5
For most of U.S. history, the basic organizational unit of the legislative district was the county. This was the case with the 1788 Henrymander, which assembled a district out of James Madison’s Orange County, James Monroe’s Spotsylvania, and their surrounding Anti-Federalist enclaves. It was also true of the Licking Water-whelp and friends, whose heads, bodies, and various and sundry appendages were all assembled out of combinations of counties. When line drawers failed to respect existing county or municipal boundaries, as was the case with the mutilation of Essex County in service of Elbridge Gerry’s salamander district, it was a pretty reliable sign that something untoward was occurring.
Counties represented convenient building blocks for districts because they could be easily amalgamated into geographic units that preserved communities and grouped together similarly situated constituents. Counties often had an existing political or cultural identity, allowing them to serve as a starting point for redrawing the district maps for multiple legislative chambers at a time. Frequently, states used counties as the boundaries for their senate districts, maintaining a variant of the equal suffrage blueprint that had been used for the U.S. Senate. Then they nested their state house of representatives districts within them, splitting each county into two or three slices as required. County boundaries could also be used to build a state’s U.S. House districts, by combining them together so that each district was roughly equal in population. Counties were, first and foremost, an easy shorthand for politicians who wanted to redistrict in a simple and straightforward way, without needing to resort to the kinds of “ingenious and artificial combinations” that were the hallmark of early gerrymandering. But there was also a major downside to the use of county boundaries for the drawing of legislative districts, and that was the problem of malapportionment.
By the time of the 1910 census, two years before Arizona and New Mexico finally joined the Union to complete the “contiguous 48,” the effects of urbanization, the Industrial Revolution, and the growth of the American city were already being acutely felt in the nation’s political institutions. Fully 31 million Americans, approximately one-third of the overall population, now lived in counties with populations of more than 100,000 people. This trend would only accelerate further over the next half century. Both immigrants and rural Americans flocked to metropolises like New York City, whose population hit 5 million around 1913; Chicago and its more than 2 million inhabitants; and Philadelphia, which had recently topped 1.5 million residents. And with their interests often being very different from the concerns of rural voters elsewhere in their respective states, urban Americans began clamoring for fair and equal representation in their state governments.
The early twentieth century was the apex of the Progressive movement in American government, as pro-democracy sentiments ran rampant in the political debates of the age. The Progressive Era witnessed the birth of the direct primary election, which for the first time allowed regular voters a voice in the selection of nominees for political office. This process had previously been dominated by party bosses and the Rube Goldberg black boxes of machine politics. The Seventeenth Amendment to the U.S. Constitution was ratified in 1913, granting voters a voice in the selection of U.S. senators, who had to that point been chosen exclusively by state legislatures. And direct democracy, in the form of the citizens’ ballot initiative, gave the average American a seat at the policy-making table, allowing for proposed laws and constitutional amendments to be put to a popular vote. Originating in Oregon in 1902, the initiative process permitted sponsors to place policy proposals directly on the ballot through the collection of signatures, bypassing the elected branches of government entirely. Direct democracy quickly spread to numerous other states, particularly those that had once made up the western frontier.
But as the winds of democracy were beginning to steadily pick up force, the problem of malapportionment seemed stubbornly immune to the momentum of progressive reform. While the Progressive Era did see a renewed, albeit limited, focus on redistricting reform—a handful of states redrew their legislative and congressional boundaries in the early twentieth century to more equitably distribute political power between urban and rural areas—what followed was an almost fifty-year period of inertia. Between 1910 and 1960, numerous states consistently failed to update their district boundaries in the face of rapidly accelerating population redistribution. Of the forty-eight now in the Union, only seven redistricted even one chamber of their state legislatures following the 1930 and 1940 censuses. Oregon did not redraw its district boundaries once between 1907 and 1960, while Illinois failed to do so between 1910 and 1955. Alabama and Tennessee had not redistricted since 1901. The apportionment of legislative districts in Connecticut, Vermont, Mississippi, and Delaware was fixed according to their respective state constitutions, most of which had been drafted in the late nineteenth or early twentieth century.
When redistricting did occur, it was as likely to exacerbate the problem of malapportionment as to ameliorate it. Once again, the perverse incentives created by allowing politicians to control the drawing of their own districts hindered the ability of the political process to effectively address the problem. Representatives in rural areas, which by design had been given increased representation in many state senates to counterbalance the more proportional allocation of seats in their lower chambers, feared that urban representatives would vote for confiscatory wealth redistribution if their political power was allowed to increase. These rural politicians consistently blocked any attempt to redistrict, maintaining their stranglehold on the levers of democracy. Meanwhile, urban voters, left powerless in their state capitols, were growing increasingly restless.
By the time of the 1960 census, things were reaching a crisis point. A hundred and fourteen million people, fully 64 percent of the nation’s population, now lived in counties with a population of more than 100,000, an almost threefold increase over 1910. Writing in 1964, the U.S. representative Morris K. Udall of Arizona documented the full scope of the inequality that had been created by the “creeping gerrymanders” of the twentieth century. “No one can deny,” he began his report to the Eighty-Eighth Congress, “that some of the States have allowed thinly-populated areas to exercise extra, and often strikingly disproportionate, power in making State laws.” “This is a result,” he argues, “of 1) the immense growth of cities and the decline of rural populations, and 2) a failure of these States to adjust the allocation of legislative seats as the population distribution has changed.” He then went on to document some of the most egregious instances of malapportionment in the nation. His findings are so compelling that they are worth reproducing in full. Udall begins with “some of the most striking disparities in lower house apportionment”:
Turning to state senates, and noting that “many of them [were] patterned on the Federal Congress (with lower house based on population and upper house on area),” he finds that “the extreme examples are equally startling”:
It must be noted, of course, that there is a difference between deliberate action on the part of politicians in a state to create grossly unfair districts through gerrymandering and deliberate inaction to allow existing inequalities to perpetuate and grow ever more dramatic over time. These creeping gerrymanders that would ignite the reapportionment revolution of the 1960s were not strictly gerrymanders at all, as the term has been defined throughout this book. But their significance to the broader history of gerrymandering in America cannot be underestimated. In fixing the problem of malapportionment, the courts created a new one in its place: the Frankenstein’s monster of the modern gerrymander. No one could say that they hadn’t been warned.
—
Felix Frankfurter had been worn down. For decades, the New Dealer and titan of judicial restraint had fought a one-man holding action against his increasingly activist brethren on the U.S. Supreme Court, going toe-to-toe with legal giants like Earl Warren, Hugo Black, and William O. Douglas. In Frankfurter’s mind, the involvement of the Court in cases implicating fundamental questions of fairness and equality in American elections was a disaster waiting to happen. In the 1940s case of Colegrove v. Green, he had authored an opinion in which he specifically cautioned against embroiling the judiciary in disputes over the drawing of legislative districts. Such involvement, he believed, would politicize the courts, undermine judicial independence and integrity, and set the nation on an untenable path from which there would be no coming back. Writing for a three-justice plurality, Frankfurter argued,
Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress. The Constitution has many commands that are not enforceable by courts, because they clearly fall outside the conditions and purposes that circumscribe judicial action.
But his warning would fall on deaf ears. In the early 1960s, in a case called Baker v. Carr, the Court set aside Frankfurter’s earlier ruling and plunged ahead, opening the courthouse doors to precisely these kinds of challenges. Then, in a pair of decisions released only months apart in 1964, the justices created the principle of “one person, one vote,” a constitutional mandate that every American’s voice should count equally when it came to the election of their representatives in government. Since that time the Supreme Court has handed down numerous decisions concerning election law, delving deeper and deeper into the thicket that Frankfurter had been so unwilling to enter. The story of how the modern gerrymander rose, like a dark phoenix from the ashes of the creeping gerrymanders of the early twentieth century, is also the story of Felix Frankfurter and how he fought, and lost, the battle of the political thicket.
Felix Frankfurter at age twelve. Photograph taken by W. M. Spiess of New York City, circa 1895.
Frankfurter was a man of many contradictions: between his progressive and civil libertarian principles and his more conservative beliefs about the proper role of government and the courts; between the elitist East Coast legal circles in which he ran for most of his adult life and his upbringing in a poor Jewish immigrant family on the Lower East Side of Manhattan; between his cultural Zionism and lifelong support of Jewish causes and his own personal lack of religious faith; between his fundamental belief in fairness and meritocracy and the political connections and alliances he forged that ultimately catapulted him to a seat on the highest court in the land.
Frankfurter was born in Vienna in 1882, in what was then part of the Austro-Hungarian Empire, and was the descendant of multiple generations of rabbis. His uncle, Solomon Frankfurter, worked as the head librarian at the Vienna University Library, while his father, Leopold Frankfurter, was a merchant and fur trader and a former Orthodox rabbinical student. The third of six children, Felix immigrated with his family to the United States in 1894, when he was twelve years old, after Leopold had attended the Chicago World’s Fair the previous year and elected to follow the American dream. Fleeing anti-Semitism in Vienna, Frankfurter arrived on Ellis Island speaking only Yiddish and Hebrew, but quickly assimilated himself into the New York cultural milieu. Young Felix, now fluent in English, excelled at his studies, first at P.S. 25 in the East Village, and then at Townsend Harris High School in Queens, reading books on Jewish history and political theory at the Cooper Union library, and attending lectures on left-wing topics such as socialism, communism, and trade unionism.
Frankfurter had come to America at the height of the Gilded Age, the era of trusts, robber barons, and unbelievable wealth and income inequality. The contrasts between the haves and the have-nots were a daily feature in the life of 1890s New York, with the sweatshops and tenements of the Lower East Side mere blocks away from the stately mansions of the Vanderbilts, Carnegies, and Astors on Fifth Avenue. His upbringing instilled in Frankfurter a strong sense of social justice, progressivism, and a desire to aid the helpless, the downtrodden, the huddled masses yearning to breathe free. It also ignited a love affair with the law that would come to define the remainder of his life.
The first step along the road to realizing his dream of becoming an attorney came when Frankfurter enrolled in the Free Academy of the City of New York, now part of the CUNY system, and the first free public institution of higher learning in the United States. He graduated third in his class of 775 and then spent time working for the Tenement House Department to raise money for law school. It was while a student at Harvard Law, to which he would later return as a professor, that Frankfurter’s jurisprudential philosophy began to develop. He became a committed believer in the principle of judicial restraint, that courts should defer whenever possible to the wisdom of Congress and state legislatures, whose status as the directly elected representatives of the people made them better suited to solving controversial social and political problems. He was described by some as the best-performing student to pass through the school since the wealthy and highly influential fellow Jewish attorney Louis Brandeis, with whom he developed a close friendship. Frankfurter graduated first in his class in 1906, also serving as an editor of the Harvard Law Review.
A young Felix Frankfurter in his boardinghouse room, circa 1905.
He initially eschewed partisan politics despite his strong progressive principles, spending time in private practice at the New York firm of Hornblower, Byrne, Miller & Potter, before taking a job as an assistant to the then U.S. Attorney for the Southern District of New York Henry Stimson, a close ally of Teddy Roosevelt’s. This marked the beginning of a close association with the Roosevelt family. Frankfurter was an outspoken supporter of Teddy’s unsuccessful Bull Moose campaign against Woodrow Wilson in 1912 and would later serve in the administration of his cousin Franklin. When Stimson was tapped by the Republican president William Howard Taft to be his secretary of war, Frankfurter followed him to Washington and was hired as an attorney in the Bureau of Insular Affairs. But frustration that his position in a Republican administration was limiting his ability to express his progressive political and social views began to mount, and he became increasingly disillusioned with the D.C. establishment. At one point he described himself as “politically homeless.”
Frankfurter began seeking opportunities outside the government sphere and was eventually persuaded to return to Harvard as a professor at the behest of Brandeis, who had lobbied the financier and philanthropist Jacob Schiff to endow a position for him at the law school. Teaching mainly in the area of administrative law, he continued to refine his philosophy of judicial restraint, joining fellow professor and future SEC chairman James M. Landis in advocating for greater freedom from judicial oversight for executive branch agencies. This period also marked the beginning of a decades-long secret correspondence between Frankfurter and Brandeis, the famous “people’s attorney” who two years later would be appointed by President Wilson as the first Jewish justice on the Supreme Court. More troublingly, Frankfurter’s papers, which had been donated to the Library of Congress after his death in 1965, revealed that Brandeis, twenty-six years his senior, had paid Frankfurter a retainer throughout his legal and political career to act as his covert lobbyist and political lieutenant.
The outbreak of World War I brought about a return to politics for Frankfurter, who took leave from his teaching responsibilities at Harvard to become a special assistant to the secretary of war, Newton D. Baker. He occupied various roles in the War Department during the conflict, including as judge advocate general, where he supervised the courts-martial of thirty-six U.S. servicemen who were executed for desertion. He also served as counsel to the President’s Mediation Commission, where he defended the socialist activist Thomas Mooney against accusations that he had participated in the 1916 Preparedness Day Bombing in San Francisco. He finished out the war as chairman of the War Labor Policies Board, where he made the acquaintance of a young assistant secretary of the navy by the name of Franklin Delano Roosevelt. Their friendship would go on to define the remainder of Frankfurter’s career.
After the war, Frankfurter played a key role in the founding of the American Civil Liberties Union in 1920, contributing further to his growing reputation as a political radical. At one point, the FBI director, J. Edgar Hoover, went so far as to label him “the most dangerous man in the United States.” Frankfurter himself did little to discourage the moniker. He expressed support for American recognition of the newly created Soviet Union and mounted a vocal campaign in defense of Nicola Sacco and Bartolomeo Vanzetti, the Italian American anarchists who were convicted and executed for the murders of a Massachusetts paymaster and security guard during an armed robbery in 1920.
Felix Frankfurter at Harvard Law School, 1917.
Decades later, it also came to light that he had penned his widely read Atlantic Monthly article in support of Sacco and Vanzetti at the behest of his benefactor, Louis Brandeis. Frankfurter’s very public advocacy on behalf of communists, radicals, and oppressed religious minorities made him many enemies among the more conservative Harvard faculty and Boston political elite during the First Red Scare. But he had also made powerful friends, including the newly elected governor of New York. And when, in the wake of the most devastating economic catastrophe in the history of the United States—the blame for which Frankfurter placed squarely in the hands of the dramatic wealth inequalities he’d observed firsthand as a boy on the streets of Manhattan—that same governor mounted a bid for the presidency, Frankfurter was among his most enthusiastic supporters.
—
In many ways, the events of FDR’s tenure as president would go on to define the next forty years of Supreme Court history. The Court of the early 1930s was a deeply conservative institution, still steeped in the laissez-faire economic philosophy that had characterized the earlier Lochner era of jurisprudence. Stacked with Republican appointees—a consequence of the eight consecutive vacancies filled by the Republican presidents Harding, Coolidge, and Hoover between 1921 and 1932—the justices handed down ruling after ruling in which they undermined the ability of state and federal governments to institute progressive reforms. They struck down laws curtailing the use of child labor, establishing minimum wages and maximum working hours, and promoting collective bargaining.
Four justices in particular—Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter—stood out as marching in lockstep in their opposition to the New Deal. Alleged to have even carpooled together during their commutes to the Supreme Court building on Capitol Hill, the better to coordinate their legal arguments and case strategies, this cabal of conservative jurists was nicknamed the Four Horsemen of the Supreme Court by the D.C. press corps. Facing off against them were the Three Musketeers on the Court’s liberal wing, consisting of Brandeis, Benjamin Cardozo, and Chief Justice Harlan Fiske Stone. For the first five years of the Roosevelt administration, the fate of the New Deal rested on the votes of the two swing justices. They were Charles Evans Hughes, who was more inclined to side with the Musketeers, and Owen Roberts, who at times appeared to be auditioning for the role of the fifth horseman.
Frankfurter had at this point been brought in as an informal adviser to the Roosevelt White House, a role he had also occupied during FDR’s governorship in New York. The position suited him, and he turned down an offer to become FDR’s solicitor general, as well as a seat on the Supreme Judicial Court of Massachusetts, in favor of the opportunity to advocate behind the scenes for a strong progressive response to the economic travails of the Great Depression. In addition to helping to craft the New Deal, Frankfurter relished the opportunity to recruit young, progressive attorneys for roles in the new administration, many of whom had been students of his at Harvard Law. Felix’s Happy Hot Dogs, as the group became known, included among their ranks the future secretary of state Dean Acheson and, more regrettably, the Soviet spy Alger Hiss, who only escaped execution for espionage when he was discovered in the 1940s because the statute of limitations had expired.
The early New Deal legislation represented the most dramatic expansion of the federal government’s power in the nation’s history. Congress assumed unprecedented authority to regulate economic affairs, much of which was then delegated wholesale to the executive branch, giving FDR carte blanche to craft a response to the ongoing crisis. Most radical of all was the National Industrial Recovery Act, which empowered the administration to create “codes of fair competition” for the more than five hundred industries that were regulated under the law. Congress, in effect, was turning over the keys to the entire economy to the White House. The president described it as “the most important and far-reaching legislation ever enacted by the American Congress.” The Four Horsemen were having none of it. In case after case, joined sometimes by only the swing vote of Roberts, and on other occasions even by one or more of the Musketeers, New Deal program after New Deal program found itself on the Court’s chopping block. “This is the end of this business of centralization,” Brandeis told Roosevelt’s aide Thomas Corcoran, another one of Felix’s Happy Hot Dogs, after the Court struck down the NIRA in 1935. “I want you to go back and tell the president that we’re not going to let this government centralize everything.”
The stage had now been set for the most dramatic showdown between the White House and the high court in the history of the Republic. In the meantime, however, the American people voiced their opinion on the matter. In November 1936, FDR won the largest popular and electoral vote landslide since the uncontested 1820 victory by James Monroe during the Era of Good Feelings. He picked up 523 electoral votes to the 8 of his Republican opponent, Alf Landon, who won only two states, Maine and Vermont. In an early setback for the reputation of political pollsters, The Literary Digest, based on a highly unscientific self-selected straw poll of its own readers, confidently predicted that Landon would win overwhelmingly. “Is Our Face Red!” blazed the giant headline on the cover of the next issue. The magazine folded in 1938.
They could be forgiven for their confidence in a Landon victory given the political climate of the time. “As goes Maine, so goes the nation” was a popular political aphorism among pundits, referencing the state’s reputation as a bellwether of presidential electoral politics. And with the Republican victory in Maine’s September race for governor, many had expected a repeat showing. “As goes Maine, so goes Vermont!” gleefully joked Roosevelt’s campaign manager James Farley to reporters after the election, barely managing to stifle a chuckle. George Gallup’s fledgling polling operation, the American Institute of Public Opinion, fared somewhat better, although even he underestimated the full magnitude of the Democratic landslide. In addition to a second term for FDR, voters returned large Democratic majorities to both houses of Congress. The only thing now standing in the way of their agenda was the Supreme Court, and Roosevelt had a plan for that.
On March 9, 1937, the president delivered his ninth Fireside Chat, broadcast on the radio to millions of Americans. In it, he laid out the case for taking decisive action to deal with the Court’s obstructionism. “The Court has been acting not as a judicial body, but as a policy-making body,” he charged. “We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself.” He then outlined what became known as his “court-packing plan,” introduced before Congress as the somewhat less sinister-sounding Judicial Procedures Reform Bill of 1937. It would have granted the president the power to appoint new justices to the Court, up to a maximum of fifteen, for each incumbent member who reached the age of seventy and did not, in FDR’s words, “avail himself of the opportunity to retire.”
There were six septuagenarian jurists on the bench at the time, including all four of the horsemen. This fact did not exactly aid Roosevelt’s somewhat transparent attempts to frame his proposal as a much-needed boost to the retirement packages of federal judges. Though the legislation would have applied to all federal courts, not just the Supremes, it was hard not to see it as a desperate power grab by the administration. FDR would lose the battle over his court-packing plan, and in spectacular style, with the Senate voting 70–20 against its most controversial provisions. But serendipity would allow him to win the broader war against the Court. And ironically, those events had already been set in motion before he had even unveiled the legislation.
Less than three weeks after Roosevelt’s Fireside Chat, the Supreme Court dropped a bombshell. In the case of West Coast Hotel v. Parrish, Owen Roberts surprisingly defected from the conservative majority, voting with the liberals to uphold Washington State’s minimum wage law. The significance of this ruling, which after all did not directly involve the New Deal whatsoever, was that less than a year earlier he had voted precisely the opposite way in a case striking down an almost identical law in New York. A month later, the Court upheld the collective bargaining protections of the National Labor Relations Act, also known as the Wagner Act, by the same 5–4 margin. This was followed in May by a trio of decisions upholding the pension and unemployment insurance provisions of the Social Security Act. After years of frustrating losses, suddenly the White House couldn’t stop winning before the Supreme Court. Had the justices been intimidated by the court-packing plan into reversing course? That was certainly the popular narrative at the time. Roberts’s sudden change of heart became known as “the switch in time that saved nine,” a strategic retreat from the battlefield to protect the independence and institutional integrity of the Court. Nothing could have been further from the truth.
In fact, Roberts’s thinking had begun to evolve long before the court-packing plan had been made public. At the Parrish oral arguments in December, the attorney representing the state had specifically advocated for the Court to reconsider its earlier precedent. And according to internal documents that have only recently been made public, both Roberts and Hughes appeared receptive to this argument when the justices discussed the case at their conference the same week. While the decision in Parrish was ultimately released shortly after Roosevelt’s radio address, the outcome had been determined months earlier. Roberts provided his own version of events in a memorandum written shortly before his retirement in 1945, which he gave to his most trusted colleague on the bench, none other than Felix Frankfurter. “No action taken by the President in the interim,” he wrote, “had any causal relation to my action in the Parrish case.” Hughes also disputed the switch in time narrative in his autobiography, writing that the court-packing plan “had not the slightest effect on our decision.”
In any event, the true story behind Roberts’s evolving jurisprudence soon became a moot point, and FDR would no longer need to rely on his vote to sustain the New Deal. At the conclusion of the Court’s 1937 term, Justice Van Devanter, at seventy-eight the oldest of the four horsemen, announced his retirement. The Alabama senator Hugo Black, an outspoken supporter of the New Deal, was swiftly confirmed as his replacement. Then, in January 1938, Justice Sutherland, sensing that the balance of power on the Court was shifting in a way that undermined his ability to influence it, also retired, to be replaced by Roosevelt’s own solicitor general, Stanley Forman Reed. The four horsemen had now become two. Plagued by health problems, including a heart attack in late 1937 and a stroke in early 1938, Justice Cardozo finally succumbed to his illness and died that same month. And in searching for a suitable candidate to replace only the second Jewish justice to serve on the highest court in the land, FDR would turn to his old friend Felix Frankfurter.
Originally tapped by the White House to put together a short list of possible nominees, Frankfurter was offered the job after the president found none of the proposed candidates to his satisfaction. The nomination was not without controversy. Some of Roosevelt’s own advisers counseled against the decision, concerned with the optics of nominating another Jewish justice, so closely associated with the president, and born outside the United States. Also of concern were his earlier associations with communists and other political radicals. Possibly seeking to defuse these criticisms, Frankfurter agreed to testify personally before the Senate Judiciary Committee during their public hearings and answer the senators’ questions, becoming the first Supreme Court nominee in U.S. history to do so. But in the end, Frankfurter’s stellar credentials and impeccable legal record spoke for themselves. He was confirmed by a voice vote, becoming the seventy-eighth justice to sit on the U.S. Supreme Court. By the time Roosevelt died in 1945, less than three months into his fourth term as president, he had appointed eight new justices to the Court, remaking in his own image the institution that had so frequently defied him. The lone justice who weathered the entirety of his administration was Owen Roberts, and he himself departed the bench later that same year. The legacy of the Roosevelt Court, however, would endure for decades to come.
The notion that Supreme Court justices often disappoint the presidents who nominate them has become a cliché at this point. But while Frankfurter certainly fulfilled the needs of the moment—providing a reliable vote for an expansive interpretation of the federal government’s regulatory authority—his later tenure on the bench proved far less satisfying to the heirs of FDR’s progressive legacy. Frankfurter the advocate had been a firebrand, a passionate defender of civil liberties, meritocracy, and the rights of the downtrodden. But Frankfurter the justice was cautious and conservative, unwilling to use the power of the Court to champion those same causes.
Photograph of Justice Felix Frankfurter by Harris & Ewing, circa 1939.
He had come of age as an attorney during the Lochner era of the early twentieth century, observing firsthand how judicial activism could corrupt even the most well-meaning of jurists. Keenly aware that the allure of life tenure and virtually unrestricted judicial power could seduce justices into viewing themselves almost as gods—reaching down from their ivory tower to dispense justice and remake society in their own image—he took great pains never to be tempted down that path himself. It was a testament to the strength of these convictions that he found as much fault with the progressive activism of the Warren Court as he had with the laissez-faire economic paternalism of the conservative Courts of his youth. As the justices increasingly turned their attention to the causes of civil rights, religious freedom, criminal procedure, and eventually electoral fairness, Frankfurter found his influence waning. He was eclipsed by his fellow Roosevelt nominees Hugo Black and William O. Douglas, who, while cut from similar ideological cloth, lacked his aversion to flexing their judicial muscles.
For a man who had aspired to nothing more than a seat on the highest court in the land, Frankfurter’s years on the bench were among the unhappiest of his life. His diaries from the 1940s portray a troubling descent into darkness, expressing bitterness toward his peers and frustration with his inability to shape the direction of the Court’s rulings. He had become, in the words of his biographer Joseph Lash, “uncoupled from the locomotive of history,” an anachronism amid an institution that was steaming ahead toward a new frontier in American legal thought. But history has a habit of repeating itself, and when a case involving a challenge to the drawing of congressional districts reached the Court in 1946, the opinion he authored might as easily have carried a majority of the justices in 2019.
—
Illinois had a malapportionment problem. The state had not redrawn its congressional districts since 1901, and in the intervening years significant population disparities had developed between the most and the least populous seats. In 1901, the House map had still been malapportioned, although to a far lesser extent. The largest district, which had 184,000 residents, was around 16 percent larger than the smallest one, which had 159,000. By 1946, this population discrepancy had ballooned to more than 700 percent, with the largest district, including significant parts of the city of Chicago and its suburbs, now containing 914,000 residents, and the smallest, a rural district in the southern part of the state, only 112,000. The state legislature’s unwillingness to conduct redistricting during the intervening years was itself a product of malapportionment. Representatives from rural areas did not wish to cede political power to the city of Chicago, whose population had doubled between the 1900 and the 1940 censuses. Stop me when this sounds familiar.
Kenneth W. Colegrove was a political science professor at Northwestern University and resident of Evanston, Illinois, part of the Seventh Congressional District, that of the 914,000 inhabitants. He filed a lawsuit, along with two other voters, against the Republican governor, Dwight Green, who as the U.S. Attorney for the Northern District of Illinois had been a member of the government team that had prosecuted Al Capone for tax evasion in 1931. The suit alleged that the failure to fairly redraw the seats based on population violated the equal protection clause of the Fourteenth Amendment to the Constitution, essentially diluting the effectiveness of their votes compared with those of citizens from less populous districts.
There was little precedent at the time for such a challenge. The district court immediately dismissed the lawsuit, finding nothing in federal law that mandated either compactness or population equality in congressional districting. When the dispute reached the Supreme Court, it was decided by only seven justices. Chief Justice Harlan Fiske Stone had died between oral argument and the issuing of opinions, and Justice Robert Jackson was absent from the bench on leave to serve as the chief prosecutor at the Nuremberg Trials. Six of the seven justices who ruled on the challenge had been appointed by FDR, and they split 3–3 on the question of whether it was appropriate for a federal court to entertain it.
The decisive vote against Colegrove was cast by Harold Hitz Burton, a Truman appointee, in a 4–3 ruling that the case presented a nonjusticiable political question. Assignment of the writing of opinions on the Supreme Court is dictated by seniority, and while Stanley Forman Reed was the senior justice in the majority coalition, the opinion went to Frankfurter. It was probably the most famous piece of writing he produced during his tenure on the Court. But in a testament to his continuing inability to forge coalitions among his peers, only two other justices, Burton and Reed, would sign their names to it. Wiley Blount Rutledge wrote his own separate concurring opinion, and despite concluding that the Court should “decline to exercise its jurisdiction” in the case at hand, he was not prepared to join Frankfurter in closing the courthouse door entirely. Frankfurter’s opinion is best remembered for his invocation of the metaphor of the political thicket, the notion that entertaining disputes over legislative districting would entangle the Court in a morass of partisan bickering over what was fair and unfair in the context of electoral rules and regulations.
If the more than seven-to-one population discrepancy in Illinois’s congressional districts—the most severe in the nation at the federal level as of 1946—wasn’t bad enough, things were looking far worse at the state legislative level. Tennessee, like Illinois, had not conducted redistricting since 1901. This despite a provision in the state constitution that mandated a reapportionment of its general assembly districts every ten years. One might wonder how the legislature could get away with flagrantly violating the state constitution over a period of almost half a century. The answer is that the Tennessee Supreme Court was apparently also asleep at the switch. An earlier state court challenge seeking to compel the assembly to act had been denied by that court in 1952. And, finding adequate and independent legal grounds in state law for the decision, the Supreme Court had declined to intervene on appeal.
Enter Charles Baker, a Republican voter in Shelby County, Tennessee, and former mayor of the city of Millington, a suburb of Memphis. Bluff City’s population had grown fourfold since the last redistricting in 1901, and its politicians, including Baker, had grown frustrated with their lack of adequate representation in Nashville. The population disparities in the assembly districts should be a familiar theme at this point. The largest house district had more than five times as many residents as the smallest, while in the senate things were even more out of whack, with an eighteen-to-one population ratio between the most and the least populous. In the early 1960s, Baker filed a lawsuit against Secretary of State Joe C. Carr, seeking to force the state to redraw its district boundaries. After the lower court dismissed the case based on the Colegrove precedent, it would be heard before a very different slate of Supreme Court justices from the one that had been present for that earlier ruling.
Of the four justices who had voted with the majority in the Illinois lawsuit, only Frankfurter remained. And if his dissent in Baker is anything to judge by, he had not grown more mellow with age. Black and Douglas rounded out the trio of Roosevelt appointees still warming the bench, and they had been joined by a plethora of Eisenhower nominees, including the potent liberal coalition-building duo of Earl Warren and William Brennan. Also new to the Court were the pragmatic centrist Potter Stewart, the vacillating centrist Charles Evans Whittaker, the evolving centrist Tom Clark, and the Frankfurter-clone John Marshall Harlan.
If anyone in U.S. history had ever been born and raised to one day sit on the Supreme Court, it is undoubtedly John Marshall Harlan II. His grandfather John Marshall Harlan I had also been a Supreme Court justice—earning the nickname the Great Dissenter for his frequent jeremiads against the Court’s restrictive civil liberties rulings of the late nineteenth century. Both justices Harlan had in turn been named for the great chief justice John Marshall, the Federalist champion who outmaneuvered Jefferson and Madison in the famous Marbury v. Madison ruling. It really was Marshalls all the way down.
All of which is to say that the outcome of the Baker decision was still very much up in the air when the Court heard oral arguments in April 1961. Few cases have divided the justices as significantly as the challenge to Tennessee’s legislative districts. With no clear majority emerging either way following the initial conference discussion, the case was held over for reargument in October. After agonizing for months over the dispute, Justice Whittaker suffered a nervous breakdown and had to take a leave of absence from the Court, dealing a further blow to Frankfurter’s attempts to cobble together a majority for his position. In the end, it would be Brennan who emerged as the consensus builder, herding the proverbial cats in the direction of a 6–2 majority that, while opening the door to subsequent equal protection challenges to the malapportionment of legislative districts, still failed to provide the Volunteer State’s voters with the relief they so craved.
With only four votes on the side of striking down the Tennessee districts as unconstitutional, Brennan brilliantly outmaneuvered Frankfurter by crafting a ruling that he sold to Stewart and Clark as a narrow, fact-specific determination. In reality, though, it would end up carrying enormous weight as precedent. Sensing that a baby step in the direction of equality would be sufficient to open the floodgates, Brennan assembled six votes for his majority opinion. “The District Court misinterpreted Colegrove v. Green and other decisions of this Court on which it relied,” he concluded, before proceeding to reformulate the Court’s confusing political question doctrine. He identified six different categories of disputes that are unsuitable for judicial resolution. One of these, “a lack of judicially discoverable and manageable standards for resolving it,” would go on to be hugely relevant to the Court’s later partisan gerrymandering cases. More on that in later chapters. None of the six, he argued, preclude the Court from intervening to address issues of legislative malapportionment. But rather than reaching the merits of Baker’s claims, he remanded the case back to the lower court for a new trial.
Frankfurter was apoplectic. He wrote a blistering dissent, joined only by Harlan, in which he railed against the majority’s “massive repudiation of the experience of our whole past in asserting destructively novel judicial power.” “It is as devoid of reality as ‘a brooding omnipresence in the sky,’ ” he continued, “a disheartening preview of the mathematical quagmire…into which this Court today catapults the lower courts of the country without so much as adumbrating the basis for a legal calculus as a means of extrication.” Waxing poetic about the majority’s abrogation of what he grandiosely refers to as the “Colegrove doctrine,” he accuses his opponents of rewriting the Constitution with their “circular talk.” And at the conclusion of a pages-long discussion of the history of common-law theories of political representation, he even laments that “their reasoning does not bear analysis.”
A large section of Frankfurter’s opinion is devoted to the curious argument that because the problem of malapportionment in state legislatures is so pervasive and severe, far worse even than Tennessee in numerous other parts of the country, this should further caution the courts against offering relief. His lack of foresight in Baker regarding the direction of the nation, and the Court’s jurisprudence, is breathtaking to behold. “Surely a Federal District Court could not itself remap the State,” he exclaims incredulously, yet his brethren had come within a single vote of doing precisely that in the case at hand. Had Tom Clark, who switched sides at the last minute to join Brennan’s majority, seen the light earlier in the deliberations, it almost surely would have happened.
Clark’s concurrence sums up the degree to which Frankfurter’s intransigence, which ironically might have been a welcome voice of reason on the pre–New Deal courts that he so despised, now served to alienate his brethren. “One dissenting opinion,” Clark writes, in a not-so-subtle dig at his senior colleague reminiscent of Jefferson’s descriptions of Patrick Henry, is “bursting with words that go through so much and conclude with so little.” He then succinctly sums up the gravamen of the issue before the Court: “Tennessee’s apportionment is a crazy quilt without rational basis.”
Baker was the nadir of Frankfurter’s twenty-three years of service on the nation’s highest court. Embittered, cantankerous, and resentful of a world that had long since passed him by, he began to experience failing health soon thereafter. Less than a month after the decision was handed down, Frankfurter suffered a mild stroke while sitting at his desk on Capitol Hill. A few days later, a second more severe stroke left him partially paralyzed on his left side. His mind still sharp, he hoped to return to the bench when the justices reconvened that October, but on the advice of his doctors he retired from the Court in late August. “I need hardly tell you, Mr. President,” he lamented to John F. Kennedy in his retirement letter, “of the reluctance with which I leave the institution whose concerns have been the absorbing interest of my life.”
With his departure, the locomotive of history, now firmly set on the track of redressing unfairness in districting, began to significantly pick up steam. The incoming justice, Arthur Goldberg, fell squarely into the Brennan/Warren jurisprudential camp, tipping the balance still further in the direction of political equality. And less than a year later, in an 8–1 ruling from which only Harlan dissented, the contours of the reapportionment revolution began to take shape. The case was Gray v. Sanders, and at issue was the county unit system used by the State of Georgia to determine the winners of its statewide primary elections. Fulton County, home to Atlanta, received only 1 percent of the unit vote, despite containing more than 14 percent of the state’s population, a ten-to-one vote-power discrepancy compared with more rural counties. “The 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,” wrote William O. Douglas for the majority, before entering for the first time into the Supreme Court lexicon an immortal phrase: “one person, one vote.”
Nineteen sixty-four proved to be a banner year for the Court. Freed from the confines of Frankfurter’s philosophy of judicial restraint, the justices intervened to order a new trial for a state criminal defendant who had been denied access to an attorney during his police interrogation. This was merely the beginning of a dramatic expansion of the rights of the accused that would fundamentally transform the criminal justice system in the United States. In another case, the justices ruled for The New York Times in overturning a libel judgment from a state court in Alabama, expanding the rights of the fourth estate to criticize public officials without fear of legal reprisal. But nowhere were the effects of the Court’s emerging liberal jurisprudence more acutely felt than in redistricting. Buoyed by their success in Baker, advocates of “one person, one vote” brought a parade of new appeals before the justices, challenging the malapportionment of U.S. House of Representatives districts in Georgia and state legislative districts in Alabama, Colorado, Delaware, Maryland, New York, and Virginia.
The Georgia case, Wesberry v. Sanders, presented an almost identical question to Colegrove. The state’s Fifth Congressional District in the metro-Atlanta area had more than 820,000 inhabitants, while the Ninth District had fewer than 275,000. Their boundaries had not been redrawn since 1931. In February 1964, the Court finally delivered the hammer blow. Writing for a 6–3 majority, Hugo Black grounded his arguments striking down the Georgia districts in the constitutional mandate that members of the House be elected “by the people.” Neatly sidestepping Colegrove without explicitly overruling it, he took pains to acknowledge Frankfurter’s argument that Article I of the Constitution gives Congress sole authority to remedy issues in congressional districting. Nevertheless, he emphasized that “we made it clear in Baker that nothing in the language of that article gives support to a construction that would immunize state congressional apportionment laws which debase a citizen’s right to vote from the power of courts.”
Black’s holding, an early forerunner of the originalist arguments that have come to dominate conservative legal thought in the twenty-first century, boils down to the claim that “construed in its historical context, the command of Art. I, § 2 that Representatives be chosen ‘by the People of the several States’ means that, as nearly as is practicable, one man’s vote in a congressional election is to be worth as much as another’s.” This fairly torturous piece of revisionist history, which Harlan demolishes in his surprisingly well-reasoned dissent—after all, as we’ve seen, the Framers were no strangers to staggering electoral inequality—was made necessary by the fact that the equal protection clause, which would seem to be the more natural vehicle for imposing such a mandate, by its own terms applies only to the states. The Court eventually found a way around this problem through a doctrine known as reverse incorporation, but that jurisprudential loophole was not well established at this juncture. Black does not even address the equal protection argument in his opinion, relegating it to a dismissive footnote. He does, however, conclude with one of the most eloquent defenses of equal access to the franchise in the history of the judicial branch: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”
All that remained after Wesberry was to extend the Court’s holding to cover state legislative districts. These, after all, were the source of the most severe malapportionment problems that had plagued the nation for decades. That opportunity came four months later. In June, the justices handed down their rulings in a series of consolidated appeals, headlined by Reynolds v. Sims, a challenge to Alabama’s apportionment of its state senate districts. This time the equal protection arguments were front and center, and writing for an 8–1 majority, Chief Justice Earl Warren left no doubt about what the Constitution required.
Alabama law mandated that its state senate districts be apportioned in a manner similar to that of the U.S. Senate, with each of the state’s sixty-seven counties receiving one seat. This had created a situation whereby Jefferson County, home to Birmingham and the most populous in the state, had forty-one times as many eligible voters as the least populous. On the house side, the districts had not been redrawn since 1903, despite a state constitutional provision stipulating that redistricting occur every ten years. This eventually produced a sixteen-to-one discrepancy between the largest and the smallest districts. “The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens,” Warren wrote, concluding that “the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” And with the stroke of a pen, the constitutional mandate of “one person, one vote” was applied to every state legislative chamber in the United States.
The Reynolds decision sparked an immediate backlash from advocates of states’ rights. “While many persons were aroused and angry with the First and Second rulings,” wrote Congressman Udall in his report, referencing Baker and Wesberry, “it was the Third group of cases which really touched off the storm.” But while it took the remainder of the decade for the more intransigent state legislatures to be brought kicking and screaming into the Court’s new reality, its legacy remains the most enduring of all of the transformations to the legal and political system that the Warren Court perpetuated. While later conservative Courts backtracked significantly on the other cornerstone of the Warren era, the expanded protections given to those caught within the crosshairs of the criminal justice system, the requirement of “one person, one vote” has only been strengthened in the decades since Reynolds.
In the 1968 case of Avery v. Midland County, the Court extended it to cover city council districts. And today there is nary a legislative body in the country, except of course the U.S. Senate, whose districts are not required to be apportioned on the basis of population. Within a few short years, and over the vigorous protestations of both Frankfurter and Harlan, the reapportionment revolution had been completed.
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The Court had now solved the most pernicious and pervasive evil in the nation’s electoral system: the widespread malapportionment of its legislative districts. But in fixing one problem, the justices had also opened the door to a different one. By requiring every state to redraw its electoral map every decade after each census, the temptation for politicians to allow partisan considerations to dictate the redistricting process would prove too alluring to resist. Frankfurter had been right about one thing: the reapportionment revolution did indeed lead the Court inexorably into the political thicket, and once within its tangled clutches, there could be no escaping.
After Earl Warren’s retirement as chief justice in 1969, the justices continued to build on the foundations of the “one person, one vote” rulings. The more conservative Burger Court showed no less willingness toward involvement in this area than the liberal Warren Court, effectively establishing the federal judiciary as a super-legislative review body for the electoral practices of federal, state, and local government. It was during the final years of the Burger Court—a period during which, in spite of Frankfurter’s warning decades earlier, the justices proved themselves, in the words of the legal scholar Lee Epstein, “willing to weigh in on virtually any aspect of election law, with often dramatic consequences”—that the Court began to lay the groundwork for its partisan gerrymandering jurisprudence. Then, as later, the issue was one that caused deep divisions among its membership. But before we consider those cases, there’s another chapter in the sordid history of the gerrymander that demands attention. It concerns that most divisive issue in American government and society, the question of race.