Friend of the Court: How Anthony Lewis Influenced the Justices He Covered

Anthony Lewis had only been away from Harvard, his
undergraduate alma mater, for eight years when he returned as Nieman Fellow in
the fall of 1956. But what an eight
years it had been. Lewis had gone
from Harvard College straight to work on the news staff of the Sunday New York Times,
back in the days when the Sunday and daily papers, in the British tradition,
maintained somewhat different news staffs — supervised by editors more
nearly rivals than colleagues. After
four years with the Sunday Times, Lewis had moved on to report for the
Washington Daily News, where his 1954 articles on a Navy Department employee,
Abraham Chasanow, dismissed as a security risk, earned Chasanow his job back
and Lewis a Pulitzer Prize at the age of 28. Lewis had returned to the Times, this
time on the daily side, by the time the prize was awarded in 1955.

By
early 1956, Lewis was seeking to broaden his horizons further. He applied and was accepted as one of 11
Nieman fellows in journalism, entitling him to a sabbatical from the Times,
along with an academic year’s study at Harvard. Lewis’s plan for his Nieman year was to
prepare intellectually to assume the Times’s Supreme Court beat. The announcement of his class of fellows
in June 1956 said Lewis would “study law, with special reference to the Supreme
Court.”

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 Reviewwith 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 the irrationality 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.