produces (if you assume Reed joined Hughes) a majority for standing but no majority opinion explaining why. And even under the most generous assumptions, since the Court’s judgment on the issue it resolved rested on the ground that that issue presented a political question—which is itself a rejection of jurisdiction, Zivotofsky v. Clinton, 566 U. S.