Why Judge Alito's View on "One Person, One Vote" May Be Even More Important than His View on Roe v. Wade

By EDWARD LAZARUS

Friday, Dec. 09, 2005

As Judge Alito's confirmation hearings approach, the contending forces are, predictably, focused on the issue of whether, as a Justice, he would vote to overturn Roe v. Wade. The overwhelming evidence shows that Alito, as a matter of both personal and legal conviction, is profoundly opposed to Roe. Still, for political reasons, we will have to put up with weeks of discussion about how he is also so deeply respectful of judicial precedent that his vote for or against Roe, if confirmed, is simply unknowable.

With any luck, some Senators will abandon this kabuki show and ask Alito about some of his other jurisprudential views. And if they do, I expect a lot of attention will turn to Alito's professed opposition, contained in a 1985 memo, to Baker v. Carr, and to the judicially imposed principle of "one person, one vote" that this decision and its immediate progeny established.

As Alito candidly admitted at the time, he was enamored of the views of Yale Law Professor Alexander Bickel, a Baker v. Carr skeptic. Bickel, interestingly, had clerked for Justice Felix Frankfurter, a vehement Baker v. Carr dissenter.

Now, of course, the "one person, one vote" principle is almost as universally accepted and acclaimed as Brown v. Board of Education. But at the time it was decided, in 1962, Baker was enormously controversial - and it is worth revisiting this once-heated dispute to illuminate why Alito's contemporary view of Baker may be more important to the future of the Court, and the long- term health of our democracy, than his views about Roe v. Wade.

Baker v. Carr: Why It Closely Divided the Supreme Court

Baker v. Carr began in 1959, when a group of plaintiffs challenged Tennessee's apportionment scheme as inconsistent with the Fourteenth Amendment's Equal Protection Clause.

Although the State's constitution required apportionment of voting districts every 10 years in accordance with the latest census, the state legislature had not actually reapportioned since 1901. Yet, despite this constitutional guarantee, the Tennessee courts had refused to intercede - and as a consequence, the State's electoral districts had become wildly disproportionate in the way they represented urban and rural voters. The population ratio between urban and rural districts was 19:1, yet their representation in the legislature was the same.

When the case reached the Supreme Court, the central question was whether this kind of intensely political electoral dispute was "justiciable" - that is, whether it was the kind of controversy that federal courts, under Article III of the Constitution, had the power to adjudicate or whether, instead, the Constitution required federal courts to leave resolution of such "political questions" to the political process.

Inside the Court, a clear majority believed that Tennessee's skewed electoral districts violated the equal protection rights of the grossly-mathematically-underrepresented urban voters. But the justices were very closely divided over whether the Constitution gave the Court any power to solve the problem.

The Two Factions on the Court: Warren and Brennan's, and Frankfurter's

On one side, a group led by Chief Justice Earl Warren and Justice William Brennan felt passionately that the Court had to intervene -- and not only because of the equities of the Tennessee situation. They recognized that the issue went far beyond Tennessee: All across the South, issues of malapportionment were depriving potential African-American political candidates of any realistic chance of getting elected.

On the other side, a group led by Justice Frankfurter argued, with equal fervor, that the Court had no business entering this "political thicket." Frankfurter was enormously concerned with the Supreme Court's own prestige and authority. Eight years before, in Brown, the Court had put itself on the line by declaring segregation in public schools unconstitutional. In Frankfurter's view, the Court -- having put itself at the center of one incredibly divisive political controversy -- desperately needed to husband its political capital, or else risk having its decisions ignored by the political branches of government.

After an intense internal debate, the Warren/Brennan wing prevailed, and Frankfurter was relegated to a scathing dissent -- in which he predicted that this "novel assertion of judicial power" would undermine the authority of not just the Supreme Court, but all courts. In his view, the only remedy for malapportionment was a popular uprising that would "sear the conscience of the people's representatives."

How History Proved Warren and Brennan Right, and Frankfurter Wrong

In retrospect, Warren and Brennan appear remarkably perspicacious. In fact, Baker v. Carr and its progeny had an almost immediate salutary effect on American politics and led, quite quickly, to the election of the first African-American representatives from the South since Reconstruction.

Hindsight, moreover, has rendered Frankfurter's concerns not merely overblown, but profoundly wrong. And this is why Alito's one-time adherence to Frankfurter's views is potentially troubling.

One can hardly argue, as a theoretical matter, with Frankfurter's concern that the Supreme Court's authority is potentially undermined when it over-injects itself into predominantly political controversies. As a practical matter, though, he seems to have vastly overstated the danger. After all, in more recent history, even the Court's astonishingly novel, political, and unreasoned decision in Bush v. Gore did little to tarnish the Court's image or authority after the initial outrage subsided.

The deeper problem with Frankfurter's opinion, however, is with his judgment about what kinds of controversies appropriately fall within the purview of the federal courts. On this point, Frankfurter got things exactly backwards. There is no better function for the courts than to improve the processes by which our elected representatives are held genuinely accountable to the people themselves.

If history is any guide, the only times the Court genuinely flirts with undermining its own authority is when it injects itself into substantive, value-laden choices about permissible government policies, such as the power to outlaw abortion, or gay sex, or mandate prayer in schools.

This is not to say that the Court is wrong to tackle these issues. But it is worth recognizing that cases dealing with these kinds of issues raise real, and difficult, questions about the line between enforcing the Constitution, and merely substituting judicial value judgments for legislative ones. And these cases raise such issues in a highly emotional and divisive context.

Cases involving apportionment and redistricting, in contrast, are much less fraught. At bottom, these are cases about electoral accountability - that is, whether every person will have an equal ability to hold his or her elected representatives accountable and whether the electoral system will put elected representatives genuinely at risk - and thus hold them truly accountable -- for the policy judgments they make.

To be sure, apportionment cases can raise difficult questions about what standards to apply in evaluating whether a given electoral scheme is lawful. Basically, the problem boils down to a judgment about how much gerrymandering is too much gerrymandering. But this is a practical problem of how to devise and apply a set of reasonably objective standards; it does not implicate the kind of moral judgments that can really enmesh the Court in the political thickets that so concerned Frankfurter.

Moreover, in my view, it is hard to imagine an area of law more appropriate to judicial intervention or more essential to furthering the goals of our Constitution, than the area of apportionment. Our whole system depends on ensuring the accountability of our elected representatives. That these representatives actually reflect the will of the people, is the very reason we give them power, and the reason the judicial branch will generally defer to legislative judgments. Without a truly representative voting system, democracy is, by definition, shattered.

Put another way, if the elected representatives are rigging the system for accountability, either by tipping the electoral scales in favor of incumbency, or by undermining the franchise of some particular group of citizens, then the core integrity of our democratic system is put in jeopardy.

Moreover, it borders on the silly to argue in Frankfurterian fashion, that the elected representatives themselves can be trusted to police this system. After all, they are highly self-interested in the outcomes here - with the temptation to ensure their own re-election, and that of allies, especially others from their party.

Gerrymandering Today Shows Judicial Intervention Is Valuable, and Very Necessary

Just look at politics today. All over the country, incumbents have gerrymandered electoral districts to give themselves safe seats. And in the absence of real accountability, Congress is free to run amok without fear of electoral retribution.

Indeed, most election experts will say that no matter how poor a job Congress does, incumbents will still prevail in the next election in almost every electoral district in the country. This automatic re-election ends up looking a lot more like oligarchy, than democracy.

Put simply, the problem today is not too much judicial intervention to police the channels of democracy, but too little. For instance, two years ago, in Vieth v Jubelirer, the Court made a terrible mistake when, by a 5-4 vote, declined to stop a blatant instance of political gerrymandering in Pennsylvania.

For this reason, one of the most important questions Alito has to answer at his confirmation hearing is whether he is still a devotee of Frankfurter's antiquated views - or whether, with the perspective of time and age, he now grasps the historical lesson of Baker v. Carr: the lesson that there is no higher or better judicial calling than to help clear away the arterial sclerosis that ails our body politic.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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