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Alito against "one person, one vote," opposed key 1960 voting rights decision
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by Jess Bravin,
Wall Street Journal
Nov. 21, 2005
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In his 1985 job application for the Reagan Justice Department, Samuel
Alito asserted "disagreement with Warren Court decisions, particularly
in the areas of criminal procedure, the Establishment Clause and
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reapportionment." The first two areas -- where a liberal Supreme Court under Chief Justice Earl Warren imposed rules to deter police misconduct and struck down state-directed prayers -- are familiar targets of conservatives.
But reapportionment is a chapter of Warren Court jurisprudence rarely disputed since the 1960s, when Southern states fought decisions that effectively ended rules that had diluted the voting power of African-Americans. Now legal scholars are puzzling over what Judge Alito, President Bush's choice to succeed retiring Justice Sandra Day O'Connor, meant in disagreeing with cases that enforced the doctrine of "one person, one vote" as the basic structure for American elections.
"A constitutional issue is never settled until the losers acquiesce, and tothis day there's been no acquiescence on Miranda," the 1966 opinion requiring police to warn suspects of their constitutional rights, says Lucas Powe, a University of Texas law professor and author of "The Warren Court and American Politics." Likewise, polls suggest most Americans still disapprove of the 1962 opinion that ended recitation in public schools of a prayer drafted by New York state officials. But the reapportionment cases "became settled by the end of the decade," Mr. Powe says, and criticism of them in 1985 is "absolutely amazing."
The last Supreme Court nominee who publicly expressed opposition to the reapportionment cases was rejected by the Senate. During confirmation hearings in 1987, Robert Bork told Sen. Edward Kennedy that "one man, one vote ... does not come out of anything in the Constitution" -- a direct challenge to the Massachusetts Democrat, whose brother, Attorney General Robert Kennedy, first used the phrase in a 1963Supreme Court argument.
Yesterday, Sen. Joseph Biden (D-Delaware) said that Judge Alito's observation on reapportionment cases markedly increased the odds of a filibuster. "The fact that he questioned abortion and the idea of quotas is one thing. The fact he questioned the idea of the legitimacy of the reapportionment decisions of the Warren Court is even something well beyond that," Mr. Biden told "Fox News Sunday." If Judge Alito truly doubts the "one person, one vote" doctrine, "clearly, you'll find a lot of people, including me, willing to do whatever they can to keep him off the court."
After the essay surfaced last week, Judge Alito distanced himself from it, telling senators he wrote it as a candidate seeking a job, and that it didn't necessarily reflect his judicial philosophy. Assistant Attorney General Rachel Brand, speaking for the Bush administration, emphasizes that Judge Alito's statement didn't specificallydispute the "one person, one vote" doctrine.
Michael Carvin, a Washington lawyer who worked with Judge Alito in the Reagan Justice Department, said the Warren reapportionment rulings were "a good example of the court overriding the democratic process to find a right that you wouldn't find in the Constitution." Judge Alito, he suggests, might view the voting cases as wrong not for their results, but rather because in reaching them Chief Justice Warren and his allies acted as "judicial imperialists."
It is hard to tell, from Judge Alito's 15 years on the federal bench, how he sees the issue as a judge, as few reapportionment cases have come before his Third U.S. Circuit Court of Appeals in Philadelphia. In 1993, he joined a unanimous opinion rejecting a challenge to a plan Pennsylvania Democrats used to retain control of the General Assembly by transplanting a friendly state senator into a new district across the state.Four years later, he joined a 2-1 majority that upheld at-large elections for a Delaware school board, despite claims that the system disadvantaged black voters.
The federal judiciary traditionally steered clear of reapportionment, which Justice Felix Frankfurter in 1946 called the "political thicket." But in 1960 the Supreme Court stunned the Southern establishment, when Justice Frankfurter delivered a unanimous opinion that blocked a plan to redraw the city limits of Tuskegee, Ala., to exclude nearly all black voters. Two years later, in a 7-2 opinion by Justice William Brennan, the court forced Tennessee to redraw legislative boundaries the state had left frozen since 1901, ending rural voters' hold on political power over more numerous city dwellers.
Speaking for many white Southerners, Sen. Richard Russell (D-Georgia) called the ruling, Baker v. Carr, "another major assault on our constitutional system," after the 1954Brown v. Board of Education opinion that ended segregated schools. But Chief Justice Warren considered Baker "the most important case of my tenure on the court," and soon followed it with decisions extending its impact to almost all local, state and federal elections.
How "can one person be given twice or 10 times the voting power of another person ... merely because he lives in a rural area," Justice William O. Douglas wrote in a 1963 opinion. "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the 15th, 17th and 19th Amendments can only mean one thing -- one person, one vote."
Not all criticism came from segregationists. Some argued that population wasn't the only legitimate way to apportion voting strength and, in any event, states should have discretion over their electoral systems. "I continue to think that these adventures of the court in the realm of politicalscience are beyond its constitutional powers," Justice John Marshall Harlan, the Warren Court's leading conservative, wrote in dissent from a 1968 opinion that required a Texas county to equalize districts where one commissioner represented 414 voters and another 67,906.
One reason Judge Alito may have taken an interest in the reapportionment cases was that his father, Samuel Alito Sr., was involved in one.
The elder Mr. Alito served as a nonpartisan research director for the New Jersey Legislature when the state was sued over its congressional reapportionment after the 1970 census. The 15 districts drawn by the Republican-led Legislature were unequal in size, with deviations from the ideal population as high as 31.7%. In 1972, a federal court declared the plan "patently unconstitutional." The senior Mr. Alito's office had supplied information used to draw the lines. Judge Alito, who traced his disagreements with theWarren Court to his college days, was a Princeton University senior when the New Jersey redistricting decision was issued.
It is unknown what he and his father might have discussed about reapportionment, but one judge in the New Jersey case, Clarkson Fisher, had plenty to say. "The 'political thicket' has become for us an impenetrable forest," he wrote in partial dissent, referring to the old Frankfurter phrase, citing the difficulty of making sense of competing plans for electoral districts submitted with various partisan motives.
The Supreme Court has hewed to the one person, one vote principle. In 1989, a unanimous court found the New York City Charter unconstitutional. The charter gave vast powers to a board where the five borough presidents held equal votes, despite representing populations that ranged from 352,000 on Staten Island to 2.3 million in Brooklyn.
"It's entirely possible totake a responsible position against Baker v. Carr," says Nicholas Katzenbach, who was deputy to Attorney General Kennedy when the case came down. Mr. Katzenbach recalls spirited debate between Mr. Kennedy and the solicitor general, Archibald Cox, over whether to press the cause.
"Bobby Kennedy thought one man, one vote was a good idea, and that was probably the only real disagreement they ever had," says Mr. Katzenbach, who succeeded Mr. Kennedy as attorney general under President Lyndon Johnson. "Archie was trying to draw a line so it didn't go all the way to one man, one vote" because "the Constitution itself wasn't set up that way," with a Senate that gives 494,000 Wyomingites power equal to that of 32 million Californians, he says. But "once you opened that door, you couldn't close it."
As originally published
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Commentary by Miranda:
Pay attention: This is how we're going to take this Alito guy down, people.
The 'pro-life' zealots have inexplicable political power, but even the Republicans can't really pull off this level of racist cracker bullsh*t anymore.
The last Supreme Court nominee before Alito to come out in favor of redrawing city boundaries to keep black neighborhoods from voting? Robert Bork.
Also, please note that Alito's dad was involved in the case in question. Which is great, because what America really needs is another privileged white guy whose "daddy issues" set policy for the entire country.
=Miranda=
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Commentary by Helen & Harry Highwater:
If you're in a hurry, here's what this case is about, in a nutshell:
At the dawn of the pre-civil rights era, the city of Tuskegee, Alabama came up with a clever way to completely disenfranchise black voters: They re-drew the city boundaries, to simply exclude black neighborhoods. Want to see the map? It's reproduced, below.
No more city services for black folks. And no more worrying about whether or how blacks might vote. If you're black, you get instant, complete disenfranchisement.
The case went to the Supreme Court, which ruled that such tactics of race-based citizenship are unConstitutional.
The cliché, "One man, one vote," comes from this case, and when the dust settled over subsequent years, even the redneckiest racists quit fighting over this issue. It's been many, many years since this principle has been considered 'controversial'.
But as recently as 1985, Samuel Alito is on the record saying that this case was decided wrong.
"One man, one vote," or as we phrase it after a few more decades of enlightenment, "One person, one vote" -- Alito is against that.
Yanking your citizenship because you're black? Alito has no problem with that.
=Helen & Harry Highwater=
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There's much more than this at Unknown News.
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