How Anthony Lewis influenced the justices he covered

But by December 1956 Lewis had focused on a particular area of the law, and moved beyond study to advocacy. He would write a scholarly article for the law-student-edited Harvard Law Review with the innocuous title, “Legislative Apportionment and the Federal Courts.” But the purpose of Lewis’s piece was hardly journalistic. Instead, it was nicely summed up by the first sentence of the abstract that introduced it: “The author urges Supreme Court action as the only effective means to correct the growing evil of inequitably apportioned legislative districts.”

Let me hasten to add here that while current journalistic ethics would prohibit involvement of a beat reporter in such an effort, the journalistic ethics of 1958 did not. Relatively little that Lewis did in these matters was done in secret; his editors were as comfortable then as today’s editors would be uncomfortable with the position into which Lewis placed himself.

Lewis’s law review piece began with two epigraphs. The first came from a 1928 Baltimore Sun column by H.L. Mencken:

The yokels hang on because old apportionments give them unfair advantages. The vote of a malarious peasant on the lower Eastern Shore counts as much as the votes of twelve Baltimoreans. But that can’t last. It is not only unjust and undemocratic; it is absurd.

The second epigraph, seeming to refute the first, was a quotation from Felix Frankfurter’s 1946 opinion in Colegrove v. Green, arguing that apportionment of legislative districts was a “political thicket” into which courts should not wander. The article was a frontal attack on Frankfurter’s handiwork, which Lewis termed “neither required legally nor effective practically.”

Lewis’s analysis of the problem was straightforward and linear. “In the last two decades,” he observed, “the United States has become an urban country.” Yet,

One of our major national failures since World War II has been the failure to meet the problems of rapid urbanization. The decay of the center city, disorderly suburban growth, and crises in education, housing, and transportation have become familiar facts in every metropolitan area. A fundamental reason that these problems have not been adequately met is urban political weakness, stemming in large part from the underrepresentation of urban areas in the state and national legislatures.

And Lewis did not only establish this case rhetorically. He pointed out that upper houses in 38 of 48 state legislatures had grown less representative of population in the period 1937-1955, and the same was true for lower houses in 35 states. Disparities between the most and least populous congressional districts had increased in 27 states and declined in only 11 in the decade following Colegrove.

Only the national judiciary, Lewis claimed, could address this pressing issue; the legislature would not do so. “Voting for a fair apportionment bill would in many cases mean voting oneself out of office. That is too much to ask of most politicians.” He continued, “Mal apportionment is a disease incurable by legislative physic.” In such a circumstance, “A vacuum exists in our political system; the federal courts have the power and the duty to fill this vacuum.”

Much later, Lewis would write in a book about another aspect of constitutional law defamation that a 1919 Harvard Law Review article by Harvard Professor Zechariah Chafee about “Freedom of Speech in War Time” “may have been the best-timed law-review article ever published,” coming as it did just ahead of the great free speech opinions of Justices Oliver Wendell Holmes and Louis Brandeis. But Lewis’s own handiwork, published in 1958, is certainly a contender for the same title. To a remarkable degree, Lewis set the agenda, and established the arguments for all that was to follow.

And what followed was a constitutional revolution.

* * *

When Earl Warren retired as chief justice of the United States in 1969, and again in his posthumously-published memoirs, Warren said that the most important cases decided by the Supreme Court during his tenure were not those that had revolutionized race relations or criminal procedure, but a series of decisions concerning legislative apportionment.

Warren was referring to four landmark Supreme Court rulings, in Baker v. Carr from Tennessee, Gray v. Sanders and Wesberry v. Sanders from Georgia, and Reynolds v. Sims from Alabama, with the last of these actually just the leading case among six decisions (including from Colorado, Delaware, Maryland, New York and Virginia) rendered on a single day. The decisions in these cases were announced over a period of just 27 months, from March 1962 to June 1964.

In that brief time, the Court completed a remarkable journey. At the outset, the law of the land seemed to be that courts would not normally intercede in questions of legislative districting. By the end, the Supreme Court had declared the composition of most of the nation’s state legislatures and nearly 400 of its 435 congressional districts to be in violation of the federal Constitution. The Court had overturned literally scores of state laws, state constitutional provisions and even popular state referenda. Forty-six legislatures had been challenged in court within four years; 43 had been reapportioned.

Under the rubric of “one person, one vote,” the justices ruled that not only must the states ensure that legislative districts be kept equal in size as residential patterns change, but went so far as to declare that no state could model its own government on the sorts of compromises that produced, in the federal Constitution, two very different legislative chambers in the House and Senate, and the Electoral College system for selecting presidents.

Entrenched regimes in many state capitols were swept away, and the political power of rural America was greatly reduced, while that of both cities and suburbs increased dramatically.

Moreover, unlike the desegregation decisions and other civil rights cases, or even the cases remaking criminal procedure, the “one person, one vote” decisions — after an initial flurry — provoked almost no popular opposition. This revolution was quick and bloodless. At the time of Warren’s retirement, it appeared to have been his masterstroke. In spending a couple of years researching a possible book on these cases some time ago, I concluded that the person most responsible for them was Anthony Lewis, who died Monday at the age of 85.

* * *

Lewis’s law review article launching this crusade began by noting that there were, broadly speaking, two types of malapportionment — population inequality and gerrymandering — and then narrowed his focus to population inequality. Lewis noted that the partisan implications of reapportionment would likely be mixed, with Democrats likely to gain in the North and Republicans in the South, and, with this, seemed to take partisanship off the table. Instead, he repeated, “Malapportionment has an almost universal rural bias.”

Having thus framed the problem, and established that it was getting worse, Lewis turned to the specifics of how the courts should resolve apportionment cases, both doctrinally and as a practical matter.

Lewis began with the question of unequal population in congressional districts. He looked first to the language of Article I of the Constitution itself. In section 2 it provides that “The House of Representatives shall be composed of Members chosen every second Year by the People if the several States.” The key phrase, Lewis emphasized, was “chosen… by the people,” which, he argued, meant chosen in districts of roughly equal numbers of people.

Turning to enforcement of this principle, Lewis looked to the first clause of Article I’s section 4, which provides that “The Times, Places and Manner of holding Elections for… Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…” Lewis noted that “the only specific reference to malapportionment in the reports of the Constitutional Convention” came in a comment by James Madison on this provision. On August 9, 1787, Madison had supported the language which became this clause of the Constitution because, without it,

the inequality of the representation in the Legislatures of particular States would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter.

That is, unless Congress had the power to limit malapportionment of congressional districts, such a result would almost surely follow from any malapportionment of state legislatures. Similar sentiments, Lewis noted, had been voiced in the ratifying conventions in Massachusetts and South Carolina—and, again by Madison, in Virginia.

But, of course, while this history lesson established the power of Congress to confront malapportionment of congressional districts by state legislatures, none of it went to the issue at hand: whether, if Congress failed to act, the courts could or should do so. Indeed, opponents could (and later would) argue that if Congress had this power, and declined for any reason to exercise it, that was itself an important reason for judicial abstention.

But Lewis placed the judicial activism he sought squarely in the middle of current constitutional currents. He turned Frankfurter’s language in the first of the World War II “flag salute” cases against him. Frankfurter had written that,

Where all the effective means of inducing political changes are left free of interference, education in the abandonment of foolish legislation is itself a training in liberty. To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people.

But, Lewis asked drolly, “Consider the relationship of the qualifying clause which opens this passage to the problem of malapportionment.” In other words, what should courts do “where all the effective means of inducing political change” are not “left free of interference”?

This was the same question with which others had been grappling for at least 20 years at the time of Lewis’s article. The debate had begun in earnest with Justice Harlan Fiske Stone’s opinion in U.S. v. Carolene Products Co., decided in 1938. In that case, Stone upheld a federal statute prohibiting the interstate sale of “filled milk,” noting that the statute was entitled to a presumption of constitutionality, and that it had been shown to be rational — not an exacting standard.

Yet in what became the most famous footnote in the history of constitutional jurisprudence, Stone’s footnote 4 noted three areas in which “[t]here may be narrower scope for operation of the presumption of constitutionality”, i.e., areas in which judicial scrutiny of legislation would be more exacting. The first of Stone’s three areas of concern was statutes appearing on their face to be “within a specific prohibition” of the Constitution, such as those of the Bill of Rights. The third area was laws directed against minorities, whether religious, national, or racial. But the second area of focus in footnote 4 was perhaps the most controversial — and far-reaching: scrutiny of “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” One of the specific sorts of limitations which Stone had in mind was “restrictions on the right to vote.” Stone deemed it “unnecessary now to consider whether [such] legislation… is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” But clearly, he had opened the door to doing just that.

Lewis referred to Stone’s footnote 4 as one underpinning of his argument that malapportionment was not entitled to judicial deference. He also relied on similar sentiments expressed by Frankfurter’s frequent ally on the Court, Justice Robert Jackson. Writing in the wake of the defeat of Franklin Roosevelt’s “Court-packing” plan of 1937, and just before his own elevation to the Court, Jackson, then attorney general of the United States, observed in his 1941 book, The Struggle for Judicial Supremacy, that,

[W]hen the channels of opinion and of peaceful persuasion are corrupted or clogged, these political correctives can no longer be relied on, and the democratic system is threatened at its most vital point. In that event, the Court, by intervening, restores the processes of democratic government; it does not disrupt them….

[A] court which is governed by a sense of self-restraint does not thereby become paralyzed. It simply conserves its strength to strike more telling blows in the cause of a working democracy.

What all of this meant, Lewis insisted, was that it was the duty of the courts to ensure that members of Congress were “chosen… by the People.” As he saw it, they could do so either by relying on Article I itself, or by turning to the 14th Amendment’s Equal Protection Clause. In applying these mandates — in deciding how nearly equal in size each district had to be -- it was Lewis’s view that districting should be determined by “a standard of reasonableness.” He had great confidence in the ability of courts to make such determinations, he wrote.

One problem with Lewis’s reliance on the language and history of the Constitution’s Article I was that it was limited to the apportionment of congressional districts. Lewis did not shrink from the implications. In what would become the only major disconnect between his article and the events to follow, Lewis wrote forthrightly that “There is no constitutional assumption that representation in the state legislatures should be based on units of equal population.” And Lewis recognized that the Supreme Court had long held that a state violating its own constitution was, without more, not a federal constitutional problem. But all of this did not, in his view, foreclose judicial action with respect to state legislative districting. Inequality in districting might not, in itself, violate the command of the Equal Protection or Due Process clauses, but theirrationality of such inequality could be held to do so. It was a fine line, but one Lewis was prepared to see the courts walk.

* * *

Two and a half years later, with Lewis now the New York Times correspondent at the Supreme Court, the Court agreed to hear a challenge to apportionment in Tennessee — the case that would become Baker v. Carr.

Lewis instantly recognized the potential import of the Court accepting the case. When the move was announced on November 21, 1960, he wrote in the Times that,

Any change in [the] attitude [toward the ‘political question’ doctrine] on the part of the Supreme Court would be of the utmost significance not only for Tennessee but also for most of the states in the union…

If the Supreme Court were to rule that that districts unequal in population may in some cases violate the Constitution, and that the Federal courts may deal with the problem, the political balance of power in many states might be threatened.

Lewis’s editors may not quite have shared his sense of the case’s importance. On a day when the paper’s first page included an account of a speech by Vice President-elect Lyndon Johnson to NATO-country parliamentarians, Lewis’s article ran on page 29.

One critical factor in this state case was what position the federal Justice Department would take on it. According to Victor Navasky’s book “Kennedy Justice,” Lewis actually lobbied Solicitor General Archibald Cox (whom he had gotten to know during his Nieman fellowship) and Attorney General Robert Kennedy (a Harvard classmate of Lewis’s), and their aides, to take up a key point in the case on the side of the Tennessee plaintiffs, although Navasky writes that Lewis “did his best not to overstep the bounds of propriety.”

The federal government filed a brief along the lines Lewis advocated.

A couple of years later, Lewis intervened again, Navasky asserts, convincing Cox to change arguments in his brief in the Reynolds case. On the day that case was decided, as Warren was reading his opinion from the bench, Navasky reports, Lewis passed Cox a note: “How does it feel to be present at the second American Constitutional Convention?”

When the case was decided, in March 1962, Justice William Brennan's opinion for the Court cited Lewis's Harvard Law Review article in a footnote. Lewis's coverage of the decision earned him his second Pulitzer Prize the following year.

I knew Tony Lewis a bit, long after the reapportionment decisions. He was a teacher of mine in law school (and did a lot to set me on a course toward practicing press law ). He was an inspiring professor, and a gentle man.

In 2008, after I had completed some research on the apportionment cases, I asked him, after a public conversation concerning a book he had recently written, about these events. I told him that I had concluded that he had played the pivotal role in these pivotal cases.

He didn’t disagree — but he also clearly didn’t want to talk about it.