Nathan Newman notes that in newly-released Alito papers, Alito states that he went into Constitutional law partly because of his opposition to the Warren Court’s reapportionment decisions. Newman explains what “reapportionment” means:
For the non-lawyers out there, Alito meant he was against the Supreme Court decisions requiring that all state legislative districts be designed to guarantee “one person, one vote”, instead of giving some districts with very few voters the same representation as urban districts with far more voters. […]
Subtract [the Warren Court’s reapportionment decisions], and our state governments around the country would have remained bastions of racist and anti-democratic prejudice and power.
I’m sure that conservatives have already begun making excuses. But the bottom line is, Alito demonstrated that faced with one of the most important legal questions in US history, he displayed terrible judgement. His view then was not only wrong, with the benefit of hindsight we can see his view was profoundly anti-democracy.
No one who went into Constitutional law because of profound opposition to “one person, one vote” belongs on the Supreme Court.
AMEN.
Alito’s opposition to abortion and his screwy legal findings (strip-searching children, etc.) were already deal-breakers, but this is entirely the noxious icing on an already foul cake.
It’s like someone offered me what they said was a delicious chocolate cream pie, but instead of chocolate cream, it’s filled with brussel sprouts, sardines, and rat feces — and to entice me a bit more to eat it, they drizzle on some tangy toxic-waste topping.
Unbelievable. I can understand someone disagreeing with Roe. I can even understand someone disagreeing with Gideon v. Wainright, Miranda v. Arizona, Mapp v. Ohio and Escobedo v. Illinois. I think they’re wrong and am willing to argue about it, but hey – I think I get where they’re coming from. But to disagree with the idea that every citizen’s vote should and must be equal to every other citizen’s vote? The very foundation of democracy? I’m sorry, but I have only one word for that. Unamerican.
“I’m sure that conservatives have already begun making excuses.”
No excuses here. I actually think he may have had a point, depending on what part of “one person, one vote,” he objected to.
I think that “one person, one vote” should be required for unicameral legislatures (Nebraska is the only example of this) and for the lower houses of bicameral legislatures (i.e. the house equivalent to the U.S. House of Representatives), but I see no reason why the upper house cannot have a county-by-county system or some other system similar to that of the U.S. Senate.
Anyone who does not favor abolishing the Senate does not believe totally in “one person, one vote,” so I see no reason why his position should be considered extreme, unless you believe that the vast majority of Americans have an extreme position on this issue (abolishing the Senate is not an idea with much support).
As a larger issue, though, “one person, one vote” as the standard for the upper house of the legislature seems rather ridiculous to me, because it makes the Senate redundant if the only difference between it and the House is the size of the districts. The whole point of a senate is to provide a check on unlimited majority rule. It makes a lot of sense to me that one house should represent the populace (and thus be elected by “one person, one vote,”) and another should provide a means to protect regional interests (“one county, one vote”).
Forget the Senate. Even if the allegedly “equal” House of Representative, there is one District representing 495,000 people (Wyoming’s single district) and another representing 905,000 people (Montana’s single district). Rhode Island’s only-slightly-larger 1,050,000 people get two representatives.
Is that “fair”? It certainly is a blatant violation of “one person, one vote.” Or are you okay with Montanans getting just over half the representation of Wyoming?
Meanwhile, assume you live in a two-district state in the “city”, with 900,000, right next to a “suburb” with 800,000. Each district would, ideally, have 850,000.
One option is slightly unequal districts, with “city” and “suburb” each in their own district. The other is that 50,000 city-dwellers (including you) could be carved out and added to the “suburb” district, where you would largely get ignored, mainly in the “constituent service” area. It is not always obvious what choice is better for you.
I see no problem with un-equal districts, as long as they did not significantly impact minority voting rights.
Glaiv, the Senate is a historical leftover of the slavery era; it was a bad idea in most ways, and even today it still fufills its original function of making sure that the (former) slaveholding states have more influence than their population justifies. However, just because that mistake cannot be undone doesn’t justify repeating the system at the state level.
The basic question is, why should an urban voter have less representation than a rural voter? Particularly in a country in which urban areas are disproportionately where many racial and religious minorities live, so that reducing the impact of the urban vote is almost always going to disproportionately harm minorities?
Richard:
But there’s no question that, at the time Alito opposed “one person, one vote,” unequal districts were signficantly impacting minority voting rights.
Richard, I agree with you that the Wyoming/Montana/Rhode Island situation is unfair – but it’s also unavoidable unless we want to jettison the whole state-based representative system.
As for your example of a city with 900,000 and a suburb with 800,000, I think your example erases the real problem by assuming that there can only be one voting district in the city, and that the city and suburb have very nearly identical populations. In the situation you describe, it’s true, very little difference would be made by reapportionment .
But some cities – including the one I live in – have more than one representative, and have MUCH higher populations than any surrounding suburb. In our case, making the city one voting district and each suburb one voting district would make each city-dwellers vote worth several times less than each sububan vote. That’s the sort of problem that reapportionment was meant to address.
My solution to the Representative problem is to increase the number of Congressmen. There is no way for there to be exactly equal representation as long as the congressional district boundaries cannot cross state lines unless each state has a population that is an exact multiple of the constituent/representative ratio (i.e. if there is one congressman for every 700,000 people, every state has some multiple of 700,000 as its population).
The essential problem is, of course, that, by measuring constitutent/representative ratio, some states should have 0.7 congressmen, some 1.2 congressmen, some 1.6 congressmen, and so because representation has to be in whole numbers, some states get more representation and some less than they theoretically should have.
The best way to get representation more equal, in my opinion, would be to dilute the importance of the “lost fractional vote” by increasing the number of Congressmen so that it is proportionally less. If we had one Congressman per 250,000 constituents (with rounding to the nearest whole number), for example, Wyoming would get 2, and Montana 4, and Rhode Island 4. 150,000. Wyoming 3, Montana 6, and Rhode Island 7. No, it would not be exactly one person, one vote, but it would reduce the distortions.
Glaiv, the Senate is a historical leftover of the slavery era; it was a bad idea in most ways, and even today it still fufills its original function of making sure that the (former) slaveholding states have more influence than their population justifies. However, just because that mistake cannot be undone doesn’t justify repeating the system at the state level.
(1) I do not agree that the Senate is a bad idea.
(2) Even if you would like to abolish the Senate, that does not change the fact that Alito’s position is not particularly radical in a country that has such a Senate.
The basic question is, why should urban votes be worth less rural votes?
To protect the rural people from being completely controlled by the urban people. In a unicameral legislature, I agree that one person, one vote, is more fair. However, in a bicameral system, having both a region-based and a population-based representation system makes certain that neither the urban or rural residents can impose their will entirely on the others.
I am inherently suspicious of too much democracy, because untempered democracy does not protect the rights of groups in the minority.
I think y’all are taking a very ambiguous statement and reading a lot of detail into it. Show me some of his college writings where he articulates his specific issues with reapportionment and you might have something to scream about. Show me cases he has been involved with as lawyer or judge where he tried to dismantle reapportionment and I’ll share your concerns. Until then, this is still a job applicant trying to show like mindedness with his potential new boss.
gengwall, isn’t that worse? Somebody who’s applying to be assistant attorney general and is crowing about his ideological stance, not only on a general level, but on specific issues? I thought Supreme Court justices were supposed to at least pretend to be unbiased.
The problem is fetishizing “one person/ one vote” in state legislatures over other issues like, say, politically gerrymandered districts, or majority minority districts, or physically compact districts, or districts that respect political boundaries.
If I’m a little sliver of black Democrats in Austin, Texas get cut out from the city and glommed onto a rural white Republican district as 10% of a district composed of primarily people from another county, so every two years my sliver votes Dem, and I lose 90-10 every time, the vindication of their right to “one person/ one vote” is somewhat Pyrrhic.
But some cities – including the one I live in – have more than one representative, and have MUCH higher populations than any surrounding suburb. In our case, making the city one voting district and each suburb one voting district would make each city-dwellers vote worth several times less than each sububan vote. That’s the sort of problem that reapportionment was meant to address.
Equal representation is an important value, but it is not the ONLY value, and there are other ones. Ask residents of Austin — would you be rather be carved up into insignificant minority voices in other people’s districts, or would you rather be one of two or three “Austin-only” districts, even though the population may be such that each district would be 10% smaller than the surrounding districts.
I am not saying that an ideal or Constitutional system would be “New York City = 1 representative” and “Nowheresville, NY = 1 representative”. I am saying that a better analysis would take into account all factors, and would allow districts to vary in size depending on other relevant factors.
Court: “How do you explain the fact that New York City’s districts are 5% smaller than Albany’s?”
Gov’t: “Because complete equalization would mean adding in residents from Westchester County, crossing county lines, and have another county out west divided among three districts instead of kept as one.”
And maybe that’s good enough, or better, in terms of promoting democracy.
Here, in the great state of New Jersey, we lost the case of Karcher v. Daggett, 462 U.S. 725 (1983)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=462&invol=725
It was most likely this case, coming right before the 1985 document at issue, that was most on Alito’s mind. One need not assume that Alito wants to reverse Baker v. Carr in whole to recognize that there may be reasonable disagreement on parts of it.
In Karcher, following the 1980 census, New Jersey aligned its Congessional Districts so that “The largest district (Fourth District) had a population of 527,472, and the smallest (Sixth District) had a population of 523,798, the difference between them being 0.6984% of the average district.”
The court re-affirmed:
“[W]e do not find legally acceptable the argument that variances are justified if they necessarily result from a State’s attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries.”
The opinion was 5-4, and the fetishization of equal-size over everything was complete.
If that’s true – that he’ll say things he doesn’t believe in order to increase his odds of getting a job – then how can we trust what he says in his forthcoming congressional hearings?
The Senate is not a “holdover” from the Slavery Era. If you read (heaven forfend!), the debate at the time, it will quickly become apparent that the Constitutional arrangements of power were based on those of the UK, with the Senate taking the role of the House of Lords. The states had much more distinct societal and political structures, and far more independent identities. The Senators were to look after the interests of their states as a whole, which is why they were chosen by their state legislatures (as opposed to the House, who were the voice of the people and their individual districts), and also the country as a whole (which is why they served six-year terms, not two, as in the House). You can see the congruency with the House of Lords.
As far as the “reapportionment” comment, NN’s piece is nothing more than his own extrapolation, since he never cites anything Alito actually said beyond the phrase. Perhaps NN did the research and is confusing Alito with his Dad, who seems to have written a book about reapportionment in New Jersey and was “Director of the New Jersey Office of Legislative Services, which provides staffing and research for the state legislature,” according to the Wash Post.
In any event, unless NN can come up with some hard facts, he has no idea what Alito (jr)’s opinions are in this matter today, especially because he mentions specifically that his interest was in college. It is hardly surprising that if the father were interested in the subject that the undergraduate son would be as well.
Unless, of course, that NN is seriously proposing that we all be held to account for our undergraduate political beliefs.
Then who’s going to run the country?
was established to have the
Confirm Alito! He doesn’t really mean what he says!
Not the most effective sales pitch, is it?
I’m not saying he’ll say anything to get the job. The only thing we know from his application is that he has issues with reapportionment. We have no idea what those issues are. Judging by much of what is posted here this is a complex issue and there are many people who have issues with it. Without knowing what his specific issues are, it is irresponsible and quite “knee jerk” to jump to the most negative conclusion.
So, don’t complain that his position on an issue is something that you have no evidence it is. Find some writings of his or decisions which articulate his disagreements with reapportionment and you might have something to complain about.
I’m sure that this will be well flushed out at the hearings. It may turn out that Nathan’s claims about Alito’s position are justified. Until then, its all “the sky is falling”