The Big Question
Judge Gorsuch: Do You Back the ‘One Person, One Vote’ Principle?
Senators should ask the nominee what he said as a young clerk to Byron White that led the justice to ‘rethink’ his view on a linchpin of our democracy.
Since 1964, the principle of “one person, one vote” has served as a cornerstone of American democracy. Will that remain the case?
Two years ago, I spoke to a group of appellate lawyers in Washington, D.C., about a series of Supreme Court decisions between 1962 and 1964 that, taken together, established the principle of “one person, one vote” in all state legislative and congressional apportionments. Chief Justice Earl Warren consistently referred to the reapportionment decisions as the most important of his tenure on the Supreme Court.
At the end of the evening, a member of the audience introduced himself as a former clerk to Justice Byron White and mentioned, as an aside, that another former White clerk, Neil Gorsuch, had helped the Justice “rethink” his position on reapportionment. I never had an opportunity to ask Judge Gorsuch what that might mean, but members of the United States Senate sure ought to. With Gorsuch’s confirmation hearings now underway, it is imperative to understand precisely how he helped White reconsider his views on reapportionment.
Gerrymandering receives a great deal of attention today as an obstacle to equitable representation, but it was malapportionment—which The New York Times once referred to as the “twin evil” of gerrymandering—that posed a far greater threat prior to the 1960s. Throughout the first half of the 20th century, Americans moved in large numbers from rural areas and small towns to cities and suburbs. But legislators feared losing their hold on power and refused to reapportion in many states. Alabama and Tennessee did not reapportion for more than 60 years after 1900, Oregon for more than a half-century after 1907, and Illinois went from 1910 to 1955 without redrawing districts.
Other states reapportioned but only after creating districts that were so unbalanced that the legislature remained in the firm control of a distinct minority. In California, for example, more than 6 million residents of Los Angeles County sent one representative to the state Senate, as did 14,294 inhabitants of three sparsely-populated counties east of the Sierra. Less than 12 percent of California’s population was in a position to elect a majority of the state Senate.
Legislative malapportionment created a system of minority rule that pervaded almost every state in the nation prior to the Supreme Court rulings. And since state legislatures typically control congressional districting, residents of urban areas were drastically under-represented in Congress as well.
The situation became so dire that the Supreme Court finally agreed to enter the “political thicket,” declaring in 1962’s Baker v. Carr that the federal courts could consider whether or not malapportionment violated the Equal Protection Clause of the 14th Amendment. Baker v. Carr did not, as is often alleged, establish the principle of one person, one vote. That came two years later, on June 15, 1964, when the Court issued opinions in six cases from six states.
Law school textbooks highlight Reynolds v. Sims, a case from Alabama, because Warren selected it as the lead case through which to announce the Court’s decision. But the most important decision that day—and the one that members of the Senate Judiciary Committee should ask about—came in Lucas v. Forty-Fourth General Assembly of Colorado.
Voters in Colorado had gone to the polls in November 1962—after Baker v. Carr—and established a system of apportionment in which the lower branch of the legislature was based on population and the upper branch based on area. Lucas v. Colorado presented more clearly than any of the other cases what Solicitor General Archibald Cox referred to as the “ultimate question,” namely whether or not both branches of a bicameral legislature must be based solely on population.
After months spent debating this question with William Brennan, his closest colleague, and Frank Beytagh, his head clerk, Earl Warren came to the conclusion that population equality as the basis for apportionment in one branch of the legislature would matter little if a minority had a lock on the second branch. Justices Brennan, William O. Douglas, Hugo Black, and Arthur Goldberg swiftly joined Warren, providing him a majority of five votes for the position that both branches must be based on population.
But Warren knew that the implications of so sweeping a decision would be momentous. He wanted a sixth vote, and in particular he wanted the vote of Byron White, a native of Colorado. Like Hugo Black before him, White destroyed his most important Court papers, so there is little to document his thinking in the reapportionment cases. But other justices record White as initially ambivalent about the Colorado case, not quite ready to join Warren, but also aware that the Colorado plan amounted to little more than “slick political gerrymandering” which favored certain economic interests. On June 10, White sent Warren a note and asked, without explanation, to join Warren’s opinion, thus securing the principle of one person, one vote.
So how, then, did Neil Gorsuch, as a law clerk in his twenties, help White “rethink” his position on reapportionment? It is possible that the justice, who had retired by this time, and his clerk might have engaged in discussions about whether or not “one person, one vote” should really mean “one voter, one vote,” but that seems unlikely. Such a claim reached the Supreme Court last term (and was dismissed) but was not at issue in the 1960s or in the 1990s when Gorsuch clerked for White.
No, it seems far more logical and likely that White and Gorsuch, also a native of Colorado, discussed whether or not both branches of a bicameral legislature must be based on the principle of one person, one vote. If Gorsuch did, indeed, help White “rethink” his position in this regard, it is crucial to know how Gorsuch feels about Lucas v. Colorado and the other reapportionment decisions of the 1960s.
Judicial nominees are understandably hesitant or unwilling to discuss their views on cases that might come before them once confirmed. But certainly a conversation in the 1990s between a law clerk in his twenties and a retired justice about a case from the 1960s is not off-limits for a Senate confirmation hearing in 2017. Unless, of course, Gorsuch is reluctant to acknowledge that he believes that the Supreme Court went too far in the 1960s in establishing the principle of one person, one vote at all levels of government.
J. Douglas Smith is the author of On Democracy’s Doorstep: The Inside Story of How the Supreme Court Brought “One Person, One Vote” to the United States.