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Bench Memos

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Patty Cake, Patty Cake, Baker’s Man



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In today’s New York Times, editorial writer Adam Cohen takes Samuel Alito to task for saying, in his 1985 DOJ job application, that he was drawn to the study of constitutional law in college by his “disagreement with Warren Court decisions” (in Alito’s own words), including the reapportionment decisions of the early 1960s. Cohen burns up a thousand words trying to make an argument that it is somehow scary to have thought–or still to think today–that rulings like Baker v. Carr (1962) and Reynolds v. Sims (1964) are constitutionally indefensible. The best Cohen can do is reiterate 40-year-old arguments about “unfairness” and the “dilution” of votes; for good measure he throws in the insupportable claim that “powerful special interests” would have an easier time getting a “stranglehold on government” if not for the reapportionment rulings. (I await Mr. Cohen’s opposition to the filibuster on grounds that it empowers “powerful special interests.”) He even suggests that the “next Tom DeLay-style redistricting in Texas” could wildly unbalance the populations of the state’s congressional districts, if that dangerous Judge Alito has his way on the Supreme Court. Please.

Though I’m a bit younger than Judge Alito, our experiences are similar in this matter. One of the first grad-school term papers I wrote a quarter century ago dealt in part with the reapportionment rulings. I expect that, like me, Alito was drawn to the powerful reasoning of Justice Frankfurter’s dissent in the Baker case, and of Justice Harlan’s dissent in the Reynolds case. These opinions were once (and in many places still are) taught as classic statements of judicial restraint. I dare say there are few readers of all the opinions in these two cases who would not conclude that Frankfurter and Harlan had the better of their adversaries. Adam Cohen is engaged in mere bullying, without a substantial argument about the meaning of the Constitution or the proper range of the judicial power, when he tries to read agreement with these two justices out of “the legal mainstream.”

It is revealing that the next sentence in Alito’s job application was this: “I discovered the writings of Alexander Bickel advocating judicial restraint, and it was largely for this reason that I decided to go to Yale Law School.” That’s where Bickel taught, of course (alongside Robert Bork), and where he had just published The Supreme Court and the Idea of Progress (1970) while Alito was in college at Princeton. Bickel’s book was sharply critical of the reapportionment rulings. It is still available (though perhaps only in its last few new copies: it’s not listed as in print on Yale University Press’s website) and is widely admired as a classic. Would Adam Cohen like to keep off the Supreme Court every jurist who finds Bickel’s book admirable?



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