Got theory?

• Author: Ortiz, Daniel R.
• Position: Court must defer to the political branches in political cases to avoid freezing one particular theory of politics into the structure of governance - Symposium: The Law of Democracy

INTRODUCTION

In the forty years since the Supreme Court entered the "political thicket" (1) it has done much work. To mention just a few of its efforts, in enforcing the Constitution the Court has required decennial redistricting of all state legislatures and multimember congressional delegations under the rule of one person, one vote; (2) it has laid down many rules for how Congress and state legislatures can regulate campaign spending; (3) it has defined how politics has to take account--and cannot take account--of race; (4) and it has determined what kinds of electoral structures are and are not permissible. (5) In interpreting several statutes, particularly the Voting Rights Act of 1965, it has also unsettled many traditional electoral arrangements. (6) Nearly all of this work has been difficult and contentious. In few other areas have the Court's decisions so directly and personally interested members of the political branches of government while resting so weakly on the widely recognized and traditionally authoritative guides to constitutional construction (e.g., constitutional text and intent).

Beginning explicitly with Baker v. Carr, one argument, the "got theory" argument, has had great play in these cases (7). The "got theory" argument maintains that the Court must defer to the political branches in these political cases to avoid freezing one particular theory of politics into the structure of governance. (8) No matter how certain the Court is that a particular theory of equality, representation, or political behavior is right, the argument goes, it should nonetheless refrain from striking down conflicting arrangements, because doing so would displace the state's own choice among competing and acceptable political theories. So stated, the "got theory" argument has much to recommend it. It cautions judicial humility, recognizes diversity of judgment on matters concerning local conditions and traditions, and allows for experimentation by different parts of government. In short, the argument goes, often one size does not fit all.

The "got theory" argument made its greatest play in the reapportionment cases. (9) I discuss in Part I how the argument framed the issues in those cases. In general, how well did it work? Did it emphasize certain values and concerns and ignore others? Did it have an identifiable substantive agenda? And, in the end, did it fulfill or betray its rhetorical appeal? In Part II, I look at this argument in a more contemporary setting: the partisan gerrymandering cases. After laying out the surprisingly complex issues these cases pose, I explore how the "got theory" argument addresses and spins them. I conclude by reflecting that, although the "got theory" argument could play a helpful role in deciding these and perhaps other cases, in practice it has not. Instead of deepening consideration of the political concerns underlying the cases, the argument has been used to foreclose such consideration. It has operated more as a conversation stopper than as the conversation starter its rhetoric suggests.

1. ENTERING THE "POLITICAL THICKET"

   1. Initial Hesitation: Golegrove v. Green

      Colegrove v. Green (10) foreshadowed the deepest arguments in the reapportionment cases. Three voters sued to have declared unconstitutional an Illinois congressional districting scheme in which some districts contained many more people than others. The largest district, in fact, contained 914,000 people--over eight times the 112,116 in the smallest district. (11) These three voters from larger districts claimed that the scheme violated equal protection because they had proportionately less representation in the House of Representatives. The Supreme Court did not even consider the claim. Both Justice Frankfurter, writing for a plurality of three Justices, and Justice Rutledge, writing for himself, voted to dismiss the case for want of equity. (12) The voters' first recourse, Justice Frankfurter thought, should be to the Illinois state legislature. If people were unhappy, they should simply vote in a state legislature that would give them relief: "The remedy for unfairness in districting is to secure State legislatures that will apportion properly...." (13) And, if that should fail, those from larger districts should "invoke the ample powers of Congress" (14) to fix things. Because Justice Frankfurter believed that the Constitution "conferred upon Congress exclusive authority to secure fair representation by the States in the popular House and left to that House determination whether States have fulfilled their responsibility," (15) he thought it deprived the courts of all power to act. The Constitution, by vesting Congress with such authority, thus simply foreclosed the possibility of judicial remedy.

      More fundamentally, Justice Frankfurter believed that the case involved a choice among theories of representation that state legislatures should be able to make. As he put it:

      The basis for the suit is ... a wrong suffered by Illinois as a polity. In effect this is an appeal to the federal courts to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation. Because the Illinois legislature has failed to revise its Congressional Representative districts in order to reflect great changes, during more than a generation, in the distribution of its population, we are asked to do this, as it were, for Illinois. (16) In his view, the case concerned no injury to individuals, (17) but a claim that the state's political leaders were wasting Illinois' representational capital in national politics. (18) It asserted, in other words, an injury that ran to the state, not one that ran directly to some citizens while favoring others. The case thus represented a kind of political "derivative action" where the principals (voters) were suing the managing agents (state politicians) for malfeasance to the polity as a whole. Any individual injury came only through a citizen's stake in the impaired polity.

      Framed in this way, the case posed no question about how individuals should be represented in the House, but at most asked whether the state's choice of representational policy, which created some districts with many more people than others, wasted the state's national influence. And as to that question, Justice Frankfurter thought, the state's political leaders were likely in a better position than the federal courts to make a decision. (19) To carry the "derivative action" analogy one step further, the courts were as ill-suited to review these kinds of political decisions as they are to review ordinary business decisions. Consequently, courts should follow a type of "political judgment" rule, which just like its counterpart, the business judgment rule, would insulate first-order decision makers from judicial second-guessing. (20)

      Judicial deference, moreover, was particularly appropriate when the courts, as Justice Frankfurter assumed, had no power to draw single-member districts. (21) At most, he thought, a court could declare an existing single-member districting scheme unconstitutional, which would mean that all of Illinois' congressional candidates would have to run in one statewide at-large district. (22) It is at this point that Justice Frankfurter grapples directly with the value of different theories of representation. Even if the courts were to intervene and declare that the state could not follow a particular view of what theory of representation best suited Illinois, the courts' only remedy would be to impose at-large House elections on the state--a practice that, he noted, itself rested on a largely discredited theory of representation. (23) Because of his view of the courts' limited remedial powers, then, Justice Frankfurter believed that striking a plan resting on a bad theory of representation might result in a plan resting on an even worse one.

      Questions, of course, dog every step of Justice Frankfurter's reasoning. Just to start, exactly where does the Constitution say Congress shall have exclusive remedial authority? (24) If the text and original intent of the Constitution do not make Congress's remedial power exclusive, should the Court do so, especially when Congress has long failed in this area and individual congressmen s incumbency interests weigh against congressional action? As Justice Frankfurter himself methodically documented, (25) so many states were severely malapportioned that the principle of unseating a state's congressional delegation on this ground would have led to the unseating of many representatives, which would have made it hard for many in Congress to vote for it. And relying on state legislatures for a remedy was similarly unpromising. As Justice Black noted in dissent, the case rested in part on the allegation that corresponding malapportionment of the Illinois state legislature foreclosed any relief from that source. (26) Furthermore, was equity really insufficiently flexible at the time to permit courts to draw single-member districts? And even if it was, was there any real risk that a state legislature faced with at-large congressional districts would not back down and draw equipopulous single-member districts?

      Beyond remedy, the questions remain just as pressing. Why, for example, was the voters' injury derivative, not personal? The plaintiffs were complaining, after all, that the scheme violated a personal right to equal representation. (27) Did they not have such a right? Or was it one that the state could subordinate in the interest of best representing the state qua state? Should the Constitution, which originally intended the House of Representatives to represent the people rather than the states as polities, (28) allow the state to make such a choice? Justice Frankfurter is simply silent on all of these questions. Still, if one grants his initial assumptions (1) that the injury is derivative, not personal...