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Alito's sticky thicket

A POLITICAL sidebar that made surprising news the last few weeks is a phrase in a 1985 job application from now-Judge Sam Alito questioning the Warren Court's reapportionment decisions. That tidbit sent shock waves through the political and pundit classes.

It shouldn't have. Justice-to-be Alito's statement wasn't an attack on equality, voting rights, or protecting victims of racial discrimination. It was a simple observation that a liberal court created a doctrine that, however salutary, has significant problems.

Americans have long embraced the ideal of equality from ''all men are created equal" forward. Equality did not mean identical political influence in every respect. Yet the past 40 years have seen repeated judicial efforts to prescribe something that looks like identical influence for voters. Prior to 1962, the Supreme Court rejected efforts to draw the judiciary into the ''political thicket" of apportionment. That changed with Baker v. Carr, when the court decreed that states could not depart too far from the principle of ''one-man, one-vote" in allocating legislative representatives. Since then, the problem has been figuring out what is too far.

Politicians often attempt to allocate political representation in ways that both dramatically increase and decrease the influence of citizens' votes. But the Framers designed checks and balances to prevent any group from dominating another permanently or from taking property or liberty to serve prejudice or politics. Integral was a division of government power reflecting different influences, some defined by historical boundaries, others by more local populations. The Constitution does not sweepingly embrace one theory of political representation but instead allocates power in several disparate ways.

Useful as ''one-person, one-vote" is, it isn't a universal directive. Consider the Senate. The Constitution decrees that each state has two senators, regardless of the state's population or acreage. In contrast, the House of Representatives is based mostly on population, except for the requirement that each state have at least one representative. Making House districts roughly equal has been a source of dispute for 200 years. In the early 1800s, Elbridge Gerry redistricted Massachusetts to help his political allies, creating one district shaped like a salamander -- thus giving birth to the term ''Gerrymander."

After Baker v. Carr, the courts have insisted on greater degrees of mathematical equivalence in votes across districts. Since then, the problems associated with apportionment have grown. The Supreme Court rejected a plan with less than seven-10ths of one percent difference among districts. Courts have repeatedly invalidated efforts to draw lines between districts without totally disrupting traditionally established communities. At times the result has been to divide neighborhoods.

Added attention to other aspects of the reapportionment process, encompassing equality along racial and ethnic lines as well as across geographic districts, spawned further opportunities for realigning political districts to suit political interests rather than historical ones. Although boundary adjustments probably have increased minority representation in Congress, the jurisprudence of reapportionment has become needlessly complex and largely ineffective. The court has permitted a realignment of political power to advantage incumbents, create more safe districts, and facilitate greater division among elected representatives who no longer have to appeal to swing voters.

After fragmenting on the standards of racial gerrymandering, the court came up with no realistic way to assess what constitutes political gerrymandering. As Justice O'Connor said in Davis v. Bandemer in 1986 -- roughly contemporaneous with Judge Alito's statement -- the court's effort to identify political gerrymandering was ''flawed from its inception." Justice O'Connor charged that the court's decisions have been ''contrary to the intent of [the] Framers and to the traditions of this Republic."

No one should be alarmed that Alito -- like many other justices -- found some aspect of the court's reapportionment decisions unfortunate. His position should reassure us that, as a justice, he will be open to seeing the flaws as well as the virtues of constitutional decision-making by judges. That is an important virtue in a Supreme Court justice.

Kenneth W. Starr, dean of Pepperdine University School of Law, is a former solicitor general of the United States. Ronald A. Cass is dean emeritus of Boston University School of Law.

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