John Hart Ely and the problem of gerrymandering: the lion in winter.

Author:Karlan, Pamela S.
Position::On Democratic Ground: New Perspectives on John Hart Ely

CONTENTS INTRODUCTION I. DEMOCRACY AND DISTRUST: REPRESENTATION REINFORCEMENT, THE REAPPORTIONMENT REVOLUTION, AND MINORITY VOTE DILUTION A. The Central Role of One Person, One Vote in Combating Entrenchment B. The Overlooked Role of Racial Vote Dilution Doctrine in Combating Discrimination Against Discrete and Insular Minorities II. DISTRUST OF DEMOCRACY: SHAW AND THE PROBLEMS OF POLITICAL GERRYMANDERING A. The Shaw Cases as a Tool To Combat Discrimination? B. The Shaw Cases as a Tool To Combat Entrenchment? CONCLUSION INTRODUCTION

John Hart Ely was not one for sentiment. And yet, some real feeling creeps into the passage in Democracy and Distrust in which he claims that Alexander Bickel's career reflected an ultimately fruitless quest for a set of values "'sufficiently important or fundamental or whathaveyou to be vindicated by the Court against other values affirmed by legislative acts.'" (1) John recounts choking at Bickel's memorial service when Robert Bork suggested that Bickel in his final years resolved the tension between his political liberalism and his jurisprudential conservatism. John saw no contradiction in the first place:

I've calmed down, though, and now I can see how someone who started with Bickel's premise, that the proper role of the Court is the definition and imposition of values, might well after a lifetime of searching conclude that since nothing else works--since there isn't any impersonal value source out there waiting to be tapped--one might just as well "do the right thing" by imposing one's own values. It's a conclusion of desperation, but in this case an inevitable desperation. No answer is what the wrong question begets. (2) What makes the passage so haunting is not only the fact that Ely replaced Bickel as "probably the most creative constitutional theorist of the past twenty years" (3) only then to replace him as a scholar who died too soon, (4) but that Ely, in what turned out to be the last years of his career, also came to impose his own values, and in precisely the arena in which his greatest work had argued for a neutral approach: policing the process of representation.

During the period when Ely was writing Democracy and Distrust, constitutional litigation over legislative apportionment revolved around questions of malapportionment and racial vote dilution. Part I of this essay describes the implications of Ely's theory of representation-reinforcing judicial review for these issues. Inspired by the famous Carolene Products footnote four, (5) Ely articulated both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. He used the Warren Court's "Reapportionment Revolution" as the central example of the anti-entrenchment strand of judicial review. But ironically, given his focus on questions of representation and political structure, Ely essentially ignored the jurisprudence of racial vote dilution, whose focus on geographically insular minority groups and majority prejudice provides an equally powerful example of the antidiscrimination strand of judicial review.

In recent years, by contrast, constitutional litigation over legislative apportionment has revolved around a very different set of questions. During the 1990s, in Shaw v. Reno and its progeny, (6) the Supreme Court held that excessive race consciousness in drawing majority-nonwhite legislative districts can run afoul of the Equal Protection Clause. Part II of this essay considers Ely's final work--a trilogy (7) that defended the Court's Shaw jurisprudence, essentially as a wedge for attacking political gerrymandering more broadly. (8) I show how contemporary districting practices reveal an implicit tension within the Elysian approach: While the anti-entrenchment and antidiscrimination rationales may have dovetailed during the years of Democracy and Distrust, today they can operate at cross-purposes. Precisely because the racial vote dilution jurisprudence of the 1970s and 1980s opened up the political process to far more effective participation by previously excluded groups, the protection of minority interests is now often best served not by judicial scrutiny of legislative outcomes but by judicial deference to plans that allocate power to politicians elected from minority communities. Ely's final trilogy oscillates between ignoring and denigrating the role that minority-elected officials play. As Oscar Wilde once observed, "Romance lives by repetition"; as we "can have in life but one great experience at best.... the secret of life is to reproduce that experience as often as possible." (9) In the end, Ely's trilogy may reflect his romance with the Warren Court, which saw discrete and insular racial minorities essentially as the objects of judicial solicitude, rather than as efficacious political actors in their own right.


    In Democracy and Distrust, Ely presented an argument, rooted in footnote four of Carolene Products and exemplified by the Warren Court, for "a participation-oriented, representation-reinforcing approach to judicial review." (10) This approach, Ely claimed, would avoid both the cramped perspective of clause-bound interpretivism and the self-referential value imposition of nontextual theories. It would instead be guided by a recognition that the original structure and subsequent amendment of the Constitution revealed it to be a document concerned with the "process of government," (11) particularly with the allocation of decisionmaking power.

    Carolene Products identified three situations calling for judicial intervention: when the challenged legislation (1) "appears on its face to be within a specific prohibition of the Constitution"; (2) "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation"; or (3) is directed "against discrete and insular minorities" as to whom "prejudice ... may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities." (12) Ely relied on the second and third prongs of Carolene Products to argue that courts should intervene when the political process--his italics--is undeserving of trust or judicial deference because

    (1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system. (13) In short, Ely derived from Carolene Products both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. It is therefore interesting that with respect to judicial review of electoral districts--one of the central determinants of who gets elected, and thus of how governmental power gets exercised--Ely offered an elaborate account of anti-entrenchment-based judicial review, but never really saw the implications of Carolene Products for an antidiscrimination-based rationale for judicial oversight.

    1. The Central Role of One Person, One Vote in Combating Entrenchment

      Nothing provides a better model of anti-entrenchment judicial review than the Warren Court's reapportionment cases. (14) The legislative apportionments the Court confronted were textbook examples of the systematic restriction of the political process. States refused to redraw congressional and state legislative boundaries for decades on end despite huge shifts in population, and their legislatures were backwater relics of past political deals. Across the country, legislatures were instruments of minority control rather than majority rule. (15) It cannot have escaped the Court's attention that much of its workload--particularly in the area of civil rights, where extremist politicians from underpopulated and disenfranchised "Black Belt" regions were at the forefront of massive resistance--was an indirect consequence of malapportionment's hold on state legislatures. (16) Apportionment thus involved questions "(1) that are essential to the democratic process and (2) whose dimensions cannot safely be left to our elected representatives, who have an obvious vested interest in the status quo." (17)

      In defending the Warren Court's solution, which required states to equalize populations among districts--the so-called "one person, one vote" rule--Ely emphasized that administrability was "its long suit, and the more troublesome question is what else it has to recommend it." (18) One person, one vote, he recognized, might initially seem an extraordinarily intrusive judicial intervention into the apportionment process, imposing nationwide a rigid mathematical test plucked out of nowhere in the constitutional text. (19) But any more nuanced rule, he concluded, would ultimately be more intrusive, or at least more subject to judicial value imposition, because it would require "difficult and unseemly inquiries into the power alignments prevalent in the various states whose plans came before it." (20) In short, the great thing about one person, one vote was not just its property of periodically clearing the channels of political change, (21) but its aura of neutrality.

    2. The Overlooked Role of Racial Vote Dilution Doctrine in Combating Discrimination Against Discrete and Insular Minorities

      Both the Warren Court and Ely recognized that one person, one vote--which is really a majoritarian principle dressed in individual rights rhetoric--doesn't necessarily protect minorities against majority oppression. (22) This led Ely, in the final chapter of Democracy and Distrust, to turn to a second basis for judicial intervention...

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