Alexis DeTocqueville’s magnus opus in the late 1830s, “Democracy in America,” famously remarked that all political questions somehow find their way into the American judicial legal system.
He considered that unique characteristic quite remarkable, and his chapters on our judicial review phenomenon (Marbury v. Madison) pinpointed that aspect of our tripartite branches experiment in governance, contrasted to European systems. Yet, throughout our judicial history, a counter-theme also emerged that disfavored political questions being allowed into the courts.
Special attention is being given to Baker v. Carr as that seminal “One Person-One Vote” case approaches its 50th anniversary. The case has been viewed for decades as the watershed precedent authorizing the judicial branch to put its “two cents” stamp of approval—or disapproval by a reversal in Baker —on geographical configurations shaped by elected officials’ gerrymandering.
Picasso and Kandinsky would be impressed by the imaginative line drawings, and DeTocqueville would smile knowingly that courts ultimately get to pass on them (See e.g., M/O Wolpoff v. Cuomo, NY2d ).
Consider that in the early ’60s when Baker was decided, the country was undergoing the geopolitical shift from rural to urban predominance in electoral power. Justice William Brennan, the author of the majority opinion, considered the case the most important of his U.S. Supreme Court career, spanning from 1956 to 1990.
The other side of the Baker phenomenon, however, must not be overlooked. As long as some are looking back at the majority holding with nostalgic fondness, the dissenting “voice crying in the wilderness” by Justice Felix Frankfurter is entitled to equal time. FDR’s great academic “liberal” appointee of the ’30s wrote the main minority opinion in the ’60s, with exasperation that bemoaned the Supreme Court’s entry into the “quagmire” of “political questions.”
That avoidance mechanism was, however, a somewhat discretionary rule that depended on loosely shaped classifications and nomenclature. Even now, five decades later, the abstention technique is occasionally employed to duck some pesky issues, like a war powers challenge to unilaterally exercised executive branch authority, leaving that field of battle instead for the other two political branches to work it out (See, U.S. Constitution, Article I, §6, subd. (11)).
Not so, however, in one practical result, where the greater number of new voters for whom the right was being extended during this progressive period were given proportionate and new weight in their migrated urban settings, contrasted with the earlier electoral configuration, favoring rural power and longstanding seniority power grids.
The time had come for change, some wisely thought, and yet the goal was stymied and stalled. The only means to break the impasse seemed to be a big-impact court case, not unlike Brown v. Board of Education‘s elimination in 1954 of the fallacious levee of separate but equal education. So, Justice Brennan voted for and cobbled a historic majority ruling in Baker; Justice Frankfurter, the forlorn liberal of decades past, wrung his hands and words in frustration for his inability to hold back the tide of change.
I doubt that anyone reading the lengthy split opinions today would disagree that Baker crossed a Rubicon in the nation’s constitutional history in 1962, in a sense catching on and up to DeTocqueville’s prescient observation more than a century earlier.
As to at least the genre of cases dealing with reapportionment of legislative districts, the courts were now fully in the game and the “political question hands-off” doctrine was gone.
This was accomplished with commendable intentions of freshened appreciation of fairness, equality and justice, some of the highest-minded ideals in our pantheon of governance. The rub, however, was that this was virtually uncharted territory.
Put another way, while political tussles and tumults over legislative power and representation were now fair game to be moved from election halls into hallowed judicial halls, no one could really tell what curious permutations might ensue from this breathtaking precedent.
Now having said all this, I nevertheless refrain from undertaking a comprehensive survey of what has been going on for the almost 50 years since Baker. I will leave for the academy the task of a more thorough empirical explication of Baker‘s progeny. My undertaking is a mere exercise, enjoyable to write and hopefully fun to read, from which I tender only two candidates to illustrate the doctrine of unintended consequences.
The first and most important is from the 2000 Supreme Court case of Bush v. Gore, which remains historically controversial and needs a peripheral lens of wider perspectives (See Comment by Jeff Toobin, The New Yorker, Dec. 6, 2010; The Mail, The New Yorker, Dec. 20, 27, 2010).
Whether folks like it or not, Justice Antonin Scalia continues to scold anyone who questions the Bush case result and reasoning with a “get over it!” Perhaps equally provocative, one may inquire whether the modern “political question” marquee case of Bush v. Gore is really a lineal descendant of Baker v. Carr. After all, if “political quagmires and quandaries” were legitimately justiciable for consideration and adjudication, as Justice Brennan proudly propounded for the majority in Baker, then why doesn’t Bush also qualify?
Another pointed retort to continuing criticisms of Bush v. Gore might simply be to ask if the old goose-gander standard has any application. Even DeTocqueville might point out that Baker seemed to be just catching up to his truism in 1962, and then Bush merely hitched a ride onto his axiomatic observation about the American phenomenon of judicial review of political issues.
To test the proposition from another angle (had Justice Frankfurter’s dissenting concerns held sway in Baker), there should be little doubt, in my opinion, that Bush v. Gore would never have made it through an intellectually rigorous certiorari screening.
The Frankfurter position, in effect, said: Stop; Do Not Go There; Do Not Do This! If his 1962 “Red Traffic Light” had become the holding instead of just a strong dissent, then the Bush case in 2000 would have run right into the non-justiciability barrier. A fatal “political question” negative certiorari factor would have entangled that quintessential “political quagmire” of a case into an easy denial of certiorari, in my opinion.
So, I dare to vary Justice Scalia’s post-mortem comment and suggest instead that those who love Baker v. Carr (and they are many) and those who simultaneously hate Bush v. Gore, (and they are many, too, including a lot of the same Baker lovers) have to ponder and even swallow the rueful acknowledgment that Baker begat Bush.
While our magnificent constitutional judicial process may be imperfect and even inconsistent, I would, nevertheless, echo DeTocqueville: C’est magnifique!
A bit lightheartedly, my second illustration is a little-known case from the New York State Court of Appeals, Contessa v. McCarthy. It is merely a dust-binned footnote in the arcanum of Albany records at Court of Appeals Hall (See, “Did the Court of Appeals Elect Jimmy Carter President in 1976?, by Joseph W. Bellacosa, New York State Bar Association, Vol. 5, No 3, p.1 Winter, 1984).
There, I wondered whether the Court of Appeals played a role in Carter becoming president in 1976. When that Court, by a vote of 5 to 2, removed Senator Eugene McCarthy as a third-party candidate from the New York’s presidential ballot, it effectively awarded New York’s electoral votes to Democrat Carter over Republican President Ford, as they then went head to head—and the rest is history.
Take my spoof or leave it, though it still tickles my fancy that courts and the judicial process, freed from the “political quagmire” handcuffs, might have skin in the game of selecting the nation’s presidents.
One thing is certain: none of these twists were part of the framers’ original intent, nor even within the grasp of their most worrisome imaginations. Judicial reviews and interventions of this ilk seem to bother a lot people, especially after Bush v. Gore, because the people of the nation instinctively trust the way the democratic (small d) and republican (small r) form of our government has turned or worked itself out.
I end with my own appreciation for Baker‘s significant and progressive advancement of democratic voting and representational ideals. Not to be lost in the rosy nostalgia, however, is Justice Frankfurter’s realistic warning urging judicial modesty. Idealists and purists need to remain mindful that what they yearn for and may achieve in the short term may also in the long term bear unintended undesired and unimagined fruits.