John Hart Ely and the Problem of Gerrymandering: The Lion in Winter

Abstract

In Democracy and Distrust, John Hart Ely articulated a participation-oriented, representation-reinforcing approach to judicial review that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay, prepared for a symposium honoring Ely held at Yale Law School in November 2004, explores the implications of his work for a central issue of democratic governance: legislative apportionment. Part I shows that although Ely celebrated the Warren Court's Reapportionment Revolution as a paradigmatic example of the anti-entrenchment approach, he essentially ignored the ways in which the Burger Court's jurisprudence of racial vote dilution, with its focus on geographically discrete minority groups subjected to majority prejudice, exemplifies the antidiscrimination approach. Part II looks at the implications of Ely's theory for contemporary controversies over race-conscious redistricting. Ely's final work - a trilogy defending the Rehnquist Court's Shaw jurisprudence as a wedge for attacking political gerrymandering more broadly - reveals an implicit tension within his approach: while the anti-entrenchment and antidiscrimination rationales may have dovetailed during the years of Democracy and Distrust, today they can operate at cross purposes. The protection of minority interests is now often best served not by judicial skepticism of legislative outcomes, but by judicial deference to plans that allocate power to politicians elected from minority communities. In the end, Ely's trilogy may reflect his romance with the Warren Court, which saw discrete and insular racial minorities as essentially objects of judicial solicitude, rather than efficacious political actors in their own right.