Congress, the solicitor general, and the path of reapportionment litigation.

AuthorSolimine, Michael E.
PositionLaw Review Symposium 2011: Baker v. Carr After 50 Years: Appraising the Reapportionment Revolution

ABSTRACT

The Supreme Court's decision in Baker v. Carr unleashed the Reapportionment Revolution, which was largely driven by litigation in the lower federal courts, with periodic additional guidance by the Court. That litigation continues to the present day, revived every decade by new census data and further complicated by the demands of the Voting Rights Act and other factors. Less appreciated has been the role of Congress and the president in influencing that litigation. Baker was initially quite controversial in some circles, and that hostility was manifested by bills introduced in Congress that would have restricted the impact of the case. But the bills did not pass, the opposition soon receded, and Baker came to be supported by most policymakers and the public. In 1976 Congress abolished the much criticized three-judge district court, but demonstrated its support for Baker by expressly leaving it intact as a forum for the litigation of reapportionment cases. The reasons for that decision are not clear, but one appears to be to reduce the pressures on one judge in such politically charged cases by making three .judges responsible. Likewise, the president, through amicus curiae briefs filed by Solicitor General Archibald Cox, supported the result in Baker and influenced the doctrinal development of subsequent reapportionment cases. Those briefs also appear to have provided political support for federal court intrusion on apportionment matters previously left to state politics. This article addresses the consequences of these actions by Congress and the president on federal court reapportionment cases since Baker and situates that interbranch interaction in the academic literature focusing on the institutional context and aftermath of Supreme Court decisions.

INTRODUCTION

Baker v. Carr (1) held that federal courts could hear suits challenging the legality of malapportioned state legislatures under the Equal Protection Clause of the Fourteenth Amendment. Today, the decision is firmly in the lauded canon of landmark Supreme Court decisions, and the "one person, one vote" principle it inaugurated for the apportionment of legislative bodies is now so well accepted that contemporary writers find it "hard to imagine what all the constitutional fuss was about." (2) The standard version of the reception of Baker is that it was almost immediately popular among elites and the general public, in sharp contrast to other important decisions of the Warren Court. The Supreme Court in Reynolds v. Sims (3) and other cases fleshed out the "one person, one vote" standard, and it was implemented quickly by litigation in the lower federal courts and state courts in over half the states. (4) Opposition in Congress and elsewhere, such as it was, soon melted away, and Baker was well accepted by virtually everyone in only a few years. (5) In subsequent decades the Supreme Court, and lower courts, struggled with whether and how to apply Baker and its progeny to more complicated and contentious issues like politically or racially gerrymandered districts, so litigation under the Voting Rights Act of 1965 ("VRA") began to dominate reapportionment cases. (6) But the core principle of "one person, one vote," having its genesis in Baker, appears unscathed.

This version of the aftermath of Baker is accurate as far as it goes, but the premise of this Article is that the story is a richer and more complicated one. In particular, my goal is to unpack the notion that the reapportionment decisions were relatively uncontroversial at the time and later. The full story of the reaction to Baker is beyond the scope of the present Article, (7) but I will focus on how the other branches of the federal government interacted with the Court at the time of the decision and reacted to Baker in the 1960s, 1970s, and later. The congressional and presidential reaction to Baker will place Baker in a broader context, and explain how those branches affect reapportionment litigation to the present day.

Before addressing how the other branches confronted Baker and subsequent cases, Part II of the Article considers how the apparent emerging scholarly consensus that the Supreme Court, more often than not, is a majoritarian institution, pertains to the reapportionment cases. Is Baker rightly understood as an example of the majoritarian thesis? To what extent did Baker, then and now, reflect and garner support among interested publics? Part II turns to the Executive Branch's interaction with Baker and subsequent cases and begins with Solicitor General ("SG") Cox's amicus curiae brief filed in the case, which supported the result reached by the majority. The consensus is that the brief played a role, and perhaps a crucial one, in the result reached and the eventual widespread support for reapportionment. (8) Part II also addresses how the SG filed amicus briefs in subsequent reapportionment and other election law cases and the apparent influence of those filings on the Court.

Part III addresses Congress's reaction to Baker. Congress's initial reaction was hostile as Congress introduced bills to overturn or limit the impact of the decision. (9) This hostility, however, faded away quickly, and subsequent congressional actions can be seen as supportive of the decision. (10) Baker and other reapportionment cases were initiated in three-judge district courts, with direct appeals to the Supreme Court. (11) Likewise, the VRA required some states with a history of discriminatory election laws, mostly in the South, to clear changes to those laws with the Attorney General or a three-judge district court in the District of Columbia, with direct appeals to the Court. That provision remains intact. (12) Congress repealed the three-judge district court for other cases in 1976, but expressly left it intact for reapportionment cases. Part III considers how the congressional adoption of that specialized forum for the adjudication of these cases can be seen, in part, as special solicitude for, and even protection of, the federal judges adjudicating these cases. Part IV concludes the Article.

  1. BAKER V. CARR AND THE MAJORITARIAN THESIS

    Alexander Bickel of Yale Law School famously argued that judicial review of the actions of federal and state governments should be limited since it was, as he saw it, counter-majoritarian in nature. (13) Whether in fact Supreme Court decisions, and decisions of lower courts, are on the whole properly characterized that way has been the subject of extended academic debate. For example, Barry Friedman has recently argued that most Supreme Court decisions over time are properly regarded as being majoritarian and generally reflecting the wishes of and being supported by the American public. (14) To consider how the debaters treat Baker v. Carr is instructive.

    Friedman begins by briefly summarizing the doctrinal developments before and after Baker. (15) Sixteen years prior to Baker, the Court had held, in a plurality opinion by Justice Felix Frankfurther, in the factually similar case of Colegrove v. Green, (16) that the dangers of courts entering a "political thicket" precluded judicial review of legislative malapportionment. (17) Baker, in a majority opinion by Justice William Brennan, distinguished Colegrove, holding that such suits did not involve nonjusticiable political questions, since judicially manageable standards could be fashioned under the Equal Protection Clause. (18) Justice Frankfurter (joined by Justice John M. Harlan) dissented vigorously and at length. Frankfurter argued, among other things, that holding such cases to be justiciable was a sharp break from precedent (i.e., Colegrove) and historical practice and would involve federal courts in "political entanglements" better left for resolution to the elected branches of government. (19) Frankfurter predicted that such entanglements would lessen public confidence in the Court and that state legislatures would resist implementation. (20) Cases following Baker established and applied the one-person, one-vote principle, requiring the redrawing of many districts for state legislatures and districts of the U.S. House of Representatives within states. (21)

    Friedman observes that many federal and state legislators had been elected in districts that clearly violated the one-person, one-vote principle, so opposition from those incumbents was predictable. Bills were introduced in Congress to limit Baker, while a coalition of the states, representing state governments, also proposed constitutional amendments to limit the impact of the decision. Some academics, such as Bickel, also criticized the decision and predicted that compliance would be lengthy and difficulty But the opposition soon faded and the critics were proven wrong. Compliance "was remarkably quick," since litigation in lower federal and state courts was soon initiated and orders requiring the redrawing of districts promptly followed. (23) Friedman concludes that the "public loved these decisions.... Academics could whine about the decisions, and legislators could grumble as they were reapportioned out of a job, but the Supreme Court had read its public well: frustration over the issue had been building in the body politic for a long time." (24)

    It does not denigrate Friedman's lively and insightful account of Baker and its aftermath to question whether the case fits so neatly into the majoritarian model. Critics of that model have raised a number of concerns about the theory and application of the model as a whole and to particular cases. For example, when a court decision is said to represent or reflect the majority view, does that mean a pre-existing majority, a later one, or one formed or informed by the decision itself? (25) Likewise, is evidence of a majority taken from public opinion polls, other national political institutions (i.e., Congress or the president), state and local governments, interest groups, or some...

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