Robert Kennedy’s Day at the Supreme Court

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).

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