9
In addition to witnessing the birth of the modern gerrymander, the 1980s marked the beginning of what would prove to be a largely futile thirty-year fight to persuade the federal courts to step in and police the practice. In truth, it was an uphill battle before it had even begun. In contrast to racial gerrymandering—where those bringing legal challenges could point to decades of precedent applying particularly aggressive scrutiny to government policies treating citizens differently on account of their race—judges and litigants alike were largely flying blind, attempting to shoehorn existing doctrines of equal protection and freedom of association into as-yet-uncharted areas of legal inquiry.
Courts as institutions are generally conservative in temperament, looking backward through the lens of well-worn concepts like tradition, history, text, and jurisprudence rather than pushing forward into new frontiers of social change. But courts also have a fundamental role to play as the watchdogs and guardians of democracy. The only champions of the downtrodden, the oppressed, and the powerless whose interests the regular machinery of democracy is not well-equipped to protect. Perhaps the most frustrating element of the legal fight against gerrymandering is the insistence by so many robed jurists that the courts have no place on this playing field at all. Those like Felix Frankfurter who contend that the proper remedy for unfairness in elections is to vote for politicians who will make those elections less unfair. But when the courts abdicate this responsibility, there’s often nothing left standing between the foxes and the henhouse.
As chapter 7 discussed, one major flash point in the evolving redistricting wars was the state of California. The legal battle over the Democratic gerrymander would stretch on for most of the decade, eventually reaching the Supreme Court in 1988. Another was the state of Indiana. And here, the proverbial jackboot of oppression was very much on the other foot. The Hoosier State’s Republicans, in a manner reminiscent of their Golden State Democratic counterparts, set about gerrymandering the state’s legislative districts after the 1980 census. In 1984, a divided panel of the U.S. District Court for the Southern District of Indiana ruled that those districts violated the Constitution.
Only a year earlier, in the case of Karcher v. Daggett, a similarly divided Supreme Court had held that a Democratic gerrymander by the New Jersey legislature was also unconstitutional. And though their decision was based primarily on violations of “one person, one vote,” rather than the unfairness of the gerrymander itself, a majority of the justices appeared to indicate that the modern gerrymander might pose an even greater threat to fair representation than the creeping gerrymanders it had replaced. Things came to a head in 1986, when the appeal of the Indiana decision reached the Court. Many expected a ruling setting a strong precedent against partisan gerrymandering. But it was not to be. The justice who had written the dissenting opinion in the New Jersey case, one that hinted at evils that gerrymandering could still produce even when district populations were equal, would also write the controlling opinion in the Indiana dispute. His failure to articulate a workable solution to the problem represents perhaps the greatest missed opportunity in the entire history of the Court’s adventures in the political thicket.
—
Few Americans can boast on their résumés of serving as a justice on the U.S. Supreme Court, earning two Bronze Stars in active combat, or leading the National Football League in rushing yards as a rookie. But Byron White was not like most Americans. He achieved all three. Nicknamed Whizzer by a newspaper columnist during his time as an all-American halfback for the Colorado Buffaloes—a moniker that, much to his chagrin, followed him for the remainder of his life—White was born in Fort Collins, Colorado, in 1917. He was the son of a poor frontiersman, Alpha Albert White, and his wife, Maude, neither of whom attended high school. White’s grandfather fought with distinction on the Union side during the Civil War, before returning to Iowa to father fifteen children. He had died in poverty and obscurity before Byron was born. But from these humble western roots blossomed a quintessential story of the American dream.
“He has had a truly remarkable life,” reflected President Bill Clinton on March 9, 1993, the day that White announced his retirement from the nation’s highest court after thirty-one years of service. Some version of this phrase appears in almost every postscript of his career. “Justice White may have enjoyed fame, honor and (briefly) riches in youth, but he paid for it, often in subtle ways, the rest of his career,” wrote his former law clerk Dennis Hutchinson. “To the extent that the legend distorts our appreciation of the public service, it would be a courtesy to clarify where myth and man depart, and why he loathes the sobriquet that made him famous long ago.” White never allowed himself to give in to the temptation of concluding that he was anything other than ordinary. But throughout his career he could never quite manage to extricate himself from the shadow that was cast by his own astonishing CV, and of course the nickname that he so despised.
Despite their lack of formal schooling, White’s parents believed firmly in the value of education for their own children. In the tiny town of Wellington, Colorado, dominated by the sugar beet industry, this meant that Byron and his older brother, Sam, attended the tiny Wellington High School, from which each of them graduated as valedictorian. Byron’s entire 1934 high school class totaled only six students. The family’s economic travails forced White to work from a young age, beginning with his first job in the beet fields of Wellington at the age of six. “He also did odd jobs,” wrote another former law clerk, Leon Irish, “such as unloading lumber from trains and trucks, shoveling coal, sweeping out buildings, swinging a sledgehammer for the railroad, and hashing a fraternity. [But] the work in the sugar beet fields was his most consistent job. Cultivation of sugar beets, at that time, was backbreaking labor.”
Initially earning $1.50 an hour for their work, White and his brother, Sam, eventually moonlighted in the beet-growing business themselves, renting a twenty-five-acre tract in town and contracting with local growers to cultivate the crop. “There was very little money around Wellington, and I suppose you could say that by the normal standards of the day we were all quite poor,” he later said of his upbringing, “although we didn’t necessarily feel poor because everyone was more or less the same. Everybody worked for a living. Everybody.”
A star on the gridiron, the track, the baseball diamond, and the basketball court in high school, White was offered athletic scholarships by five different schools after graduation. He chose to play football at the University of Colorado, turning down a $5,000 signing bonus offered to him by the St. Louis Cardinals to turn pro in baseball, instead waiting tables on the side to earn some extra cash. In spite of his talent, things got off to a slow start. White failed to make the starting lineup as a freshman and blew out his knee early in the first game of his sophomore season.
“White’s junior year was the first step on his road to national prominence,” writes Hutchinson, “he played well enough to receive all-conference honors, and his stature as a three-sport star (basketball and baseball, too), combined with a straight-A average, made him the most famous man on campus and the logical choice for the faculty committee who annually selected the President of the Student Body.” Despite his athletic prowess, academics were always White’s primary passion. The New York Times reported one story of a time when the Buffaloes’ coach, Bunny Oakes, discovered him reading a textbook on the Boulder campus and chastised him to study the team’s playbook instead. “You take care of the football,” his young halfback responded, “I’ll take care of the books.”
Expectations were understandably high when White returned to Boulder for his senior year in 1937, and he did not disappoint. Already identified as a potential all-American by the famed sportswriter Grantland Rice—“ ‘Whizzer’ White is the ideal moniker for a triple threat tailback,” Rice declared on his radio show; “the man with that name [is] going to live up to it”—he proceeded to put together one of the greatest statistical seasons in college football history. The Buffaloes went undefeated in the regular season, scoring an invitation to that year’s Cotton Bowl in Dallas. White led the nation in both rushing yards and points scored, was named an all-American at halfback, and finished runner-up for the Heisman Trophy to the Yale halfback Clint Frank. And though the seventeenth-ranked Buffaloes lost their Cotton Bowl matchup 28–14 to Rice (White scored all fourteen of their points and was named MVP), he had quickly established himself as a national sensation.
Byron White during practice with the Colorado Buffaloes, 1938.
Byron White (center) with his father, Alpha Albert “Al” White (right), and brother, Sam (left), in Wellington, Colorado, circa 1924.
As “Whizzer-mania” spread like wildfire through the college football universe that fall, White emerged as a consensus top-five pick for the upcoming 1938 NFL draft. Amid the sudden glare of the media spotlight, he still found time to lead the Colorado basketball team to the 1938 National Invitation Tournament at Madison Square Garden and receive further pro-baseball contract offers from the Cardinals, Browns, and White Sox. But he was also wary of allowing his newfound fame to distract from his primary focus: academics.
After graduating first in his class of 267, White received a prestigious Rhodes scholarship to study at the University of Oxford in England, intending to apply to law schools in the United States upon his return. But the decision as to his future became substantially more complicated in December, when he was selected fourth overall by the Pittsburgh Pirates (now Steelers) in the NFL draft. The Pirates owner Art Rooney then offered him a $15,800 annual contract to play for the team. This would make him, as a rookie, by far the highest-paid player in the league. After initially deciding “to forgo the money and go to Oxford, a choice celebrated editorially in state newspapers,” White discovered that he could delay his graduation from Colorado until 1939. This enabled him to defer the Rhodes scholarship and join the Pirates when their training camp opened that summer. It also marked the beginning of a period during which he attempted to juggle, with admirable aplomb, the responsibilities of being both a star athlete and a star academic.
White’s rookie season in the National Football League was perhaps even more impressive than his senior year at Colorado had been. Though his team struggled, finishing the year 2-9 and dead last in the league standings, White led the NFL in rushing yards, finished second in rushing touchdowns, and was named an All-Pro. He left the team in early 1939 to sail to England, but not before earning the admiration of Art Rooney, who said of him, “Of all the athletes I have known in my lifetime, I’d have to say Whizzer White came as close to anyone to giving 100 percent of himself when he was in competition.”
“I had never seen anyone work as hard as he did,” recalled his teammate Bill Radovich. “And after practice was over, he was still out there, practicing punt returns—catching them on the fly—or kicking, and always taking extra laps.” Opponents too could not help but respect White’s hustle on the field. The Washington Redskins star Sammy Baugh recalled, “He didn’t quit, even for one play, all day long, both ways. He was no fun to tackle, I’ll tell you. Others were faster, but listen, he was a hard man to bring down. A hard man.” White himself perhaps put it most succinctly. “I hate to lose right down to my heels,” he told a reporter in 1938.
That extraordinary work ethic was now about to be unleashed on some of the world’s finest institutions of higher learning. Oxford came as a welcome opportunity to remove himself from the media spotlight, something that White would attempt to do for the remainder of his life. “I was so tired of athletics,” he later said, while reminiscing on his arrival in England. “It was just like coming out into the sunshine, to go to school and not have to go out and knock your damn brains out at three o’clock every day.”
While traveling in Munich during the summer break, he made the acquaintance of another young American with a famous name, John F. Kennedy, who was jaunting around Europe on a grand tour while his father served as the U.S. ambassador to Great Britain. Though their initial meeting was inauspicious (“I think we mostly sat around and had a few beers,” White said in 1964), twenty-three years later Kennedy would nominate White to a seat on the U.S. Supreme Court.
The outbreak of war in Europe brought his time at Oxford to a premature end, because all the American Rhodes scholars were sent home when Britain declared war on Germany in September 1939. But the return to the United States gave White the opportunity to continue the double-dip indulgence of his twin passions: football and law. He signed with the Detroit Lions for the 1940 NFL season, again leading the league in rushing yards as an All-Pro while simultaneously studying at Yale Law School, earning the highest grades of any student in his first-year class.
Law school was a revelation for White, whose academic career so far, while stellar, had largely lacked direction or focus. He later described that first year at Yale as “the most stimulating intellectual experience I had had up to that time.” But after a somewhat disappointing 1941 season with the Lions—one that would turn out to be White’s final year in the NFL—his burgeoning careers both as an athlete and as an attorney were placed on the back burner in December 1941, when the Japanese bombed Pearl Harbor.
As a good all-American boy, White’s patriotism was beyond reproach. There was never any question as to whether he would heed the call of duty. After attempting to enlist in the U.S. Marine Corps, and being rejected on account of his color blindness, he instead joined the naval intelligence services and was quickly shipped out to the South Pacific to serve in the PT boat organization. There he found himself once again alongside Kennedy, whom he met while the future president was recovering from his exploits aboard PT-109 in 1943.
When the vessel was cut in two by a Japanese destroyer, Kennedy swam three and a half miles from the ruined boat to the safety of a nearby island, pulling a severely wounded crewmate by a life-vest strap clenched between his teeth. White conducted the naval intelligence investigation into the incident and quickly struck up a friendship with the young and gregarious lieutenant, occasionally joining him on PT boat patrols when Kennedy returned to active duty. White served with admirable distinction during the war, although in typically understated and self-deprecating fashion, he downplayed the occasionally heroic nature of what the newspapers back in Colorado fervently serialized as “Whizzer White’s Exploits in the South Pacific.”
His own mother, “Ma” White, only learned of his heroism aboard the USS Bunker Hill—where, after the ship was struck by two Japanese kamikaze planes, White and another officer, E. Calvert Cheston, pulled numerous men from the flames belowdecks—when asked about it by a reporter. Beaming with pride, she responded, “My son never talks much about his experiences.” The press lapped it up. White’s reticence and humility only made him more attractive fodder for the tabloids. “Whizzer White Survives Bunker Hill,” blazed the headline in the local paper after the incident. But it was the caption that told the real story: “Ex-buff grid great fails to mention heroic role in attacks.” The sailors who served with White on the Bunker Hill held him in no less regard. “He was absolutely focused on the fires and on the men,” Cheston later recalled. “A shell would go off or an explosion would occur, but there was Byron—locked in on the man who needed help or on the hose that needed to be manned. I don’t think he ever thought about himself. We were all working frantically, but he stayed so cool it was almost unnerving. And he never took a rest.”
Perhaps it was these experiences in combat, for which he was awarded two Bronze Stars, that had the effect of clarifying his life goals. For when White’s four years of military service came to an end after the war, he expressed little interest in rekindling his NFL career. “There’s little doubt that ‘Whizzer’ could have been a Hall of Famer had he been able to concentrate solely on football,” wrote the Detroit sports historian Dan Holmes. “But he had different interests and goals in mind.” White threw himself back into his studies at Yale full time, graduating first in his law school class in 1946 and securing a prestigious clerkship with the U.S. Supreme Court chief justice Fred M. Vinson. It was during this time that he began to hone the philosophy of pragmatic, centrist nonconformity that would later make him such an enigma as a judge.
Byron White during his Supreme Court clerkship, 1946.
At the conclusion of his clerkship, keen as always to remove himself from the public spotlight, White eschewed all opportunities that had now opened up for him in the nation’s capital to return to Denver and enter private practice. “I retired from the fray and went out to practice law in my home state,” he recalled in a 1964 interview, “which was very enjoyable, so enjoyable that I really didn’t pay too close attention to all the details and events concerning various people in Washington.”
But when his old friend Jack Kennedy announced his candidacy for president in 1960, White once again answered the call of duty. “How many people do you know well who ask you to help them become president of the United States?” he told friends. “Whizzer Carries the Ball for Kennedy,” proclaimed the headline in the Rocky Mountain News on November 22, 1959. The decision catapulted him back into the world of politics, the full glare of the limelight that he had always shunned, and to a job on the high court that he had never sought, or even particularly desired.
As had been the case with Felix Frankfurter several decades earlier, Byron White joined the bench at a time of considerable transition. The legacy of FDR’s eight appointments between 1937 and 1943 had been a Court that was dramatically more progressive on issues of economic policy, but was still largely unwilling to take on the causes of civil rights, civil liberties, and social justice. The landmark 1954 school desegregation ruling in Brown v. Board of Education had been followed, a year later, by a tepid remedy in Brown II that directed school districts that practiced racial segregation to act “with all deliberate speed” to rectify those constitutional violations. It was a wishy-washy mandate that gave states cover to drag their feet on desegregation for more than a decade. Five years before that, in Wolf v. Colorado, the Court had also dealt a blow to those advocating for fairness and equality in the criminal justice system, ruling 6–3 that evidence obtained illegally by law enforcement could still be used to prosecute defendants in court. Frankfurter wrote the majority opinion.
But with the nominations of Earl Warren and William Brennan by Dwight Eisenhower—the beginning of a procession of apparently conservative Republican nominees who turned out to be surprisingly liberal as justices—those causes now had their champions. And soon, by virtue of the four appointments to the Court during the 1960s by Kennedy and his successor, Lyndon Johnson, they also had their majority. Notably, however, that majority would not often include Byron White.
—
The issues confronting the line drawers in Indiana were the polar opposite of those facing Phil Burton and his Democratic colleagues in California. While booming population growth brought with it extra congressional districts that had to be incorporated into the Golden State’s political map, Indiana’s population had stagnated. The 1980 census saw its U.S. House allocation reduced from eleven seats to ten. Nineteen eighty had also been an extremely bad year for the state’s Democrats. Their candidate for governor, John Hillenbrand, failed to capitalize on the opportunity created by the retirement of the GOP incumbent, Otis Bowen, losing handily to the Republican Robert Orr. The Democrats also suffered a heavy defeat in the state legislative elections that year. The GOP emerged with a sixty-three-to-thirty-seven majority in the state house, and a thirty-five-to-fifteen edge in the state senate.
So when the legislature turned its attention in 1981 to the redrawing of districts, the Republicans now had unilateral control over the process. From the moment they convened, it was clear that secrecy and partisanship were to be the order of the day. The Republicans majority contracted with a Detroit computing firm, Market Opinion Research, which was paid $250,000 for supplying the technology to draw the maps. The redistricting committee consisted of four Republicans and four Democrats, but only the Republican members were permitted to vote. The four Democrats were excluded from its deliberations entirely. The final plans were approved by the full legislature on a strict party-line vote on the final day of the 1981 session. This was also the first time that the Democratic minority was able to see what was in them.
Under previous redistricting plans in the state, the fifty members of the senate had been elected from single-member districts, while the hundred members of the house were chosen from a combination of single-member and multimember districts, nested within the boundaries of the senate districts. That convention, however, much as had occurred with the creative renumbering of senate districts by the Democrats in California, was swiftly jettisoned in the service of partisan politics. The new Republican house map created sixty-one single-member districts, nine two-member districts, and seven three-member districts, creatively arranged to ensure that the maximum number of Republican candidates would be elected.
On the congressional side, things were similarly skewed. Three of the six Democratic incumbents were drawn into the same district, while a fourth saw his constituency carved to pieces, the remains dispersed among four surrounding Republican seats. The goal was to turn the six-to-five Democratic edge into a safe seven-to-three Republican advantage, removing the last bastion of Democratic strength from the electoral landscape. The results were phenomenally successful. Despite winning 52 percent of the popular vote in the 1982 midterms, the Democrats picked up only 43 percent of seats in the house and 36 percent in the senate. It was no surprise, then, that the gerrymander was immediately met with legal action. A group of Democratic voters, led by Irwin C. Bandemer, along with the NAACP, filed suit in federal court in early 1982 against Susan J. Davis, a member of the state election board. The court’s conclusions, at least initially, were highly promising.
“There is no evident pattern to the redistricting plan,” wrote the panel of federal judges in their 1984 ruling in Bandemer v. Davis, which struck down the state legislative maps. “No clear policy statements are evident to the Court from either the debate on the bills or the documents presented.” The evidence at trial had demonstrated a cavalier lack of respect for Indiana’s communities on the part of the GOP. Districts frequently divided counties, townships, and cities, cramming together precincts that shared little in terms of demographics, political culture, or identity. “For instance,” the court mused, “it is difficult to conceive the interests shared by blacks in Washington Township and white suburbanites in Hamilton and Boone counties, or the shared interest of Allen and Noble county farmers with residents of downtown Fort Wayne.” The judges also flagged the unusual nature of the procedures used to draw the maps. “The process underlying the reapportionment proceedings was fiercely competitive and unashamedly partisan,” they continued. “The result of that attitude is revealed in the remarkably candid statements of both Speaker Dailey and Senator Bosma in their deposition testimony.”
Under questioning from the attorney representing the plaintiffs, J. Roberts Dailey had been asked what the motivation was for creating the odd arrangement of single- and multimember districts for the house plan. “Political,” he replied. “We wanted to save as many incumbent Republicans as possible.” When quizzed about newspaper reporting suggesting that the Democratic “advisors” to the conference committee were informed that any potential map they generated would not even be considered by the Republican majority, Charles Bosma was similarly candid. “That’s accurate,” he responded. “I might add that I don’t make goals for the opposite team.” There seemed to be an attitude among the Republican majority, also on display in the antics of Burton and his Democratic allies in California, that so long as they complied with “one person, one vote,” everything else was fair game.
This is the essence of the modern gerrymander, the supreme irony of the Court’s efforts to institute greater electoral fairness during the reapportionment revolution. By entering the political thicket, and striking down the creeping gerrymanders that had been prevalent in the first half of the twentieth century, they created a situation where redistricting was now constitutionally mandated in every state at least once per decade. This created powerful and perverse incentives for politicians, now emboldened by their compliance with “one person, one vote,” to manipulate the process to their advantage in whatever ways they could.
And now, as the judges keenly recognized, they finally had the tools to be able to do so effectively. “The Court acknowledges the historical existence of so-called ‘gerrymandering’ of districts, a device which has been used by both major political parties and which is claimed to have occurred in this case by the Bandemer plaintiffs,” the ruling continued. “The approach used by the majority party in this instance presents a new twist, however, in that sophisticated computer equipment obviously provided more flexibility to the mapmakers.”
The effects of this computer manipulation were on display in the bizarre and unusual shapes of some of the Indiana districts. Most notable was District 48, which in the minds of the reviewing judges “presents the most grievous example of the political cartographer’s handiwork in this case.” The district snaked around downtown Indianapolis, collecting “portions of the urban southwest side of the city, the airport and suburban area around Ben Davis High School on the west side, and the Meridian Hills area at the northern part of the county. There is simply no conceivable justification for this kind of district.” Also suspicious was the unusual configuration of multimember districts. The discriminatory burden of these, the court concluded, “falls particularly hard and harsh upon black voters in the state.” While African Americans made up a mere 8 percent of Indiana’s population, more than 80 percent of them were drawn into multimember districts under the Republican plan.
“Multi-member districts are confined to urban areas,” the judges noted, “but there is no particular pattern which is applied consistently.” “The history of multi-member districts in Indiana is sketchy,” they concluded, observing that while similar districts had been used selectively throughout the twentieth century, it was not until 1972 that they had incorporated areas larger than a single county. In one such district, encompassing Marion and Allen Counties, Democrats won 46.6 percent of the vote in the 1982 election, but Republican candidates captured 86 percent of the available seats. “The Court feels that such a disparity speaks for itself.”
The question, however, was what to do about it. Recognizing that “the Supreme Court has yet to address directly the constitutional ramifications of a political gerrymander,” the three-judge panel instead turned to the racial vote dilution cases discussed in chapter 6. In particular, the Mobile v. Bolden intent and effects test, while superseded by the Voting Rights Act Amendments of 1982 in racial gerrymandering cases, was seen as an ideal vehicle to adjudicate the equal protection questions here. “The same standard,” the court concluded, “applies where political gerrymandering is alleged.”
But the decision, in a preview of how significantly the issues involved would divide the justices of the Supreme Court two years later, was not unanimous. Two of the judges on the panel, one appointed by Jimmy Carter and the other by Lyndon Johnson, believed that the Indiana gerrymander violated the Constitution. The third, an appointee of Richard Nixon, did not. Already, even in the judicial branch, opinions on gerrymandering had become impossible to separate from the partisan attachments of those being asked to adjudicate it.
—
When the Kennedy administration assumed office in early 1961, the young and largely green incoming attorney general, Bobby Kennedy, was looking for an experienced hand to help staff the Justice Department. He turned to Byron White, the new deputy attorney general, whom he tasked with assembling a collection of young legal talent to help implement the president’s New Frontier agenda. White put together a star-studded team of attorneys at DOJ, including the famed Harvard Law professor and future Watergate special prosecutor, Archibald Cox, as solicitor general and the future LBJ attorney general Nicholas Katzenbach to head the Office of Legal Counsel. “It was reassuring to know that prior political connection wasn’t the exclusive formula for entitlement,” White said of his team. “Most of the people that were brought in hadn’t been soldiers in the campaign. They were good, competent lawyers who Bob thought could fill these positions.”
As was befitting the administration of the youngest elected president in U.S. history, the Kennedy DOJ was characterized by its youthful energy and vigor. Cox, at forty-eight, was the old hand in the office, with White at forty-three the next most experienced. Katzenbach, thirty-nine, and RFK, thirty-five, rounded out the crew. One evening early in their tenure, Bobby and Byron were walking the halls of the Justice Department, tossing a football back and forth as they discussed legal affairs, when a suspicious staffer, not recognizing the two men, accosted them. “Anything I can do for you?” the staffer asked warily. “Yes,” came the reply, “I’m Bob Kennedy and this is Mr. White. We’re looking for a gym.”
White was also tasked with recommending candidates to the Kennedy brothers for appointment to the lower federal courts. Kennedy named no fewer than 125 federal judges to life terms during his short tenure in office, almost as many as his predecessor, Dwight Eisenhower, had managed in a full eight years. This was largely a product of legislation passed by Congress early in his presidency creating fifty new federal judgeships, placing a great deal of responsibility on White to identify suitable nominees. “In my own mind the primary concern was not so much whether Democrats or Republicans were put on the bench,” he recalled, exhibiting the commitment to judicial independence and nonpartisan administration of justice that would characterize his own judicial career, “but whether they were honest men of acceptable competence.”
White also took a front seat in the new administration’s efforts to enforce civil rights. He led a delegation of four hundred U.S. marshals and deputies to Alabama to keep the peace after violence erupted in the wake of the Freedom Rides in 1961. After tense negotiations with the state’s segregationist governor, John Malcolm Patterson, White was typically understated in his account of the meeting. “There were strong words,” he reported, “spoken strongly.” But he also had a keen recognition of the momentousness of the events that were playing out. “This is how you are measured,” he told John Doar, an attorney in the Justice Department’s Civil Rights Division, when discussing how the president’s order would be enforced. “This will test us.”
When Justice Charles Evans Whittaker announced his retirement on March 30, 1962—Whittaker, you may recall from chapter 5, was the justice who suffered a nervous breakdown in the middle of the Court’s deliberations in Baker v. Carr, before recusing himself from both the case and, soon thereafter, the bench itself—White expected to be heavily involved in the search for his successor. This would be the most consequential decision of the Kennedy administration to date. The liberal contingent of Warren, Brennan, Black, and Douglas were, at the time, still outnumbered on the Court by the center-right coalition featuring the moderates Stewart, Clark, and Whittaker, along with the conservatives Frankfurter and Harlan. Whomever Kennedy chose would tip the balance in one direction or the other, potentially for a generation or more.
Byron White with John F. Kennedy at a 1959 college football game between the University of Colorado and the Air Force Academy.
“My participation was to talk to the attorney general about the qualifications of various people who were suggested,” White recalled. “I was not aware that I was being seriously considered until the president called me and asked me if I wanted the job.” It was a risky move for the administration. Kennedy passed on a plethora of well-qualified candidates in favor of White, a wild card whose loyalty to the family was unquestioned but who had never held elected office, who had no judicial experience, and whose policy preferences and judicial philosophy were largely unknown.
Though he had mixed feelings about the nomination—he was later quoted in the Los Angeles Times as describing the job to a colleague as like being “put out to pasture early,” and when Katzenbach called him to inform him that he was on the short list, his response was, “I think the President can do much better than that”—White felt duty-bound to accept the president’s call to serve his country. There was also an upside to service on the high court: it allowed him to shutter himself away from the constant media scrutiny. Unlike those in the political branches of government, judges have the luxury of no longer having to make themselves available to the press.
Even then, it was touch and go. Here’s Arthur Schlesinger’s recollection of the telephone call in which Kennedy offered White the job: “ ‘Well, Byron,’ Kennedy said, ‘we’ve decided to go ahead on you.’ There was a moment’s silence, and the President said, ‘We want to get the announcement out in twenty minutes, so we need an answer right away.’ Another silence, and the President said, ‘All right, we’ll go ahead.’ ” But for those who had known him only as Whizzer, the appointment was a moment for celebration. “President Kennedy couldn’t have appointed a greater man,” opined Art Rooney. The Washington Post columnist Shirley Povich, who had covered White during his time in the NFL, perhaps said it best of all: “For every professional football player whose nose has been ground into the dirt or whose calling has been scorned as primitive by politer society, there now must be a glow of pride. One of their boys has made it all the way to the Supreme Court of the United States.”
Byron White took the oath of office as the eighty-third associate justice of the U.S. Supreme Court on April 12, 1962. Almost immediately, he was a disappointment to his backers in Camelot. In contrast to the liberal activism of Arthur Goldberg, who left a cabinet position to replace Felix Frankfurter when he retired that same August, White was cut from very different ideological cloth. “He was a man who knew himself and knew his convictions and didn’t care too much what others thought,” wrote the University of Colorado law professor Ira C. Rothgerber, in reference to White’s somewhat enigmatic brand of judicial restraint.
“Being non-ideological and non-doctrinaire is clearly very important to White, just as is being his own person and not worrying about his place in history,” explained a former clerk. “He recognizes that being a justice who believes in a more limited Constitution is not the way to gain historical notoriety. Whether it’s because he gained such fame as a young man in sports or whether it’s just his natural disposition, I think he cares a lot more about doing what he thinks is right than whether it will make him a famous figure in history.” But throughout his tenure on the Court, doing what he thought was right often placed White at loggerheads with the emerging liberal activist wing. With the appointment of Goldberg, that wing now represented a majority of the justices for the very first time.
Only two years into his tenure, the Court ignited the reapportionment revolution with its decisions in Wesberry v. Sanders and Reynolds v. Sims. Like Frankfurter before him, White was already in danger of being left behind by the locomotive of history. Though he joined the majority opinions in each of those cases, it was as far as he was prepared to go along the path into the political thicket. White was in the majority for less than 50 percent of the 5–4 decisions issued by the justices during the 1960s, and he began to cultivate a reputation for his dissents against the perceived excesses of the Warren Court. The Yale Law School professor Kate Stith, another former clerk, described White in a 1993 law review article as “the last of the New Deal liberals.” There has probably been no more apt description of his judicial legacy. Only forty-four years old at the time of his nomination, his approach to jurisprudence would have been more at home on the economically progressive Courts of the 1940s and 1950s than among the social justice warriors who were now warming the bench.
“A recurring theme of his opinions,” Stith writes, “was that the judiciary undermines its own legitimacy when it insists upon social or political objectives not rooted in the Constitution and resisted by the democratic institutions of society.” White’s confidence in the people’s elected representatives, whether federal, state, or local, to do the right thing, even in the face of glaring evidence to the contrary, would lead to his being described by the time of his retirement in 1993 as “a card-carrying member of the conservative bloc.”
White’s reluctance when it came to flexing the muscles of judicial power was on display in the very first opinion he wrote as a justice, a dissent in the Court’s 6–2 ruling in Robinson v. California. In that case, the majority struck down as a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment a California law allowing for the imprisonment of individuals with drug addictions. The majority likened it to an “attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease.” “I fail to see why the Court deems it more appropriate to write into the Constitution its own abstract notions of how best to handle the narcotics problem,” White countered, in an opinion joined by none of the other justices, “for it obviously cannot match either the States or Congress in expert understanding.”
Four years later, White also dissented in one of the most famous criminal procedure decisions in the Court’s history, Miranda v. Arizona. In a 5–4 ruling that catapulted into public consciousness the ubiquitous “Miranda warning,” a trope of just about every police procedural of the last fifty years, the Court determined that the Fifth Amendment right against self-incrimination requires law enforcement to inform suspects of their constitutional rights at the moment of arrest. “The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel,” he began his blistering dissent, “has no significant support in the history of the privilege or in the language of the Fifth Amendment.”
“The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions,” he continued, “but the impact on those who rely on the public authority for protection, and who, without it, can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined.” It was the first of a series of cases where White sided consistently with law enforcement and in opposition to his brethren’s expansion of the rights of the criminally accused.
But perhaps his most notable dissent, and the one that drew the greatest ire from proponents of individual liberty, personal privacy, and reproductive choice, would come in the case of Roe v. Wade. In 1969, a twenty-one-year-old Texas single mother named Norma McCorvey became pregnant with her third child. At the time, state law allowed for a pregnancy to be terminated by a physician only “for the purpose of saving the life of the mother.” With the assistance of the attorneys Linda Coffee and Sarah Weddington, and using the alias Jane Roe, McCorvey filed a federal lawsuit against the Dallas County district attorney, Henry Wade, alleging that the state’s criminalization of elective abortions was a violation of her constitutional right to privacy.
In 1970, a three-judge federal court panel that included Irving Loeb Goldberg, who also presided over Curtis Graves’s lawsuit, ruled unanimously for Roe. “Plaintiffs argue as their principal contention,” the court wrote, “that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children. We agree.” This ruling, and the Supreme Court decision that followed, were far from the unprecedented bombshells that their later infamy might suggest. “Freedom to choose in the matter of abortions,” the panel noted, “has been accorded the status of a ‘fundamental’ right in every case coming to the attention of this Court where the question has been raised.”
On appeal, the nine justices of the Supreme Court did not find the question all that controversial either. By the time they issued their ruling in January 1973, McCorvey had long since carried her pregnancy to term and had placed her child up for adoption. But both within the Court itself and among the broader public, the abortion issue did not produce the kind of heated divisions and polarized rhetoric that it does today. In a 7–2 decision written by Justice Harry Blackmun, who had formerly been the general counsel for the Mayo Clinic, they concluded that the interest of the state in protecting the life and welfare of the unborn must be balanced against the reproductive privacy rights of the mother. Crucially, Blackmun and the majority viewed the issue not as a moral or political question but as a medical one, best resolved in consultation between the individual patient and her physician. The seven-justice majority consisted of five appointees of Republican presidents and two who were appointed by Democrats.
For White, though, this was another example of an issue that should be left to the wisdom of the people’s elected representatives to resolve. “I find nothing in the language or history of the Constitution to support the Court’s judgment,” he began his dissent. “The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.” For White, the question of how abortion, as a sensitive issue “over which reasonable men may easily and heatedly differ,” should be treated under the law was one that “should be left with the people and to the political processes the people have devised to govern their affairs.” It was an opinion that could have been written by Felix Frankfurter, replete with references to the exercise of “raw judicial power,” “improvident and extravagant” overreach, and, somewhat bafflingly given his contention that the justices should steer clear of injecting their own biases, uncharitable references to the “convenience, whim, or caprice of the putative mother.”
It was not the last time that White placed himself on the opposite side of a contentious social issue from advocates for privacy and sexual autonomy. In 1986, toward the end of his time on the bench, the Court agreed to take up the case of Michael Hardwick, a Georgia man who had been arrested for violating the state’s prohibition against “homosexual sodomy.” At the time, twenty-four states and the District of Columbia still had laws on the books that criminalized private sexual activity between consenting gay and lesbian adults, and the ACLU had been searching for a test case with which to bring a legal challenge.
The circumstances of Hardwick’s case—he was arrested by a police officer who entered his home without a warrant, apparently as retaliation for the “attitude” Hardwick had shown him during a prior incident between the two men—made it an ideal vehicle for such a suit. And while the court of appeals had ruled in Hardwick’s favor based on the existing line of privacy cases, the Supreme Court reversed that decision 5–4. The majority opinion in Bowers v. Hardwick was written by none other than Byron White.
“This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable,” he began. “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.” It was more textbook deference to the wisdom of legislators. And once again, some of the rhetoric in White’s opinion belies the contention that his views on the underlying conduct do not factor into the decision.
“It would be difficult, except by fiat, to limit the claimed right to homosexual conduct,” he argued, “while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.” The ruling in Bowers, like that in Roe, produced a significant backlash and was eventually overturned by the Court in 2003. But it also further alienated those who had come to see White as an anachronism, a justice whose progressive tendencies were more in line with FDR’s economic populism than with JFK-style counterculture.
“Is it possible to trade in a Supreme Court justice? If so, I’d like to offer Byron White,” wrote The Denver Post in 1988. “Anything of value will be considered. An engine from a ’37 Buick. A bushel of buttered popcorn. A person in touch with individual dignity and privacy. Yes, someone who values privacy would be nice.” It was a stinging rebuke from the paper that had once celebrated Whizzer-mania and lauded White as a hometown hero when he was first nominated to the Court.
And on the very same day that Bowers was decided, June 30, 1986, the Court also released another ruling, again written by White. It came in a case that cut to the very heart of the debate over gerrymandering and electoral fairness: Davis v. Bandemer, the appeal of the lower court decision striking down Indiana’s state legislative districts. Now presented with the opportunity to nip the modern gerrymander in the bud, before it further spread its monstrous wings and sank its claws ever deeper into the raw underbelly of democracy, the justices balked.
—
For those reading the tea leaves, it certainly appeared as if the Supreme Court were about to deliver a decisive blow, or at the very least a substantial and stern rebuke, against the growing threat of partisan gerrymandering to the nation’s political institutions. The signs had been present three years earlier, in the aforementioned case of Karcher v. Daggett. There, the justices had confronted a lawsuit against the State of New Jersey. Like Indiana, the Garden State experienced anemic population growth over the prior decade, leading to a reduction in its U.S. House representation from fifteen seats to fourteen. The 1980 election had this time seen the Democrats win majorities in both chambers of the state legislature, right as the Republicans were seizing power in Indiana. Already in control of the governorship, they had free rein to gerrymander the districts at will.
But after much deliberation, and amid concerns that minority voting strength in the city of Newark was being diluted, the Democratic majority failed to pass a satisfactory redistricting scheme by the end of 1981. The incumbent Democratic governor, Brendan Byrne, was then defeated in his reelection bid by his Republican opponent, Thomas Kean. The legislature, in a move reminiscent of their colleagues in California, hurriedly passed a plan that was clearly drawn to maximize Democratic power. It was signed into law by Byrne shortly before he left office in January 1982. In their haste, though, they failed to adequately ensure that the congressional districts they were creating were substantially equal in terms of their populations, opening the door for a Republican legal challenge.
When the case reached the Supreme Court, the main thrust of the arguments on both sides was focused on this alleged violation of “one person, one vote.” Though the population discrepancies were orders of magnitude smaller than those the Court had confronted during the 1960s, with the largest district containing only four thousand more people than the smallest, the justices nevertheless determined that the Constitution “requires that the State make a good faith effort to achieve precise mathematical equality.” Though White dissented, his opinion also contains much discussion of the cover that strict compliance with “one person, one vote” might provide for a state to impose a severe partisan gerrymander.
Noting that “the rule of absolute equality is perfectly compatible with gerrymandering of the worst sort,” he went on to lament that the majority’s approach “downgrade[s] a restraint on a far greater potential threat to equality of representation, the gerrymander.” The result: “Even more than in the past, district lines are likely to be drawn to maximize the political advantage of the party temporarily dominant in public affairs.” With this language, in which White was joined by three Republican justices, all Nixon appointees, hopes were high that when confronted with that very question in Davis v. Bandemer, a favorable ruling for the challengers might be forthcoming. It was not to be.
There’s a saying among those in the business that redistricting makes for strange bedfellows. Depending on which way the political winds are blowing, what might be in the interest of Democrats in one state might be antithetical to the political goals and priorities of Democrats in another, yet firmly embraced by that state’s Republicans. Such unusual alliances had occurred in redistricting litigation before. In Thornburg v. Gingles, a team of RNC lawyers that included Thomas Hofeller had filed an amicus brief in support of the Democratic African American plaintiffs. “The new districts gave blacks entree into a political system that had been closed to them—and made surrounding districts more white and more receptive to Republican candidates,” claimed Hofeller’s RNC colleague Mark Braden in his 2018 New York Times obituary. “Mr. Hofeller convinced black politicians that they had a common cause against white Democrats, who he said had rigged the system against both them and Republicans.” This counterintuitive pattern of support from white conservatives for redistricting reforms designed to benefit African American Democrats will be revisited in chapter 11.
A similarly odd pattern of alliances of expediency, if not political philosophy, was also in evidence in Davis v. Bandemer. The RNC was the first to get in on the action, filing a brief in support of the Democratic voters who had challenged the Indiana gerrymander. “The Republican National Committee argues in support of the Democratic Appellees because gerrymandering is a two-edged sword with which members of a political party may either carve or be carved,” they wrote. “It is the belief of the Republican National Committee that egregious partisan gerrymandering in several states dilutes the opportunities for Republican candidates for Congress and state legislatures. Of course, as in the instant case, the tables can be turned.” Among the authors listed on the brief is Mark Braden.
And if there were any doubts about which of the “several states” he was referencing in the above quotation, those were quickly assuaged when the Democratic majorities in both chambers of the California legislature chimed in with their own briefs in support of the Indiana Republicans. “The Assembly knows that such claims can only bring disruptive litigation which distracts legislators from their duties and undermines the legitimacy of elected representatives,” they wrote, no doubt keenly aware that a ruling for the Democratic plaintiffs would open the door for a Republican legal challenge to their own gerrymander in California.
For Byron White, the questions presented in Davis v. Bandemer also posed a challenge. Though he had expressed significant reservations about the gerrymander in his dissent in the earlier New Jersey case, those concerns ran directly counter to his underlying philosophy of deference to the wisdom of the people’s elected representatives as the primary guardians of liberty. It was this principle upon which the Indiana Republicans would hang their hat. And ironically, they turned to Justice Brennan’s majority opinion in Baker v. Carr, the case that had ignited the reapportionment revolution and catapulted the judiciary into the political thicket in 1962, for their inspiration.
Justice Byron White, 1976.
In that decision, to justify judicial intervention into the malapportionment of state legislative districts, Brennan had outlined six criteria that framed the basic contours of what became known as the political question doctrine. This convenient mechanism provides an escape hatch, known as justiciability, for courts to extricate themselves from the most controversial and politically charged legal questions of the day. Fifty-seven years later, it would serve as the justification for the Roberts Court, in the case of Rucho v. Common Cause, to declare that all disputes involving partisan gerrymandering are nonjusticiable political questions that may not be litigated in federal court. For now, though, the justices in Bandemer faced two questions. First, did they have the power, as the three-judge panel of the lower federal court had done, to rule on the constitutionality of Indiana’s adventures in partisan gerrymandering? And second, if they did, under what standard would that constitutionality be judged?
Oral arguments in the case took place on October 7, 1985. From the beginning, the justices appeared to be grappling with the implications of the state’s position. “But if you say it’s not justiciable,” one justice asked, “[doesn’t] that mean that even the most extreme example of gerrymandering would not be subject to any judicial review?” And if the Court were to make such a ruling, another justice chimed in, wouldn’t it be true that “by gerrymandering, one party could put the other party entirely out of business, entirely, if you were using the computer, without discriminating against the voters in the other party?” William Evans, the attorney representing Indiana, was forced to admit that this was indeed the case. “I believe that is true,” he conceded.
But when the turn came of the attorney representing the Democratic voters, Theodore Boehm, the justices seemed equally concerned about the implications of his position, particularly the contention that policing gerrymandering would require the courts to impose a form of proportional representation. “Under your theory,” questioned a justice who is identified in unofficial transcripts as Byron White, although I cannot vouch for their veracity, “it seems to me that almost any time a reapportionment or redistricting by a state legislature occurred and the result was not close to perfect proportional representation, that there would be a violation?” Though Boehm parried the question by pointing to the inarguable evidence of discriminatory intent in the case record, it was a warning sign for what was to come.
When the justices released their opinions, the ruling was, to put it charitably, a mess. On the question of justiciability at least, a clear majority did emerge. “None of the identifying characteristics of a nonjusticiable political question are present,” White declared, in a holding that was joined by Brennan, Marshall, Blackmun, Powell, and Stevens. But it was there that the agreement ended. Only two justices, Powell and Stevens, believed that the Indiana plan was an unconstitutional partisan gerrymander. Four, including White, conceded that while gerrymandering could violate the equal protection clause under some circumstances, those criteria had not been met here. Three justices (O’Connor, Burger, and Rehnquist) believed that such disputes should never be justiciable. The lack of a clear majority opinion was unfortunate. After all, lower courts would be the ones who would have to apply this precedent in future gerrymandering lawsuits. If the justices themselves had no real clue about how to proceed, what were those judges supposed to do?
Perhaps most lamentable about White’s opinion in the case—aside from what most legal scholars consider the impossibly high bar he set for finding a gerrymander unconstitutional—was his focus on actual election outcomes as the sole yardstick by which the discriminatory effects must be measured. Boehm had specifically cautioned against this in his arguments. “We contend that you judge a map not by hindsight,” he implored, “but what does the map look like on the basis of the data that is available as of the time this map was drawn.” The problem with White’s approach, of course, is that while the harm from a gerrymander is suffered immediately, when the electoral playing field is systematically tilted against one of the teams, the real-world effects of that harm can be observed only retrospectively, when it is already too late for it to be corrected.
This was precisely the concern that had been expressed by the Republicans in California. By allowing the 1982 elections to proceed under a gerrymandered set of boundaries that the people of the state had already rejected, the California Supreme Court was essentially guaranteeing that the beneficiaries of that gerrymander would be the ones responsible for “correcting” it. A far better standard, I would argue, is to judge the severity of a gerrymander based on facts in evidence at the time of the gerrymander itself. Only then can the perpetrators be prevented from profiting from their misdeeds. But this was not the approach the Court took.
“Although we find such political gerrymandering to be justiciable,” White wrote, “we conclude that the District Court applied an insufficiently demanding standard in finding unconstitutional vote dilution. Consequently, we reverse.” He went on to outline a two-pronged test, under which challengers would be “required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” And while the justices, at least those who were willing to entertain the question, had no problem concluding that there was sufficient discriminatory intent on the part of the Indiana Republicans, it was on the severity of the effects that they parted ways with the lower court. It was an odd reversal of the Court’s logic in Mobile v. Bolden. There, the racial effects of the Alabama gerrymander had been largely uncontested, but the inference of discriminatory intent had been a leap too far.
“As long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended,” White wrote, in an almost hand-waving dismissal of the intent prong. But “the mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm.” Instead, the party challenging such a scheme would have to prove that “the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.”
To prevail, those challenging a gerrymander would have to show that they had been effectively shut out of contention entirely, consigned to minority status over multiple elections, and perhaps even an entire decade. Or at least that appeared to be the implication. But White’s effects prong is so hopelessly vague, so lacking in clearly defined standards of adjudication, that it’s almost impossible to extract from it the circumstances under which a partisan gerrymander even could violate the Constitution. Justice Powell’s opinion, joined only by Justice Stevens, is much more straightforward.
He argues that the Constitution categorically protects against “deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes,” outlining four factors that courts should use to identify whether districts were intentionally manipulated without legitimate justification. These include “whether the legislative process itself exhibited partisan motivation, disregard of traditional political boundaries, irregular shaped districts, and the absence of any considerations beyond partisan advantage.” Applying them to the Indiana gerrymander, he agrees with the district court’s determination that the Republican plan fails to meet constitutional muster.
The outcome in Davis v. Bandemer is hard to explain. Why did Justices Brennan, Marshall, and Blackmun—all part of the majority coalition that had insisted on strict enforcement of “one person, one vote” in the earlier New Jersey case—sign onto White’s milquetoast muddle of a standard, rather than Powell’s clear and concise test? These were the three most liberal justices on the Court at the time, those most insistent on protecting voting rights against government infringement. Could the decision have been strategic? Might concern over how a crackdown on gerrymandering would influence progressive causes at the ballot box have factored into their calculus? After all, at the time, it was the Democrats who were benefiting the most from the practice. Did they see the ruling as an opportunity to get a foot in the door, with the goal of fleshing out the constitutional test in subsequent cases once the lower courts had been put on notice? That was certainly the opinion of many legal scholars, who cautioned that the gap between White’s and Powell’s opinions was not that great and that their approaches would almost certainly meld once the Court heard additional cases on the issue. That prediction, however, was not borne out by the events.
Whatever the explanation, Davis v. Bandemer will go down in history as a missed opportunity to nip the modern gerrymander in the bud. Less than a year after the ruling, Justice Powell announced his retirement from the Court, and any opportunity for the melding of his approach with that of White was lost. And within eight years, before a new redistricting cycle could bring a fresh batch of cases to work out the details of how gerrymandering would be policed, Brennan, Marshall, Blackmun, and White himself were also gone. A new majority had emerged on the Court, and their redistricting priorities, as chapter 11 discusses, lay elsewhere. Any momentum that might have existed for serious democratic change amid the muddled hodgepodge of opinions that emanated from the Court in 1986 had been lost.
The California Republicans were also left out in the cold. Their own lawsuit challenging the 1982 Democratic gerrymander, Badham v. Eu, had been put on hold in anticipation of the Supreme Court’s ruling in Bandemer. In 1988, the three-judge panel of the U.S. District Court for the Northern District of California dismissed their claim, finding insufficient evidence of discriminatory effects to meet the two-pronged test.
“As an initial matter, it is clear that the complaint sufficiently alleges a discriminatory intent,” they wrote. “However, we also may take judicial notice of other facts which demonstrate that California Republicans are far from being effectively ‘shut out’ of the political process. Instead, California Republicans represent so potent a political force that it is unnecessary for the judiciary to intervene.” On appeal, and without written opinion or explanation, the Supreme Court affirmed. It was another eighteen years before they would once again take up the mantle of partisan redistricting. During that time, not a single gerrymander was ruled unconstitutional by the lower courts under the Bandemer precedent.