JOURNAL OF SUPREME CouRT HrsTORY z.007, vo l. 3z., no. 3 INTRODUCTION \1rlvrn L Urcfs� ARTICLES lnctrprecmg che Bill of Rights and the Nature of Federalism: B.:rro11 v. Crry of Balmmm B,end.a11 J. Dohmy Bll’th of .m lnsatuoon: Horace Gray and the Losr Law Clerks Todd C. Ptppm I he Civil Wu Rem1111scences of John Marshall Harlan Pm, Scott Cantp&/1, EJ;ro, The Que�lion of Diminution of Income for Justices and Judges of the Supreme Coun and the lnfenor Court.s of the Umced Scates R�rry A. Prirt Rookie on the Bend,: The Role of the Jumor Justice Clare Cusbman William 0. Douglas Remembered: A Collective Memory by WOLJ’s Law Clerks Marsball L. Small Anoiney General Kennedy versw Solic1cor GencraJ Cox: The Formulacion of the Federal Government’s Pos1cion in the Rf,1ppornonmem Cases 8rtffr J ‘lrrm The Jud1ml Bookshelf /), Critr Strphmson, Jr CONTRIBUTORS ILLUSTRATIOU CREDITS C”.opynght 200� by the Supreme Courc H1storical Society �t Opperman House 224 F.ast Cap,col Su,,ec. N E… W�sh,ngton. DC. 20003 ISBN 0-91478S-45-l l’i5N 1059 4329 V l.11 \15 :e I• e .s I. Attorney Ge,neral Kennedy versus Solicitor General Cox: The Formulation of the Federal Government’s Position in the Reapportionment Cases BRUCE J. TERRIS* In a recent article in this journal, “May It Please the Court? The Solicitor General’s NotSo-‘Special’ Relationship: Archibald C9x and the 1963-1964 Reapportionment Cases,”1 Helen J. Knowles shows how the Supreme Court went beyond the arguments of the Solicitor General, Archibald Cox, in establishing “one man, one vote” as the gov.erning principle for the election of state legislators. In making this demonstration, Ms. Knowles also shows bow Attorney General · Robert Kennedy prevailed on Cox to support the plaintiffs in six reapportionment cases despite Cox’s serious doubts about this position.2 In doing so, Ms. Knowles was more than generous in describing my small part in this story. Ms. Knowles’ article is largely based on the memoranda prepared in the Department of Justice and White House concerning the federal government’s position in these cases. The purpose of this paper is to provide further information concerning the respective positions of the Attorney General and Solicitor General on reapportionment and the mauner in which the differences between them were resolved based on the author’s personal participation in these events. The place to start is neither with the Attorney General nor with the Solicitor General. In 1946, in Colegrove v. Green,3 the Supreme Court considered a challenge to the discriminatory .apportionment of congressional districts in Illinois, which had not been redrawn since 1901 despite census figures establishing substantial demographic changes. In a 4-3 vote, the Court upheld the dismissal of the action and held that the case was not justiciable. The holding is usually summarized as 336 JOURNAL OF SUPREME COURT HISTORY As Attorney General, Robert Kennedy chose to argue Gray v. Sanders, the 1963 malapportionment case, which gave birth to the “one man, one vote” requirement. being based on the political-question doctrine. However, of the four majority votes, only two joined the opinion of Justice Frankfurter that found that apportionment was not justiciable because it presented a political question. Justice Rutledge, the fourth vote, wrote a separate concurrence in which he argued that the matter was in fact justiciable, but that the Court should nevertheless exercise its equitable discretion to refuse relief to the plaintiffs because of the particular circumstances of the case, and not because it presented a political question.4 Subsequently, in 1958, then Senator John Kennedy wrote an article for the New York Times Magazine entitled “Shame of the States. ” 5 Senator Kennedy argued that, as a result of malapportionment, “rarely in electing state legisl!’ltures, does an urban vote, in effect, count for as much as a rural vote.” He detailed numerous examples of state legislatures across the country that either engaged in deliberate malapportionment or refused to redistrict as populations shifted from country to city. He argued that this was the “most fundamental and the most blatant” form of discrimination against urban areas, and he advocated the elimination of these electoral imbalances.6 In 1959, in Baker v. Carr,1 the District Court for the Middle District of Tennessee ruled, per curiam, that it could not intervene in a challenge to the apportionment of the Tennessee legislature and therefore dismissed the complaint on the ground that the issue raised a political question, relying on Justice Frankfurter’s opinion in Colegrove v. Green. After the Supreme Court noted probable jurisdiction on November 21, 1960,8 the federal government, through President Eisenhower’s Solicitor General, J. Lee Rankin, decided to file an amicus brief in support of the plaintiffs.9 Shortly thereafter, John Kennedy became President, Robert Kennedy Attorney General, andArc cal assu would Suprem had pre was gei reappo1 cratic F tures fr Th cus bn briefreview argued lenge 1 tures d lt cont was co by onl: that po quent gued t tures 1 of con paritie and dj: Amen, D ment had s, eral o ports Davis. Gener impor to arg usuall by an quest on AI 1 Supre the st subm ened fully not a i KENNEDY AND COX 337 and Archibald Cox Solicitor General. Tbe logical assumption was that the new administration would eagerly support the plaintiffs in the Supreme Court. After all, President Kennedy had previously expressed his position, and it was generally assumed that judicially ordered reapportionment would greatly help the Democratic party by shifting seats in state legislatures from rural to urban areas. · The federal government filed an amicus brief in support of the plaintiffs. The brief-which, by chance, I was assjgned to review in the Solicitor General’s Officeargued that, contrary to Colegrove, the challenge to malapportionment of state legislatures does not present a political question.10 It contended that the position in Colegrove was contained in a plurality opinion, endorsed by only three Justices, and that, in any event, that position had been “undermined by subsequent developments.”11 The brief further argued that malapportionment of state legislatures greatly exceeds the malapportionment of congressional districts, creating voting disparities that “at some point become so gross and discriminatory as to violate the Fourteenth Amendment.”12 Despite the position taken by the government in its brief, the new Solicitor General had serious doubts about the role of the federal courts on this issue. Victor Navasky reports that Cox at first suggested that Oscar Davis, the First Assistant to the Solicitor General, argue the case, despite its enormous importance. 13 Ultimately, Cox was convinced to argue it. The government asked for an unusually large amount of time for oral argument by an amicus forty-five minutes-which request was granted. 14 The argument occurred on April 19, 1961. Two weeks later, without explanation, the Supreme Court set the case for reargument at the start of the fall Term.15 The government submitted a new anucus brief that strengthened its prior arguments. It argued forcefully that legislative malapportionment was not a political question and that the plurality position in Colegrove was no longer relevant or applicable, particularly in the case of malapportionment of state legislatures. 16 The brief further argued that the “need for constitutional protection [was] urgent” because state malapportionment was “subverting responsible state and local government” and was markedly “more severe than Congressional malapportionment,” and that electoral disparities were worsening. 17 The brief argued, as President Kennedy had done several years ear0 lier in his article in the New York Times Magazine, that “the most glaring consequence of malapportionment of state legislatures is the gross underrepresentation of urban interests” and “discriminat[ion] against urban areas.”18 The brief advocated that the “starting point” for a constitutional apportionment system was “numerical equality” and “per capita equality ofrepresentation”19 and that “equal representation” based on population “is ingrained in our constitutional system.20 Cox again delivered the argument for the government in Baker v. Carr. After being harshly questioned by Justice Frankfurter during the argument, as Cox and I walked out of the courtroom, he whispered that “Felix Frankfurter is right.” It is of course extremely rare for an advocate in the Supreme Court or in any court even to think, let alone admit, that his position is wrong. The investment of time and, even more important, psychic energy virtually always induces advocates to think that their position is right or, at least, not wrong� Cox’s statement undoubtedly reflected both his honesty and his deep-seated doubt about the use of the courts to remedy the malapportionment problem. Whether or not Justice Frankfurter was right in the abstract, he was not right in terms of the subsequent jurisprudence of the Supreme Court. The Court in Baker v. Carr held that the plaintiffs’ equal protection challenge to Tennessee’s legislative apportionment system was not a political question and presented a “justiciable constitutional cause of action” under the Fourteenth Amendment.21 The Court 338 JOURNAL OF SUPREME COURT HISTORY Bruce J. Terris (above), the author of this article, helped Robert F. Kennedy prepare for his only Supreme Court argument. Terris argued seventeen cases while serving in the office of the Solicitor General. emphasized that the opinion of Justice Frankfurter in Colegrove, upon which the majority below had relied to dismiss the case for lack of subject-matter jurisdiction, was approved by only three of the seven Justices in the case, that this plurality was in tension with other precedent establishing that there was subject-matter jurisdiction, and that the challenge was justiciable. Thus, the federal courts were now open to cases challenging legislative malapportionment. The fust case flowing from Baker v. Carr turned out not to be a legislative malapportionment case. Rather, it concerned statewide elections. Gray v. Sanders22 involved use of Georgia’s county-unit system in Democratic primaries for the nomination of United States Senators, the Governor, and other statewide otTicials. In those bygone days, the Democratic primary in Georgia was the equivalent of election. Each cow1ly was given a specified number of urut votes, ranging from two urut votes for the least populated counties to only six unit votes for the roost populated counties. The majority of the cow1ty-unit vole determined the nomination. Because of the wide disparity in population among counties, the value of a vote was as much as ninety-nine times greater in rural, less populous counties than in populous counties. Again, the federal government submitted an amicus brief supporting the plaintiffs.23 The brief argued that the Georgia county-unit system was w1constitutional because the arrangement grossly and systematically discriminated against voters in populous counties in favor of voters in rural counties. The brief argued that the Fourteenth Amendment requires, “at the very least, … [that] the point of departure must be equal or substantially equal treatment of all voters.”24 The brief further argued that “once it appears that persons similarly circumstanced have been derued equality of voting rights,” then such scheme is unconstitutional unless any “differentiation has a relevan t and substantial justification. ” 25 It was customary, at least at that time, for Attorneys General to argue one case during their tenure in office. Kennedy wanted to argue Gray v. Sanders. Navasky describes a meeting, attended by Deputy Attorney General Nicholas Katzenbach and Assistant Attorney General for Civil Rights Burke Marshall, in which they maneuvered Cox into suggesting that Kennedy make the argument.26 Cox’s ready acquiescence to giving up a case of this importance, without making any effort to argue the case himself, is only understandable based on his attitude toward reapportionment. Jn contrast, Kennedy’s interest in �rguing the case foreshadowed his support for “one man, one vote” in the subsequent legislative cases. Kennedy argued that the county-unit system in Georgia violated the Fourteenth Amendment. In his prepared remarks, he did not go all the way to support “one man, one vote,” under given ing b “cone “sens Ii to enj Gray man, conce larafo burg and 1′ one ti so, th recog const once’ was c catio1 colle[ at lea Coun beco crs in 1 Courl tionrr Sand, rnent tative Whil, of all ticle with I ing rr there reside Unde in Ge Fifth many Cong siona dism1 ied nit :ily es. erde he ne tes ed be ‘S­ .e­ �d of at 1e st Lil ;e :d ,s 1- )f g e .s Ll y y KENNEDY AND COX 339 vote,” stating that “We are not saying that under all circumstances every vote must be given equal weight.”27 But under questioning by the Court, he said that he could np,t “conceive” of a county-unit system making “sense. “28 In affirming the district court’s decision to enjoin the county-unit system, the Court in Gray v. Sanders explicitly embraced the “one man, one vote” standard, stating that the “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-one person, one vote.”29 In doing so, the Court explained that it had long been recognized that all qualified voters have the constitutional right “to have their vote counted once” and that the only weighting of votes that was constitutionally penn.itted concerned allocation of Senators and the use of the electoral college in the choice of the President. 30 Thus, at least with respect to statewide elections, the Court made clear that one person’s vote must be counted equally with those of all other voters in a state. The first case to come to the Supreme Court on the merits concerning reapportionment of a legislature was Wesberry v. Sanders,31 which involved the malapportionment of seats in the federal House of Representatives among the then ten districts in Georgia. While the Constitution prescribed the method of allocating seats to the various states in Article I, Section 2, it did not specifically deal with the allocation of seats within a state having more than one district. The result was that there were extreme disparities in the number of residents among districts in numerous states. Under the challenged apportionment system in Georgia, a single Congressman from the Fifth District represented two to three times as many voters as were represented by each of the Congressmen from the other Georgia congressional districts. 32 The three-judge district court dismissed the complaint, citing Justice Frankfurter’s opinion in Colegrove.33 The Supreme Court noted probable jurisdiction on June 10, 1963.34 The federal government filed an amicus brief io support of the plaintiffs. The brief was not subject to dispute within the Department of Justice. The brief argued that federal courts have the power to consider the constitutionality of congressional districting, that such challenges are justiciable, and that, while the merits of the case should be remanded to the district court, the applicable standard should be that congressional districts must be as equal in population as possible.35 Cox did not have any trouble with the brief, and it was submitted. However, the choice of the lawyer in the Solicitor General’s Office to argue the case on behalf of the United States was distinctly unusual. Cox, a true glutton for work, normally argued two cases in each two-week session of the Court. Since there were usually not two cases in each session of g�eat importancethe federal government did not participate in as large a proportion of Supreme Court cases as it does now-Cox often argued cases of considerably less magnitude. Nevertheless, he chose not to argue Wesberry v. Sanders, despite its obvious major effect on the composition of the House of Representatives. Instead, I was assigned Wesberry v. Sanders. I was never told why, and I never asked. I was then thirty years old and had been arguing Supreme Court cases for only three, years. This assignment could not have been by chance. While, as we will see, Cox argued four state reapportionment cases in that session, they all involved essentially the same issues and similar facts. Cox’s decision not to argue Wesberry-or at least to assign it to his First or Second Assistants-must have reflected his reluctance to favor of “one man, one vote.” I argued, consistent with the government’s amicus brief, that the Supreme Court need not decide !he substantive standard. However, if the Court did choose lo determine the 340 JOURNAL OF SUPREME COURT HISTORY standard, I strongly urged that this standard should be “congressional districting based directly on population, without any substantial deviation. “36 The Supreme Court not only held that the Georgia apportionment grossly discriminates against voters in the F’iftb District, but also decided to determine the standard to apply in congressional elections. The Court held unequivocally that “the command of Art r, s 2 … means that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” 37 Wesberry t!1erefore fim1ly established that “one person, one vote” applies to congressional elections. On June .I 0, 1963, less than three months following its initial enunciation of the “one man, one vote” principle in Gray v. Sanders, the Court noted probable jw-isdiction in four of tbe six state legislative apportionment cases discussed by Ms. Knowles, including Reynolds v. Sims.38 Later that same year, the Court noted probable jurisdiction in the other two cases decided with Reynolds v. Sims.39 Together, these six cases involved challenges to the malapportionment of state legislatures in Alabama, Colorado, Delaware, Mary land, New York, and Virginia. The Court was asked to consider whether the “one person, one vote” standard, adopted in Gray v. Sanders for statewide elections and i.n Wesberry v. Sanders for congressional elections, also applied to the apportionment of both houses of state legislatures. TI1e most of the state apportionment cases for Cox was WMCA v. Simon.40 It involved a challenge brought by five of the six most populous New York counties to the apportionment scheme of both houses of the state legislature. However, the voting disparity in New York was not nearly as egregious as that of the other state apportionment cases. Ms. Knowles describes the series of memoranda written for Attorney General Kennedy by the Solicitor General, Deputy Attorney General Katzenbach, Theodore Sorenson, President Kennedy’s Special Counsel, John Douglas, the Assistant Attorney General for the Civil Division, various lawyers in the Civil Rights Division of the Department of Justice, and myself All the memoranda, even that of the Solicitor General, recognized that legislatures ought to be apportioned according to the principles of”oue man, one vote” as a matter of public policy.41 The dispute concerned �hether to advocate ill the Supreme Court that the Fourteenth Amendment compelled this result, particularly in both houses of the legislature.42 All the memoranda, except for those of the Civil Rights Division and myself, urged that the federal government not support a “one man, one vote” principle in both houses. Katzenbach, Sorenson, and Douglas all wou.ld have supported all of the plaintiffs but would not have asked the Court to hold that the Fourteenth Amendment required adoption of a “one person, one vote” standard. Cox’s memorandum argued that the government should not advocate a “one man, one vote” standard because, in the unlikely event the Court adopted this strict standard, it wou.ld precipitate a “major constitutional crisis” that would cause “an enormous drop in public support for the Courl.” He emphasized that the standard would render forty-six out of fifty state legislatures unconstitutional, causing “great damage both to the country and to [the Court],” and openly “doubt[ed] whether the decision could be made to stick.”43 During this time, Anthony Lewis, the New York Times correspondent covering the Department of Justice, was lobbying.all the players in support of the government adopting a “one man, one vote” standard.44 He had written an article for the Harvard Law Review on malapportionment while a Nieman Fellow at Harvard Law School in which he argued that the Fourteenth Amendment required “equitable representation.” He gave ·as an example of inequitable representation district disparities of 4 to I. Whether or not Lewis’s efforts were fully consistent with journalistic ethics, he had staked out a position independent of being a reporter. bate and direct pa within th Afte circulate a meetir office. 1 Sorenser Kenneth Presiden Smith (v i.n 1960) of the P eral Ma Researc Harold< eral dis myself. only be, pants, b nection In ing wa� the fed( cases tt cision’ Genera in all t Suprer vote”� Tl purpo! a brief likely goven in its c this w Depai if Co Sim� to the supp< Cour caust also I eneral in the ::nt of , even d that ;cordite” as ! conoreme comtouses a, exvision JITient nciple 1, and :>f the Court nt revote” at the man, likely ard, it ll cri­ ·op in tsized out of causmd to 1ether ?oNew epartlayers .”one .en an 1alap­ .rvard Four­ : rep­ )f inies of were te had :ing a KENNEDY AND COX 341 reporter. He closely followed the internal debate and probably knew more than even the direct participants about what was happening within the Department of Justice. After the numerous memoranda had been circulated, Attorney General Kennedy held a meeting in the large antechamber of his office. The meeting was attended by Cox, Sorensen, Special Assistants to the President Kenneth O’Donnell and Lawrence O’Brien, President Kennedy’s brothers-in-law, Stephen Smith (who had run his presidential campaign in 1960) and Sargent Shriver, then the director of the Peace Corps, Assistant Attorney General Marshall, the Chief of the Appeals and Research Section of the Civil Rights Division, Harold Greene (later the chiefjudge of the federal district court in Washington, D.C.), and myself. This meeting was extraordinary not only because of the importance of the participants, but because several had no obvious connection to the topic under discussion. In retrospect, it was clear that the meeting was not intended to decide the position of the federal government in the reapportionment cases then before the Supreme Court. Tbat decision_ had already been made. The Attorney General had decided to support the plaintiffs in all the cases and to attempt to induce the Supreme Court to adopt the “one man, one vote” standard. The meeting was designed for another purpose: to persuade Archibald Cox to sign a brief supporting the plaintiffs. It is extremely likely that the position of Cox and the federal government had greatly influenced the Court in its crucial decision in Baker v. Carr. At least, this was the prevailing view at that time in the Department of Justice. Kennedy realized that if Cox did not sign the brief in Reynolds v. Sims and argue the case, it would be obvious to the Court that the Solicitor General did not support the federal govenuuent’s position. The Court bad great respect for Cox, not merely because of his office as the Solicitor General but also because of his great intellect and his deep feeling for the role both of the Court and of his office. On the other hand, Kennedy understood that he could not just order Cox to support” one man, one vote.” At the meeting, Kennedy started by asking Cox to explain the issues in the pending cases. Cox described the issues in his usual brilliant manner, in detail and at length. Most important, he emphasized that there was no sound basis for tbe federal government to argue for “one man, one vote” in both houses of state legislatures and therefore to support the plaintiffs in all of the pending cases. He concluded that the Supreme Court would not go this far and the Administration would be hurt in laking so extreme a position. During Cox’s presentation, Kennedy briefly left the room to get some orange juice and returned to the continuation of Cox’s talk. 0 ‘Brien and O’Donnell then discussed the politics of the issue. They stated that, contrary to popular belief, reapportionment would not help the Democratic party because reapportionment would largely add lo the number of suburban seats. Kennedy quickly dismissed the discussion of politics. He said that it did not matter whicb party would gain; malapportionment was simply wrong. After some more discussion, Cox repeated his contention that the Court would never approve “one man, one vote” and it would hurt the government even to ask for it. He said that he did not know how a brief in favor of strictly equal representation could be drafted. Kennedy then ended the meeting by saying: “Archie, I know you will find a way.” Interestingly, no one, not Kennedy or anyone else, had formulated what substantive standard the federal government should present in its brief. Such a clear decision would probably have result�d in a confrontation with Cox. Instead, it was just asswned that the government’s brief would support the plaintiffs in all the cases and that Cox would somehow figure out how to do this and foUow his conscience at the same time. 342 JOURNAL OF SUPREME COURT HISTORY Cox and I walked together down the fifthfloor corridor between the Attorney General’s Office and the Solicitor General’s Office. On the way, Cox said to me, “He doesn’t understand.” While I diplomatically did not reply, I thought about how much Kennedy did understand. He not only understood the fundamental legal-political issue but he understood his man, Archibald Cox. Cox did just what Kennedy challenged him to do. Instead of the government’s brief being drafted in the relevant division of the Department of Justice-in fuis case, the Civil Rights Division-and then edited by an Assistant to the Solicitor General such as myself and then the First or Second Assistant to the Solicitor General, Cox wrote the brief himself. It may have been the only brief during my tenure of seven y ears in the Solicitor General’s Office written personally by the Solicitor General. And Cox did what Kennedy expected; he figured out a way to support the plaintiffs in all the cases. Cox’s brief, which was filed in the first of the state apportionment cases, Maryland Committee for Fair Representation v. Tawes, was the principal brief for all the cases. It did not argue for the strict “one man, one vote” standard. Instead, he argued that the “basic standard of comparison is the representation accorded qualified voters per capita.”45 The brief argued that state apportionment violates the Equal Protection Clause if any one of thtee tests is met: (1) the apportionment creates “gross inequalities in per capita representation without any rhyme or reason”; (2) the apportionment is based on criteria that are “contrary to express constitutional limitations or otherwise invidious,” such as race or sex, or is based on criteria that are “whimsical” or “irrelevant,” such as a county’s geographic location; or (3) the apportionment subordinates popular representation as a whole “to the representation of political subdivisions to such a decree as to create gross inequalities among voters,” giving control of the legislature to small minorities of people. However, Cox’s brief did hold open the possibility that the Equal Protection Clause might establish a stricter standard, including tbe “one man, one vote” principle. In the briefs filed in each of the cases, Cox argued that all the state legislatures b�fore the Court violated one or more of these tests.46 Subsequently, before the Supreme Court decided the state reapportionment case, it noted probable jurisdiction in Lucas v. Colorado General Assembly. 47 This case, which involved the Colorado legislature, presented an even more difficult factual situation for Cox than’ ‘the previous five state cases. One house was apportioned almost exactly according to population. The other departed from a population basis only to the extent that 36 percent of the people could elect a majority of the state senators.48 Moreover, in a recent referendum, every county in the State had approved the apportionment, including the populous areas against which the apportionment was most discriminatory. Once again, Kennedy was concerned about Cox’s position. Deputy Attorney General Katzenbach met with me confidentially to discuss whether any problems were likely in formulating the government’s position. I