Alito's sticky thicket (Kenneth Starr & Ronald Cass Op-Ed)

Boston Globe ^ | December 11, 2005 | Kenneth Starr & Ronald Cass

[RWR8189]

A POLITICAL sidebar that made surprising news the last few weeks is a phrase in a 1985 job application from now-Judge Sam Alito questioning the Warren Court's reapportionment decisions. That tidbit sent shock waves through the political and pundit classes.

It shouldn't have. Justice-to-be Alito's statement wasn't an attack on equality, voting rights, or protecting victims of racial discrimination. It was a simple observation that a liberal court created a doctrine that, however salutary, has significant problems.

Americans have long embraced the ideal of equality from ''all men are created equal" forward. Equality did not mean identical political influence in every respect. Yet the past 40 years have seen repeated judicial efforts to prescribe something that looks like identical influence for voters. Prior to 1962, the Supreme Court rejected efforts to draw the judiciary into the ''political thicket" of apportionment. That changed with Baker v. Carr, when the court decreed that states could not depart too far from the principle of ''one-man, one-vote" in allocating legislative representatives. Since then, the problem has been figuring out what is too far.

Politicians often attempt to allocate political representation in ways that both dramatically increase and decrease the influence of citizens' votes. But the Framers designed checks and balances to prevent any group from dominating another permanently or from taking property or liberty to serve prejudice or politics. Integral was a division of government power reflecting different influences, some defined by historical boundaries, others by more local populations. The Constitution does not sweepingly embrace one theory of political representation but instead allocates power in several disparate ways.

[Cicero]

Hmm. I agree with Alito. Conservatives kicked and screamed when the judges started interfering in the drawing of electoral districts, but resistance is rare at this point. If Alito takes this line, it could open up the whole business to reconsideration.

I wouldn't mind seeing that, but I hope this won't be a political third rail for him. I'm sure the Democrats have spent the past couple of months looking for a tool to bash him with, and this could be it.