Civil Rights, History of the Court

Martin Luther King, Jr. and the Law

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[Reposted from the IIT Chicago-Kent Faculty Blog]

Among the most important of Martin Luther King, Jr.’s contributions to American history were his commentaries on the relationship between the law and social justice.

King’s views toward the law can be divided into two categories: law as obstacle and law as opportunity.

Law as an Obstacle to Racial Justice

Much of the civil rights movement was a struggle against law: against racially discriminatory laws or racially neutral laws that segregationists used to attack civil rights activism.

Southern police arrested civil rights protesters—including, on multiple occasions, King—for violating practically every criminal code provision: disturbing the peace, marching without a permit, violating picketing or boycott laws, trespassing, engaging in criminal libel and conspiracy. The NAACP was prosecuted in Alabama and elsewhere for refusing to disclose its membership rolls as required by state law. Several southern states went after civil rights attorneys for legal ethics violations. Montgomery used minor traffic ordinance violations as a way to undermine the carpools used during the Montgomery Bus Boycotts. Alabama prosecuted King on charges of tax evasion.

King often struggled to explain why he believed civil rights activists were justified in breaking certain laws—even some laws that on their face said nothing about race—while also condemning segregationists for their defiance of Brown and other federal civil rights requirements. He famously tackled this question in his 1963 Letter from Birmingham Jail, where he differentiated just and unjust laws. “A just law,” he wrote, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.” Since segregation laws fall squarely in the later category, “I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.”

A more challenging situation, King continued, involves a law that “is just on its face and unjust in its application.” It was this kind of law that landed King in his Birmingham jail cell, since he had been arrested for parading without a permit. “Now, there is nothing wrong with an ordinance which requires a permit for a parade,” he explained, “but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”

In this particular case, King might have won in the court of public opinion and certainly in the court of history, but he lost in the highest court of the land. When the Supreme Court finally decided to hear an appeal of the conviction of civil rights protesters for violating a state court injunction ordering them to refrain from demonstrating, the Court ruled 5-4 against the civil rights protesters. King and his cause generally fared well before the Supreme Court, but this case was one of a handful of exceptions. Justice Stewart, writing for the Court, reprimanded the protesters in Walker v. Birmingham:

This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.

For King, unjust laws—and the courts that enforced them—were obstacles in the cause of racial justice.

Law as an Opportunity for Advancing Racial Justice

And then there were the laws that King and other civil rights activists wanted: school desegregation orders; non-discrimination requirements for restaurants, hotels, and private employers; voting rights protections. King’s attitude toward these kinds of civil rights laws is also quite interesting.

King understood court decisions and legal reform as a central component of broader political and social struggle. Although he certainly saw the importance of courtroom decisions and legislation, when he talked about the power of law, he tended to focus on the difficult work required to give life to basic legal principles. Judicial and legislative breakthroughs were not just moments for celebration. They were calls to action.

King’s sometimes tense relationship with civil rights lawyers helped shape his attitude toward the law. From the start of his civil rights career, King recognized his debt to the civil rights lawyers. In December 1955, on the eve of the Montgomery bus boycott that first brought him to the nation’s attention, he gave a passionate speech in which he framed boycotters’ cause as building on the long work of civil rights lawyers, particularly the dramatic NAACP victory in Brown the year before. “If we are wrong,” he declared, “the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.” Furthermore, civil rights lawyers played a critical role in the eventual triumph of the boycott. The boycott was teetering on the brink of failure, faced with a potentially crippling legal challenge to the carpool system on which the boycotters relied, when news arrived that the Supreme Court had struck down the segregated bus system as unconstitutional.

Yet King also sought to distance himself from the NAACP and its litigation-based tactics. There was an element of inter-organizational rivalry at play here—King’s SCLC competed with the NAACP for attention and funds. There was also an element of a generational divide at play, as King became more closely aligned with the younger element of the movement that was committed to direct-action protest and lashed out against the legalistic tactics favored by the older civil rights activists.

The work of lawyers was important, King stressed, but it must not dominate the energy of the movement. Direct-action protest was both an extension of, and an alternative to, the NAACP’s project of school desegregation litigation, which by the late 1950s had largely stalled in the face of obstructionist legal maneuverings. A new wave of civil rights protest emerged, sparked by the student lunch counter protests of 1960 and motivated in large part by frustration with the slowness of legal reform. To understand what drove African Americans to take to the streets to demand their rights, King explained, “[o]ne must understand the pendulum swing between the elation that arose when the [school desegregation] edict was handed down and the despair that followed the failure to bring it to life.” He critiqued what he saw as an overly idealistic vision of the law that the NAACP lawyers relied upon in making their case for Brown. “When the United States Supreme Court handed down its historic desegregation decision in 1954, many of us, perhaps naively, thought that great and sweeping school integration would ensue.”

Injustice might find expression in unjust laws, but King emphasized that the roots of injustice are deeper. For King, the law by itself was limited in its ability to affect hearts and minds; to truly uproot entrenched patterns of inequality, one must acknowledge the limits of legal reform. African Americans “must not get involved in legalism [and] needless fights in lower courts,” King warned, for that was “exactly what the white man wants the Negro to do. Then he can draw out the fight.” This was the harsh lesson of Brown and massive resistance. “Our job now is implementation. . . . We must move on to mass action . . . in every community in the South, keeping in mind that civil disobedience to local laws is civil obedience to national laws.”

One of King’s contributions to the struggle for racial equality was his passionate skepticism toward the efficacy of legal change when it was unaccompanied by organized social action.

Weekly Roundup

Weekly Roundup – January 16, 2015

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

Despite the Court’s silence on same-sex marriage on Monday, pressure from both sides in the debate and a circuit split means that the Court will most likely have to address the issue sooner or later.

The Supreme Court justices shouldn’t attend the State of the Union address, argues Jeff Jacoby of the Boston Globe.

The Court decided Whitfield v. U.S. on Tuesday, upholding a bank robbery law from the John Dillinger era that imposes long prison terms for hostage-taking—even if that means moving someone only a few feet in one room.

The Whitfield v. U.S. decision was also notable for being the first Supreme Court opinion to cite Pride and Prejudice.

Can a sock be considered drug paraphernalia? In Mellouli v. Holder, argued on Wednesday, the Court considered the question.

In Wednesday’s other case, Wellness International Network v. Sharif, the Court weighed the powers of federal bankruptcy judges.

In March, the Supreme Court will hear arguments in a lawsuit that challenges a key provision of the Affordable Care Act, which provides tax credits to consumers purchasing insurance through federal exchanges. Now, states’ attempts to protect these credits for consumers are running up against political and practical obstacles.

Are all signs created equal under the First Amendment? A case coming before the Court will consider the government’s ability to prioritize certain signs over others.

OT 2014, Predicting the Winners

Predicting the Winners in Mellouli v. Holder and Wellness Int’l Network v. Sharif

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The Supreme Court heard oral argument in two cases on Wednesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method and all of my predictions this Term, click here.  I found both of today’s cases difficult to predict.

Mellouli v. Holder asks whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

This is a difficult case to predict. As Figure 1 shows, the total question count favors the Respondent (Solicitor General), who received 5 fewer questions (a modest question differential). But, in this case, I’m predicting a victory for the Petitioner (Mellouli) based on the greater number of Justices with a higher question differential favoring the Petitioner.

Figure 1.

Slide1

Two Justices appear to be clearly leaning toward opposite sides. Justice Alito asked the Petitioner 15 more questions, which suggests a strong leaning to the Respondent.   On the other hand, Justice Sotomayor asked 11 more questions to the Respondent, which suggests a strong leaning to the Petitioner.

One reason I am going against the total question count is that Justices Alito and Sotomayor asked 17  questions to  the Petitioner and the Respondent, respectively.  Alito’s 17 questions represents 35% of the questions asked to the Petitioner and he only asked 2 questions to the Respondent (whereas Sotomayor asked 6 questions to the Petitioner).  Thus, Justice Alito was effectively responsible for the difference in the total number of questions between the parties–which makes me less confident in making a prediction based on just the total question count.

I have a little more confidence in basing my prediction on the higher question count differentials  by Justice, which favor the Petitioner.  Justices Kennedy and Thomas asked no questions. The other Justices had question differentials that were more modest.

Justices Scalia (+2), Ginsburg (+6), and Breyer (+1) asked more questions to the Petitioner, but the differential was very small for Scalia and Breyer. By contrast, Chief Justice Roberts (+4) and Kagan (+4) asked the Respondent more questions. I have more confidence in basing my prediction on the 4-question differential of Roberts and Kagan, who, combined with Justice Sotomayor, would give 3 Justices leaning toward the Petitioner. On the other side, Justice Alito appears to be solidly leaning to the Respondent, but I am not sure Justice Ginsburg is leaning the same way that her 6-question differential suggests.  Even if she is, that’s 2 Justices versus the 3 Justices who may be leaning the other way.  Of course, 3 Justices does not equal a majority, but I like the trend it suggests.  In sum, I’m predicting a win for the Petitioner (Mellouli).

The second case, Wellness International Network, Limited v. Sharif, asks (1) whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not “stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action; and (2) whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.

This is another difficult case to predict, in part because the Solicitor General’s participation as amicus curiae supporting the Petitioner presents an asymmetrical situation with 2 lawyers arguing on one side and 1 lawyer arguing on the other side in the same amount of time. Given the asymmetry, I don’t like simply comparing the number of questions to the Petitioner versus the Respondent. Moreover, simply adding the questions to the Solicitor General to the side that it supported does not seem entirely satisfactory either, given that the Court may want the SG’s view on some of the same questions it asked the side the SG is supporting (thus inflating the question count somewhat for that side).

Another confounding factor in this case is that the most of Justices asked the parties close to the same number of questions if you look at the question count per Justice.  I was more confident in predicting yesterday’s Kellogg Brown case (another asymmetrical case) based on the larger question differentials of some of the Justices and the fact that the Justices asked the Petitioner there fewer questions in 30 minutes than it asked the Respondent in just 20 minutes.

I wish I had a better handle on this case, but the numbers don’t seem to lean that much one way or the other.  I plan on studying more these asymmetrical cases and the results.  This case is a toss-up to me based on the question counts (both total and by individual Justice), but I’ll go with the Petitioner (Wellness International).

Figure 2.

Slide2

OT 2014, Predicting the Winners

Predicting the Winners in Mach Mining v. EEOC and Kellogg Brown & Root v. Carter

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The Supreme Court heard oral argument in two cases on Tuesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method and all of my predictions this Term, click here.

Mach Mining v. Equal Employment Opportunity Commission asks whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.

The Court was very active in the first case.  It had the highest number of questions this Term, if my memory serves me correct. The Court asked both sides an unusually high number of questions: 65 to the Petitioner and 71 to the Respondent for a total of 136 questions!  (That’s 36 more questions than they asked in the second case.)

I predict a win for the Petitioner (Mach Mining) based on the overall lower question count. The Justices asked the Petitioner 6 fewer questions as shown in Figure 1.

Figure 1.

Slide1

 

But this is a very close call—with probably a split among Justices along ideological lines. Four liberal Justices asked the Petitioner more questions, which suggests they are leaning to the EEOC’s position: Justices Ginsburg (+13), Breyer (+3), Sotomayor (+2), and Kagan (+3). Justice Kennedy also asked the Petitioner more questions (+2), which also suggests he may join the liberal Justices on the side of the EEOC—running counter to my prediction. However, the differential in questions is small and he’s been less predictable from the question counts. Two conservative Justices asked the Respondent more questions: Chief Justice Roberts (+24) and Justice Scalia (+5). Justices Alito and Thomas asked no questions.

It’s a close call, but I’ll stick with the side with the lower total question count: the Petitioner (Mach Mining), who argued for the reversal of the Seventh Circuit’s decision rejecting review of the EEOC’s conciliation efforts as a part of a defendant’s affirmative defense in a discrimination lawsuit.

The second case, Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, asks (1) whether the Wartime Suspension of Limitations Act – a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose – applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling; and (2) whether, contrary to the conclusion of numerous courts, the False Claims Act’s so-called “first-to-file” bar, 31 U.S.C. § 3730(b)(5) – which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims – functions as a “one case- at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing.

As the twin questions presented suggest, the legal issues surrounding this qui tam litigation under the False Claims Act, plus the possible tolling of the statute of limitations provided by the Wartime Suspension Limitations Act, are pretty arcane.

Despite the complexity of the legal issues, I predict a victory for the Petitioner (Kellogg Brown). As shown in Figure 2, the Court asked the Respondent 11 more questions in 20 minutes than it asked the Petitioner in 30 minutes. When considering the Court’s questions to the Solicitor General, who supported the Respondent’s position, the Court asked 28 more questions to the Respondent’s side.   The question disparity suggests a win for the Petitioner and a reversal of the Fourth Circuit’s decision.

Slide2

OT 2014, Predicting the Winners

Predicting the Winners in Reed v. Gilbert and Oneok v. Learjet

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The Supreme Court heard oral argument in two cases on Monday, the first cases for 2015. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method, see my post on last Term’s Aereo case. For all of my predictions this Term, click here.

Reed v. Town of Gilbert, AZ asks whether the Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

This case was somewhat difficult to call, but I predict a victory for the Petitioners (Reed) in their First Amendment challenge to the Town of Gilbert’s differential treatment of religious signs (compared to political or ideological signs). As indicated in Figure 1, the Justices asked the Petitioners 5 fewer questions than the Respondents. The difference in the numbers of questions is not large, but suggests a win for the Petitioners.

Figure 1.

Slide1

Moreover, looking at the question counts by Justice shows 3 Justices who had large disparities in questions, asking far more questions to the Respondents: Justices Scalia (+11), Ginsburg (+8), and Kagan (+6). By contrast, only 2 Justices asked far more questions to the Petitioners: Chief Justice Roberts (+5) and Justices Kennedy (+9). Justices Breyer, Alito, and Sotomayor did ask 2 more questions to the Petitioners—which cuts somewhat against my prediction—but the difference in questions is so small that I would place less stock in it.

It is also possible that the Court could agree with the Solicitor General’s position and reach the same result as sought by the Petitioners. The Petitioners argued the proper test was a form of strict scrutiny in which the motives of the enactors of the sign code does not matter. The Solicitor General sided with neither party, but argued that the Town’s sign code violated the First Amendment under intermediate scrutiny.

The second case, Oneok, Inc. v. Learjet, Inc., asks whether the Natural Gas Act, which occupies the field as to matters within its scope, preempts state-law claims challenging industry practices that directly affect the wholesale natural gas market when those claims are asserted by litigants who purchased gas in retail transactions.

This case was easier to predict. Each side had 2 advocates (i.e., an amicus curiae on its side). I predict a victory for the Respondents (Learjet, Inc.), which argued for affirming the Ninth Circuit’s decision holding that the state law claims were not preempted. As indicated in Figure 2, the Court asked the Petitioners 6 more questions. Moreover, when the questions to the amicus curiae for each party is included, the Court asked 18 more questions to the Petitioners’ side (47 to 29 questions).

Figure 2.

Slide2

The question count by Justice makes me a little less confident in my prediction, however. Some of the Justices (Thomas and Alito) didn’t ask any questions. Two Justices asked far more questions to the Petitioners’ side: Justices Ginsburg (+6) and Kagan (+15). One Justice asked far more questions to the Respondents’ side: Justice Scalia (+4). Three Justices asked only 1 more question to a side: Chief Justice Roberts and Justice Sotomayor (both +1 to the Respondents’ side) and Justice Kennedy (+1 to the Petitioners’ side). Justice Breyer asked 2 more questions to the Petitioners’ side. These numbers paint a closer call than the overall question count would predict, but the question counts by individual Justice still favor the Respondents.

Weekly Roundup

Weekly Roundup – January 9, 2015

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

Will an upcoming Supreme Court case lead to massive disruptions for Obamacare?

Persuasive authority? A 1996 law review article on the First Amendment by then-law professor Elena Kagan gets star billing in four of the briefs in the upcoming Supreme Court case, Reed v. Town of Gilbert.

Can the government legally access cell phone tower data in order to determine an individual’s location? A circuit split may mean that the issue is headed to the High Court soon.

The controversial laws regulating Texas abortion clinics came before the 5th Circuit Court of Appeals on Wednesday. If the 5th Circuit upholds the Texas laws, the case will most likely be appealed to the Supreme Court.

ISCOTUS director Chris Schmidt reviews Chief Justice Roberts’ year-end report on the federal judiciary, in which the Chief Justice advocated for a slow, measured approach to questions of technology at the Supreme Court.

Even if it passes, a new House bill that would overturn the ban on cameras in federal courts is unlikely to bring cameras to the Supreme Court.

Today, the Justices hold a private conference to determine whether or not they will rejoin the national debate on same-sex marriage.

History of the Court, OT 2014

Chief Justice Roberts Discusses Technology at the Supreme Court

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The Chief Justice began his year-end report on the federal judiciary with a colorful historical excursion:

On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics! The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another. Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.”

But “[n]ews of this dawning era was slow to reach the Supreme Court,” Chief Justice Roberts noted. It was not until the new Supreme Court building opened in 1935 that a pneumatic document delivery system came to the Court, where it remained in operation until 1971.

Chief Justice Roberts finds two lessons in this history. First, exciting new technology becomes old and unexciting and then obsolescent. Second, the Court has always been slow to adopt new technology. When it comes to technology, the justices prefer the old and unexciting. “Courts are simply different in important respects when it comes to adopting technology, including information technology,” the Chief explains. As “neutral arbiters of concrete disputes” the courts should only take on new technologies that “advance their primary goal of fairly and efficiently adjudicating cases through the application of law.”

The Supreme Court still works primarily in paper, although Roberts informs us that this will soon be changing, as the Court is hoping to have its own electronic filing system up and running in 2016. “Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website.” The reasons for the slow implementation? Ensuring access is one (“[T]he courts must remain open for those who do not have access to personal computers and need to file in paper, rather than electronic, form.”). Security is another; the decentralized nature of the federal judiciary yet another.

The Chief wrapped up his report on a predictable note, with a celebration of tradition:

Federal judges are stewards of a judicial system that has served the Nation effectively for more than two centuries. Like other centuries-old institutions, courts may have practices that seem archaic and inefficient—and some are. But others rest on traditions that embody intangible wisdom. Judges and court executives are understandably circumspect in introducing change to a court system that works well until they are satisfied that they are introducing change for the good.

As technology proceeds apace, we cannot be sure what changes are in store, for the courts or society generally. Innovations will come and go, but the judiciary will continue to make steady progress in employing new technology to provide litigants with fair and efficient access to the courts.

And a touch of the poetic:

The sculptures that adorn the Supreme Court provide a reminder of that resolve, a resolve that has outlived the Court’s long-gone pneumatic tube system. The often overlooked east pediment, installed on the rear portion of the building, features images of historic lawgivers and other symbolic figures. It is flanked by imagery drawn from a well-known fable: A hare on one side sprints in full extension for the finish line, while a tortoise on the other slowly plods along. Perhaps to remind us of which animal won that famous race, Cass Gilbert placed at the bases of the Court’s exterior lampposts sturdy bronze tortoises, symbolizing the judiciary’s commitment to constant but deliberate progress in the cause of justice.

Roberts clearly wrote all this with more than electronic filing on his mind. Most media coverage of the Chief’s year-end report raised the obvious issue that Roberts so carefully avoided mentioning: cameras in the Supreme Court. Chuck Grassley, incoming chair of the Senate Judiciary Committee, responded to the report with a call for allowing cameras at oral argument. Grassley even claimed the mantle of the founding generation: “[T]he courts have yet to embrace the one technology that the founders would likely have advocated for—cameras in the courtroom. The founders intended for trials to be held in front of all people who wished to attend.” “The First Amendment supports the notion that court proceedings be open to the public and, by extension, the news media and broadcast coverage, the same way CSPAN opened Congress to the public,” Grassley wrote. “With the high profile cases coming before the courts, it’s even more important to add greater accountability and public scrutiny to the federal judiciary, a system that includes judges with lifetime tenure.”

Perhaps the Chief’s report can be read as a shift from the categorical “no” response that has long been the justices’ official position on cameras in the Court to something like: “We’ll get there, but not quite yet.”

OT 2014

The Forgotten Backlash Against the Warren Court

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The Warren Court was good at making enemies.

We know about the segregationist backlash against Brown v. Board of Education. The Court’s school prayer decisions met with denunciations and widespread defiance. Familiar too is the conservative attack on the Warren Court’s criminal justice decisions. In 1968 presidential candidates Richard Nixon and George Wallace ran “law and order” campaigns in which they condemned the Supreme Court for being soft on criminals; the same year Congress passed a crime bill intended to overturn Miranda.

But by some measures the most impressive backlash against the Warren Court was one that is far less familiar: the effort to reverse the Supreme Court’s 1964 reapportionment decisions. This backlash campaign came remarkably close to securing the support of enough state legislatures to trigger a constitutional convention that would be charged with amending the Constitution to overturn the most far-reaching of the Court’s reapportionment rulings.

The fascinating story of the reapportionment decisions, including the backlash campaign against them, can be found in J. Douglas Smith’s compelling new book, On Democracy’s Doorstep: The Inside Story of How the Supreme Court Brought ‘One Person, One Vote’ to the United States.

Before 1964, state legislatures had largely free rein when it came to redistricting. Court-based challenges to malapportioned voting districts went exactly nowhere. “Courts ought not to enter this political thicket,” warned Justice Frankfurter in Colegrove v. Green (1946). Around the nation, states refused to revise district lines in response to demographic changes, resulting in voters in growing urban populations holding much less voting power than rural voters. The rural interests that historically controlled state legislatures had little interest in remedying a situation that served them well. The problem festered, year after year, decade after decade.

Then the Warren Court stepped in. The justices first jettisoned Court precedent that had held reapportionment questions beyond the reach of the federal courts. This was the Baker v. Carr (1962) decision, holding that individual voters could raise a challenge to malapportionment under the Fourteenth Amendment.  Two years later, the justices forged a novel legal standard—“one person, one vote”—under which anything short of a near parity of populations between voting districts was deemed to violate the equal protection clause of the Fourteenth Amendment. In astoundingly short order, the Court overturned the voting arrangements of practically every state in the union.

At the time, the reapportionment decisions were widely seen to be as significant and as controversial as any of the Warren Court’s constitutional bombshells. Chief Justice Earl Warren himself identified them as the most important decisions of his tenure, ranking ahead of even Brown. The reapportionment decisions drew scathing criticism from prominent voices in the legal academy and they sparked a nationwide opposition movement.

One of the most striking facts about the reapportionment backlash was that the leader of the campaign to overturn the reapportionment decisions was none other than Everett Dirksen of Illinois, the Republican U.S Senator who played a central role in steering to passage the Civil Rights Act of 1964. Dirksen allied himself with what the Wall Street Journal described as “an almost implausible coalition of Republican, Southern Democrats and a sprinkling of liberal Democrats from the hinterlands of states as California, Pennsylvania, and Ohio.” The movement gained influential support from business interests, who feared the gains labor would make if urban areas had more voting power.

Initial effort to directly challenge the Court’s authority to deal with reapportionment failed—in no small part because the Court’s decisions proved overwhelmingly popular in public opinion polls and because they had the support of big-city mayors. Opponents responded with a more targeted attack. They focused their energies on the Court’s opinion in Lucas v. Colorado, which held that, regardless of the wishes of the residents of a state, both houses of state bicameral legislatures had to equalize voting districts. States were thus denied the option of following the federal congressional model of having one house based on criteria other than population. Lucas v. Colorado was particularly strong medicine because it struck down a districting arrangement that had been approved just two years earlier in a state-wide referendum.

Opponents proposed a constitutional amendment that would allow states to apportion one house of bicameral legislatures “on factors other than population,” as long as the plan was approved by a popular referendum. They pursued a two-pronged strategy, one in Congress and one in state legislatures. They assumed that if enough states supported a call for a constitutional convention, Congress would be forced to act. This was how the 17th Amendment, which provided for direct election of U.S. senators, came to be in 1913: when the states neared the two-thirds required to call a constitutional convention, Congress took the initiative and passed the Amendment, preempting the uncertain and unprecedented possibility of a convention.

In the end, Dirksen and other reapportionment opponents came up short on both Article V amendment fronts. Congress never passed the proposed amendment, and the required two-thirds (thirty-four) of the states never approved a call for a constitutional convention. But they came close. By 1967, thirty two states had adopted a resolution calling for a constitutional convention, and in two additional states (Alaska and Iowa) the lower house of the legislature had approved the resolution and all that remained was a state senate vote. This was as close as the anti-reapportionment amendment movement got to its goal, however.

Various factors worked against the anti-reapportionment crowd. The most significant of these was the fact that many states were falling into line with the one-person, one-vote requirement. Once they did so, those in power, the victors under the new arrangements, had no interest in going back to the old system. Furthermore, it was quickly becoming apparent that reapportionment had unexpected beneficiaries. Advocates of reapportionment had believed that the resulting shift of power to the cities would benefit liberal Democrats. Yet the voters who ultimately gained the most from reapportionment resided in the growing suburbs, where Republicans were gaining strength. This development further undermined the already fragile backlash coalition. Civil rights also worked against reapportionment opponents. In the wake of the Civil Rights Act of 1964 and Voting Rights Act of 1965, defenders of reapportionment argued that turning back on reapportionment would undermine hard-won civil rights achievements. This argument contributed to the defeat of the anti-reapportionment campaign.

Thus, one of the most formidable of backlash movements against a Supreme Court decision was not only defeated, but in short order it was largely forgotten. A new status quo became entrenched, and power shifted from rural to urban America. State legislatures that had previously ignored demographic shifts now took advantage of every new census to gerrymander their voting districts in ways that best served their party’s interests. Although the new system brought with it a new collection of problems, no one is looking for solutions in this brief, passionate, and now pretty much forgotten effort to change the Constitution.

Weekly Roundup

Weekly Roundup – December 19, 2014

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

In response to the recent CIA torture report, Justice Scalia argued against a blanket ban on torture and declared that nothing in the Constitution prohibits torture.

Later this term, the Supreme Court will revisit the issue of life-without-parole sentences for juveniles.

By refusing to review a 9th Circuit decision, the Supreme Court left in place an injunction blocking enforcement of an Arizona law that limits use of a popular abortion drug.

By refusing to review another 9th Circuit decision, the Court rejected Arizona’s refusal to issue driver’s licenses to eligible undocumented immigrants.

The Court may have to settle a dispute between the Great Plains states, as Oklahoma and Nebraska sue Colorado over legalizing marijuana.

In Heien v. North Carolina, the Court held that the police did not violate a suspect’s Fourth Amendment rights when they searched his car subsequent to a stop that was based on their mistaken understanding of the law. What are the implications for our Fourth Amendment protections?

Will this be the Term for same-sex marriage? Robert Barnes of the Washington Post explores the issue.

History of the Court

Robert Kennedy’s Day at the Supreme Court

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We used to have a tradition that each U.S. Attorney General would argue at least one case before the Supreme Court. Although he never argued a case in any court, Robert Kennedy was intent on following this tradition. (After appointing his brother as Attorney General, President Kennedy joked: “I can’t see that it’s wrong to give him a little legal experience before he goes out to practice law.”) To break tradition, Kennedy felt, would give more fuel to those who still questioned his qualifications. A solid performance at the Supreme Court might even quiet some of this criticism.

On January 17, 1963, Attorney General Kennedy made his sole appearance before the Court. He argued on behalf of the government in Gray v. Sanders, a constitutional challenge to Georgia’s county-based primary voting system, which strongly advantaged rural candidates over urban ones. The case was one of the Warren Court’s reapportionment line of decisions, a stepping stone between the more famous Baker v. Carr decision of the previous term (recognizing federal court jurisdiction in reapportionment challenges) and the Reynolds v. Sims decision (establishing the one person, one vote standard) that would come the next term. The Kennedy Administration had come out in support of judicial intervention to remedy the extreme imbalances of voting districts in states where legislatures refused to redraw voting district lines in response to demographic changes, resulting in the dilution of the voting power of citizens in growing urban areas. (For an excellent account of the reapportionment cases, see J. Douglas Smith’s new book, On Democracy’s Doorstep: The Inside Story of How the Supreme Court Brought ‘One Person, One Vote’ to the United States.)

On the day of oral argument, the Kennedy clan showed up in force at the Supreme Court. The Attorney General’s wife, Ethel, was there, along with his younger brother, Edward Kennedy, who had recently been sworn in as a U.S. Senator. Also there was the Attorney General’s sister in law, First Lady Jackie Kennedy. “Kennedys Outnumber the Justices” read one headline the following day.

When he rose to speak, Kennedy looked “like a nervous and uncomfortable young bridegroom,” reported the Washington Post. The justices respectfully listened to the Attorney General, allowing him to speak uninterrupted for some ten minutes as he read from a script prepared by Solicitor General Archibald Cox. Once he got going, his initial nervousness dissipated and he gave a generally solid presentation of his argument.

Kennedy’s presentation used one personalized reference (at 105:07) which got a laugh from the audience: “We used to have, and I repeat used to have, a saying in my City of Boston which was vote early, and vote often. If you live in one of the small counties in the State of Georgia, all you have to do is vote early and you accomplish the same result.”

When pulled from his script with some gentle questioning, Kennedy made his Solicitor General sitting in the gallery squirm a bit when he expressed support for a revised legal standard that went beyond his prepared talking points. Cox advocated a position under which some but not necessarily all inequality in voting districts would be held unconstitutional. Kennedy seemed willing to go further (at 109:58 – 110:45) supporting the “one man, one vote” standard under which any population inequality would be deemed unconstitutional.

In concluding his presentation to the Court, apparently returning to his prepared text, Kennedy gave eloquent voice to the basic principle at issue:

[T]he great miracle of the Constitution is that we’ve been able to deal with the problems of the 20th Century as well as the problems of the 18th Century. These are the great problems that are facing the United States at the present time. And this kind of invidious practice that exists now and has existed before and the Georgia County Unit System is a—strikes at the very heart of the United States. If we can give equal protection to those who feel that they’ve been deprived of their economic rights, certainly we can give equal protection to those who have been deprived of the most basic right of all, which is the right to vote. If we cannot protect them, then the whole fabric of American the system, then our way of life is irreparably damaged.

(Audio here, at 126:17 – 126:59)

In the end, Justice Douglas, writing for an eight-justice majority, basically accepted the Attorney General’s position:

Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment…. The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.

The approximately 25 minute clip of Kennedy’s oral argument can be found here (at 99:35 – 127:00).