Judicial Jungle

Early in the history of American law, the Supreme Court took notice of so-called “political questions” into which, for one reason or another, the courts should not intrude. These were issues best left to the political process and to the political branches of government--the legislature and the executive. For example, no court could order a President to appoint a specific individual to a Cabinet post or to recognize a country or to negotiate a treaty. Those are all policy acts within the President’s discretion.

For nearly two centuries, legislative apportionment was treated as a political question. Deciding where to draw legislative boundaries was left to politics, as it should be. “It is hostile to a democratic system to involve the judiciary in the politics of the people,” Justice Felix Frankfurter wrote for the court in 1946 in Colegrove vs. Green, which challenged Illinois’ malapportioned congressional districts. “Courts ought not to enter this political thicket.” Let the politicians fight it out.

But in 1962, in the case of Baker vs. Carr, the Supreme Court reversed itself and threw out Tennessee’s legislative districts, which hadn’t been reapportioned in more than 40 years. One justice said the court was stepping in reluctantly and only because the political process would never fix the situation of its own accord; those who have more power than they are entitled to will never voluntarily give it up. Frankfurter, who had warned of the “political thicket” in 1946, dissented. Two years later, in Reynolds vs. Sims, the court declared that “one man, one vote” was the appropriate standard for legislative districts.

Now the court is faced with what appears at first glance to be the next step in the argument. Having decreed that legislative districts must have roughly equal populations, the court has been asked to decree in a case argued Monday that political parties are entitled to as much representation as their percentage of the vote.

The justices would do well to heed Frankfurter’s warning to shun the political thicket. There is no absolutely fair system of apportionment. One interest or another will always be underrepresented. If everyone who loses at the ballot box is allowed to ask judges to straighten things out, there will be no end to litigation on this subject, all chasing the elusive and illusory notion of absolute fairness.

The gerrymandering case that was argued this week is different from Baker vs. Carr and Reynolds vs. Sims. “One man, one vote” is a clean, surgical standard that the courts can impose and oversee. They can examine districts to make sure that their populations are roughly equal. The standard does not address the question of where the boundary lines are drawn, which is not easy for courts to monitor.

In the current case, Davis vs. Bandemer, Indiana Democrats are challenging the gerrymandered districts drawn by the state’s Republicans. The Democrats seek more representation in the Legislature. But political parties are not the sum total of all political-interest groups. Farmers might claim that they were underrepresented; old people might say he same thing; so might the young, and so might environmentalists and every other group.

People who feel their views are not adequately represented in a legislature should organize to make themselves heard. They can lobby their representatives and form political-action committees, which many of them do. The solution to this problem lies in politics, not litigation.