The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore

Conclusion

Conclusion Political Equality and a Minimalist Court Political Equality and Legal Realism Back in March 1965, Justice Black got burned. Seeing six votes to affirm a lower court ruling upholding the power of the states to impose a poll tax in state elections (absent congressional legislation or constitutional amendment), the justice probably concluded quite reasonably that there was little risk in calling for a full hearing in Harper v. Virginia Board of Elections. Justice Goldberg’s proposed dissent from the anticipated summary affirmance enunciated an expansive view of the Court’s nascent political equality jurisprudence begun in Baker, Reynolds, Gray, and Wesberry , and Justice Black likely wanted the Court to positively state that issues like voter qualifications were not on the table. After all, it was as recently as 1959 that the Court upheld literacy tests in the Lassiter case. As detailed in chapter 1, Black’s plan backfired. Justice Fortas replaced Justice Goldberg on the Court. Fortas too opposed the poll tax, and three other justices—Brennan, Clark, and White—switched their votes to a reversal after Harper was set for a full hearing. Harper has since been canonized as one of the landmark Warren era cases establishing the right to vote as a fundamental right. The Constitution was not amended in 1965; three justices simply changed their minds about its meaning. Justice Black in his Harper dissent protested that the Court had overruled prior precedent “not by using its limited power to interpret the original meaning of the Equal Protection Clause, but by giving that clause a new meaning which it believes represents a better governmental policy.”1 Two days before the opinion issued, Justice Douglas added a sentence to the Harper majority opinion responding to Justice Black’s point: “Our conclusion, like that in Reynolds v. Sims, is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.”2 157 If the history of the Court’s political equality jurisprudence that I have chronicled shows anything, it shows that there has been no distinction between the justices’ views of the meaning of the Equal Protection Clause and what the Constitution requires. As has often been remarked, the Supreme Court is not final because it is right; it is right because it is final. At least in the area of political equality, there is little question the justices of the Warren Court (like the justices of the Burger and Rehnquist Courts that followed) have “made it up” as they went along, even if the justices, like Justice Douglas, have perceived a need to profess Blacksonean notions of “discovering the law” to preserve their legitimacy. Harper is not by far the only example, and significant changes have come in other political equality cases without changes in Court personnel. For example, Justices Blackmun, Marshall, Powell, and Scalia each reversed positions over time on key constitutional questions in the campaign finance area. Harper itself was correctly decided in my view because the Court followed emerging social consensus, though it does not appear the Harper majority thought itself bound to follow social consensus. But Harper in following social consensus is the exception in the political equality cases rather than the rule. David Strauss, who is involved in a project to show that landmark Warren Court cases such as Brown v. Board of Education3 and Miranda v. Arizona4 followed emerging trends in the common law and were not just examples of the justices making up the law as they went along, cannot make a convincing argument along these lines for the reapportionment cases.5 He contends that cases such as Reynolds and its one person, one vote rule “carried out a development that extended back to the earliest days of the Republic—the inexorable (although not uninterrupted) expansion of the franchise.”6 But Strauss paints too rosy of a picture of this expansion: although the pre-Warren court upheld literacy tests in 1959 in the Lassiter case, remember that Arizona was still pushing for the right to impose a literacy test as late as 1970. Universal suffrage was hardly the norm in 1964, the year of Reynolds. More important, universal suffrage does not mandate the one person, one vote rule. Social consensus has done little to rein in conservative justices any more than liberal justices. Shaw v. Reno and Bush v. Gore are as indefensible as Reynolds or Wesberry in this regard. Frankly, neither liberals nor conservatives have shown any...