Introduction
Forty years ago the Warren Court decided the jurisprudential progeny of Baker v. Carr.3
Six cases, headed by Reynolds v. Sims,4 continued to remake the legal landscape of legislative apportionment using the “one person, one vote” principle. For President Kennedy’s Solicitor
General, Archibald Cox, the decisions in Reynolds et al. were dangerous. He feared they would precipitate a constitutional crisis that would underscore why Justice Frankfurter, his mentor, had urged his judicial colleagues to avoid entangling their institution in the “political thicket” of legislative apportionment. In this paper I challenge the conventional wisdom that depicts the solicitor general as a ‘Tenth Justice’, the leader of an office with which is associated institutional norms and traditions that create a ‘special relationship’ between the solicitor general and the nine justices of the United States Supreme Court. Analysis is confined to Lucas v. Colorado General
Assembly, one of the five cases decided with Reynolds. Cox believed that the federal government should not file any amicus curiae briefs supporting the extension of the one person, one vote standard in the reapportionment cases. Lucas posed the greatest problem for him because it involved a constitutional challenge to an apportionment plan that consisted of an amendment to the Colorado State Constitution adopted through a referendum, and supported by a majority of the voters in every county in Colorado.
Appointed by President Kennedy in 1961, Archibald Cox became the thirty-first Solicitor
General. He is widely acknowledged to have been one of the best Solicitors General, once referred to as “the Willie Mays of Supreme Court lawyers.”5 He came to an office steeped in tradition, where the traditional uniform for participation in oral arguments is the morning suit; it
3 369 U.S. 186 (1962). 4 376 U.S. 1 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964); Davis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); and Lucas v. Colorado General Assembly, 377 U.S. 713 (1964).
2 was an office to which mail addressed to “The Celestial General, Washington, D.C.” once found
its way.6 Yet, for all the recognition of one’s legal talents that selection to the post of official
lawyer of the U.S. government bestows, becoming the Solicitor General of the United States
carries the baggage of dual loyalty. On the one hand, as Lincoln Caplan’s infamous moniker
implies, the Solicitor General is a “Tenth Justice” because he enjoys a unique and special
relationship with the justices of the U.S. Supreme Court.7 On the other hand, he serves at the
pleasure of the President. The Solicitor General enjoys (or suffers) having his very own political
thicket within which to work – one composed of the executive and judicial branches of the
American governmental system.
Part I: Literature Review
In 1987, in one of the first substantive studies of the Office of the Solicitor General
offered by someone who was not a former or current OSG employee, Lincoln Caplan described
the solicitor general as the “Tenth Justice”. Reviewing the book, Roger Clegg suggested that one
might also view the solicitor general as the “Thirty-Fifth Law Clerk”.8 Although subsequent
studies more frequently invoke Caplan’s term, both descriptions portray the solicitor general as a
member of the staff of the United States Supreme Court. Justice Powell once described the
Court as comprising “nine small, independent law firms”.9 Uncritical use of the terms suggested
by Clegg and Caplan would require us to expand the membership of the Court so that it
5 Quoted in KEN GORMLEY, ARCHIBALD COX: CONSCIENCE OF NATION 181 (1997). 6 EUGENE C. GERHART, AMERICA’S ADVOCATE: ROBERT H. JACKSON 143 (1958). 7 LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW (1987). 8Roger Clegg, The Thirty-Fifth Law Clerk, 1987 DUKE L.J. 1964 (1987). 9 Quoted in WALTER F. MURPHY ET AL., COURTS, JUDGES, & POLITICS: AN INTRODUCTION TO THE JUDICIAL PROCESS 618 (5th ed. 2002).
3 comprised ten law firms – the nine justices’ chambers and the OSG. This is a misleading view of the solicitor general’s work. To be sure, he enjoys a “special relationship” with the Supreme
Court. But he is also a presidential appointee serving at the ‘pleasure’ of the president; and as
Justice Sutherland once observed: “It is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will.”10
In large part, Caplan’s book was a criticism of what he saw as the politicization of the
OSG by the Solicitors General of the Reagan Administration; he portrayed the OSG as having lost its independence to the will (and therefore the conservative agenda) of the President.
Subsequent works have shown that Caplan exaggerated the ‘independence’ of prior generations of OSG occupants, thereby skewing his conclusions about President Reagan’s appointees.11
Rebecca Mae Salokar demonstrated that between 1959 and 1986 the behavior of solicitors general was far from apolitical. And recently Peter N. Ubertaccio concluded that the same has applied throughout the history of the OSG – since its creation in 1870.12 The body of political science literature represented by the works of Salokar and Ubertaccio rightly emphasizes the solicitor general’s “conflicting obligations – to his client and to the Court”.13
10 Humphrey’s Ex’r v. United States, 295 U.S. 602 at 629 (1935). 11 Numerous scholars have discussed the extent to which Caplan’s observations about the Reagan Solicitors General were clouded by his own political objections to that Administration’s conservatism. See, for example, Gregg Ivers, Book Review, 87 AM. POL. SCI. REV. 783 (1993) (reviewing NANCY V. BAKER, CONFLICTING LOYALTIES: LAW AND POLITICS IN THE ATTORNEY GENERAL’S OFFICE, 1789-1990 (1992); KATY J. HARRIGER, INDEPENDENT JUSTICE: THE FEDERAL SPECIAL PROSECUTOR IN AMERICAN POLITICS (1992); and REBECCA MAE SALOKAR, THE SOLICITOR GENERAL: THE POLITICS OF LAW (1992)) (“While I do not count myself among Ronald Reagan or George Bush’s foremost admirers, neither would I deny them their day in court. Political jurisprudence, whether spurred by nongovernmental or organized interests or the solicitor general, is not, and need not be, the sole province of liberals.”). 12 SALOKAR, THE SOLICITOR GENERAL; Peter N. Ubertaccio, III, Advancing an Executive Agenda: The Office of the Solicitor General and The Development of the Modern American Presidency (2002) (unpublished Ph.D. dissertation, Brandeis University). 13 Archibald Cox, The Government in the Supreme Court, 44 CHI. B. REC. 221, 222 (1962/1963).
4 Modern usage of ‘obligation’ has retained the generic nature of the Latin ‘obligatio’,
“any duty imposed by law, promise, contract, relations of society, courtesy, kindness, etc.”14
This definition aptly describes the work of the solicitor general. Reflecting the professionalization of law and the legal profession and the expansion of the federal government after the Civil War, the creation of the Department of Justice in 1870 included the establishment of the Office of the Solicitor General. As Ubertaccio has shown, the OSG quickly became an institution imbued with organizational norms reflecting this professionalization.15 Required to be
“learned in the law”, the solicitor general is to “assist the Attorney General in the performance of his duties.”16 This is his legal obligation, his “duty imposed by law”. This ‘assistance’ primarily involves acting as the government’s lawyer – defending the federal government before the
Supreme Court; choosing which cases to appeal to the Court; and selecting cases in which to file amicus briefs in support of one of the parties. The multifaceted nature of this work invokes most, if not all, of the other aspects of the aforementioned definition of ‘obligation’. By reflecting on some of these aspects of the OSG’s work we can see why the “conflicting obligations” to which Archibald Cox referred are specifically directed towards the “client” and the “Court”.
The solicitor general is considered to have a ‘special’ relationship with the Supreme
Court for several reasons.17 The Court looks upon him as the “gatekeeper” of petitions filed with
14 BLACK’S LAW DICTIONARY 740-741 (abridged 6th ed. 1991). 15 Ubertaccio, Executive Agenda, 63-73. 16 28 U.S.C. §§ 505. It is important to note that the relationship which has evolved whereby the solicitor general has been afforded considerable independence within the DOJ is not a legally stipulated separation of powers. John M. Harmon, Memorandum Opinion for the Attorney General, Role of the Solicitor General, 21 LOY. L.A. L. REV. 1089 (1988). 17 The material for this paragraph is drawn from id. at 1093; Corey A. Ditslear, Office of the Solicitor General Participation Before the United States Supreme Court: Influences on the Decision-Making Process 66-72 (2003) (unpublished Ph.D. dissertation, The Ohio State University); H. W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 128-133 (1991); CAPLAN, TENTH JUSTICE; and SALOKAR, THE SOLICITOR GENERAL.
5 it. The federal government loses many more lower court cases than it appeals. The solicitor general makes the final determination on appeals to the Supreme Court. Careful selection of appeals benefits the ‘law’ and the Court. It allows for development of the law at a speed that is generally consonant with the pace at which the Court’s work will be publicly perceived as legitimate. OSG lawyers understand that the Court expects them to maintain a high standard of brief writing. It undermines their relationship with the Court if their work fails to meet the justices’ expectations or exhibits an undesirable degree of ideologically driven argument.
The OSG’s special relationship with the Court is reciprocal as shown by the extent of its influence on the justices’ decisions whether or not to grant certiorari in cases. In DECIDING TO
DECIDE, H. W. Perry found the OSG’s participation to be an important signal to the justices and clerks.18 As one justice remarked to Perry:
He [the solicitor general] does have a good batting average. This is because he
culls things out. There is also a tradition of very fine work. He knows what the
business of the Supreme Court should be. It is very rare that I don’t read one of
his cert. petitions. I don’t read all of his, but it is very rare for me not to.19
Over the course of the twentieth century the Court gained almost plenary control over its docket.
This resulted in a dramatic decline in the number of cases granted cert, creating a formidable obstacle for anyone seeking to ‘take their case all the way to the Supreme Court’. Anyone, that is, except the solicitor general. His ability to influence the justices’ decisions to decide – his batting average – has remained fairly constant, suggesting that his influence on the Court’s
18 PERRY, DECIDING TO DECIDE 128-133. 19 Quoted in id. at 132.
6 decisions on the merits has actually increased.20 As the justices have decided to hear fewer cases the OSG has become a more significant “repeat player”.
The solicitor general is the only lawyer with a permanent office in the Supreme Court building. In part, this reflects the advantages held by the OSG over other litigants. Reflecting the benefits for the justices of the OSG’s “gatekeeper” activities, the Court grants the solicitor general’s requests to participate in oral arguments much more frequently than for any other amicus. One of the most important office-specific advantages held by the OSG relates to the filing of amicus briefs. Between 1954 and 1996 on average seventy-three per cent of the cases in which the Solicitor General filed an amicus brief were decided by the Court in favor of the party supported by the federal government.21 While one might attribute this success to the OSG’s aforementioned expertise and experience, the office also benefits from provisions in the Supreme
Court’s rules. The solicitor general is the only person authorized to submit an amicus brief without obtaining prior written consent from all of the parties involved.22 And, under the 1954 rules still used in 1963, the solicitor general was the only lawyer permitted to file an amicus brief without providing (although he usually did) an accompanying statement of interest.23
In 1974, in an influential article, Marc Galanter differentiated between two categories of parties in legal cases – the “repeat player” and the “one-shotter”. The Repeat Player (RP) is
“engaged in many similar litigations over time” whereas the one-shotter (OS) has “only
20 Ditslear, Influences on the Decision-Making Process. 21 Calculated using data from LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, AND DEVELOPMENTS 674 (3rd ed. 2003). 22 SUP. CT. R. 37.4. 23 Under the 1954 Rules the permission to file an amicus curiae brief had to include this statement. That the Solicitor did not need this permission meant he was also not specifically required to provide a statement of interest; the 1970 rules required the statement of interest to be included in the actual amicus brief, thereby removing this particular OSG advantage. CAPLAN, TENTH JUSTICE 196, 311, n. 41.
7 occasional recourse to the courts”.24 The solicitor general is the quintessential RP. Yet, for all the advantages that RP status gives him, he remains confronted by certain pervasive problems.
One, the problem of partiality, reflects a basic aspect of human nature – the influence of self- interest on one’s actions. As defined by Randy E. Barnett, this problem “refers to the need to (1) allow persons to pursue their own partial interests including the interests of those to whom they are partial, (2) while somehow taking into account the partial interests of others whose interests are more remote to them.”25 This problem exists in proportion to the size of an individual’s jurisdiction. In this respect, the solicitor general’s control over the litigation of the entire federal government might give us cause for concern. He is, however, a “repeat player” before a small audience whose makeup is quite consistent. As such, he is the epitome of a profession that
Barnett argues cannot afford to represent its clients using a tactic of disrepute.26 He cannot afford to, lest he wish to antagonize the justices and offend their sense of protecting the legitimacy of their institution. Similarly, that the president is hardly the typical client further defends this point. The president is not “exclusively concerned (in [his] capacity as client) with
[his] own interest.”27 Whether placating recalcitrant members of Congress, or strategizing for upcoming elections, he is confronted by a myriad of factors when considering the government’s involvement in a case. The crafting of the federal government’s amicus brief in Lucas v.
Colorado illustrates the influence of partiality concerns on the work of solicitor general. It also provides an opportunity to consider the factors limiting the effectiveness of this particular
“repeat player” before the United States Supreme Court.
24 Marc Galanter, Why The “Haves” Come Out Ahead: Speculations On The Limits Of Legal Change, 9 LAW & SOC’Y 95 (1974). 25 RANDY E. BARNETT, THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW 137 (1998). 26 Id. at 138-142 and 145-148. 27 Id. at 145.
8 Part II: Archibald Cox and the Executive Branch
In 1962, in Baker v. Carr28, the Supreme Court ruled that legislative apportionment was a
justiciable issue. Overruling Colegrove v. Green29 decided sixteen years earlier, it held that this
subject matter did not constitute a “political question” – a question on whose resolution the
judiciary would traditionally defer to the judgment of the ‘political’ branches. For too long
legislators had guarded the territory of their malapportioned districts, refusing to acknowledge
that their inaction had negative consequences for a majority of the electorate. The 6-230 ruling in
Baker vindicated Justice Douglas’s conviction that there were occasions when the judicial branch
of the American government could not “sit in resplendent dignity aloof from the issues of the
day.”31
The decision in Baker clearly distressed the ailing Justice Frankfurter, who dissented
arguing that the majority was eagerly rushing into the “political thicket”32 of legislative
apportionment. Frankfurter saw no more evidence of abuses in need of judicial intervention than
he had done in Colegrove. In a memorandum to the other justices he conceded that “a court will
always find the power to curb abuses”, but he refused to consider malapportionment an abuse
open to judicial remedy.33 Archibald Cox was sympathetic to the concerns of his mentor.
28 369 U.S. 186 (1962). 29 328 U.S. 549 (1946). 30 Justice Charles E. Whittaker retired from the Court on April 1, 1962. Although he was present for oral argument, reargument, and the Baker conferences, he did not participate in the final decision. It is unclear whether his final vote would have been significant in the outcome of the case. BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT – A JUDICIAL BIOGRAPHY 427-428 (1983); GORMLEY, ARCHIBALD COX 168-170. 31 WILLIAM O. DOUGLAS, THE COURT YEARS 1939-1975: THE AUTOBIOGRAPHY OF WILLIAM O. DOUGLAS 55 (1980). 32 A phrase made famous by Justice Frankfurter in Colegrove, 328 U.S. at 556. 33 Justice Black took particular exception to this view, writing on his copy of the memo that “There are abuses here.” Memorandum from Justice Frankfurter to the other justices, October 10, 1961, quoted in TINSLEY E. YARBROUGH, JOHN MARSHALL HARLAN: GREAT DISSENTER OF THE WARREN COURT 275 (1992).
9 However, even he conceded that in Tennessee (the State in question in Baker) the malapportionment met the standard he outlined in the government’s amicus brief in Baker: “at some point malapportionment of state legislatures becomes so gross and discriminatory that it violates the Fourteenth Amendment”.34 Cox agreed with Frankfurter’s conception of the judicial role – which placed significant value on deference to the popularly elected branches of government.35 The judiciary should not be compelled to intervene when democracy supposedly failed. Yet, he could also see in Baker discrimination and legislative inaction sufficiently invidious as to warrant judicial action. As explained below, when confronted with a challenge to the ‘milder’ malapportionment in Colorado (Lucas), Cox was immediately inclined to advocate judicial restraint.
By the time of the Court’s 1963 Term Cox was also confronted with the fact that the
Court had significantly expanded judicial involvement in legislative reapportionment. In Baker,
“Archie stood up and said ‘It’s respectable and nothing will happen if you take on reapportionment.’”36 To the extent that there was little substantive criticism (from either
“intellectual critics” or “practical politicians”37) of the Court’s ruling in Baker, Cox had been right.38 Yet, it was never his belief that this legitimized decisions on the merits of apportionment plans – steps that the Court began to take in 1963 in Gray v. Sanders39 and Wesberry v.
34 Brief for Amicus Curiae United States at 14-16, Baker v. Carr, 369 U.S. 186 (1962). See GORMLEY, ARCHIBALD COX chapter eleven (discussing the acrimony which this brought to the previously warm relationship between Cox and Frankfurter). 35 “In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.” 369 U.S. at 268-269 (Frankfurter, J., dissenting, joined by Harlan, J.). Generally, see MARK SILVERSTEIN, CONSTITUTIONAL FAITHS: FELIX FRANKFURTER, HUGO BLACK, AND THE PROCESS OF JUDICIAL DECISION MAKING (1984). 36 Philip Heymann quoted in CAPLAN, THE TENTH JUSTICE 191. 37 The terms are taken from Robert B. McKay, Reapportionment: Success Story of the Warren Court, in THE WARREN COURT: A CRITICAL ANALYSIS 37 (Richard H. Sayler et al., eds., 1969). 38 Robert J. Pushaw, Jr., Bush v. Gore: Looking at Baker v. Carr in a Conservative Mirror, 18 CONST. COMMENT. 379-382 (2001). 39 372 U.S. 368 (1963) (holding that “political equality” could “mean only one thing – one person, one vote”, 372 U.S. at 381).
10 Sanders.40 In the six decisions handed down in June, 1964, dealing with the constitutionality of apportionment plans for state legislatures, the Court concerned itself with whether the principles laid out in Gray and Wesberry applied to cases involving the apportionment of state legislatures.41 Did the Constitution require states to apportion both houses of bicameral legislatures based on population? There is no doubt that Cox answered ‘no’ to this question as vehemently as Frankfurter had objected to the decision in Baker. Judicial application of the one person-one vote standard to both houses of state legislatures would trigger a “constitutional crisis”, Cox predicted. And, quite apart from his personal feelings about the cases, as Solicitor
General he felt it was his responsibility to protect the Court from what he saw as the dangerous ramifications of issuing such a ruling. As Burke Marshall42 observed:
Archie was firmly of the view that the “one man, one vote” position [of Gray]
was wrong. And he was also of the view that his function was to protect the
Court from itself, and that, therefore, he should not only urge that position on it,
but really urge the opposite.43
Vis-à-vis the reapportionment cases, Cox was easily the most prominent dissenting voice within the Justice Department. À la Frankfurter, he truly believed that the Court should not be exposed
40 376 U.S. 1 (1964) (holding that the Constitution required that, “as nearly as is practicable”, votes in congressional elections were to carry equal weight”, 376 U.S. at 8). 41 In addition to Reynolds and Lucas on June 15, 1964 the Court decided WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964); Davis v. Mann, 377 U.S. 678 (1964); and Roman v. Sincock, 377 U.S. 695 (1964). 42 Assistant Attorney General for the Civil Rights Division of the Department of Justice. 43 Burke Marshall and Robert F. Kennedy, recorded interview by Anthony Lewis, December 6, 1964, 572, RFK OHP, John F. Kennedy Library, Boston, Massachusetts (hereafter Lewis interview).
11 to the dangers it would face if it ruled for the petitioners in the state reapportionment cases of the
1963 Term. Of these, Lucas was Cox’s “worst legal nightmare” for several reasons.44
Firstly, it raised fundamental questions about democracy because it challenged an amendment to the Colorado State Constitution that had received electoral support from a majority of the voters in every county in the state. Indeed, as Table 1 shows, even in the nine counties of the East Slope (comprising the largest urban areas of Colorado) approximately sixty per cent of voters had supported ‘Amendment 7’ (providing for per capita apportionment in the
House alone) and rejected ‘Amendment 8’ (providing for per capita apportionment in the House and Senate). Furthermore, it was not obvious that the voter discrimination in Colorado was
‘invidious’. Had Cox been asked to rank the fifty states’ apportionment plans, placing the most inequitable plan at position one, he would have ranked Colorado somewhere between positions forty-six and fifty.45 Table 2 shows that there was considerable inequality of representation between the counties of the four regions, but as explained below there were a number of factors that Cox would argue mitigated this and, in his opinion, made the extent of the discrimination comparatively mild.46
44 GORMLEY, ARCHIBALD COX 174; ARCHIBALD COX, THE COURT AND THE CONSTITUTION 299 (1987). 45 GORMLEY, ARCHIBALD COX 174; Memorandum from Archibald Cox to Robert F. Kennedy, February 4, 1964, “Justice Dept. 2/10/64” folder, in Theodore C. Sorensen Papers, Subject Files 1961-64, Box 35, JFKL (hereafter Cox to RFK 2/4/64). 46 Cf. Congress vs. the Court – Issue Joined on Redistricting, N.Y. TIMES, August 16, 1964, in “Reapportionment of State Legislatures, 8/1964-12/1964” folder in RFK Senate Papers, Senate Legislative Subject File, Box 95, JFKL (detailing the degree of population imbalance in the fifty states in August 1964).
12 Amendment 7 Amendment 8 County Yes No Yes No N % N % N % N % Adams 14,740 57.8 10,771 42.2 11,277 44.9 13,843 55.1 Arapahoe 18,193 59.6 12,351 40.4 13,578 45.2 16,446 54.8 Boulder 12,654 56.8 9636 43.2 8524 39.0 13,311 61.0 Denver 75,877 55.4 61,183 44.6 55,499 42.1 76,208 57.9 El Paso 17,480 60.3 11,509 39.7 9175 32.5 19,058 67.5 Jefferson 24,815 58.5 17,597 41.5 20,229 48.8 21,217 51.2 Larimer 10,729 71.6 4251 28.4 3530 24.6 10,804 75.4 Pueblo 14,591 55.8 11,555 44.2 7930 30.8 17,820 69.2 Weld 10,914 68.5 5017 31.5 2871 19.0 12,217 81.0
Average 60.5 39.5 36.3 63.7
Table 1: Voting of the nine East Slope counties on Amendments 7 and 8.47
Region Average population of a Average population per Average percentage of county in the region senator of a county in ideal representation in the region a county in the region Western 28480 28480 172 Eastern 28419 28419 163 South Central 22185 22185 204 East Slope 146391 55581 85
Table 2: Population representation for Colorado Senate, 1960.48
The Lucas sextet
Of course, Archibald Cox represented only one view; and it was a view that met with disagreement both within the OSG and from persons within the larger environment of the DOJ, and the White House. The question remains, then, how extensive was this disagreement? In his biography of Cox, Ken Gormley argues that it was the White House that relinquished crucial
47 Compiled using data from Brief for Amicus Curiae United States at 25, Lucas v. Colorado, 377 U.S. 713 (1964). 48 Id. at 9.
13 ground in the process of writing the Lucas brief. In what he calls “a complicated game of chess, among players theoretically on the same team”, he portrays the Solicitor General as the primary force responsible for moving the White House from a desire to have per capita representation in all state houses to the position that change in this direction should come incrementally and without excessive judicial activism.49 In Kennedy Justice, Victor Navasky acknowledges that the reapportionment cases were the best example of Cox bowing to political pressure, but he still implies that Cox played a primary role in determining the content of the compromises reached in
Lucas.50
I do not dispute that the final position taken was largely Cox’s suggestion. The White
House-OSG-OAG memoranda on Lucas suggest, however, that Gormley and Navasky both underestimate the extent to which Cox’s arrival at this position resulted from pressures exerted by the other players in the game.51 From these memoranda we can identify six significant contributors to the crafting of the government’s brief in Lucas: Cox, Robert Kennedy, John W.
Douglas52, Nicholas Katzenbach53, Theodore C. Sorensen54, and Bruce J. Terris.55 Their recommended courses of action in Lucas are summarized in Table 3.56
49 GORMLEY, ARCHIBALD COX. 50 VICTOR NAVASKY, KENNEDY JUSTICE 298 (1971). 51 It should be said that Cox’s recollections have helped to justify the Gormley-Navasky position. He has written that the reapportionment cases represented the “only instance…in which there was frankly political discussion with the White House about the position that the government would take in the Supreme Court.” Although, he says, even Lawrence O’Brien, Special Assistant to the President for Congressional Relations and Personnel, put aside the politics when making recommendations about the content of the government’s amicus briefs. COX, THE COURT AND THE CONSTITUTION 297-298. 52 Assistant Attorney General (Civil Division). 53 Deputy Attorney General. 54 Special Counsel to the President. 55 Assistant to the Solicitor General. 56 Burke Marshall also submitted a memo on Lucas, but it merely summarized the case without offering a recommendation. Memorandum from Burke Marshall to Archibald Cox, February 3, 1964, “Justice Dept. 2/10/64” folder, Theodore C. Sorensen Papers Subject Subject Files 1961-64, Box 35, JFKL.
14 Individual and Office57 Recommended Course of Archibald Bruce Nicholas John Theodore Action Cox Terris Katzenbach Douglas Sorensen (OSG) (OSG) (DOJ) (DOJ) (WH) Per capita apportionment in both houses ÷ Narrow holding of ÷ unconstitutionality Remand for consideration using permissible criteria ÷ ÷ CO plan is constitutional Dismiss for want of equity ÷ Take no part in the case
Table 3: Courses of action recommended for inclusion in the government’s brief in Lucas.
The memoranda underscore Cox’s concern about the potential of the case to provide visible divisions within the federal government. He wrote to Robert Kennedy that he believed it was in the government’s interest to participate in the case lest the Court think that the government endorsed Colorado’s apportionment plan. “Although”, he continued, “the depth of our differences and uncertainties may suggest that the United States has no opinion warranting expression.”58 Ultimately the government did express an opinion but, as Cox’s observation suggested it was a document borne out of compromise and accommodation.
Of all the Lucas memoranda, the most important was not written by Cox or Kennedy, but by Bruce J. Terris, an assistant to Cox. On July 3, 1963, Terris, a known civil rights advocate, wrote a highly influential eleven page memo that passionately argued for the application of the one person, one vote standard to both houses of state legislatures.59 In his opinion judicial action was the lifeblood of reapportionment, making Reynolds et al. more significant than the sit-in
57 OSG = Office of Solicitor General; DOJ = Other office in the Department of Justice; WH = White House. 58 Cox to RFK 2/4/64, 5. 59 Memorandum from Bruce J. Terris to Archibald Cox, July 3, 1963, “Justice Dept. 2/10/64” folder, Theodore C. Sorensen Papers Subject Files 1961-64, box 35, JFKL (hereafter Terris to Cox 7/3/63).
15 cases which were part of a civil rights movement that had its own momentum regardless of the outcome of judicial action.60 He felt that the reapportionment cases presented the government with a golden opportunity to take a bold stand in defense of voting rights, and that the Court would be very receptive to any argument that the OSG made:
…the position taken by the government is probably of considerably greater
influence in these cases than in almost any others in which the government
appears as an amicus curiae. It is generally accepted, and I am sure the Court
agrees, that we carried the brunt of persuading the Court to decide Baker v. Carr
as it did. I think that it is unlikely that the Court will impose a stricter standard on
the states than we suggest. However, I think that there is probably a majority for
deciding as strict a standard as we are willing to support.61
Ironically, the Court did impose a “stricter standard” than that advocated by the government; it was the stricter standard that Terris recommended.
Although it was unclear just what was protected by the Equal Protection Clause of the
Fourteenth Amendment, Terris argued that it was “easier” to interpret equal protection as requiring per capita apportionment than to read it ‘expansively’, as the Court had done in Brown v. Board of Education62, to require desgregation of public schools.63 Unlike Cox, Terris saw his duty as an OSG attorney dictated by the wishes of the executive branch of the government. And he was perfectly aware of the political ramification of his recommendations. He concluded,
60 Id., at 1. 61 Id. 62 347 U.S. 483 (1954). 63 Terris to Cox 7/3/63, 8-9.
16 however, that the bicameral per capita approach was sound policy and that the “benefit [to] the country” was widely acknowledged within the executive branch.64 On this point Terris clearly was correct. He lobbied hard for acceptance of this position, and was very successful in achieving broad dissemination and acceptance of his views within the Kennedy Administration.65
They were, however, rejected outright by his superior, Solicitor General Cox, who referred to them as “intolerable”, and the views of “doctrinnaire liberals”.66
On August 19, 1963 Archibald Cox wrote Robert Kennedy that as a participant at a state constitutional convention he might vote for per capita representation, but that his duty as
Solicitor General required a position of discouraging judicial intervention in the matter. He gave several reasons why the government should join Reynolds et al. as an amicus, and echoed
Terris’s belief that briefs from the OSG had the potential to be very influential. However, he could not agree with his assistant’s recommended course of action. Cox acknowledged that his own view “stems largely from personal conviction”, but emphasized that this personal conviction consisted of concerns about the implications of a per capita ruling for federalism, and the legitimacy of the law and the judiciary.67 Concern for “the proper rule of the Supreme Court in our national life, and the obligation of the Solicitor General to the Court” were foremost in his mind, he explained, lest either his office or the Administration wish to see recent advancements in civil rights and criminal procedure litigation jeopardized.68
64 Id., at 9-10. 65 For example, see Memorandum from David Rubin to Harold H. Greene, undated, “Re: Reapportionment Cases in Supreme Court” folder, White House Central Subject Files, Box 189 FG410, JFKL. 66 Cox to RFK 2/4/64, 9; Memorandum from Archibald Cox to Robert Kennedy, August 19, 1963, 14, “Re: Reapportionment Cases in Supreme Court” folder, White House Central Subject Files, Box 189 FG410, JFKL (hereafter Cox to RFK 8/19/63). 67 Id., at 15-16. 68 Id., at 16-19.
17 In a “desperate”69 memo six months later, he summarized the options that he saw open to the government in Lucas, and concluded that the government should advocate dismissal of the case for want of equity, allowing the Court to dispose of the case without ruling on its merits.
Prior to Baker the standard argument for dismissal of reapportionment cases was the ‘political question’ doctrine. In 1964 this was clearly not an option open to Cox. One might argue that dismissal for want of equity was a bizarre suggestion – it certainly was not recommended by anyone else.70 The Court was, however, no stranger to such requests in reapportionment cases.71
And dismissing for “want of equity” has been described as “a policy of judicial self-limitation with respect to the entire question of judicial involvement in essentially ‘political’ questions”, a tactic epitomizing the restrained perception of the judicial role held by Cox.72
He offered four justifications for a dismissal, all of which indicated Cox’s concern for the institutional welfare of the Court – a concern sensitive to the socio-political environment in which the Court acts, a concern thereby focused upon justifying and legitimizing that institution’s decisions.73
69 GORMLEY, ARCHIBALD COX 174. 70 John W. Douglas also noted the existence of this option. If asked to choose between requesting “a remand to the District Court for consideration of the proper elements or for dismissal for want of equity,” however, Douglas expressed a preference for the first. Memorandum from John W. Douglas to Robert Kennedy, February 11, 1964, “Colorado Apportionment Case – Commerce, Department of” folder, Robert F. Kennedy Papers, Attorney General’s General Correspondence, Box 12, JFKL (hereafter Douglas to RFK 2/11/64). In his biography of Cox, Ken Gormley has written that some of the recommendations contained in the memorandum were “almost alarmist.” This is a suitable description for Cox’s warning that a ruling that the Constitution required both houses to be apportioned based on population would “risk a severe constitutional crisis” and would trigger the states to “defy the Court” in ways whose resolution would involve the use of federal troops. However, Gormley misleads the reader into associating “almost alarmist” with the suggestion to dismiss for want of equity. GORMLEY, ARCHIBALD COX 174-175, 499 (n. 74); Cox to RFK 2/4/64. 71 ROBERT G. DIXON, JR., DEMOCRATIC REPRESENTATION: REAPPORTIONMENT IN LAW AND POLITICS 182-183 (1968); see also Colegrove v. Green, 328 U.S. 549, 565 (Rutledge, J., concurring), quoting Wood v. Broom, 287 U.S. 1 (1932) (opinion of Brandeis, J., Stone, J., Roberts, J., and Cardozo, J.). 72 JIGSAW POLITICS: SHAPING THE HOUSE AFTER THE 1990 CENSUS 19 (1990). 73 Cornell Clayton & Howard Gillman, Introduction to THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS (Howard Gillman and Cornell Clayton eds., University Press of Kansas, 1999).
18 • First, implying that Lucas was such a case, Cox explained that a “court of equity is free to
decline to exercise its jurisdiction in cases where its action might be contrary to the
public interest”.74
• Second, he believed that “fair representation” was a ‘shared’ rather than ‘individual’
right. Possession of this right did not guarantee preferential treatment to any one voter in
a district. As he later explained in the government’s brief, absent any person having
more representation than another within a district “every action to enforce a claimed
constitutional right to greater per capita representation is a class action necessarily
affecting all the voters in the district.”75
• Third, there were “wide opportunities for the assertion of majority rule” in Colorado –
namely the existence of the initiative and the referendum.76 This argument was part of
Cox’s attempt to protect the Court from the ‘countermajoritarian’ charges it would surely
face by ruling on the merits of the case; its inclusion in the brief also shows the executive
branch concern with protecting the rights of the States.
• Finally, Cox argued that this course of action would be in accordance with (a) the
arguments made in the government’s briefs in the other reapportionment cases of the
1963 Term, and (b) the nation’s constitutional history.77
Seeking consistency reflected Cox’s understanding of the role of the Solicitor General, because in the reapportionment cases he was a very special RP. As the only lawyer filing in all six cases
74 Cox to RFK 2/4/64, 8. 75 Lucas govt. brief, 27. 76 Cox to RFK 2/4/64, 8. 77 As Burke Marshall and Robert Kennedy rather sarcastically observed, Cox’s argument could be summarized as follows: “It didn’t fit with history. It didn’t fit with the federal structure. It didn’t fit with the history of England. It didn’t fit with anything.” Quoted in GORMLEY, ARCHIBALD COX 171.
19 of the 1963 term, inconsistency in the position adopted would undermine the solicitor general’s
“gatekeeper” role.
Given Cox’s concern, as Solicitor General, for the welfare of the Court, it was to be expected that he would also concede the possibility that failure to rule on the merits of Lucas might trigger lower court inaction in other instances of legislative malapportionment.78 After all, one could argue that failure to rule posed the same degree of institutional threat as any decision to rule on the merits – albeit a different kind of threat (the wrong signal to lower courts, rather than the charge of countermajoritarian action). In Cox’s opinion, however, these risks were outweighed by the advantages of this course of action:
No course of action, except the doctrinaire position that I find intolerable
[advocated by Terris], will dispense with a measure of turmoil and uncertainty for
a number of years to come. Of all the disadvantages, the risk that some lower
courts will decline to exercise a jurisdiction that ought to be exercised, seems least
important.79
The problem of legislative reapportionment was not about to disappear, but dismissal for want of equity would, in his view, reduce the possibility of a political backlash against the Court.
If Salokar is right about the influence of personalities on the work of the solicitor general,80 then it would be significant if Robert Kennedy’s views on Lucas were little more than a distillation of Cox’s opinions. We know he took a strong personal interest in the reapportionment cases, but how closely did the views expressed in the Lucas brief reflect the
78 Cox to RFK 2/4/64, 9. 79 Id.
20 nature of this interest? It might significantly reduce the argument that Cox faced a dilemma in balancing the legal and political aspects of legislative reapportionment if there is little difference in their views.
There are two reasons why one might think of Kennedy’s views as a composite of Cox’s.
First, animosity existed at the beginning, reflecting their differences in age and legal experience:
“If Robert Kennedy was the Attorney General who had never practiced law, sometimes it seemed to the younger men in the Department that Archibald Cox, by general agreement among the most distinguished Solicitors General in the history of the office, was the Solicitor who couldn’t see beyond the law.”81 However, the two came to recognize the complementarity nature of their relationship, as reflected in Burke Marshall’s comment that Kennedy
had problems which he surmounted, by patience namely, in communicating with
Archie Cox…I think mainly because Archie is always a teacher, and so he had to
give you a lecture with whatever advice he gave you. But Bob Kennedy took the
lectures and never showed any impatience with him or anything.82
80 SALOKAR, THE SOLICITOR GENERAL 104. 81 Navasky observes that these differences, while to an extent inherent in the two different offices, were more broadly demonstrated by the different approaches to the study of law at Harvard and Yale. Cox surrounded himself with fellow graduates of Harvard Law School, whereas Kennedy’s immediate point of reference was the Justice Department staff assembled by Deputy Attorney General Byron White. White chose men with several distinct characteristics, not the least of which was graduation from Yale Law School. NAVASKY, KENNEDY JUSTICE 317 (quote), 320-321; see also DENNIS J. HUTCHINSON, THE MAN WHO ONCE WAS WHIZZER WHITE: A PORTRAIT OF JUSTICE BYRON R. WHITE 268-269 (1998); ARTHUR M. SCHLESINGER, JR., ROBERT KENNEDY AND HIS TIMES 1: 236-239 (1978); Robert F. Kennedy, recorded interview by John Bartlow Martin, February 29 1964, 26, and April 13, 1964, 136, RFK OHP, JFKL. 82 Burke Marshall, recorded interview by Larry J. Hackman, January 19-20, 1970, 10, RFK OHP, JFKL. See also Gormley, Archibald Cox, 163.
21 One might also see little difference in the views of the two men because by the time the government’s brief was filed in Lucas and oral arguments were heard Robert Kennedy had become increasingly disinterested in DOJ work (following the death of his brother).83
There are, however, two compelling reasons to separate the views of Kennedy and Cox: the nature of the attention that Kennedy paid to the issue while Attorney General, particularly with regard to the electoral effects of legislative reapportionment; and his senatorial interest in the issue. To be sure, Kennedy knew his legal skills paled in comparison to Cox’s. He was equally aware, though, that his political knowledge and experience surpassed that of Cox.
Consequently, he recognized the importance of approaching the reapportionment cases from a political perspective. The Court’s decision in Baker notwithstanding, the issue was still very much a political question. Consequently, in discussions on Lucas (and the other reapportionment cases) it is fair to say that Cox and Kennedy “started at opposite philosophical poles”.84 Kennedy did not ignore the relevance of the rule of law; his starting point was, however, the politics of the issue. We can this see from the attention paid to the electoral implications of legislative reapportionment. It is clear that Robert Kennedy shared the views of the Kennedy
Administration as expressed in the following discussions.
In the spring of 1963 concern arose over the attempts of the Council of State
Governments to mobilize the states to amend the Constitution to eradicate federal court jurisdiction over legislative apportionment.85 Of the thirty-one states for which information was
83 GORMLEY, ARCHIBALD COX chapter twelve. 84 Id., at 164. 85 The proposed amendment read as follows: “Section 1. No provision of this Constitution, or any amendment thereto, shall restrict or limit any state in the apportionment of representation in its legislature. Section 2. The judicial power of the United States shall not extend to any suit in law or equity, or to any controversy relating to apportionment of representation in a state legislature. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of three-fourths of the several States within seven years from the date of its submission.” See attachment to Letter from Lawrence Speiser [Director of
22 available in May, 1963, only one – Wyoming – had actually enacted a resolution approving such an amendment. However, resolutions had passed the House/Assembly and/or Senate in approximately fifty per cent of the remaining states.86 This effort drew considerable criticism from the White House and from Cox. As the latter pointed out in an address before the
Cleveland Bar Association and the City Club, the “lack of debate” on the issues raised by the proposed amendments87 was “not only surprising but shocking.”88 This reaction echoed the editorial that appeared in the NEW YORK TIMES labeling as “incredible and distressing” the absence of substantive scrutiny (legislative, public, and intellectual) of these proposals.89
In the wake of Baker, Professors Paul T. David and Ralph Eisenberg co-authored an influential paper addressing the reapportionment of state legislatures.90 In 1962 and 1963 there was considerable correspondence between Professor David, and Lee C. White, Assistant Special
Counsel to the President, suggesting that the White House paid close attention to the evolution of this issue. This conclusion is also suggested by the replies to letters from the Speaker of the
Florida House of Representatives, pertaining to that legislature’s Memorial that expressed the
the Washington Office of the ACLU] to Lee White, May 2, 1963. “Civil Rights – General 6/18/62-11/16/63 and undated” folder, White House Staff Files, Lee C. White File, Box 19, JFKL. 86 Statistics compiled using data from Ibid. Information in the Senate files of Robert Kennedy indicates that states’ action only increased with time. Particularly, see “Constitutional Amendment Action By State Legislatures” in “Reapportionment of State Legislatures, 1/1965-3/1965” folder, RFK Senate Papers, Senate Legislative Subject File, Box 95, JFKL. See also THEODORE H. WHITE, THE MAKING OF THE PRESIDENT – 1964 93-94 (1965); and William G. Ross, Attacks on the Warren Court by State Officials: A Case Study of Why Court-Curbing Movements Fail, 50 BUFF. L. REV. 483 (2002) (detailing the nature of some of these attacks). 87 The Council of State Governments had also recommended two other amendments – (1) to create a “Court of the Union” whose members, the Chief Justices of the fifty states’ highest courts, would have the power to overrule the U.S. Supreme Court; (2) to amend Article V to enable the Constitution to be amended by a vote of three-quarters of the state legislatures without any congressional or national convention involvement. 88 “Understanding the Supreme Court” address, May 4, 1963, 5. “Rule of Law” folder, RFK Senate Papers, 1964 Campaign, Background Materials: John Nolan File, Box 7, JFKL. 89 “Upsetting the Constitution.” April 15, 1963, New York Times. Attached to Letter from Lawrence Speiser to Lee White, May 8, 1963. “Civil Rights – General 6/18/62-11/16/63 and undated” folder, White House Staff Files, Lee C. White File, Box 19, JFKL. 90 Originally prepared for presentation at the annual meeting of the American Political Science Association, September 5, 1962, it was subsequently published by the Public Administration Service. PAUL T. DAVID AND RALPH EISENBERG, STATE LEGISLATIVE REDISTRICTING: MAJOR ISSUES IN THE WAKE OF JUDICIAL DECISION (1962).
23 belief that state legislative apportionment was not a federal question.91 In a September 11, 1962 letter T. J. Reardon, Jr., Special Assistant to the President, reminded Speaker Chappell of the fundamental nature of the right to vote, and equal access to voting:
I believe all agree that apportionment of seating in state legislatures is primarily a
matter for determination by the individual states. However, pervading our
federal-state system are certain overall guaranties of freedom and fairness to all
the people, provided by the Constitution of the United States. Among these is the
protection of voting rights.92
And he went on to dispute Chappell’s interpretation of Baker: “The Supreme Court did not say…that the courts are the only proper instruments to reform electoral inequities. It merely said that state legislatures are no longer free to maintain such inequities if they offend the equal protection clause of the Fourteenth Amendment.”93
In his October reply the Speaker maintained that the power to apportion state legislatures resided with the states. Although the White House formulated a response, it appears that this was never written, on the understanding that the Administration had made its position on the matter quite clear in Reardon’s letter of September 11.94
91 Additionally, see “Some New Year’s Resolutions on Law Day: Remarks of Assistant Deputy Attorney General Joseph P. Dolan” May 1, 1963, delivered before Oneida County Bar Association, Utica, NY; and “Government Under Law in a Dynamic Age: Address by Attorney General Robert F. Kennedy” May 4, 1963, delivered at the University of Virginia Law School, Charlottesville, VA. Both in “Constitutional Amendments – 3 Proposed” folder, RFK Senate Papers, 1964 Campaign, Background Materials: John Nolan File, Box 6, JFKL. 92 Letter from T. J. Reardon, Jr. to William U. Chappell, Jr., and W. Randolph Hodges, September 11, 1962. “ST 2- 16-62 –” folder, White House Central Subject Files, Box 929, JFKL. 93 Id. 94 Memorandum (and attached draft letter) from Norbert A. Schlei [Assistant Attorney General, Office of Legal Counsel] to T. J. Reardon, Jr., November 20, 1962. “ST 2-16-62 –” folder, White House Central Subject Files, Box 929, JFKL.
24 Second, both the White House and the Democratic National Committee expressed considerable interest in the implications of the apportionment cases for the party’s 1964 convention. Both Baker and Gray made reforming the method of allocating votes at the convention a pressing issue.95 It was widely accepted that allocation on the basis of electoral college votes was no longer acceptable because it failed to reflect party strength in the states.
Although favored by some, it was also generally accepted that offering ‘bonus’ votes to states wherein a majority of the electorate had voted for Kennedy in 1960 was as “inherently inequitable” and “morally indefensible” as pure electoral college vote allocation had, in light of the “one person, one vote” doctrine, become.96 At all times discussion of the different reform proposals focused on political feasibility and political gain. The main question asked was –
‘How would any changes benefit President Kennedy when he was re-nominated by the
Democratic Party in the summer of 1964?’ This was, for all concerned, a distinctly political question.
Once elected to the Senate Robert Kennedy became an influential opponent of the
Dirksen Amendment, an attempt to propose a Constitutional amendment limiting the requirement of population-based apportionment of bicameral state legislatures to house districts, rather than to both chambers.97 As a high-profile freshman Senator Kennedy received voluminous correspondence from across the nation, from the general public, politicians (local, state,
95 Although, there is evidence that the Democratic National Committee was considering the need to make the 1964 apportionment of convention votes more “fair and equitable” prior to the 1960 convention, but that action was never taken. Memorandum from Harold Leventhal [DNC General Counsel] to John Bailey [DNC Chairman], undated. “Apportionment and 1964 Democratic National Convention” folder, Theodore C. Sorensen Papers, Subject Files 1961-64, Box 28, JFKL; see also PAUL T. DAVID, RALPH M. GOLDMAN, AND RICHARD C. BAIN, THE POLITICS OF NATIONAL PARTY CONVENTIONS 170 (revised ed. 1964). 96 Letter from Paul T. David to Lee C. White, July 15, 1963, 1. “Apportionment and 1964 Democratic National Convention” folder, Theodore C. Sorensen Papers, Subject Files 1961-64, Box 28, JFKL. (The Democratic Party began the practice of allocating bonus votes at the 1944 convention but had already begun to phase it out by the 1960 convention. David, Goldman, and Bain, National Party Conventions (1960), 169, 174. 97 Joseph D. Tydings, recorded interview by Roberta W. Greene, September 29, 1971, 32, RFK OHP, JFKL.
25 national), business leaders, and just about anybody who had an opinion on legislative apportionment.98 His responses generally conformed to the remarks that he made – in addresses, before Senate committees, and on the floor of the Senate – in defense of the Court’s decisions.
Comparing the Dirksen Amendment effort to those of the states in reaction to Baker, Kennedy expressed particular concern that discussion of this important subject was receiving insufficient attention. The audience at Columbia Law School was reminded that “the same kind of vacuum permitted substantial support to develop” for the amendments in the states, proposals that “would have seriously weakened the power of the Supreme Court”.99
To be sure, the Senator’s speeches emphasized the legal aspects of legislative reapportionment. However, it is interesting to note that when mention was made of Lucas and
Reynolds Kennedy used the cases to make a political point. Strip the judiciary of its power to mandate constitutional remedies for malapportionment and you left the people with no fair recourse. Protection of fundamental voting rights would be left to the whim of legislators who, it had to be said, could not be relied on to create plans not in accordance with their own self- interest. Kennedy also repeatedly explained that this was not simply an issue of urban versus rural interests, but that the proposed amendments also affected the rights of black Americans. In
1965 this was a powerful political statement.
…
98 See “Congress: Reapportionment, 3/1965-7/1965” and “Congress: Reapportionment, 8/1965-12/1965” folders, RFK Senate Papers. Correspondence: Subject Files, 1965, Box 12; “Congress, U.S.: Reapportionment” folder, RFK Senate Papers. Correspondence: Subject Files, 1966, Box 20; Ten folders pertaining to state legislative reapportionment, January, 1964 – June, 1965 in RFK Senate Papers, Senate Legislative Subject File Box 95; and RFK Senate Papers, Senate Legislative Subject File Boxes 96, and 97, JFKL. 99 Address by Senator Robert F. Kennedy, Columbia Law School Forum, New York City, April 29, 1965. “Constitutional Issues: Reapportionment” folder, RFK Senate Papers, Speeches & Press Releases, Box 1, JFKL. (This speech was actually delivered by Burke Marshall because the Senator had to return to Washington for a vote; its contents, however, mirror those made by Kennedy on subsequent occasions. See, for example: Testimony of Senator Robert F. Kennedy on Reapportionment, before the Subcommittee on Constitutional Amendments, U.S. Senate, May 6, 1965; and Statement by Senator Robert F. Kennedy, Senate, August 4, 1965. In “Constitutional Issues: Reapportionment” folder, RFK Senate Papers, Speeches & Press Releases, Box 1, JFKL.)
26 In addition to those of Terris and Cox, Robert Kennedy received Lucas memoranda from three other individuals. Deputy Attorney General Nicholas Katzenbach, and John W. Douglas, an Assistant Attorney General in the Civil Division, both expressed concerns that the Court should not address the Fourteenth Amendment question at this point in time. Douglas was clearly worried about the political consequences of a headstrong Court’s involvement in the reapportionment cases. He foresaw “widespread hostility” to a ruling that the Constitution required per capita apportionment in both houses of state legislatures. He favored remanding the case to the lower court, but with the explicit instruction to the court to reconsider the case using permissible criteria.100 This he preferred to dismissal for want of equity because, echoing the observations that would be made in the government’s final brief, he believed this would jeopardize the segregation cases.101
Katzenbach agreed that it was too soon to ask the Court to risk its legitimacy and the importance of voluntary acceptance to the rule of law by imposing per capita apportionment upon all the state legislatures. Yet, he could not agree with the conclusion that Cox had reached.
Instead, he recommended the “narrow ground” argument (that Amendment 7 was unconstitutional, but that the Court did not need to address the Fourteenth Amendment requirements) that the government ultimately adopted in its brief.
To better understand why Katzenbach and Cox differed on this point we can compare the speeches they delivered shortly after Baker was decided.102 Cox focused on reaction to the
100 By which was meant judging the constitutionality of apportionment not based on economic, geographical, transportation, and economic factors. He acknowledged the danger of remanding the case without specific instructions: “I don’t believe that the case can be sent back to the District Court with directions merely to “hold”, “consider”, etc.” Douglas to RFK 2/11/64, 2. 101 Id., at 1. 102 Address by Nicholas deB. Katzenbach at Vanderbilt University, April 27, 1962, “Baker v. Carr” folder, Robert F. Kennedy Senate Papers, 1964 Campaign, Background Materials: Edwin Guthman File (hereafter Katzenbach address); “Law and the People” address by Archibald Cox before the Multnomah County Bar Association, Portland,
27 decision, invoking the spirit of Justice Frankfurter’s dissenting opinion. “For the ultimate resolutions of questions fundamental to the whole community”, he wrote, “must be based on common consensus of opinion.” Absent this, he warned his audience, there would be a significant threat to the rule of law that depended on the “voluntary acceptance” of governmental decisions.103 By contrast, Katzenbach was far more concerned with the political implications of
Baker. The decision should be welcomed by the states, he said, as a way to ‘strengthen’ and
‘preserve’ federalism. It should be used be state legislators and judges alike to meet the problems of a changing America.
Hinting at the later views that he would espouse, Katzenbach commented that
It is no doubt true…that we have not in fact reached the status where
representation proportioned to the geographic spread of population is universally
accepted as a necessary element of equality between man and man. But as a
standard for action and achievement the concept has been part of the American
heritage and development from Jefferson to modern time, and the way is now
open for obtaining judicial assistance in securing that equality in representation
[italics added].104
Archibald Cox and Nicholas Katzenbach both acknowledged the importance of securing rights pertaining to electoral representation. They disagreed (normatively and practically) as to the degree of judicial intervention that was required to achieve this.
Oregon, May 1, 1962, “Rule of Law” folder, Robert F. Kennedy Senate Papers, 1964 Campaign, Background Materials: John Nolan File, Box 7, JFKL (hereafter Cox speech). 103 Cox speech, 12-13. 104 Katzenbach address, 16.
28 …
Of the people from whom Robert Kennedy received Lucas memoranda, discussion of
Theodore Sorensen’s memo has been reserved until last because he was the only person to write from within the White House rather than the Department of Justice. Sorensen sharply criticized
Cox’s conclusion that the malapportionment was either comparatively mild or acceptable
(normatively or constitutionally): “I cannot accept the argument that 36% is nearly 45% which is nearly 51%. That may or may not be sound mathematics--it is not sound politics. The difference between a 55-45 victory and a 64-36 victory is far greater in politics than in basketball
[italics added].”105
Rather than sharing Cox’s concession that dismissal of the case might send the wrong signal to the lower courts, Sorensen was adamant that this was the wrong course of action.106
Yet, evidencing the primacy of political considerations, Sorensen also rejected Terris’s recommendation. Now was not the time for the Administration, he wrote, to advocate per capita apportionment in “both houses of every state legislature”.107 Instead, Sorensen agreed with
Douglas that the case be remanded for reconsideration using permissible criteria.
The ‘politicization’ of the reapportionment cases of the October 1963 Term became apparent long before the Court granted cert. in Lucas. After Baker the Kennedy Administration aggressively pursued expansion of judicial involvement in legislative apportionment, with the aim of mandating per capita representation in state legislatures. As Cox has written: “By the time the Colorado case reached the Court, strong sentiment for pressing the Court to adopt the
“one person, one vote” rule had developed among all liberals, especially in segments of the
105 Memorandum from Theodore Sorensen to Robert Kennedy, February 10, 1964, “Justice Dept. 2/10/64” folder, Theodore C. Sorensen Papers Subject Files 1961-64, Box 35, JFKL. 106 Id.
29 press, in the White House, and in the Department of Justice.”108 In the end these “liberals” did
not prevail in either the White House or the Department of Justice; they did, however, on the
Court.
Part III: Nine’s Company…
Isn’t the basic issue whether these appellants and all the other people in the State of
Colorado have proper representation, whether they are city people or farmers, liberals or
conservatives, or whatever? – Chief Justice Earl Warren109
This question asked of Cox in the Lucas oral arguments suggested that, at least in the mind of the
Chief Justice, the government was wrong to argue that the Court should not, at this point, hold
that the Constitution required per capita apportionment in both houses of state legislatures. The
question foretold the decision that the Court would reach, and the opinion that Warren would
write for the Court.
Warren chose Reynolds v. Sims in which to write the opinion with the main holding of
the June 1964 reapportionment cases. The main issue before the Court was “whether there are
any constitutionally cognizable principles which would justify departures from the basic standard
of equality among voters [that Wesberry and Gray had established] in the apportionment of seats
in state legislatures”.110 The Court held that the apportionment of both houses of bicameral
legislatures must be based on population; some deviations were permissible, but the
107 Id. 108 COX, THE COURT AND THE CONSTITUTION 299. cf. GORMLEY, ARCHIBALD COX 170 (“Word came down from Ted Sorensen and the “Kennedys” in the White House, including Sargent Shriver and Steven Smith, that the concept of voting equality should now be pushed one step further by the Justice Department. It was time, they said, to embrace “one person, one vote.””) 109 Lucas v. Colorado oral argument question from Chief Justice Warren, quoted in Schwartz, Super Chief, 505. 110 377 U.S. at 561.
30 apportionment had to be substantially based on population. “Legislators represent people, not trees or acres” Warren wrote. “Legislators are elected by voters, not farms or cities or economic interests.”111
One of the most significant aspects of Reynolds was the opinion’s inclusion of electoral representation rights in the category of “fundamental interests” that would trigger strict scrutiny.112 Traditionally, under the Equal Protection Clause of the Fourteenth Amendment the
Court had been reluctant to apply anything but rational basis review. The very idea of giving strict scrutiny to certain cases because they raised issues involving “fundamental interests” opened the Court up to the very same charge of ‘Lochnerizing’ that, at that time, still haunted justices who favored the idea of substantive due process. What gave the justices the right, so the argument went, to determine that an unenumerated interest was “fundamental” and therefore worthy of a heightened level of judicial review?113 In the reapportionment cases, explicitly so in
Reynolds et al., the Warren Court justified using strict scrutiny review for voting rights because of their centrality to democratic theory. It made no sense, Warren argued, to classify suffrage rights as “fundamental” while permitting the votes cast to be ‘weighted’. “To the extent that a citizen’s right to vote is debased” he wrote, “he is that much less a citizen.”114
While ‘substantive equal protection’ might be controversial, subjecting apportionment legislation/plans to a high standard of judicial review is not, as reflected by the acceptance of this standard by subsequent courts.115 At the time, however, Warren’s unequivocal rejection of any notion that there was room for the states to negotiate vis-à-vis the Court’s interpretation of the
111 377 U.S. 533, 562. 112 377 U.S. 533, at 561-562. 113 This problem became particularly acute after the decision in Skinner v. Oklahoma (316 U.S. 535 (1942)) because since then “the concepts of equality and liberty, along with textual provisions regarding equal protection and due process, have become competing though not mutually exclusive bases for deriving fundamental rights.” WALTER F. MURPHY ET AL., AMERICAN CONSTITUTIONAL INTERPRETATION 977 (2nd ed. 1995).
31 Fourteenth Amendment was one of the main factors behind the Dirksen Amendment.116 It was an interpretation that went way beyond the recommendations of the government in Lucas. In the government’s brief Cox made six main arguments, the Court rejected the three most important.
The case should not be dismissed for want of equity
Of the three points of agreement between the Court and the government, this is the most interesting; it says a great deal about the pressures faced by Cox.117 The government’s amicus brief in Lucas began with a rejection of the course of action that the Solicitor General had recommended in his memoranda to the Attorney General. The Court should not dismiss the case for want of equity because this would undermine the value of Baker. “[T]he federal courts” the brief observed, “have a clear duty to adjudicate and enforce claims of unconstitutional discrimination resulting from malapportionment.”118 Quoting from Hall v. St. Helena Parish
School Board119, a lower court school segregation opinion affirmed by the Court in 1962, the brief observed that “[n]o plebiscite can legalize an unjust discrimination.”120 The Court could
114 377 U.S. at 561-564, 567. 115 KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 794-831 (14th ed. 2001). 116 Unlike Reynolds et al., Wesberry did not raise the ire of Congress. Firstly, the extent to which legislative districts were malapportioned was significantly greater for state seats than for congressional districts. This meant that the consequences of the June, 1964 cases were greater than those of Wesberry because almost every state would be required to undertake some kind of reapportionment of its legislature. Secondly, Wesberry left the apportionment of the U.S. Senate untouched. In Congress there remained one house of the legislature not apportioned based on population; the result of the Great Compromise stood intact. Reynolds et al. interpreted the Constitution as requiring the standard of population to be applied to both houses of state legislatures. In this respect, Reynolds became the easier target for congressional attacks. Finally, where Wesberry was based on the history and the wording of Article I, § 2 which made the intentions of the Framers relatively clear (Justice Black’s historical interpretation in Wesberry did receive criticism from both on and off the bench (see 376 U.S. 1, 43-46 (Harlan, J., dissenting); and Kennedy Marshall interview, 581), in Reynolds the Court was dealing with the ambiguous wording of the Equal Protection Clause of the Fourteenth Amendment. 117 The government and the Court also agreed upon (a) rejection of the rational objectives used by the lower court to uphold the constitutionality of Amendment 7 (such as the geography, history, and economics of Colorado; see Lisco v. Love, 219 F. Supp. 922 (1963)); and (b) rejection of the relevance of the federal analogy. 118 Lucas govt. brief, 15. 119 197 F. Supp. 649, 659 (E.D. La.), affirmed 368 U.S. 515 (1962). 120 197 F. Supp. at 659, quoted in Lucas govt. brief, 15.
32 not have agreed more. “Courts sit to adjudicate controversies involving alleged denials of constitutional rights” wrote Warren.121
Clearly this part of the brief ran contrary to Cox’s personal beliefs about the judicial role, and represented the rejection of the position that he recommended in his brief to Robert Kennedy on February 4. In a way, though, Cox must have felt he had achieved a partial victory by securing the inclusion, in the brief, of the argument that the voters in Colorado had recourse to a political remedy. This was only a partial victory though.
There is a political remedy
Warren’s inclusion of the St. Helena quote in the Lucas opinion122 might suggest that the government and the Court were in agreement about the value of equal representation of voters.
However, it was included to underscore the majority’s conclusion that the voters in Colorado did not have recourse to a political remedy. The Court rejected the argument that the existence of the initiative and referendum in Colorado, and the proclivity of that State’s voters to use these democratic mechanisms, enabled the Court to defer to the political branches for a remedy of the malapportionment. In fact, it was in this part of the opinion that Warren included a rationale that
(a) went beyond anything suggested by any of the parties, and (b) gave a good indication of the
Chief Justice’s appreciation of the political nuances involved in a case of this nature. Warren argued that Amendment 7 and Amendment 8 suffered from the same flaw. Both provided that in any county represented by more than one seat elections would be at-large.
121 377 U.S. at 736. 122 377 U.S. at 736, n. 29.
33 Thus, under the existing plan, each Denver voter was required to vote for eight
senators and 17 representatives. Ballots were long and cumbersome, and an
intelligent choice among candidates for seats in the legislature was made quite
difficult. No identifiable constituencies within the populous counties resulted,
and the residents of those areas had no single member of the Senate or House
elected specifically to represent them.123
Although not expressly stated, the implication was clear – in 1962 the Colorado electorate was offered a choice between two amendments that were equally intended to preserve the advantage of power then held by the rural and more sparsely populated counties. The choice, Warren concluded, “was hardly as clear-cut as the court below regarded it.”124
The Fourteenth Amendment question should not currently be addressed
Following the recommendations of Sorensen, Marshall, Katzenbach, and Douglas, the government’s Lucas brief argued that 1963 was the wrong time to decide whether the Fourteenth
Amendment required population-based apportionment in both houses of state legislatures. Both
Katzenbach and Douglas preferred a course of action that would maintain the involvement of the federal courts – to “keep pressure [on the states] for fair apportionment” – but would not further alienate the nation’s elected representatives. The Court should not mandate change in every state legislature because legislators would see this as a threat to federalism and yet another example of the countermajoritarian problem of the federal judiciary. As Cox explained in a memorandum to
Robert Kennedy:
123 377 U.S. at 731.
34 Such a position would be contrary to the basic philosophy that ours is a federal
system of government in which the people of the States have a large measure of
local self-government. The federal government would be asking the Supreme
Court to deny the people of Colorado and other States the right to choose a form
of representation adopted by most of the States for all of our history. It would
force the rule upon Colorado even though another apportionment, quite
reasonable by historic and current standards of practice, has recently been chosen
in a specific referendum by majority of the State’s people in each and every
subdivision. Lower courts, in large numbers, have almost unanimously rejected
any such view.125
On this final point Cox’s argument was misleading. To be sure, per capita apportionment was rare in the states. However, as Anthony Lewis explained in an influential126 article in the
Harvard Law Review in 1957, in recent years many state courts had begun to act to correct the malapportionment resulting from legislative inaction without, it should be noted, much concern for the justiciability of the subject matter. By 1957 ten states, and Alaska and Hawaii, had enacted constitutional provisions removing responsibility for apportionment from the legislature; eight of these also authorized the judiciary to compel reapportionment on the basis of equality.127
Now was the time, the majority in Lucas explained, to rule that the Constitution required per capita apportionment of both houses of state legislatures. At issue here was not malapportionment because of “prolonged” legislative inaction; the legislature was still to be
124 Id. 125 Cox to RFK 2/4/64, 6. 126 GORMLEY, ARCHIBALD COX 497, n. 15.
35 faulted, though, because “in spite of the state constitutional mandate for periodic reapportionment” it “has enacted only one effective legislative apportionment measure in the past 50 years.”128 The Court pointed out that to an extent these observations were beside the point: “Except as an interim remedial procedure justifying a court in staying its hand temporarily, we find no significance in the fact that a nonjudicial, political remedy may be available for the effectuation of asserted rights to equal representation in a state legislature.”129
Quoting from Justice Jackson’s famous powerful opinion in West Virginia v. Barnette,130
Warren explained that to argue otherwise (as the government did) was to obfuscate the importance of the rights at stake: “‘One’s right to life, liberty, and property…and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’”131 The Fourteenth Amendment required per capita apportionment of state legislatures, and it required it now. After all, “[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people chose that it be.”132
The main issue in this case is a “question of degree”
This was reflected in the Court’s rejection of the final point upon which the government’s brief focused – the perception that ultimately the issue at stake in Lucas was really only a
“question of degree”. Compared to the other reapportionment cases of the 1963 Term, the unique nature of Lucas made that case “much closer” than the others.133 This was the conclusion upon
127 Anthony Lewis, Legislative Apportionment and the Federal Courts, 71 HARV. L. REV. 1067-1068, 1089-1090 (1957). 128 377 U.S. at 730. 129 Id., at 736. 130 319 U.S. 624 (1943). 131 377 U.S. at 736 quoting 319 U.S. at 638. 132 377 U.S. at 736-737. 133 Lucas govt. brief, 57-58.
36 which the rejection of addressing the merits of the Fourteenth Amendment claim largely rested.
The Court accepted that Lucas was a special case. Again though, this was irrelevant. As explained above, the Court saw no real political remedy existing in Colorado. And the fact that one house of the legislature was apportioned based on population in no way justified leaving the other untouched. The apportionment of the Colorado House and Senate were inextricably intertwined. The Court saw “no indication that the apportionment of the two houses…is severable.”134
In 1962 the makeup of the Court changed in significant ways. President Kennedy appointed Deputy Attorney General Byron White and Secretary of Labor Arthur Goldberg to replace Justices Whittaker and Frankfurter. These appointments were made after Baker, and there was never any doubt that both White and Goldberg could be depended upon to vote with the Warren Court majority in the reapportionment cases. Should Archibald Cox therefore have predicted that the Court would reject the position he advocated in his Lucas brief? This is a difficult question to answer. I would argue that the most satisfactory response is that he should have anticipated the Court’s expansive ruling, but his failure to do so is a perfect indication of the conflicting obligations faced by the solicitor general.
Prior to the emergence of the “real” Warren Court, as David P. Currie has aptly termed the Court as it existed between 1962 and 1969, a strong majority had already formed in support of considering equal access to voting a “fundamental” interest requiring strict scrutiny.135 By the time the Court granted cert. in Reynolds and the accompanying cases it had given strong indications (in Wesberry and Gray) that it wished to give a very expansive interpretation of this –
134 377 U.S. 713, 735. 135 DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888- 1986 415 (1990).
37 using the “one person, one vote” principle. The Court’s decisions were reflecting what Cox has described as the “deep current of essential political egalitarianism [that] ran through the country’s political development.”136 This was clear in Gray when Justice Douglas wrote that
“[t]he conception of political equality from the Declaration of Independence, to Lincoln’s
Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote.”137 And in Wesberry Justice Black concluded an opinion heavy on constitutional history with Madison’s observation that “[t]he electors are to be the great body of the people of the United States…”138 The original meaning of the Constitution, Black was certain, reflected the fact that those who read Madison’s words in THE FEDERALIST “surely could have fairly taken this to mean, “one person, one vote.””139 Given the direction the Court took in post-Baker reapportionment cases the holding in Lucas, while disappointing, surely cannot have been too surprising for Cox.
In his memo to the Attorney General in August, 1963 Cox wrote of his belief that his recommended course of action was a view shared by the “center of the Court”.140 Following
Baker and the appointments of White and Goldberg it is difficult to understand how Cox could have believed that he could carry the ‘center’ of the Court with him. Professor Nelson may be correct that the center now consisted of ‘1960 Liberals’ rather than a more classic understanding of that term.141 This was, however, still a center whose liberal views were the same as those dismissed by Cox as “doctrinnaire”.
136 COX, THE COURT AND THE CONSTITUTION 303-304. 137 372 U.S. at 381. 138 376 U.S. 1, 18, quoting THE FEDERALIST NO. 57. 139 Id., quoting Gray v. Sanders, 372 U.S. at 381. 140 Cox to RFK 8/19/63, 19. 141 William E. Nelson, Byron White: A Liberal of 1960, in THE WARREN COURT IN HISTORICAL AND POLITICAL PERSPECTIVE 139 (Mark Tushnet ed., 1993).
38 That Cox persisted with a brief that did not advocate per capita apportionment for both
houses of state legislatures is ultimately a strong indication of his conception of the role of the
solicitor general. He could reject the view held by “segregationists” and “Birchers” that “the
present Court has already gone too far too fast in imposing its ideals upon the States.” However,
as the student of Learned Hand and Felix Frankfurter, and as the Solicitor General of the United
States, he would not endorse what he believed “would precipitate a major constitutional crisis
causing an enormous drop in public support for the Court.”142
What is this case study “good for”?143
In his recent article, John Gerring asks us to consider what a case study is, and what it is
“good for”.144 He concludes that the utility of this method – defined as “an intensive study of a
single unit for the purpose of understanding a larger class of (similar) units”145 – is at its greatest
when its practitioners acknowledge its strengths and weaknesses, conducting their research and
presenting their results accordingly. A strength of the case study method is its ability to “shed
light on causal mechanisms” while leaving the arrival at conclusions about “true causal effects”
to, for example, its quantitative methodological cousins.146 A case study allows us “to peer into
the box of causality to the intermediate causes lying between some cause and its purported
effect.”147 In this article I have challenged the conventional wisdom that the solicitor general is
enabled, by virtue of tradition, norms, and rules, to interact with the Supreme Court on a special
142 Cox to RFK 8/19/63, 19. 143 John Gerring, What Is a Case Study and What Is It Good for?, 98 AM. POL. SCI. REV. 341 (2004). 144 Id, 145 Id., at 342. 146 Id., at 348-349. 147 Id., at 348.
39 level – as a ‘Tenth Justice’; the institutional context within which the solicitor general is situated constrains his actions.
But is this conclusion confined to the reapportionment cases of the Court’s 1963 Term?
Can we identify something about Lucas that further limited the influence of Cox’s arguments before the Court? In his opinion for the Court in Lucas, Chief Justice Warren identified a number of ways in which the case differed from the other reapportionment cases decided in June,
1964.148 Of these characteristics the presence of a state action resulting from ‘direct democracy’ is the only one not confined to the sphere of legislative apportionment.149 The decision to strike down the product of either a referenda or an initiative raises profound questions relating to the so-called ‘countermajoritarian’ difficulty. However, as Julian N. Eule has explained, there appears to be an “unspoken assumption” amongst the justices that “the analysis [of cases] need not vary as a result of the law’s popular origin.”150 While the Court has recognized a First
Amendment right to maintain anonymity when collecting signatures for ballot petitions, and a right to pay people to circulate such petitions,151 when an act of direct democracy is challenged as violating fundamental rights the government is unlikely to prevail by defending the legislation as a direct expression of the wishes of the people. The Court has not formulated a specific standard of review for cases involving direct democracy.152 Rather, it has struck down or upheld statutes and state constitutional amendments based on the rights involved.153
148 377 U.S. at 730-734. 149 I thank Wendy Martinek for suggesting, and encouraging consideration of this aspect of this case study. 150 Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1505 (1990). 151 Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999); Meyer v. Grant, 486 U.S. 414 (1988). 152 Scholars are divided as to whether there should be such a standard of review. See Mihui Pak, The Countermajoritarian Difficulty in Focus: Judicial Review of Initiatives, 32 COLUM. J.L. & SOC. PROBS. 237 (1999) (concluding that the appropriate standard of review is ‘heightened scrutiny’ using a two-part test (1) asking whether the voters understood their actions, and (2) presuming the action to be unconstitutional unless is can withstand review akin to strict scrutiny (261-262)); cf. JESSE H. CHOPER ET AL., THE SUPREME COURT: TRENDS AND DEVELOPMENTS: 1981-1982 242-243 (1983). 153 Eule, Judicial Review of Direct Democracy, 1505, n. 5.
40 This approach was clearly evident in Lucas, where alleged violations of the Fourteenth
Amendment were foremost in the justices’ minds. Nicely summarized by John Hart Ely, the
Court concluded in Lucas, that “[t]he reasons for judicial intervention are just as compelling
when, say, 65 percent of the voters vote themselves 80 percent of the effective legislative power
as when the representatives of 40 percent of the voters secure for themselves 55 percent of the
effective power.”154
At the end of the day, this case study cannot tell us exactly how much the presence of
direct democracy affected the influence of Cox’s arguments before the Court in Lucas; and it
does not purport to do so. Rather, it suggests that the existence of actions stemming from direct
democracy is not a significant variable in determining the nature of the ‘special’ relationship
between the United States Solicitor General and the United States Supreme Court.
Conclusion
The government’s brief in Lucas v. Colorado demonstrated the triumph of compromise.
Over his personal rule-of-law and professional role-of-the-solicitor general objections Archibald
Cox conceded the political importance of the reapportionment cases as emphasized by the White
House and by Attorney General Robert Kennedy. When the Court decided the case in June,
1964 the opinion exposed the extent to which a majority of the “real” Warren Court desired to
take judicial involvement in these cases to the ‘next level’. The written and oral arguments
offered by Cox represented the conflicting obligations faced by the solicitor general who enjoys
a ‘special’ relationship with the Court while concurrently serving at the pleasure of the president.
154 JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 239, n. 60 (1980).
41 The outcome of the case, however, underscored the fact that on this occasion this relationship
was not so special. Before the Supreme Court in 1964 in the reapportionment cases Solicitor
General Cox was not a ‘tenth justice’ – ‘nine justices’ was company, ten would have been a
crowd.
Epilogue
Reynolds et al. raised the ire of members of Congress who responded to the decisions
with repeated calls, during 1964 and 1965, for the passage of punitive legislation or proposals to
amend the Constitution.155 However, the reapportionment decisions were not the specific target;
to the Court’s opponents they were just another indication of the Warren Court’s ‘judicial
activism’ – in the pejorative sense of the term.156 Therefore, the reaction of the Colorado state
legislature to the decision in Lucas seems less surprising than it might if the national legislators
were specifically aggrieved about the Court’s reapportionment decisions. Twice during the
spring and summer of 1964 John A. Love, the Governor of Colorado, called his State’s General
Assembly into extraordinary session. Both times he was responding to a Supreme Court
decision – Wesberry, and then Lucas. On both occasions the assembly swiftly complied with the
judiciary (of the six states involved in Reynolds et al., Colorado was the first to comply with the
Court).157 As Cox later conceded, the predicted constitutional crisis never materialized.158
155 Specifically, there were efforts to pass four different types of punitive legislation: (1) reduced pay increases for Justices; (2) eradication of federal court jurisdiction over legislative apportionment; (3) delay compliance with rulings by issuing a temporary stay in the court proceedings of state apportionment cases; (4) amend the Constitution so states with bicameral legislatures would only be required to apportion their house districts based on population. 156 Randy E. Barnett, Is the Rehnquist Court an “Activist” Court?: The Commerce Clause Cases, 73 U. COLO. L. REV. 1275 (2002). 157 Conrad L. McBride, The 1964 Election in Colorado, 18 W. POLI. Q. 475, 477 (1965). One might also argue that it reflected Colorado politics. Cf. Memorandum from Bruce J. Terris to Robert Kennedy, August 19, 1964, “Apportionment: New York State Legislature” folder, RFK Senate Papers, 1964 Campaign, Staff Files: Milton Gwirtzman/William Vanden Heuval, Box 25, JFKL (summarizing the reaction of the New York State Legislature to the decision in WMCA, Inc. v. Lomenzo). 158 COX, THE COURT AND THE CONSTITUTION 304.
42