On March 26, 1962, Justice Felix Frankfurter read a thunderous dissent from the Supreme Court bench. The case, Baker v. Carr, challenged a Tennessee state system of legislative districts that consciously awarded rural districts greater political power than urban districts of the same population. The Court’s decision was technical—it held only that a lower federal court had the authority to hear the urban voters’ challenge to districting that valued their votes far less than those of rural voters. That lower court had dismissed the case as posing a “political question,” meaning that it was for elected officials, not judges, to resolve.
The Supreme Court majority, however, held that the case arose under the Fourteenth Amendment’s Equal Protection Clause—and that it thus posed the same kind of legal, not political, question as a challenge to any other unequal state policy. Federal courts could and did decide such cases all the time, and this one should be no exception.
Frankfurter was livid. To him, drawing legislative districts was a consummately political act in which courts had no role to play. In a case 16 years earlier, he had written for a majority that the court “ought not to enter the political thicket.” Now that the majority had done so, he wrote, “the Court enters a process of litigation that it requires no prophet to say . . . will outlast the life of the youngest member of this Court.”
That dissent was the last of Frankfurter’s star turns on the bench. A month later, he suffered a stroke in his chambers, and left the Court soon afterwards. Half a century later—and nearly two decades after the death of William J. Brennan, the author of the majority opinion in Baker v. Carr—the Supreme Court soldiers on through cases involving equal protection, legislative redistricting, general principles of equality, race, and partisanship.
That’s probably not a vindication of Frankfurter; it reflects the fact that these issues need judicial resolution, and that the political system isn’t good at regulating itself. Over the years since Baker v. Carr, the Supreme Court has evolved a role as supreme arbiter of the law of politics. Whatever one thinks of how it has handled that in specific cases, it is now a feature of our system—recognized in statutes as well as caselaw—and it isn’t about to change.
On Monday, the Court will hear two cases that exemplify the confusions and dangers of the political thicket. Both arise out of upper-South states that are hotly contested between the parties every election year—but that since the 2010 census and the required new round of district-drawing have been largely under the control of Republican legislatures. Both involve (as everyone admits) the deliberate use of political aims—in this case, protecting the Republican party’s legislative gains. Both sides admit as well as the deliberate use of racial considerations—ensuring that the new district maps do not violate Section 2 of the Voting Rights Act, which forbids changes in voting or election procedures that reduce the opportunity of minority voters to elect the candidates their preference. (Thus, any new districting plan has to take account of the racial makeup of the population, to avoid vote dilution or regression.)
In Bethune-Hill v. Virginia State Board of Elections, the Virginia General Assembly produced a map of state House districts that preserved the state’s 12 “majority minority” districts—but did so by insisting that each of those districts had to have 55 percent or more African American voters. The problem there is that, under the Court’s Equal Protection cases, race cannot be the “predominant factor” in drawing a district—that amounts to outright racial discrimination.
In an earlier case, Alabama Legislative Black Caucus v. Alabama, the Court held that use of fixed racial percentages as requirements in new plans is strong evidence that race was the “predominant factor.” However, the three-judge court hearing the Virginia challenge decided that the districts were okay. The court agreed that the numerical quotas were evidence of “predominance.” It made new law, however, by adding a second hurdle plaintiffs had to jump. Voters challenging the plan had to show, in effect, that the state’s districts looked as if they had been drawn for improper motives—that is, that the state could not have drawn districts that look like these unless its motive was racial. If racial motivation produced an “traditional” looking district, it could not be “predominant,” the court reasoned.
Bethune-Hill is a challenge to that new test. A group of Virginia voters argues that, where legislators admit using a racial quota, the fact that the resulting districts look normal doesn’t negate “predominance.” The new test, they argue, could make racial gerrymanders easier to disguise and harder to challenge.
By contrast, McCrory v. Harris is a challenge to U.S. House districts drawn by the Republican legislature in North Carolina. It raises a familiar question: in the South, where most Democrats are black, can the legislature use blackness as a proxy for politics? The plaintiffs, voters in North Carolina’s First and Twelfth Districts, allege that the legislature consciously “packed” black voters into those two majority-minority districts. The legislature admits a partisan, not a racial, motive—it was trying to create Republican districts elsewhere, it seems. A different three-judge court struck down the two districts as “textbook examples of racial gerrymandering.” In the North Carolina case, there’s no real claim that the districts look like “traditional” districts.
This Court is split between a three-justice block (Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito) who distrust or (in Roberts’ case) openly despise the Voting Rights Act. These three Justices might be comfortable with the principle stated by the three-judge court in the Virginia case—that racial quotas are okay if the legislature makes does it in a way that looks normal.
The four moderate liberals support the Act and favor a careful application of its terms to district plans that seem to hide race behind politics. They are likely to vote against the Virginia plan.
Justice Anthony Kennedy is harder to read. He is not as comfortable as some on the Court with giving a wink and a nod to political gerrymandering. In a 2004 case, Vieth v. Jubelirer, the Court majority refused to decide a claim of political bias in districts. But Kennedy wrote separately to say that there may be partisan gerrymanders blatant enough to justify court intervention. Referring to Baker v. Carr, he wrote, “Our willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims makes it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering.”
Justice Frankfurter’s prophecy of lifetimes of litigation has certainly been borne out. But that’s hardly the catastrophe Frankfurter envisioned. Litigation under most parts of the Constitution and federal law is ongoing. Whatever is decided this spring, the Court will march onward through the thicket, because somebody has to.