The Judiciary

Tenth Edition

Henry J. Abraham

• Publisher: NYU Press
• Year: 1996
• ISBN:
  9780814705469
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Revised and updated to include the latest Supreme Court decisions, this classic text, now in its tenth edition, provides a concise overview of the judiciary in general and the Supreme Court in particular. The only book available that combines theory and practice of the judicial process with civil rights and liberties, The Judiciary acquaints students with the intricacies of our courts, the people who compose them, and their relationship to other branches of government, as well as to individuals and groups.

CHAPTER FIVE
Fundamental Freedoms: III. Political, Racial, and Sexual Equality

The subjects of political, racial, and sexual equality today are so vast and so inextricably related that, in effect, they cannot be separated. However, for the sake of explication, this chapter will endeavor to compartmentalize them, at least in part, by providing a thumbnail consideration of political equality and a more extensive analysis of racial and sexual equality.

POLITICAL EQUALITY

Minority Suffrage. Progress along the road to universal adult suffrage in this country (as well as in others) was met with many obstacles. After the initial discriminations against Quakers, Catholics, and Jews had subsided, it took a civil war to gain theoretical suffrage for blacks; until 1920 to gain it for all women; and until 1972 for all eighteen-year-olds. The chief struggle has centered in black Americans’ quest for that political equality to which all citizens are entitled under the Constitution—yet which, to all intents and purposes, did not exist for most blacks until 1965, notwithstanding the Fifteenth Amendment. Success first came in the 1920s, but it was not actually consummated legally until the Court’s famous 1944 decision in Smith v. Allwright,¹ which, by an 8:1 vote, declared the “white primary” to be unconstitutional as a violation of the Fifteenth Amendment. The federal Civil Rights Acts of 1957, 1960, 1964, and 1968 represented important steps in the struggle to make black suffrage a reality. And the outrages perpetrated upon marchers led by Dr. Martin Luther King, Jr., in Selma, Alabama, served as the catalyst for enactment of the tough and generally successful Voting Rights Act of 1965, which outlawed such tools of voting discrimination as literacy tests, “understanding” clauses, and other subtler, widespread practices. The passage of this act was justly hailed by President Johnson as “a proud moment for this nation.” Although total black suffrage may still not be a wholly accomplished fact, the tools for its attainment now demonstrably exist decisively—and so do those for blacks seeking and holding any public office.

Black suffrage is now a fact of political life, especially given the significant expansions of the 1965 statute in 1970 and 1975 (for seven years), and particularly its twenty-five-year prolongation and major liberalization in 1982. The cause of black suffrage was also materially advanced by the 1964 ratification of the Twenty-Fourth Amendment banning the poll tax for federal elections, coupled with the 6:3 decision in 1966 in Harper v. Virginia Board of Elections, banning it in state elections,² and the fallout from a crucial 1972 Supreme Court 6:1 ruling³ that struck down “durational” registration requirements in state and local elections by suggesting that “thirty days appear to be an ample period of time” for states to register new arrivals to vote. Millions of blacks were added to the voting rolls forthwith, with blacks reaching registration parity with whites in mid-1984 at 73 percent of those eligible. The difference between black and white voting turnout had shrunk to 4 percent by 1992. And not only did some 7,900 blacks (including 1,800 women) hold elective public office after the November 1992 elections in all fifty states and the District of Columbia, but more than 5,000 did so in the sixteen Southern and border states. Nationwide, by 1993 there were some 350 black mayors (7 of those in America’s ten largest cities). There were 40 black members of the House of Representatives as of 1996, of whom 12 were elected in November of 1992 as a result of the creation of black majority congressional districts, often bizarrely gerrymandered racially, and 12 more were elected in 1994. These often peculiarly carved districts were implicily mandated and court-sanctioned by the Voting Rights Act of 1982. The Old Confederacy states saw a 4,000-plus percent increase over the two decades after 1965, with the largest number of black elected officials in the heart of the formerly segregated South: Mississippi, Louisiana, Alabama, and Georgia. There were also 895 black judges (25 of them on the highest state courts) and thousands of black law enforcement officials nationwide.⁴ In 1990, Douglas L. Wilder became the first black governor of a state (Virginia). And in 1991, the Supreme Court ruled that the Voting Rights Act of 1982 applies to elected judges as well as to other officials, if states’ voting practices have the effect, even if not the intent, of discriminating on the basis of race.⁵

Representation. Another related aspect of the matter of political equality is the long battle of urban voters to gain their fair share of representation. Any literature on the subject before 1962 would have had to note that the longstanding practice of discrimination against urban and suburban voters, created and perpetuated by deliberate legislative malapportionment on the part of rurally dominated state legislatures—sometimes as high or as low as 1,000:1 (Vermont)⁶ and 99:1 (Georgia)—would continue indefinitely, for the Supreme Court had consistently refused to accept the matter for adjudication on the grounds that this was a “political question.”⁷ But due to persistent litigants and a gradual change in the thinking of a Court majority, the year 1962 wrought a revolutionary change. In the momentous decision of Baker v. Carr,⁸ in which the issue was the sixty-year-long refusal of Tennessee state legislators to redistrict in the face of state constitutional commands to do so regularly, a 6:2 majority of the Supreme Court held that the distribution of seats in state legislatures was subject to the constitutional scrutiny of the federal courts under the equal protection clause of the Fourteenth Amendment. Justice Frankfurter’s sixty-eight-page dissenting opinion (his last signed opinion prior to his retirement because of ill health), joined by Justice Harlan, urged the retention of the “political question” status quo, crying out against involvement in the “political thicket” and becoming entangled in a “mathematical quagmire.”⁹

That his appeal to “sear the conscience of the people’s representatives” was instead now a lost cause, at long last, became rapidly clear with several successive, highly significant extensions of Baker. First, one year later, down went the notorious Georgia County Unit system—a blatant practice of discrimination against urban areas such as Atlanta—with Justice Douglas holding for the 8:1 majority that “one person, one vote… is the only conception of political equality under historical standards.”¹⁰ Less than a year later, the Supreme Court addressed itself to the gerrymandering of congressional districts. Ruling 6:3 (or 7:2 depending upon one’s analysis of Justice Clark’s partly concurring and partly dissenting opinion), the Court, speaking through Justice Black, lectured Georgia and the country: “While it may not be possible to draw Congressional districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the [national] House of Representatives. That is the high standard of justice and common sense which the founders set for us.”¹¹

Then, in 1964, came the most far-reaching follow-up of the Baker decision when the Court, in a series of six state cases, held 6:3 in the lead Alabama case of Reynolds v. Sims¹² that since apportionment is to be on a “one person, one vote” basis, both state legislative houses must reflect a representation formula of being “substantially equal in population.” Wrote Chief Justice Warren for his Court: “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. … To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The weight of a citizen’s vote cannot be made to depend on where he lives.” A 1967 decision (8:1) took a direct, although still very inconclusive, slap against the age-old vice of the gerrymander.¹³ Soon came, in a 6:2 decision, the extension of the Reynolds principle to units of local government.¹⁴ And in 1969, the Court broadened the 1964 congressional districting decision by striking down New York’s and Missouri’s planned districting that varied in the population represented by 14 and 6 percent, respectively, ruling that states must justify any numerical variance between districts, no matter how small, in order to meet constitutional requirements.¹⁵ But the “Burger Court” of the 1970s and early 1980s gave signs that it would henceforth be inclined to be at least somewhat more flexible, that is, less strict on the general issue with the states, provided the variances and/or deviations did not clearly violate the basic guidelines of the 1960s.¹⁶ Yet it continued to be very tough with Congress: thus it disallowed 5:4 a New Jersey congressional district deviation of less than l/7th of 1 percent in 1984.¹⁷

The redistricting decisions were criticized heatedly in some quarters and, after Reynolds, were sporadically threatened with various forms of congressional counteraction led by Senator Everett McKin-ley Dirkson (R.-III.), who came close in 1967 when a “delayer” bill passed both houses but died in the Senate after the Conference Committee stage. Nevertheless, there is no doubt whatever that, collectively, these landmark decisions (again with the exception of the Reynolds case) not only found a more or less friendly reception but engendered an all but unprecedented flurry of activity toward compliance by the states. Indeed, all states had taken some form of redistricting action by 1972—a very different response from the reaction evoked by the initial segregation-integration decisions.

Barely a decade later, the enactments of the 1982 amendments to the Voting Rights Act of 1965 opened the door to what would soon become a highly controversial and much-litigated issue: the aforementioned burgeoning practice of state redistricting by utilizing race as a fundamental criterion—i.e., the creation of “majority-minority” districts designed to fashion chiefly black but in a few instances also Hispanic majorities in order to ascertain victories for minority candidates. Not at all surprisingly, court cases were not long in developing. Thus, in 1993, the Supreme Court ruled 5:4 that white voters had a constitutional right, just as blacks did, to challenge such districts under the equal protection of the laws clause of the Fourteenth Amendment.¹⁸ Then in 1994, it handed down two significant decisions limiting the controversial provisions of t...