Question for Judge Alito: What About One Person One Vote?

When Samuel Alito Jr. applied for a top job in the Reagan Justice Department, he explained what had attracted him to constitutional law as a college student. He was motivated, he said, "in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment." The reapportionment cases that so upset young Mr. Alito were a series of landmark decisions that established a principle that is now a cornerstone of American democracy: one person one vote.

There has been a lot of talk about the abortion views of Judge Alito, President Bush's Supreme Court nominee. But his views on the redistricting cases may be more important. Senator Joseph Biden Jr., the Delaware Democrat who will be one of those doing the questioning when confirmation hearings begin next week, said recently that Judge Alito's statements about one person one vote could do more to jeopardize his nomination than his statements about Roe v. Wade.

Rejecting the one-person-one-vote principle is a radical position. If Judge Alito still holds this view today, he could lead the court to accept a very different vision of American democracy, one in which it would be far easier for powerful special interests to get a stranglehold on government.

Even if Judge Alito has changed his position on the reapportionment cases, the fact that he was drawn to constitutional law because of his opposition to those rulings raises serious questions about his views on democracy and equality.

The one-person-one-vote principle traces to the Supreme Court's 1962 decision in Baker v. Carr. At the time, legislative districts had wildly unequal numbers of people, and representatives from underpopulated rural districts controlled many state legislatures. In Maryland, 14 percent of the voters could elect a majority of the State Senate, and 25 percent could elect a majority of the State House. In Alabama, the county that includes Birmingham, which had 600,000 people, got the same number of state senators - one - as a county with barely 15,000 people.

In Baker v. Carr, Tennessee voters challenged their state's unequal legislative districts, which had not been redrawn in 60 years. The Supreme Court had rejected a similar claim out of Illinois in 1946, saying it did not want to enter the "political thicket." But in 1962, the Warren court decided it had to enter the thicket to vindicate the rights of Tennesseans whose votes were being unfairly diluted. It ordered Tennessee's lines redrawn.

Two years later, in Reynolds v. Sims, the court struck down Alabama's legislative districts. The Reynolds decision did what Baker had not: it established a clear mathematical standard.

The court held that the equal protection clause required that "as nearly as is practicable one man's vote" must "be worth as much as another's."

Baker v. Carr set off what a leading election law treatise calls "the reapportionment revolution." In nine months, lawsuits challenging district lines were filed in 34 states. They did not solve all the problems with legislative districts - the current court is still wrestling with partisan gerrymandering - but they made American democracy much fairer.

As a Princeton undergraduate, Samuel Alito sided with Tennessee and Alabama in the reapportionment cases. What is unclear - and what senators will no doubt try to pin down - is whether he ever changed his mind. He cited his opposition to the reapportionment cases, apparently as a point of pride, in his application for the Reagan Justice Department job in 1985, when he was 35 years old and a midcareer lawyer.

Baker and Reynolds seem so self-evidently correct today that it is hard to imagine that Judge Alito could still really oppose them. But there is a strong strand of antidemocratic thinking among far-right lawyers. Jay Bybee, who helped develop the Bush administration's pro-torture policy and is now a federal judge, has criticized the 17th Amendment, which requires that United States senators be elected by the people, instead of by state legislatures, as they once were. And an American Enterprise Institute scholar, writing in The Washington Times, recently defended Judge Alito by suggesting that Baker v. Carr was wrong.

If Judge Alito was able to forge a conservative Supreme Court majority to overturn the reapportionment cases, the results would be disastrous. The next Tom DeLay-style redistricting in Texas could conceivably stuff most of the state's Democratic voters into two or three multimillion-person Congressional districts, while reserving the state's remaining 30 or so seats for Republicans. Small claques could control entire state governments - as they did until 1962.

Whatever the chances of overturning the reapportionment cases, the Senate should ask Judge Alito what he so disliked about them. The idea that reapportionment is territory the court cannot enter was long ago rejected by the legal mainstream. Baker v. Carr and Reynolds v. Sims may have been "activist" rulings, but for the most justifiable reason: to ensure that the democratic process is not rigged to thwart the will of the majority.

Judge Alito has himself espoused more activist views, notably his legally dubious vote to overturn a Congressional ban on machine guns. One possibility is that Judge Alito, who was a member of an alumni group that opposed coeducation and affirmative action at Princeton, is at heart an elitist who believes the reapportionment cases simply made the country too democratic.

Judge Alito will most likely insist at his hearings that he feels bound by Baker v. Carr and Reynolds v. Sims. Even if he can be trusted, it will say a great deal about him if he supports one person one vote only because he believes that respect for precedent, or confirmation politics, requires it. Most Americans know, based on their innate sense of justice and the Constitution, why the pre-1960's way of electing legislators was not acceptable then and is not now.

To the Editor:

Adam Cohen treats as a matter for dismay Judge Samuel A. Alito Jr.'s sympathy for the losing side in the historic reapportionment cases that established one man one vote as the law of the land.

What the courts decided in those cases 40-odd years ago was that less populous counties and legislative districts could not, as they had previously done, enjoy the privileged representation that less populous states can and do still enjoy by electing two United States senators each.

This has to do not just with voting rights but also with evolving, and legitimately debatable, ideas of local and state autonomy.

Along with most of what Mr. Cohen calls the "legal mainstream," I approve of those decisions. But I don't approve of treating disagreement with them as a dangerous or unacceptable idea. I don't support Judge Alito's nomination, because I think his views on executive power are dangerously out of line with the Constitution, but I would like to register a protest against one more apparent litmus test being proposed in a forum where more nuanced reasoning would have been appreciated.

Will Crutchfield
New York, Jan. 3, 2006

To the Editor:

Charles Fried ("Samuel Alito, in Context," Op-Ed, Jan. 3) plays down Judge Samuel A. Alito Jr.'s involvement in Reagan administration efforts to overturn Roe v. Wade. Yet Mr. Alito wrote in the 1985 Thornburgh memo that Roe should be overturned.

Mr. Alito was clear that he advocated a step-by-step legislative and judicial attack against Roe's protections only because the Supreme Court was not likely to overturn the decision at that time.

For decades, anti-choice groups have followed Judge Alito's incremental approach to overruling Roe, which has led to the enactment of hundreds of anti-choice measures intended to gut key protections of Roe. These same groups have universally endorsed Judge Alito's nomination.

Judge Alito's approach in the wiretap case Mitchell v. Forsyth was similar. It wasn't that he disagreed in substance with those in the Justice Department who wanted to put the country's chief law enforcement official above the law, but only with their strategy.

Dawn Johnsen
Washington, Jan. 3, 2006
The writer, a law professor at Indiana University, was acting assistant attorney general in the Clinton administration.

To the Editor:

A lawyer sometimes has to put the best spin on bad facts. Charles Fried, a former solicitor general, proved a master when he said "Judge Alito took pains to deny any personal hostility" to Roe v. Wade in a memo that Mr. Alito wrote as "a junior lawyer in the office of the solicitor general."

While Mr. Alito may not have expressed personal hostility in the Thornburgh memo, it is accurate to say he enthusiastically embraced the chance to undermine Roe. In fact, he asks, "What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?"

Nan Aron
President, Alliance for Justice
Washington, Jan. 3, 2006

[NOTE: Nan Aron's point is confusing. Charles Fried wrote: "It is hardly surprising ... that Judge Alito took pains to deny any personal hostility to a project that he was recommending should be once again postponed." The "project" referred to was to reverse Roe v. Wade. Fried was arguing that Alito's superiors in the Justice Dept. wanted to reverse Roe v. Wade, and that Alito's apparent support of that objective merely indicated Alito's desire to avoid giving his superiors the impression that he opposed their stance. —Uriel]

To the Editor:

Charles Fried claims that the memos Samuel A. Alito Jr. wrote for the Reagan administration on Roe v. Wade and illegal wiretaps prove him to be an apolitical professional, not a "zealot," because the memos show that he disagreed with his superiors. Nice try, but not convincing.

Over Judge Alito's entire career, he has aimed to restrict abortion rights and to favor law enforcement and executive power over individual liberties (except religious and business liberties).

His only disagreement with his superiors was how best to advance the agenda they all believed in.

Judge Alito prefers incremental strategies to reach radical goals. He came into government proclaiming his desire to demolish the liberal legal legacies of the 1960's and 70's. That has been his mission ever since.

Robert W. Gordon
New Haven, Jan. 3, 2006
The writer is a professor of law and legal history at Yale Law School.

To the Editor:

Re "Question for Judge Alito: What About One Person One Vote?," by Adam Cohen (Editorial Observer, Jan. 3):

Judge Samuel A. Alito Jr.'s views become more troubling with each new piece of information. The fact that we don't know whether he has come to accept the principle of one person one vote is unbelievable: without it, we cannot have a government of and for the people.

What's more, Judge Alito's support for executive privilege could undermine the restraints on the executive. These two pieces of Judge Alito's philosophy point to a willingness to undermine the system of accountability that a democracy depends on.

David Kenosian
Berwyn, Pa., Jan. 3, 2006

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