Might as well ring in the New Year with a link to the New York Times. Adam Cohen dredges up a little-noticed point about Samuel Alito today: namely, that Sandra Day O’Connor’s purported replacement seems to disagree with the “one person one vote” decisions of the Warren Court in the 1960s. Here’s Cohen’s summary of one of those decisions, which, to the modern eye, look self-evidently correct:
The one-person-one-vote principle traces to the Supreme Court’s 1962 decision in Baker v. Carr. At the time, legislative districts had wildly unequal numbers of people, and representatives from underpopulated rural districts controlled many state legislatures. In Maryland, 14 percent of the voters could elect a majority of the State Senate, and 25 percent could elect a majority of the State House. In Alabama, the county that includes Birmingham, which had 600,000 people, got the same number of state senators – one – as a county with barely 15,000 people.
In Baker v. Carr, Tennessee voters challenged their state’s unequal legislative districts, which had not been redrawn in 60 years. The Supreme Court had rejected a similar claim out of Illinois in 1946, saying it did not want to enter the “political thicket.” But in 1962, the Warren court decided it had to enter the thicket to vindicate the rights of Tennesseans whose votes were being unfairly diluted. It ordered Tennessee’s lines redrawn.
Those unequal district lines, by the way, were usually arranged so as to water down the voting power of African-Americans in the South, by packing them into a few urban districts. Although the Warren Court decisions were unpopular in certain circles at the time—civil rights advances in general were unpopular in certain circles at the time—nowadays opposing this sort of thing is pretty Paleolithic. In fact, some liberals might say that the Warren Court didn’t go far enough on the “one person one vote” score; after all, legislatures are still allowed to include prison populations in the size of an individual voting district, despite the fact that those prisoners can’t actually vote.
Meanwhile, if we’re dredging up little-noticed facts about Alito—that is, stuff apart from his opposition to abortion and his apparent belief in the theory of the “imperial presidency”—here’s another one. In his 1985 application for Assistant Attorney General in the Reagan administration, Alito noted that he disagreed with Warren Court decisions concerning “criminal procedure.”
And which decisions might those be, exactly? Was it Gideon vs. Wainright, ensuring that all Americans must be provided a lawyer if they cannot afford one? Mapp v. Ohio, making evidence that was illegally obtained inadmissible in court? Escobedo v. Illinois, doing the same for evidence obtained by improper interrogations? Would Alito rather that citizens not be informed of their Miranda rights? Does he think the Court took a wrong turn in Hernandez v. Texas when it said that Mexican-Americans could not be excluded from juries? Inquiring minds want to know. Questions concerning criminal procedure occupy the vast majority of the Supreme Court’s time, and it would be nice to know what manner of “law and order” justice we’re dealing with here.