Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Justice Frankfurter’s Misplaced Legitimacy Concerns in the Reapportionment Cases
A major concern expressed during the partisan gerrymandering litigation before the Supreme Court over the past two terms has been that the Court’s public legitimacy may suffer if it holds that federal courts may adjudicate the merits of political gerrymandering claims. For example, at oral argument earlier this week, former U.S. Solicitor General Paul Clement, who was arguing against the justiciability of such claims, ominously warned the Justices that “once you get into the political thicket, you will not get out and you will tarnish the image of this Court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politics.” (I doubt Mr. Clement meant to imply that judging is a form of politics, but that is what he did imply.)
In invoking the “political thicket,” Mr. Clement was channeling Justice Felix Frankfurter, who many decades earlier had warned his colleagues to keep the courts out of controversies over legislative reapportionment, lest the Court’s legitimacy be imperiled. Mr. Clement was likely speaking first and foremost to Chief Justice John Roberts, who has himself emphasized the importance of maintaining the Court’s public legitimacy as a general matter and who has also expressed specific legitimacy concerns about judicial review of partisan gerrymanders.
One potential response to Mr. Clement is that the Court should simply do its job of interpreting the Constitution and let the legitimacy chips fall where they may. For those (like myself) who believe that judicial statesmanship defines a virtue in the role of a judge, however, that is not an especially persuasive argument. Good judges, on this view, will take some account of the conditions of the public legitimacy of the law they declare—not all of the time, of course, but in momentous cases. Institutional suicide is no more admirable in judicial life than in political life.
A better response to Mr. Clement is that Justice Frankfurter’s dire predictions about the consequences for the Court’s legitimacy of subjecting malapportioned legislatures to judicial review, although not unreasonable at the time, turned out to be wrong—spectacularly and almost immediately wrong. In this post, I will first document that Justice Frankfurter’s fears were misguided, and I will then offer three reasons why. There are potential lessons here for the partisan gerrymandering cases currently pending before the Court.
Prior to the 1960s, many state legislatures were severely malapportioned, with districts of vastly different populations. As cities and suburbs grew in population, election districts were not redrawn to reflect the population changes. For example, fifty thousand people might elect a representative in one district while two hundred and fifty thousand people in another district elected a representative to the same legislature. The same malapportionment problem existed in congressional districts in states across the country.
Writing in 1946 for the Court in Colegrove v. Green, Justice Frankfurter admonished that “[c]ourts ought not to enter this political thicket” of legislative reapportionment. By 1961, his position had not changed, and he attempted to sway Justice Potter Stewart to his side while Baker v. Carr was pending before the Court. He wrote to Justice Stewart that judicial intervention threatened to “bring the Court in conflict with political forces and exacerbate political feelings widely throughout the Nation on a larger scale, though not so pathologically, as the Segregation cases have stirred.”
At the second oral argument in Baker, Justice Frankfurter went farther. He warned that judicial intervention in racial segregation cases would actually prove “simpler” than intervention in reapportionment would be, and he rhetorically asked Solicitor General Archibald Cox whether he thought “the prejudices on this business of urban versus rural, which is just as strong in New York as it is in Tennessee, isn’t even more deep-seated and more pervasively deep-seated.” Justice Frankfurter would later write in dissent in Baker that “[t]he Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction.” “Such feeling,” he continued, “must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.”
Justice Frankfurter failed to persuade Justice Stewart. The Court forged ahead over Justice Frankfurter’s objections, notwithstanding his fears that state legislatures or Congress might not comply with federal court orders to reapportion.
In responding to reapportionment cases, the Court proceeded in stages. First, it held in Baker only that reapportionment challenges were justiciable, leaving it to other courts to initially decide whether to insist upon population equality, something close to equality with permissible deviations for sufficient cause, mere rationality, or some other standard. In rejecting the applicability of the political question doctrine, Justice Brennan wrote in part for the majority that “[j]udicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.” The Solicitor General and counsel for the plaintiffs had urged the Court to adopt a deferential approach. At that point, however, the Court was deciding only the question of justiciability.
The short-term response to Baker was striking. Writing in 1962, Professor Robert McCloskey observed that “[l]egislatures all over the country have been bidden to redistrict or to face the prospect of having the judiciary do the job for them.” In all, there were “more than seventy legislative and congressional reapportionment lawsuits filed in forty states in the aftermath of Baker v. Carr.” Baker set in motion a process, the next phase of which entailed federal and state judges leaning on its authority in deciding the merits of reapportionment cases and moving toward population equality.
The final phase began when those decisions returned to the Court. Over the next few years, the Court decided the merits of various apportionment scenarios, roughly in order from least controversial to most controversial. In Gray v. Sanders, the Court invalidated Georgia’s primary election law and county unit system. Writing for the Court, Justice Douglas declared that “[t]he conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”
In Wesberry v. Sanders, the Court turned its attention to the House of Representatives, agreeing with the dissenter on the three-judge district court, who had “relied on Baker v. Carr.” In a majority opinion written by Justice Black, the Court held that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.”
More controversially, in Reynolds v. Sims, the Court expanded the scope of the principle of population equality to state legislative districts. The Court held that, “as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” Writing for the Court, Chief Justice Warren observed that “[t]he spate of similar cases filed and decided by lower courts since our decision in Baker amply shows that the problem of state legislative malapportionment is one that is perceived to exist in a large number of the States.” The Court added in a footnote that “[l]itigation challenging the constitutionality of state legislative apportionment schemes had been instituted in at least 34 States prior to the end of 1962—within nine months of our decision in Baker v. Carr.”
In another way, the majority opinion in Sims quietly sought to ameliorate threats to the Court’s public legitimacy. Chief Justice Warren offered the reassurance that controversies over reapportionment did not simply involve “urban-rural conflicts,” notwithstanding how they “are generally viewed.” This was because “fast-growing suburban areas . . . are probably the most seriously underrepresented in many of our state legislatures,” and because “[m]alapportionment can, and has historically, run in various directions.” Those observations were irrelevant to the constitutional question, as Warren acknowledged. But he included them anyway.
Sims generated a political firestorm that included various threatened
responses, including a proposed constitutional amendment that would have partially reversed the result. The proposal fell just short of passage by the Senate in 1965. Notably, however, all other efforts to reverse the decision failed and failed quickly.
Why did Justice Frankfurter’s prediction turn out to be so wrong so fast? At least three explanations seem helpful. First, the Court proceeded incrementally and gauged popular and lower-court reactions before deciding whether to proceed any farther. In other words, the Justices managed reasonable concerns about the Court’s (and the courts’) public legitimacy, as opposed to proceeding heedless of such concerns.
Second, and relatedly, the Court interacted dialectically, not hierarchically, with the lower federal (and state) courts, a process that I have called reciprocal legitimation. Just as the lower courts relied in part upon the authority of Baker in deciding the merits of reapportionment cases, so the Court relied in part upon the authority of those lower court decisions in deciding the merits of various reapportionment cases. To reiterate, the Court in Sims leaned on federal and state court decisions in documenting the scope of the “problem . . . that is perceived to exist.” As Professor Gordon Baker reported, moreover, “the ‘consensus of lower courts’ in moving toward representative equality” was a major theme of oral arguments in reapportionment cases that term.
Third, the “one person, one vote” formulation made intuitive sense to the American public. Professor John Hart Ely said of the equal-population rule that it was superior to more nuanced approaches that allowed greater flexibility because it was simple. It was easy to explain and easy to justify, just as it was difficult to explain and difficult to justify why the courts should do nothing when, say, 50,000 people received the same amount of representation as, say, 250,000. If “no taxation without representation” is part of the American creed, then it apparently stood to reason in the minds of most Americans that “no taxation with unequal representation” is also part of the American ethos.
There are potential morals here for the political gerrymandering cases pending before the Court. Legitimacy concerns, rather than causing the Justices to simply require the courts to stay out of such litigation, might cause the Justices to ask themselves the following three questions:
First, just as the Court then proceeded incrementally and maintained control over the process, so can the Court now proceed incrementally and insist on retaining control?
Second, just as the Court then interacted with the lower courts in a manner that enhanced the public legitimacy of the judiciary as a whole, so can the Court now proceed in a similar fashion?
Third, just as the Court then fashioned legal doctrine that made intuitive sense, had popular appeal, and was legally justifiable on its own terms, so can the Court now fashion such doctrine?
The last question has thus far been a main concern of those Justices who are skeptical of treating partisan gerrymandering cases as justiciable. In Sims, the Court had available a simple, compelling rule forbidding all substantial departures from equal-population districts. By contrast, none of the standards that have been proposed for measuring the threshold beyond which districting constitutes an impermissible political gerrymander have quite that obvious appeal.
Having said that, there is a powerful intuition animating those proposed standards that the American public would readily understand and would likely endorse: in a democracy, the people choose their representatives, not the other way around. That accessible intuition renders Frankfurterian legitimacy concerns overstated, just as they were overstated during the decades in which he voiced them.
Moreover, several of the standards that have been proposed are “judicially discoverable and manageable.” One possibility, as Justice Brett Kavanaugh emphasized at oral argument yesterday, is to focus on significant deviations from proportional representation. In a proportionality regime, a party’s percentage of seats in the legislature must be proportional to the statewide vote for that party.
There are other options if the Court wants to police only more extreme cases of partisan gerrymandering, at least for the time being. The Justices might focus, for example, on partisan gerrymanders motivated by a desire to retaliate against certain voters for supporting the other party, as was discussed at the recent oral argument. Or the Court might borrow the “predominant factor” test from racial gerrymandering cases, as Professors Michael Dorf, Joshua Sellers, Andrew Siegel, and Joseph Thai argue in their amicus brief in the Maryland case. Or the Court might focus on large discrepancies in the total number of votes for the two parties that had no effect on the outcome of any legislative election (i.e., so-called wasted votes).
There are reasonable arguments on both sides of the constitutional debate over the justiciability of partisan gerrymanders. But the inability of the Justices to maintain the public legitimacy of the Court if they intervene does not seem like a particularly strong one given the tools they have at their disposal to manage any potential problems while vindicating their best understanding of the Constitution.