John Hart Ely and the Problem of Gerrymandering: The Lion in Winter

Article excerpt

CONTENTS

INTRODUCTION

I. DEMOCRACY AND DISTRUST: REPRESENTATION REINFORCEMENT, THE
   REAPPORTIONMENT REVOLUTION, AND MINORITY VOTE DILUTION
   A. The Central Role of One Person, One Vote in Combating
      Entrenchment
   B. The Overlooked Role of Racial Vote Dilution Doctrine in
      Combating Discrimination Against Discrete and
      Insular Minorities

II. DISTRUST OF DEMOCRACY: SHAW AND THE PROBLEMS OF
    POLITICAL GERRYMANDERING
    A. The Shaw Cases as a Tool To Combat Discrimination?
    B. The Shaw Cases as a Tool To Combat Entrenchment?

CONCLUSION

INTRODUCTION

John Hart Ely was not one for sentiment. And yet, some real feeling creeps into the passage in Democracy and Distrust in which he claims that Alexander Bickel's career reflected an ultimately fruitless quest for a set of values "'sufficiently important or fundamental or whathaveyou to be vindicated by the Court against other values affirmed by legislative acts.'" (1) John recounts choking at Bickel's memorial service when Robert Bork suggested that Bickel in his final years resolved the tension between his political liberalism and his jurisprudential conservatism. John saw no contradiction in the first place:

   I've calmed down, though, and now I can see how someone who
   started with Bickel's premise, that the proper role of the Court is
   the definition and imposition of values, might well after a lifetime
   of searching conclude that since nothing else works--since there
   isn't any impersonal value source out there waiting to be tapped--one
   might just as well "do the right thing" by imposing one's own
   values. It's a conclusion of desperation, but in this case an
   inevitable desperation. No answer is what the wrong question
   begets. (2)

What makes the passage so haunting is not only the fact that Ely replaced Bickel as "probably the most creative constitutional theorist of the past twenty years" (3) only then to replace him as a scholar who died too soon, (4) but that Ely, in what turned out to be the last years of his career, also came to impose his own values, and in precisely the arena in which his greatest work had argued for a neutral approach: policing the process of representation.

During the period when Ely was writing Democracy and Distrust, constitutional litigation over legislative apportionment revolved around questions of malapportionment and racial vote dilution. Part I of this essay describes the implications of Ely's theory of representation-reinforcing judicial review for these issues. Inspired by the famous Carolene Products footnote four, (5) Ely articulated both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. He used the Warren Court's "Reapportionment Revolution" as the central example of the anti-entrenchment strand of judicial review. But ironically, given his focus on questions of representation and political structure, Ely essentially ignored the jurisprudence of racial vote dilution, whose focus on geographically insular minority groups and majority prejudice provides an equally powerful example of the antidiscrimination strand of judicial review.

In recent years, by contrast, constitutional litigation over legislative apportionment has revolved around a very different set of questions. During the 1990s, in Shaw v. Reno and its progeny, (6) the Supreme Court held that excessive race consciousness in drawing majority-nonwhite legislative districts can run afoul of the Equal Protection Clause. Part II of this essay considers Ely's final work--a trilogy (7) that defended the Court's Shaw jurisprudence, essentially as a wedge for attacking political gerrymandering more broadly. (8) I show how contemporary districting practices reveal an implicit tension within the Elysian approach: While the anti-entrenchment and antidiscrimination rationales may have dovetailed during the years of Democracy and Distrust, today they can operate at cross-purposes. …