Political Cortex: Brain Food for the Body Politic

In his application, Alito wrote:

When I first became interested in government and politics during teh 1960s, the greatest influences on my views were the writings of William F. Buckley, Jr., i the National Review, and Barry Goldwater's 1964 campaign. In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment. I discovered the writings of Alexander Bickel advocating judicial restraint, and it was largely for this reason that I decided to go to Yale Law School.

Of course, it has been well-demonstrated that the conservative justices on today's court are far more activist in overturning laws passed by Congress than their moderate counterparts. (More on that below.)  But this is what Alito himself cites as over-riding motivation for going into the law as a profession, for going to Yale Law School.

In the preceeding paragraph, he wrote:

In the field of law, I disagree strenuously with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate.

But Baker and Sims addressed something much more fundamental: by refusing to redistrict, as urban districts grew much more densely populated than rural districts, state legislatures were not responsible to the electorate as a whole, but only to an increasing small minority within it.

The Wikipedia entry on Baker v. Carr explains:

Plaintiff Baker was a Republican who lived in Shelby County, Tennessee, the county in which Memphis is located. His complaint was that though the Tennessee State Constitution required that legislative districts be redrawn every ten years according to the federal census to provide for districts of substantially equal population, Tennessee had not in fact redistricted since the census of 1900. By the time of Baker's lawsuit, his district in Shelby County had about ten times as many residents as some of the rural districts. His argument was that this discrepancy was causing him to fail to receive the "equal protection under the laws" required by the Fourteenth Amendment.

At the time, the decision was extremely contentious.  The principle at stake was whether this matter could be addressed by the courts, or whether it was a "political question" that had to be left to the political process. As Wikipedia notes:

The decision of Baker v. Carr was one of the most wrenching in the Court's history. The case had to be put over for reargument because in conference no clear majority emerged for either side of the case. Justice Charles Evans Whittaker was so torn over the case that he eventually had to recuse himself, and the arduous decisional process in Baker is often blamed for Whittaker's subsequent health problems which forced him to resign from the Court.

But, in the end, the Court found that the courts could rule on the case, by a solid 6-2 majority.  The issue of "political questions" that should not be touched by Courts is still a very live one. But it is difficult indeed to conceive of anyone today arguing that reapportionment is one of them.  In particular, the notion that "one person, one vote" is not fundmental to democracy represents a position so extreme that it goes far beyond opposing Roe in placing Alito outside the mainstream.  

Indeed, the 5-4 conservative majority that appointed Bush President did so on the basis of the Fourteenth Amendment--on the basis of Baker v. Carr, in fact.  While the Court's decision did not cite Baker directly, it did cite the decision in a follow-up 1963 case, Gray v. Sanders, which cited Baker.  The Bush majority may have been guilty of bad faith, but they firmly marked Alito's position as far outside the realm of settled law.

There's a danger in getting too fancy here. Alito's statement puts him deeply at odds with a fundamental principle of democracy.  Not much more needs to be said, and saying more could needlessly cloud the issue.  But I will add two more things that need to be kept in mind.  

First, it's a matter of record that conservatives are more activist than liberals, using Alito's own standard. As a New York Times article, "So Who Are the Activists?" pointed out in early July:

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

The measure used in this article is precisely the one that Alito himself cited above:

In the field of law, I disagree strenuously with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate.

The second point is that conservatives have recently advanced the view that legislatures can pass laws ruling certain areas of law "off limits" for judges to consider. Clearly, if Alito thinks that legisalatures could ignore "one person, one vote" and the Courts could not intervene, he would have no trouble with such legislative restrictions.

Thus, this is not some strange, arcane position, about a long-settled case, no longer relevant to the issues alive in the land.  It is a striking declaration that Alito is judicial throwback deeply at odds with the both the rights of the individual and the rights of the courts to protect those rights.  Abortion is only the tip of the iceberg.