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

By Richard L. Hasen | Go to book overview

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

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