From Baker v. Carr to Bush v. Gore with Sandy Levinson

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Joseph Fishkin

Most writers and scholars (perhaps most people in general?) tend to believe that a really good argument is one that has a strong thesis and captures the complete truth of the matter—or, failing that, is at least truer than all available alternatives (the first-past-the-post theory of how to win an argument, if you will). This debate-like approach to scholarly writing is common in many fields, but it might be especially common in law because of some central practices and norms of law. Courts need to resolve cases one way or the other; lawyers write briefs explaining how right their side is and how wrong the other side is. All this helps bolster one idea of what a good argument sounds like. 

One of Sandy Levinson’s virtues as a scholar, writer, and person, is that he’s less than indifferent to this idea of what scholarship is about. He often wants to provoke his readers to rethink their assumptions, to consider seemingly heretical claims and arguments, and/or to see the multi-layered, sometimes internally contradictory, usually imperfectly-thought-out nature of the conceptual foundations of whatever area of law he is writing about. (His occasional self-deprecating self-identification as a “crank” is a disarming way of facilitating this relationship with a reader or interlocutor: it invites readers to consider what he is saying without focusing too much on whether they fully agree.) To me, as a reader, admirer, and friend, this makes Sandy’s work more absorbing and generative than a lot of scholarship, and perhaps also a bit more honest.

This particular aspect of Sandy’s approach makes him an especially great fit for the field of election law—a field with a particular abundance of legal and conceptual material that is multi-layered, internally contradictory, and imperfectly thought out. Oddly enough both Pam Karlan and Nick Stephanopoulos, in their blog posts for this symposium, have ably and thoughtfully recounted various aspects of the piece of writing I was going to use as my Exhibit A for Sandy’s embrace of the multi-layered and the contradictory in election law: Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won’t It Go Away?, 33 UCLA L. Rev. 257 (1985-1986). So of course I’ll say a couple of brief things about that piece anyway before moving along to some others. (At a conference once I vividly remember Pam saying—and whether she was quoting someone else, I cannot recall—that we had reached the point in the conference when “everything that must be said, has been said. But has it yet been said by everyone?”) 

One of the key themes of Sandy’s Brooding Omnipresence essay was his embrace of the idea—which has become very important in election law, but was not yet in the mid-1980s—that the right to vote protects more than one thing, and in particular, protects “structural” constitutional values as well as “rights”-based ones. But interestingly, as Pam notes, Sandy is not arguing that everything would be clearer if we’d all just abandon our rights-based conceptual frames and focus on structure instead. He instead suggests—adding more layers to the picture—that both individual and group-based equality claims (which are types of rights claims) also each capture an important dimension of what the right to vote is about. That is a plenty for one short, provocative symposium piece to do. I will say that it meant a lot to me, more than 20 years later, as I worked on what became my first article, which develops some of those themes. But Sandy made a couple more moves to make. Late in the piece, he throws two major conceptual grenades and simply leaves it to the reader to assess the damage. First, he suggests briefly that our political preferences and identities may not be extrinsic to the political system, but rather (at least partially) the product of how we set that system up, an insight that has some real truth to it but may be impossible for our legal and political system to assimilate fully, because of its potential (if taken too far) to unravel a lot of how we think about aggregating the preferences and identities of voters. Second, in a puckish appendix (and let’s be honest, how often does one get to say “puckish appendix”?), he asks what can possibly be the resolution of the deep tension between the representational values embodied in the Voting Rights Act and the much older set of democracy-structuring ideas embodied in the electoral college? His answer is not an elegant conceptual synthesis, but instead a suggestion that perhaps in the long run, a delegitimization of the electoral college might lead to our finding some better way of electing a president. Already in the mid-1980s, Sandy was pulling his readers along from their interest in the doctrinal subtleties of equal protection toward a focus on potential structural reforms to the hard-wired Constitution. 

Several later pieces build in interesting ways on this early foray by Sandy into the law and political theory of representation. I am particularly fond of One Person, One Vote: A Mantra in Need of Meaning, 80 N.C. L. Rev. 1269 (2002). That essay, another symposium piece, begins with the following statement of purpose: “My goal in this Essay is to express some of my own uncertainties about what the term one person, one vote actually does, or, just as much to the point, should, mean.” It would be a great thing for the legal academy if more of us would sometimes consider, let alone actually write, an essay whose stated purpose is as open-ended, modest, and yet generative as that. To express uncertainties! The essay does of course offer some views. Sandy points out that our system absolutely does not produce constituencies with equal numbers of voters, as the “one person one vote” mantra seems to imply; that it probably would be bad if it did; that an equal number of constituents per representative seems to make considerably more sense—but that this view has a few shortcomings as well, and certainly doesn’t get at the problem of gerrymandering. 

Sandy’s 2015 Childress lecture, “Who Counts?” “Sez Who?” 58 St. Louis L. J. 937, explores the deep problem of who ought to count as a constituent in a representative democracy in the first place. The redistricting-focused version of that debate was at the time headed for a Supreme Court confrontation in Evenwel v. Abbott, a case that held it was indeed constitutional for Texas to continue the near-universal American practice of counting all residents, not just citizens or voters, for redistricting purposes. Sandy’s version of an investigation of this question is not focused exclusively or even primarily on the doctrine and its various constitutional and practical implications. He instead circles outward: to questions of how to count college students, prisoners, non-citizens, and further still, to rigid Taney Court definitions of who is an Indian; to edge cases in contemporary Jewish debate about who counts as a Jew for purposes of the Israeli right of return; to a different set of edge cases regarding who is Black enough that they ought to count as Black either for purposes of the Census or for purposes of affirmative action in college admissions. (Sandy then turns to the pretty strong grounds we have for distrusting the institutions we entrust with making these determinations, especially courts.) This string of works of Sandy’s is fundamentally skeptical in orientation, but that skepticism is extremely well-grounded. 

And nowhere is Sandy’s skeptical orientation toward a lot of election law more firmly grounded than when it comes to the case of Bush v. Gore, one sort of endpoint (for now!) of the journey that began with Baker v. Carr and the court-led reapportionment revolution. Sandy’s essay Bush v. Gore and the French Revolution: A Tentative List of Some Early Lessons, 65 L. & Contemp. Probs. 3 (2002), the last piece of writing I’ll discuss here, does not disappoint. Sandy kicks off the essay in earnest with the observation that “no one—or, perhaps more accurately, very few—on either side of the debate seem willing to grant genuine respect to both the Florida Supreme Court and the United States Supreme Court, or to both the majority and dissenters within those respective courts….” This is a disarming and effective way in to his real project, which is not to dissect the opinion, but to show a legal audience how to think about the case like a political scientist (specifically the political scientist Robert McCloskey). Assuming that doctrine counts for little—a premise Sandy has already by that point extracted from the reader, at least with respect to some judges or justices, the ones the reader believes were on the wrong side of Bush v. Gore—Sandy is asking how we should understand both the causes and the consequences of this singular case for the Supreme Court as an institution. And here, confounding liberal friends who believed that the case ought to discredit or weaken the Court, Sandy writes, presciently: “One powerful consequence of Bush v. Gore, then, is that it further entrenches the monarch-like status of the United States Supreme Court as ‘ultimate constitutional interpreter,’ with a monarch-like royal prerogative to ignore ordinary legal restraints when necessary to protect the public good.” Bush v. Gore modestly hurt the Court’s standing among liberals, but more significantly improved it among conservatives; on net, the case improved the standing of the Court. Projecting forward, Sandy is arguing that if the Court, as he expects, faces little consequence for its overreach in Bush v. Gore (which is what happened) we can all expect to see a more monarch-like Court in the years to come. 

This is not the sort of prediction Sandy or anyone else would want to be right about, but there it is. We are living with a Supreme Court that has done much of late to elevate a political scientist’s view of the Court and its functions over a typical lawyer’s view. (To predict the jurisprudence of Samuel Alito on almost any important question, simply scrutinize the positions of the Republican party.) At the same time, we are living through a prolonged period of minority rule or something close to it, especially in state legislatures across the Midwest, which the Supreme Court is playing a non-trivial role in extending and reinforcing. Sandy has been sounding some of these alarms for many years, particularly the proposition that hard-wired parts of the Constitution create the potential for various forms of electoral crisis. Here he is sounding the alarm, twenty years ago, about the imperial Supreme Court we are living with today. Over time, many of the rest of us have found ourselves moving toward some of Sandy’s once-outlandish positions. To be clear, however, I am not in any way endorsing the crazy idea of holding a constitutional convention. Yet. 

Joseph Fishkin is a Professor of Law at UCLA School of Law. You can contact him at fishkin@law.ucla.edu.