Justice Frankfurter’S Misplaced Legitimacy Concerns Inwards The Reapportionment Cases
A major concern expressed during the partisan gerrymandering litigation before the Supreme Court over the past times ii damage has been that the Court’s populace legitimacy may endure if it holds that federal courts may adjudicate the merits of political gerrymandering claims. For example, at oral argument before this week, erstwhile US Solicitor General Paul Clement, who was arguing against the justiciability of such claims, ominously warned the Justices that “once you lot larn into the political thicket, you lot volition non exit in addition to you lot volition tarnish the icon of this Court for the other cases where it needs that reputation for independence so people tin empathise the telephone commutation difference betwixt judging in addition to all other politics.” (I doubtfulness Mr. Clement meant to imply that judging is a course of study of politics, but that is what he did imply.)
In invoking the “political thicket,” Mr. Clement was channeling Justice Felix Frankfurter, who many decades before had warned his colleagues to maintain the courts out of controversies over legislative reapportionment, lest the Court’s legitimacy hold upwardly imperiled. Mr. Clement was probable speaking commencement in addition to initiatory off to Chief Justice John Roberts, who has himself emphasized the importance of maintaining the Court’s populace legitimacy every bit a full general affair in addition to who has also expressed specific legitimacy concerns most judicial review of partisan gerrymanders.
One potential reply to Mr. Clement is that the Court should only produce its undertaking of interpreting the Constitution in addition to allow the legitimacy chips autumn where they may. For those (like myself) who believe that judicial statesmanship defines a virtue inwards the usage of a judge, however, that is non an especially persuasive argument. Good judges, on this view, volition own got some line organisation human relationship of the atmospheric condition of the populace legitimacy of the law they declare—not all of the time, of course, but inwards momentous cases. Institutional suicide is no to a greater extent than admirable inwards judicial life than inwards political life.
Influenza A virus subtype H5N1 amend reply to Mr. Clement is that Justice Frankfurter’s dire predictions most the consequences for the Court’s legitimacy of subjecting malapportioned legislatures to judicial review, although non unreasonable at the time, turned out to hold upwardly wrong—spectacularly in addition to almost instantly wrong. In this post, I volition commencement document that Justice Frankfurter’s fears were misguided, in addition to I volition in addition to so offering 3 reasons why. There are potential lessons hither for the partisan gerrymandering cases currently pending before the Court.
Prior to the 1960s, many province legislatures were severely malapportioned, alongside districts of vastly dissimilar populations. As cities in addition to suburbs grew inwards population, election districts were non redrawn to reverberate the population changes. For example, l G people powerfulness elect a representative inwards 1 district spell ii hundred in addition to l G people inwards some other district elected a representative to the same legislature. The same malapportionment work existed inwards congressional districts inwards states across the country.
Writing inwards 1946 for the Court inwards Colegrove v. Green, Justice Frankfurter admonished that “[c]ourts ought non to larn inwards this political thicket” of legislative reapportionment. By 1961, his spot had non changed, in addition to he attempted to sway Justice Potter Stewart to his side spell Baker v. Carr was pending before the Court. He wrote to Justice Stewart that judicial intervention threatened to “bring the Court inwards conflict alongside political forces in addition to exacerbate political feelings widely throughout the Nation on a larger scale, though non so pathologically, every bit the Segregation cases own got stirred.”
At the 2nd oral declaration inwards Baker, Justice Frankfurter went farther. He warned that judicial intervention inwards racial segregation cases would genuinely testify “simpler” than intervention inwards reapportionment would be, in addition to he rhetorically asked Solicitor General Archibald Cox whether he idea “the prejudices on this line organisation of urban versus rural, which is just every bit strong inwards New York every bit it is inwards Tennessee, isn’t fifty-fifty to a greater extent than deep-seated in addition to to a greater extent than pervasively deep-seated.” Justice Frankfurter would after write inwards dissent inwards Baker that “[t]he Court’s authority—possessed of neither the pocketbook nor the sword—ultimately rests on sustained populace confidence inwards its moral sanction.” “Such feeling,” he continued, “must hold upwardly nourished past times the Court’s consummate detachment, inwards fact in addition to inwards appearance, from political entanglements in addition to past times abstention from injecting itself into the clash of political forces inwards political settlements.”
Justice Frankfurter failed to persuade Justice Stewart. The Court forged ahead over Justice Frankfurter’s objections, notwithstanding his fears that province legislatures or Congress powerfulness non comply alongside federal courtroom orders to reapportion.
In responding to reapportionment cases, the Court proceeded inwards stages. First, it held inwards Baker only that reapportionment challenges were justiciable, leaving it to other courts to initially determine whether to insist upon population equality, something about equality alongside permissible deviations for sufficient cause, mere rationality, or some other standard. In rejecting the applicability of the political query doctrine, Justice Brennan wrote inwards usage for the bulk that “[j]udicial standards nether the Equal Protection Clause are good developed in addition to familiar, in addition to it has been opened upwardly to courts since the enactment of the Fourteenth Amendment to determine, if on the item facts they must, that a discrimination reflects no policy, but only arbitrary in addition to capricious action.” The Solicitor General in addition to counsel for the plaintiffs had urged the Court to adopt a deferential approach. At that point, however, the Court was deciding exclusively the query of justiciability.
The short-term reply to Baker was striking. Writing inwards 1962, Professor Robert McCloskey observed that “[l]egislatures all over the province own got been bidden to redistrict or to confront the prospect of having the judiciary produce the undertaking for them.” In all, at that spot were “more than lxx legislative in addition to congressional reapportionment lawsuits filed inwards 40 states inwards the aftermath of Baker v. Carr.” Baker prepare inwards motion a process, the side past times side stage of which entailed federal in addition to province judges leaning on its control inwards deciding the merits of reapportionment cases in addition to moving toward population equality.
The terminal stage began when those decisions returned to the Court. Over the side past times side few years, the Court decided the merits of diverse apportionment scenarios, roughly inwards social club from to the lowest degree controversial to most controversial. In Gray v. Sanders, the Court invalidated Georgia’s primary election law in addition to county unit of measurement system. Writing for the Court, Justice Douglas declared that “[t]he excogitation of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, in addition to Nineteenth Amendments tin hateful exclusively 1 thing—one person, 1 vote.”
In Wesberry v. Sanders, the Court turned its attending to the House of Representatives, agreeing alongside the dissenter on the three-judge district court, who had “relied on Baker v. Carr.” In a bulk catch written past times Justice Black, the Court held that “as nearly every bit is practicable 1 man’s vote inwards a congressional election is to hold upwardly worth every bit much every bit another’s.”
More controversially, inwards Reynolds v. Sims, the Court expanded the range of the regulation of population equality to province legislative districts. The Court held that, “as a basic constitutional standard, the Equal Protection Clause requires that the seats inwards both houses of a bicameral province legislature must hold upwardly apportioned on a population basis.” Writing for the Court, Chief Justice Warren observed that “[t]he spate of similar cases filed in addition to decided past times lower courts since our determination inwards Baker amply shows that the work of province legislative malapportionment is 1 that is perceived to be inwards a large release of the States.” The Court added inwards a footnote that “[l]itigation challenging the constitutionality of province legislative apportionment schemes had been instituted inwards at to the lowest degree 34 States prior to the halt of 1962—within nine months of our determination inwards Baker v. Carr.”
In some other way, the bulk catch inwards Sims quietly sought to ameliorate threats to the Court’s populace legitimacy. Chief Justice Warren offered the reassurance that controversies over reapportionment did non only involve “urban-rural conflicts,” notwithstanding how they “are mostly viewed.” This was because “fast-growing suburban areas . . . are in all probability the most seriously underrepresented inwards many of our province legislatures,” in addition to because “[m]alapportionment can, in addition to has historically, run inwards diverse directions.” Those observations were irrelevant to the constitutional question, every bit Warren acknowledged. But he included them anyway.
Sims generated a political firestorm that included diverse threatened responses, including a proposed constitutional amendment that would own got partially reversed the result. The proposal vicious just brusk of passage past times the Senate inwards 1965. Notably, however, all other efforts to contrary the determination failed in addition to failed quickly.
Why did Justice Frankfurter’s prediction plow out to hold upwardly so incorrect so fast? At to the lowest degree 3 explanations seem helpful. First, the Court proceeded incrementally in addition to gauged pop in addition to lower-court reactions before deciding whether to proceed whatever farther. In other words, the Justices managed reasonable concerns most the Court’s (and the courts’) populace legitimacy, every bit opposed to proceeding heedless of such concerns.
Second, in addition to relatedly, the Court interacted dialectically, non hierarchically, alongside the lower federal (and state) courts, a procedure that I own got called reciprocal legitimation. Just every bit the lower courts relied inwards usage upon the control of Baker inwards deciding the merits of reapportionment cases, so the Court relied inwards usage upon the control of those lower courtroom decisions inwards deciding the merits of diverse reapportionment cases. To reiterate, the Court inwards Sims leaned on federal in addition to province courtroom decisions inwards documenting the range of the “problem . . . that is perceived to exist.” As Professor Gordon Baker reported, moreover, “the ‘consensus of lower courts’ inwards moving toward representative equality” was a major theme of oral arguments inwards reapportionment cases that term.
Third, the “one person, 1 vote” formulation made intuitive sense to the American public. Professor John Hart Ely said of the equal-population dominion that it was superior to to a greater extent than nuanced approaches that allowed greater flexibility because it was simple. It was slowly to explicate in addition to slowly to justify, just every bit it was hard to explicate in addition to hard to justify why the courts should produce cypher when, say, 50,000 people received the same amount of representation as, say, 250,000. If “no taxation without representation” is usage of the American creed, in addition to so it plainly stood to argue inwards the minds of most Americans that “no taxation alongside unequal representation” is also usage of the American ethos.
There are potential morals hither for the political gerrymandering cases pending before the Court. Legitimacy concerns, rather than causing the Justices to only require the courts to rest out of such litigation, powerfulness exertion the Justices to inquire themselves the next 3 questions:
First, just every bit the Court then proceeded incrementally in addition to maintained command over the process, so tin the Court now proceed incrementally in addition to insist on retaining control?
Second, just every bit the Court then interacted alongside the lower courts inwards a trend that enhanced the populace legitimacy of the judiciary every bit a whole, so tin the Court now proceed inwards a similar fashion?
Third, just every bit the Court then fashioned legal doctrine that made intuitive sense, had pop appeal, in addition to was legally justifiable on its ain terms, so tin the Court now fashion such doctrine?
The in conclusion query has thence far been a original concern of those Justices who are skeptical of treating partisan gerrymandering cases every bit justiciable. In Sims, the Court had available a simple, compelling dominion forbidding all substantial departures from equal-population districts. By contrast, none of the standards that own got been proposed for measure the threshold beyond which districting constitutes an impermissible political gerrymander own got quite that obvious appeal.
Having said that, at that spot is a powerful intuition animating those proposed standards that the American populace would readily empathise in addition to would probable endorse: inwards a democracy, the people select their representatives, non the other agency around. That accessible intuition renders Frankfurterian legitimacy concerns overstated, just every bit they were overstated during the decades inwards which he voiced them.
Moreover, several of the standards that own got been proposed are “judicially discoverable in addition to manageable.” One possibility, every bit Justice Brett Kavanaugh emphasized at oral declaration yesterday, is to focus on meaning deviations from proportional representation. In a proportionality regime, a party’s pct of seats inwards the legislature must hold upwardly proportional to the statewide vote for that party.
There are other options if the Court wants to law exclusively to a greater extent than extreme cases of partisan gerrymandering, at to the lowest degree for the fourth dimension being. The Justices powerfulness focus, for example, on partisan gerrymanders motivated past times a wish to retaliate against sure enough voters for supporting the other party, every bit was discussed at the recent oral argument. Or the Court powerfulness borrow the “predominant factor” examine from racial gerrymandering cases, every bit Professors Michael Dorf, Joshua Sellers, Andrew Siegel, in addition to Joseph Thai debate inwards their amicus brief inwards the Maryland case. Or the Court powerfulness focus on large discrepancies inwards the full release of votes for the ii parties that had no effect on the outcome of whatever 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 populace legitimacy of the Court if they intervene does non seem similar a peculiarly strong 1 given the tools they own got at their disposal to deal whatever potential problems spell vindicating their best agreement of the Constitution.
History may non repeat itself, exactly, but inwards this instance I suspect it is probable to rhyme.
In invoking the “political thicket,” Mr. Clement was channeling Justice Felix Frankfurter, who many decades before had warned his colleagues to maintain the courts out of controversies over legislative reapportionment, lest the Court’s legitimacy hold upwardly imperiled. Mr. Clement was probable speaking commencement in addition to initiatory off to Chief Justice John Roberts, who has himself emphasized the importance of maintaining the Court’s populace legitimacy every bit a full general affair in addition to who has also expressed specific legitimacy concerns most judicial review of partisan gerrymanders.
One potential reply to Mr. Clement is that the Court should only produce its undertaking of interpreting the Constitution in addition to allow the legitimacy chips autumn where they may. For those (like myself) who believe that judicial statesmanship defines a virtue inwards the usage of a judge, however, that is non an especially persuasive argument. Good judges, on this view, volition own got some line organisation human relationship of the atmospheric condition of the populace legitimacy of the law they declare—not all of the time, of course, but inwards momentous cases. Institutional suicide is no to a greater extent than admirable inwards judicial life than inwards political life.
Influenza A virus subtype H5N1 amend reply to Mr. Clement is that Justice Frankfurter’s dire predictions most the consequences for the Court’s legitimacy of subjecting malapportioned legislatures to judicial review, although non unreasonable at the time, turned out to hold upwardly wrong—spectacularly in addition to almost instantly wrong. In this post, I volition commencement document that Justice Frankfurter’s fears were misguided, in addition to I volition in addition to so offering 3 reasons why. There are potential lessons hither for the partisan gerrymandering cases currently pending before the Court.
Prior to the 1960s, many province legislatures were severely malapportioned, alongside districts of vastly dissimilar populations. As cities in addition to suburbs grew inwards population, election districts were non redrawn to reverberate the population changes. For example, l G people powerfulness elect a representative inwards 1 district spell ii hundred in addition to l G people inwards some other district elected a representative to the same legislature. The same malapportionment work existed inwards congressional districts inwards states across the country.
Writing inwards 1946 for the Court inwards Colegrove v. Green, Justice Frankfurter admonished that “[c]ourts ought non to larn inwards this political thicket” of legislative reapportionment. By 1961, his spot had non changed, in addition to he attempted to sway Justice Potter Stewart to his side spell Baker v. Carr was pending before the Court. He wrote to Justice Stewart that judicial intervention threatened to “bring the Court inwards conflict alongside political forces in addition to exacerbate political feelings widely throughout the Nation on a larger scale, though non so pathologically, every bit the Segregation cases own got stirred.”
At the 2nd oral declaration inwards Baker, Justice Frankfurter went farther. He warned that judicial intervention inwards racial segregation cases would genuinely testify “simpler” than intervention inwards reapportionment would be, in addition to he rhetorically asked Solicitor General Archibald Cox whether he idea “the prejudices on this line organisation of urban versus rural, which is just every bit strong inwards New York every bit it is inwards Tennessee, isn’t fifty-fifty to a greater extent than deep-seated in addition to to a greater extent than pervasively deep-seated.” Justice Frankfurter would after write inwards dissent inwards Baker that “[t]he Court’s authority—possessed of neither the pocketbook nor the sword—ultimately rests on sustained populace confidence inwards its moral sanction.” “Such feeling,” he continued, “must hold upwardly nourished past times the Court’s consummate detachment, inwards fact in addition to inwards appearance, from political entanglements in addition to past times abstention from injecting itself into the clash of political forces inwards political settlements.”
Justice Frankfurter failed to persuade Justice Stewart. The Court forged ahead over Justice Frankfurter’s objections, notwithstanding his fears that province legislatures or Congress powerfulness non comply alongside federal courtroom orders to reapportion.
In responding to reapportionment cases, the Court proceeded inwards stages. First, it held inwards Baker only that reapportionment challenges were justiciable, leaving it to other courts to initially determine whether to insist upon population equality, something about equality alongside permissible deviations for sufficient cause, mere rationality, or some other standard. In rejecting the applicability of the political query doctrine, Justice Brennan wrote inwards usage for the bulk that “[j]udicial standards nether the Equal Protection Clause are good developed in addition to familiar, in addition to it has been opened upwardly to courts since the enactment of the Fourteenth Amendment to determine, if on the item facts they must, that a discrimination reflects no policy, but only arbitrary in addition to capricious action.” The Solicitor General in addition to counsel for the plaintiffs had urged the Court to adopt a deferential approach. At that point, however, the Court was deciding exclusively the query of justiciability.
The short-term reply to Baker was striking. Writing inwards 1962, Professor Robert McCloskey observed that “[l]egislatures all over the province own got been bidden to redistrict or to confront the prospect of having the judiciary produce the undertaking for them.” In all, at that spot were “more than lxx legislative in addition to congressional reapportionment lawsuits filed inwards 40 states inwards the aftermath of Baker v. Carr.” Baker prepare inwards motion a process, the side past times side stage of which entailed federal in addition to province judges leaning on its control inwards deciding the merits of reapportionment cases in addition to moving toward population equality.
The terminal stage began when those decisions returned to the Court. Over the side past times side few years, the Court decided the merits of diverse apportionment scenarios, roughly inwards social club from to the lowest degree controversial to most controversial. In Gray v. Sanders, the Court invalidated Georgia’s primary election law in addition to county unit of measurement system. Writing for the Court, Justice Douglas declared that “[t]he excogitation of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, in addition to Nineteenth Amendments tin hateful exclusively 1 thing—one person, 1 vote.”
In Wesberry v. Sanders, the Court turned its attending to the House of Representatives, agreeing alongside the dissenter on the three-judge district court, who had “relied on Baker v. Carr.” In a bulk catch written past times Justice Black, the Court held that “as nearly every bit is practicable 1 man’s vote inwards a congressional election is to hold upwardly worth every bit much every bit another’s.”
More controversially, inwards Reynolds v. Sims, the Court expanded the range of the regulation of population equality to province legislative districts. The Court held that, “as a basic constitutional standard, the Equal Protection Clause requires that the seats inwards both houses of a bicameral province legislature must hold upwardly apportioned on a population basis.” Writing for the Court, Chief Justice Warren observed that “[t]he spate of similar cases filed in addition to decided past times lower courts since our determination inwards Baker amply shows that the work of province legislative malapportionment is 1 that is perceived to be inwards a large release of the States.” The Court added inwards a footnote that “[l]itigation challenging the constitutionality of province legislative apportionment schemes had been instituted inwards at to the lowest degree 34 States prior to the halt of 1962—within nine months of our determination inwards Baker v. Carr.”
In some other way, the bulk catch inwards Sims quietly sought to ameliorate threats to the Court’s populace legitimacy. Chief Justice Warren offered the reassurance that controversies over reapportionment did non only involve “urban-rural conflicts,” notwithstanding how they “are mostly viewed.” This was because “fast-growing suburban areas . . . are in all probability the most seriously underrepresented inwards many of our province legislatures,” in addition to because “[m]alapportionment can, in addition to has historically, run inwards diverse directions.” Those observations were irrelevant to the constitutional question, every bit Warren acknowledged. But he included them anyway.
Sims generated a political firestorm that included diverse threatened responses, including a proposed constitutional amendment that would own got partially reversed the result. The proposal vicious just brusk of passage past times the Senate inwards 1965. Notably, however, all other efforts to contrary the determination failed in addition to failed quickly.
Why did Justice Frankfurter’s prediction plow out to hold upwardly so incorrect so fast? At to the lowest degree 3 explanations seem helpful. First, the Court proceeded incrementally in addition to gauged pop in addition to lower-court reactions before deciding whether to proceed whatever farther. In other words, the Justices managed reasonable concerns most the Court’s (and the courts’) populace legitimacy, every bit opposed to proceeding heedless of such concerns.
Second, in addition to relatedly, the Court interacted dialectically, non hierarchically, alongside the lower federal (and state) courts, a procedure that I own got called reciprocal legitimation. Just every bit the lower courts relied inwards usage upon the control of Baker inwards deciding the merits of reapportionment cases, so the Court relied inwards usage upon the control of those lower courtroom decisions inwards deciding the merits of diverse reapportionment cases. To reiterate, the Court inwards Sims leaned on federal in addition to province courtroom decisions inwards documenting the range of the “problem . . . that is perceived to exist.” As Professor Gordon Baker reported, moreover, “the ‘consensus of lower courts’ inwards moving toward representative equality” was a major theme of oral arguments inwards reapportionment cases that term.
Third, the “one person, 1 vote” formulation made intuitive sense to the American public. Professor John Hart Ely said of the equal-population dominion that it was superior to to a greater extent than nuanced approaches that allowed greater flexibility because it was simple. It was slowly to explicate in addition to slowly to justify, just every bit it was hard to explicate in addition to hard to justify why the courts should produce cypher when, say, 50,000 people received the same amount of representation as, say, 250,000. If “no taxation without representation” is usage of the American creed, in addition to so it plainly stood to argue inwards the minds of most Americans that “no taxation alongside unequal representation” is also usage of the American ethos.
There are potential morals hither for the political gerrymandering cases pending before the Court. Legitimacy concerns, rather than causing the Justices to only require the courts to rest out of such litigation, powerfulness exertion the Justices to inquire themselves the next 3 questions:
First, just every bit the Court then proceeded incrementally in addition to maintained command over the process, so tin the Court now proceed incrementally in addition to insist on retaining control?
Second, just every bit the Court then interacted alongside the lower courts inwards a trend that enhanced the populace legitimacy of the judiciary every bit a whole, so tin the Court now proceed inwards a similar fashion?
Third, just every bit the Court then fashioned legal doctrine that made intuitive sense, had pop appeal, in addition to was legally justifiable on its ain terms, so tin the Court now fashion such doctrine?
The in conclusion query has thence far been a original concern of those Justices who are skeptical of treating partisan gerrymandering cases every bit justiciable. In Sims, the Court had available a simple, compelling dominion forbidding all substantial departures from equal-population districts. By contrast, none of the standards that own got been proposed for measure the threshold beyond which districting constitutes an impermissible political gerrymander own got quite that obvious appeal.
Having said that, at that spot is a powerful intuition animating those proposed standards that the American populace would readily empathise in addition to would probable endorse: inwards a democracy, the people select their representatives, non the other agency around. That accessible intuition renders Frankfurterian legitimacy concerns overstated, just every bit they were overstated during the decades inwards which he voiced them.
Moreover, several of the standards that own got been proposed are “judicially discoverable in addition to manageable.” One possibility, every bit Justice Brett Kavanaugh emphasized at oral declaration yesterday, is to focus on meaning deviations from proportional representation. In a proportionality regime, a party’s pct of seats inwards the legislature must hold upwardly proportional to the statewide vote for that party.
There are other options if the Court wants to law exclusively to a greater extent than extreme cases of partisan gerrymandering, at to the lowest degree for the fourth dimension being. The Justices powerfulness focus, for example, on partisan gerrymanders motivated past times a wish to retaliate against sure enough voters for supporting the other party, every bit was discussed at the recent oral argument. Or the Court powerfulness borrow the “predominant factor” examine from racial gerrymandering cases, every bit Professors Michael Dorf, Joshua Sellers, Andrew Siegel, in addition to Joseph Thai debate inwards their amicus brief inwards the Maryland case. Or the Court powerfulness focus on large discrepancies inwards the full release of votes for the ii parties that had no effect on the outcome of whatever 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 populace legitimacy of the Court if they intervene does non seem similar a peculiarly strong 1 given the tools they own got at their disposal to deal whatever potential problems spell vindicating their best agreement of the Constitution.
History may non repeat itself, exactly, but inwards this instance I suspect it is probable to rhyme.
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