Missouri General Assembly and Reynolds v. Sims

[MarkD]

(Sorry, in advance, that this one is going to be long.)
Those who have seen me discuss Reynolds v. Sims before know that I disapprove of the Court's overall conclusion. I have disapproved of it ever since I was a junior in high school some 41-42 years ago. I first learned about that ruling by the Court in my American Government class at St. Charles West High School; my teacher for that class was Mr. Terry Hollander (who is still alive and is currently serving on the St. Charles County Council). I still remember, today, thinking to myself, back then, when Mr. Hollander taught us the gist of what the Court had done in Reynolds, That does not make any g**d*** sense! Even though the US Constitution clearly designed a national legislature that is bicameral -- one chamber represents the people proportionally (approximately equal amount of population in each of the congressional districts nationwide), and the other chamber gives equal representation to every state (a fact which results in 1/3 of the people being represented by 2/3s of the Senators, while 2/3s of the people are represented by 1/3 of the Senators) -- the Supreme Court decreed, 175 years after the adoption of the US Constitution, that the people of each state are NOT ALLOWED to adopt a state constitution that designs their state legislature in such a way that power is distributed similarly to the way that power is distributed in Congress?!? If a state legislature is bicameral, the Court requires BOTH chambers of the legislature to distribute the power of the voters like the US House? NEITHER chamber is allowed to be like the US Senate (such as equal power for every county)? Where does the Supreme Court get s*** like that from?!?

About a decade later, I read Robert Bork's "The Tempting of America," and I saw that he felt as frustrated about what the Court had done as I did. I also learned from Bork that the Court based it's decision on, supposedly, the Equal Protection Clause. I also agreed with Bork about this point: if a bicameral legislature is "malapportioned" in both chambers -- if neither of the two chambers proportionally represents the people, and in both chambers, some districts have FAR more population than other districts -- then the Republican Form of Government Clause in Article IV of the Constitution would require that one of the two chambers must be reapportioned so that the people are proportionally represented. But there is no constitutional reason why both chambers of a state legislature must be proportional.

Because I have lived about 80% of my life in Missouri, I was most interested in finding out how the Court's ruling affected the Missouri General Assembly. Several years ago, I sat down in the Wash U. Law Library and studied the previous design of the General Assembly. One of the things I learned was that, when Reynolds was handed down, the Missouri Senate was very much like the US House -- every state senator represented approximately equal amount of population -- but the Missouri House was like the US Senate -- the rural region of the state was over-represented and the urban/suburban region was under-represented. As a consequence of the Court's ruling, Missouri was required to redistribute the seats of the MO House in such a way as to transfer about 36 seats from the rural areas to the urban/suburban areas, which was about 22% of the seats in the House. (More on that later.)

In February of 1945, Missouri voters approved the adoption of a new state constitution, and that document has remained the state constitution ever since. Approximately 500,000 voters participated in the referendum - which was one-third of the number of voters who had participated in the preceding presidential election, just about 3 months prior - and the voters approved it by an impressive 62%. The urban voters -- from the six counties that had the highest population -- approved the new constitution by a much stronger margin than the rural voters, who were narrowly against it.

Here is how that constitution distributed power to the people in electing the state legislature. The state Senate remained at 34 seats (the same as before, and has been ever since), with instructions that, every ten years, a bipartisan commission was supposed to draw 34 Senate districts with approximately equal amount of population in each. Therefore, the urban parts and the rural stretches of the state had fair representation in the Senate. (The districts were allowed to vary from the average by plus or minus 25%. So, if the 1940 census had reported that Missouri's population had been 4,080,000, then that meant an average senate district would have 120,000 people, but the districts were allowed to vary from as little as 90,000 to as much as 150,000. No district was allowed to combine part of one county with any other whole or partial county.) But the House was purposely designed to be different, and did not emulate the Senate’s design of proportional representation. (It was not very different than how it had been before the 1945 referendum.) The design of the House was purposely arranged to give the rural stretches of the state a greater share of the power than the urban regions of the state. The number of seats was determined to be 154, but only for the remainder of the 1940’s, and in the future, after each new census, the total number of seats in the House was allowed to fluctuate, to accommodate rapid population growth (or loss) in the urban regions.

The 1945 constitution stipulated that every one of the 109 counties in Missouri which we shall say, by today's standards, were predominantly rural were to get one state representative each. Then 45 additional seats were apportioned to the six counties with the biggest population. Here, precisely, is how those 45 seats were apportioned to the six counties: 3 seats to each of Jasper, Buchanan, and Greene Counties, 7 seats to St. Louis County, 11 seats to Jackson County, and 18 seats to the County of the City of St. Louis. Each of those counties was instructed to draw a district map in which every district had approximately equal population. That is, St. Louis City had to draw 18 districts with app. equal population, Jackson had to draw 11 districts with app. equal population, and so on. (The map-drawing in the City of St. Louis was performed by the St. Louis City Board of Elections, and in the other five counties, each map was drawn by the "county court" -- the equivalent of the County Councils of today in St. Louis and Jackson, and today's county commissions in Buchanan, Greene, and Jasper.)

That apportionment (of 154 seats) was based on the 1940 census data as plugged into a certain ingenious mathematical formula. The formula worked as follows: take the most recent census data which reports the population of the whole state. Divide that number by 200; this division results in a number called the ratio (which I will designate as r). Multiply r by 2.5; that calculation will produce a result which I will call A. Every county with A or less gets one seat in the House (no matter how small the county’s population is). Then multiply r by 4; that calculation will result in a number B. Every county with a population between A and B gets 2 seats in the House. Next multiply r by 6; that will get you a number C, and every county with population between B and C gets 3 seats. Multiply r by 8.5; that gets you a D, and every county with D or less gets 4 seats in the House. After that, keep adding 2.5 to each number that is multiplied against r. So next comes r times 11, which gets you E, then r times 13.5 gets you F, r times 16 gets you G, r times 18.5 gets you H, r times 21 gets you I, r times 23.5 gets you J, and so on, up until you multiply r times 43.5, resulting in a number R, and that number happened to be the next one higher than the population of the City of St. Louis. After that, there was no point in continuing to do any more calculations. St. Louis County’s population was just under G, which entitled it to get 7 seats; Jackson’s population was just under K, which entitled it to get 11 seats, and the City’s population was just under R, which gave the city 18 seats. Of course, there were no counties in Missouri that had a population just under B, D, E, F, H, I, J, or L through Q.

This formula was ingenious, because it assured the citizens of the state these things: rural counties, in general, will be over-represented (although a handful of rural counties will be under-represented), urban regions will get absolutely no less than half as much power as they otherwise would get if there were equal populations in all state representative districts (indeed, they’ll actually get slightly more than half), no representative district will ever have as much as twice as much population than average. In order to get to an average population, of course, you just divide the state’s whole population by the number of seats: given that the 1940 census reported the state had 3,784,664 people, the average population per house district was that number divided by 154 --- 24,576. The formula assured that no state representative district would be as high as twice that average --- 49,152. Of the 109 counties that had one representative each, 19 of them had more than 25,000, with the largest rural county of them all, at the time, being Pemiscot County, which had a population of 46,432 (in 1940). Given that St. Louis City’s population was 816,048, that number divided by 18 was 45,336, so each city district had approximately that many people on average. Although that’s a lot more than 24,578, it is not as high as twice as much.

The six biggest counties had 48.39% of the population of the whole state, but they were apportioned only 29.22% of the seats in the House (45/154). Conversely, the 109 rural counties had 51.61% of the population, but they were apportioned 70.78% of the seats in the House (109/154).

After the 1950 census, when the formular described above was used to apportion seats, 3 seats were added to the total house chamber, with St. Louis County getting 2 more seats and Jackson County getting 1 more. That meant that during the 50’s and up through the end of 1962, there were 157 seats in the House. After the 1960 census, six more seats were added to the House for the 1962 elections, bringing the total to 163. These changes were made: three counties that previously had only 1 seat were given 1 or 2 more seats – Boone and Jefferson were each given 1 more seat and Clay was given 2 more. (This also meant that the number of “rural" counties that had only one seat each was reduced from 109 to 106.)  Jackson also got 1 more seat, and St. Louis County obtained 5 more seats. On the other hand, St. Louis City lost 3 seats and Jasper County lost 1. At that point, the nine counties with the biggest population – Boone, Buchanan, Clay, Greene, Jackson, Jasper, Jefferson, St. Louis City, and St. Louis County – had 59.75% of the state’s population, but had only 35% of the seats in the House (57/163), whereas the remaining rural part of the state had 40.25% of the population but 65% of the seats in the House (106/163).

Shortly after Reynolds was handed down by The Supremes, a lower federal court ordered Missouri to reappoint the House so that all 163 districts had approximately equal population in every district. The legislature complied and passed a new apportion plan – one not authorized, per se, by the state constitution, but it was required by a command by the federal courts. This resulted in one big change to the big three counties – St. Louis City and County and Jackson County – got 35 new seats, and St. Charles County got 1 new seat. Meanwhile the big change to the rural areas was that they lost 36 seats, putting dozens of counties together and drawing lines that split dozens of rural counties. That shift of 36 seats from rural to urban was 22% of the total seats in the House. As of 1968, the voters approved a referendum for an amendment to the state constitution requiring that the number of seats in the House would remain, permanently, at 163, and that redistricting -- performed by a bipartisan commission -- every ten years must put app. equal population in all 163 districts from now on, indefinitely.

If Reynolds had not been handed down, and if there had never been a referendum to amend the state constitution to require equal population per district for BOTH chambers, in other words, if the voters of Missouri were, as of today, still content to continue abiding by the terms of the 1945 state constitution (which, again, was pretty similar to the way the previous state constitution had been), then here is what would have happened to the state House for the last 50 years:
After the 1970 census, one more seat would have been added to the House, bringing the total to 164.
After the 1980 census, two seats would have been taken away, bringing the total to 162.
After the 1990 census, no net change to the number of seats, remaining at 162.
After the 2000 census, five seats would have been added, bringing the total to 167.
After the 2010 census, one seat taken away, bringing the total to 166.
The current apportionment would stay exactly the same, remaining at 166.

Here is how the apportionment in 2020, if the state still went by the original terms of the state constitution, would compare to what actually happens, IRL, thanks to Reynolds and the 1968 referendum.
St. Louis County would have 14 districts, compared to the fact that it has, IRL, 27.
Jackson County would have 10 districts, compared to the fact that it has, IRL, 19.
St. Charles County would have 6 districts, compared to the fact that it has, IRL, 11.
St. Louis City and Greene would each have 5 districts, compared to the fact that they have, IRL 8.
Jefferson and Clay would each have 4 districts, compared to the fact that Jefferson has, IRL, 6 and Clay has, IRL 6 whole districts and one partial district.
Boone County would have 3 districts, compared to the fact that it has, IRL, 5.
If you were to look at a set of counties in Missouri's northern section that are going to be represented in the next ten years, by 4 state reps (districts 1 through 4 on the newest map), they would have had 19 state reps according to the terms of the 1945 state constitution. Likewise, in other rural regions of the state, there would have been many more state reps than there are going to be IRL. The state rep who would represent Worth County would have just under 2,000 constituents, but the average state rep for St. Louis County would have about 71,700.

If I defined the St. Louis metro area as these counties: St. Louis City, St. Louis County, St. Charles, Lincoln, Franklin, Jefferson, and St. Francois; if I defined Kansas City metro region as: Jackson, Cass, Clay, and Platte; if I defined Columbia as just Boone County; if I defined Springfield as just Greene County; and if I defined Joplin area as Jasper and Newton; then that set of 15 counties, making up most of the urban/suburban region of the state, would have 65.28% of the population of the whole state, but those 15 counties would have only 62 of the 166 seats in the state House -- if the state were still going by the original constitution -- which is 37.35% of the seats. Conversely, the remaining 100 counties of the state would have 34.72% of the population of the state, but they would have 102 of the 166 seats, which would be 62.65% of the power in the House. Likewise, in each of the past 5 decades, there would have been pretty similar proportions each decade, comparing the amount of population of the urban/suburban regions to the rural regions. At no point, nowhere in the state would any state rep district have as much as twice the amount of an average district, though.

So my overall questions I have for you folk are as follows: 1) Do you disapprove of the 1945 Missouri Constitution, as it distributed the seats in the state legislature? 2) Do you think that, if Reynolds had not happened, at some point, voters in the urban/suburban counties would have gotten fed up with being under-represented -- and with the fact that rural voters were over-represented -- they would have pushed for a referendum to amend the state constitution like in 1968?

[Mr. Reactionary]

Reynolds v Sims is a bogus opinion.

[Skill and Chance]

Reynolds v Sims is a bogus opinion.

Hmmm... I believe it fits with the original intent of the 14th Amendment that representation should be proportional to population given that the mechanism for punishment of states unlawfully engaging in disenfranchisement was a reduction of their congressional representation proportional to the level of disenfranchisement of their population.  Of course, that language in Section 2 of the 14th Amendment specifically refers to congressional apportionment, so I would say the originalist argument for Wesberry v. Sanders, the equal population congressional districts case, is much stronger. 

Reynolds v. Sims is considerably dicier, because 1. The Section 2 language in the  14th Amendment doesn't mention state legislatures  at all, so 2. If the federal Senate doesn't have to be apportioned by population, why should a state Senate have to be?  I think doing this under the Equal Protection Clause was a real stretch and not what anyone intended in 1868.  While I agree with the outcomes, I would have preferred to see SCOTUS handle Reynolds v. Sims and Gray v. Sanders (the "you can't have a county level electoral college for governor" case) by reviving the republican form of government clause in Article IV.   

[politicallefty]

Hmmm... I believe it fits with the original intent of the 14th Amendment that representation should be proportional to population given that the mechanism for punishment of states unlawfully engaging in disenfranchisement was a reduction of their congressional representation proportional to the level of disenfranchisement of their population.  Of course, that language in Section 2 of the 14th Amendment specifically refers to congressional apportionment, so I would say the originalist argument for Wesberry v. Sanders, the equal population congressional districts case, is much stronger. 

Reynolds v. Sims is considerably dicier, because 1. The Section 2 language in the  14th Amendment doesn't mention state legislatures  at all, so 2. If the federal Senate doesn't have to be apportioned by population, why should a state Senate have to be?  I think doing this under the Equal Protection Clause was a real stretch and not what anyone intended in 1868.  While I agree with the outcomes, I would have preferred to see SCOTUS handle Reynolds v. Sims and Gray v. Sanders (the "you can't have a county level electoral college for governor" case) by reviving the republican form of government clause in Article IV.

The people that want to overturn Reynolds have no interest in sustaining democracy. It's all about preserving a right-wing majority. If that decision were overruled, there could easily be 40+ state senates that elect Republican majorities by default. Most of them would be entrenched and with no way to change the system.

The federal Senate is established by the Constriction. There isn't even anything in the Constitution that requires a bicameral state legislature (or even separation of powers, apart from perhaps an independent judiciary).

The Guarantee Clause won't get you anywhere on this. SCOTUS has ruled that is strictly a political question within the authority of Congress.

[Skill and Chance]

Hmmm... I believe it fits with the original intent of the 14th Amendment that representation should be proportional to population given that the mechanism for punishment of states unlawfully engaging in disenfranchisement was a reduction of their congressional representation proportional to the level of disenfranchisement of their population.  Of course, that language in Section 2 of the 14th Amendment specifically refers to congressional apportionment, so I would say the originalist argument for Wesberry v. Sanders, the equal population congressional districts case, is much stronger. 

Reynolds v. Sims is considerably dicier, because 1. The Section 2 language in the  14th Amendment doesn't mention state legislatures  at all, so 2. If the federal Senate doesn't have to be apportioned by population, why should a state Senate have to be?  I think doing this under the Equal Protection Clause was a real stretch and not what anyone intended in 1868.  While I agree with the outcomes, I would have preferred to see SCOTUS handle Reynolds v. Sims and Gray v. Sanders (the "you can't have a county level electoral college for governor" case) by reviving the republican form of government clause in Article IV.

The people that want to overturn Reynolds have no interest in sustaining democracy. It's all about preserving a right-wing majority. If that decision were overruled, there could easily be 40+ state senates that elect Republican majorities by default. Most of them would be entrenched and with no way to change the system.

The federal Senate is established by the Constriction. There isn't even anything in the Constitution that requires a bicameral state legislature (or even separation of powers, apart from perhaps an independent judiciary).

The Guarantee Clause won't get you anywhere on this. SCOTUS has ruled that is strictly a political question within the authority of Congress.

Well, if we're now in the business of reversing a bunch of old precedents, this would be one of the 1st I would say needs to go!

[politicallefty]

Hmmm... I believe it fits with the original intent of the 14th Amendment that representation should be proportional to population given that the mechanism for punishment of states unlawfully engaging in disenfranchisement was a reduction of their congressional representation proportional to the level of disenfranchisement of their population.  Of course, that language in Section 2 of the 14th Amendment specifically refers to congressional apportionment, so I would say the originalist argument for Wesberry v. Sanders, the equal population congressional districts case, is much stronger. 

Reynolds v. Sims is considerably dicier, because 1. The Section 2 language in the  14th Amendment doesn't mention state legislatures  at all, so 2. If the federal Senate doesn't have to be apportioned by population, why should a state Senate have to be?  I think doing this under the Equal Protection Clause was a real stretch and not what anyone intended in 1868.  While I agree with the outcomes, I would have preferred to see SCOTUS handle Reynolds v. Sims and Gray v. Sanders (the "you can't have a county level electoral college for governor" case) by reviving the republican form of government clause in Article IV.

The people that want to overturn Reynolds have no interest in sustaining democracy. It's all about preserving a right-wing majority. If that decision were overruled, there could easily be 40+ state senates that elect Republican majorities by default. Most of them would be entrenched and with no way to change the system.

The federal Senate is established by the Constriction. There isn't even anything in the Constitution that requires a bicameral state legislature (or even separation of powers, apart from perhaps an independent judiciary).

The Guarantee Clause won't get you anywhere on this. SCOTUS has ruled that is strictly a political question within the authority of Congress.

Well, if we're now in the business of reversing a bunch of old precedents, this would be one of the 1st I would say needs to go!

I won't disagree with you on that. It goes back to 1849's Luther v. Borden, the case that established the political question doctrine. If you're arguing that the political question doctrine needs to be overturned (or at least most aspects of it), I would completely agree.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

It's always struck me as completely, to shift into a much lower register for a moment, ass-backwards that the political question doctrine is deployed mostly to punt on "organic" issues of the United States' government structure--issues that one would think would call for the input of all branches of government and have serious constitutional implications, since the Constitution is the fundamental organic law for the whole country--and not on what most normal people would regard as "political questions", such as economic and social policy.

[Vosem]

I think -- unlike some other Warren Court opinions -- that Reynolds v. Sims is clearly a non-insane way to read the Equal Protection Clause, but equally clearly there's absolutely no doubt that the people who wrote the Equal Protection Clause did not intend for it to be read in the way that it was; in some ways even the likes of Obergefell is easier to justify.

It's underrated as a fundamental turning point in American political history, I think; our current alignment could absolutely never have come about if Reynolds were never decided. (Equally clearly though I think that the world where the Civil Rights Movement was successful is a world where Reynolds happened, and a world where Reynolds never happened is probably one where the Civil Rights Movement did not succeed.)

[Skill and Chance]

I think -- unlike some other Warren Court opinions -- that Reynolds v. Sims is clearly a non-insane way to read the Equal Protection Clause, but equally clearly there's absolutely no doubt that the people who wrote the Equal Protection Clause did not intend for it to be read in the way that it was; in some ways even the likes of Obergefell is easier to justify.

The application to congressional districts seems obvious and reasonable based on the text of the 14th Amendment (though I would have invoked section 2 in addition to section 1, which doesn't even come up in the decision).  The application to state legislative districts is a bit like Bostock.  It would be a surprising result to the people who passed it, but it's not an unreasonable interpretation of the text.

[politicallefty]

I think -- unlike some other Warren Court opinions -- that Reynolds v. Sims is clearly a non-insane way to read the Equal Protection Clause, but equally clearly there's absolutely no doubt that the people who wrote the Equal Protection Clause did not intend for it to be read in the way that it was; in some ways even the likes of Obergefell is easier to justify.

To be fair, I don't think the adopters of the Fourteenth Amendment intended for Brown or Loving either. Obviously, I don't need to mention Plessy, but Pace v. Alabama is far less known. Alabama's anti-miscegenation law was unanimously upheld in 1883, less than 15 years after ratification.

The application to congressional districts seems obvious and reasonable based on the text of the 14th Amendment (though I would have invoked section 2 in addition to section 1, which doesn't even come up in the decision).  The application to state legislative districts is a bit like Bostock.  It would be a surprising result to the people who passed it, but it's not an unreasonable interpretation of the text.

Reynolds only involved state legislatures. Equal Congressional districts (one man, one vote) was Wesberry v. Sanders, decided a few months earlier. That actually wasn't based on the Equal Protection Clause, but rather an originalist reading of Article I.

[MarkD]

A couple of comments about recent posts:
1 - To politicallefty and Nathan: It may be of interest to you that the supremely right-wing Mr. Bumble you know as Judge Robert Bork actually agreed with your points about the Guarantee Clause. At one point in “The Tempting of America,” Bork described the facts of the case of Baker v. Carr, then wrote:

There is no doubt in my mind, though many commentators whom I respect disagree, that plaintiffs deserved to win. The crucial question was the constitutional theory on which they won, because that would determine what the Court ordered as a lawful method of apportionment. Since a majority of Tennessee voters could not govern, they were denied representative government. The most obviously relevant clause of the Constitution was article IV, section 4, which states, in part, ‘The United States shall guarantee to every State in this Union a Republican Form of Government. …’ More than a hundred years ago, the Court held that it could not apply that clause in a dispute about which of two rival groups was the lawful government of Rhode Island. Since then, for no very good reason, the Court has held that it may not enforce the clause under any circumstances. Baker v. Carr was a case in which the guarantee clause should have been applied, precisely because a situation in which the majority is systematically prevented from governing is not what the Founders meant by a republican form of government. Use of that clause would have resulted in an order that a majority of the state’s voters be permitted to reapportion their legislature, whether by referendum, convention, or some other mechanism. The Court would not tell Tennessee’s voters what system of representation they were required to ‘choose.’

2-

- snip -
To be fair, I don't think the adopters of the Fourteenth Amendment intended for Brown or Loving either. Obviously, I don't need to mention Plessy, but Pace v. Alabama is far less known. Alabama's anti-miscegenation law was unanimously upheld in 1883, less than 15 years after ratification.
 - snip -

Again, it may interest you to know that ultra-right-wing Robert "Simon Legree" Bork said the Court's conclusion in Brown is actually reconcilable with the original understanding of the Equal Protection Clause. But, Bork said, it is extremely unfortunate that Chief Justice Warren himself did not think so, and Warren wrote the Brown opinion with an assumption that the conclusion he was arriving at was not reconcilable with the original understanding. Bork's justification for the conclusion in Brown was:

The legal campaign to have Plessy overruled did not begin with a flat-out assault on the principle of "separate but equal." Rather, litigation was directed at particular segregated facilities to show that they were not equal, that whites always had better facilities, usually much better. Litigation of this sort succeeded again and again, and, by demonstrating the invariable inequality of facilities, the litigation began to undermine the legal as well as the moral foundation of the separate-but-equal doctrine. ...
Brown was a great and correct decision, but it must be said in all candor that the decision was supported by a very weak opinion. Those two facts, taken together, have caused an enormous amount of trouble in the law.
The Brown Court found the history of the fourteenth amendment inconclusive because public education in 1868 was embryonic in the South and the effect of the amendment on public schools in the North was ignored in the congressional debates. The opinion did not choose to face the uncomfortable fact that the effect on public education was ignored because no one then imagined the equal protection clause might affect school segregation. The Chief Justice concluded for the Court that to "separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. ... Whatever may be have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority." There followed a footnote citing psychological studies.
There are obvious difficulties with the opinion. In the first place, it failed to deal with the fact that a number of Northern states had ratified the fourteenth amendment and had continued to segregate their public schools without even supposing there was any conflict between the two actions. It was no answer to say, as Warren did, that public education had not then advanced to the condition it has achieved today. The inescapable fact is that those who ratified the amendment did not think it outlawed segregated education or segregation in any aspect of life. If the ratifiers had intended segregation as the central meaning of the equal protection clause, it is impossible to see how later studies on the baleful psychological effects of segregation could change that meaning. Indeed, Plessy had recognized that segregation could have a psychological impact and found it essentially irrelevant. It is difficult to believe that those who ratified the fourteenth amendment and also passed or continued in force segregation laws did not similarly understand the psychological effects of what they did. They didn't care.
The second difficulty is that nobody who read Brown believed for a moment that the decision turned on social science studies about such matters as the preference of black children for white or black dolls, which supposedly showed something about their self-esteem, which in turn supposedly showed something about the presence or absence of legal segregation. This was disingenuous. The real rationale for Brown was deeper, and the pretense that it was not cheapened a great moment in constitutional law. Finally, in focusing on the effects of segregation on young children's capacity to learn - a question by no means as simple as the Court made it sound - the decision's rationale limited its principle to primary and secondary public education.
That the Court had not been straightforward in Brown quickly became apparent. Cases soon came up in which the professed rationale of Brown, the psychological effects of segregation on children of tender years, could not conceivably apply. Plaintiffs challenged legally segregated beaches, golf courses, parks, and courtrooms. The Supreme Court simply issued orders that such segregation was unconstitutional with nothing more than the citation of Brown v. Board of Education. That necessarily meant that the rationale of Brown was not the rationale offered in the opinion. Racial segregation by order of the state was unconstitutional under all circumstances and had nothing to do with the context of education or the psychological vulnerability of a particular age group. The real meaning of Brown, therefore, was far better than its professed meaning. ...
By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases. The Supreme Court was faced with a situation in which the courts would have to go on forever entertaining litigation about primary schools, secondary schools, colleges, washrooms, golf courses, swimming pools, drinking fountains, and the endless variety of facilities that were segregated, or else the separate-but-equal doctrine would have to be abandoned. Endless litigation, aside from the burden on the courts, also would never produce the equality the Constitution promised. The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the text.
Had the Brown opinion been written that way, its result would have clearly been rooted in the original understanding, and its legitimacy would have been enhanced for those troubled by the way in which the Court arrived at a moral result without demonstrating its mooring in the historic Constitution. ... Perhaps constitutional theory would be in a far happier state today if Brown had been written, as it could have been, in terms of the original understanding.

I think that maybe, when Bork referred to people who were concerned about "the way in which the Court arrived at a moral result without demonstrating its mooring in the historic Constitution," one of the people he may have been referring to was Judge Learned Hand. Hand mildly criticized the Brown decision, and I think Bork was hinting that even Hand might have changed his mind about it if Warren had written the opinion the way Bork says he should have.

Hugo Black also argued, twice so far as I know, that he did believe the Brown decision was reconcilable with the original intent of the EPC of the 14th. Six years after Brown, Hugo wrote a letter to his friend Edmond Cahn in which he said that he supported the Brown decision because he did believe doing so would fulfill the original intent. "My decision was not the result of brushing aside history nor on the theory that time had made something unconstitutional that had been so since the Fourteenth Amendment was adopted. Some articles that have been written indicating that we did go against history in that case are not in accord with my own views." (Letter from HLB to Cahn dated 11/22/1960.) Six more years after that, writing a dissent in Harper v. Virginia Board of Elections, Black included a footnote which said:

In Brown v. Board of Education, the Court today purports to find precedent for using the Equal Protection Clause to keep the Constitution up to date. I did not vote to hold segregation in public schools unconstitutional on any such theory. I thought when Brown was written, and I think now, that Mr. Justice Harlan was correct in 1896 when he dissented from Plessy v. Ferguson, which held that it was not a discrimination prohibited by the Equal Protection Clause for state law to segregate white and colored people in public facilities, there, railroad cars. I did not join the opinion of the Court in Brown on any theory that segregation, where practiced in the public schools, denied equal protection in 1954, but did not similarly deny it in 1868, when the Fourteenth Amendment was adopted. In my judgment, the holding in Brown against racial discrimination was compelled by the purpose of the Framers of the Thirteenth, Fourteenth and Fifteenth Amendments completely to outlaw discrimination against people because of their race or color.

[Tartarus Sauce]

I think I’m more worried about this case being overturned than any other by this Supreme Court. The justices are already prepared to go on a spree of decisions returning power to the states. If they also re-allow malapportioned state legislative chambers at the same time, it would cripple one of the last remaining avenues for democratic accountability. A minority cultural bubble of rural conservatives will be able to impose its specific agenda on the rest of the population with very little recourse left over no matter how out of touch their policies become on most issues.

It’s hard to overstate how alienating and disillusioning it is the degree to which our system is naturally designed to prioritize the arbitrary interests of select minority groups at the expense of the rest of society. We have increasingly lost the ability to distinguish between protecting minority rights against the tyranny of the majority and entrenching a tyranny of the minority over the majority, and I foresee much more of the latter becoming the norm than the former. It’s not a system that will be able to address the litany of upcoming crises that will face our nation, and I fear that reality will significantly increase the likelihood of unrest and violence becoming a norm of American political life as more people lose faith in the system to address their needs.

[Skill and Chance]

I think I’m more worried about this case being overturned than any other by this Supreme Court. The justices are already prepared to go on a spree of decisions returning power to the states. If they also re-allow malapportioned state legislative chambers at the same time, it would cripple one of the last remaining avenues for democratic accountability. A minority cultural bubble of rural conservatives will be able to impose its specific agenda on the rest of the population with very little recourse left over no matter how out of touch their policies become on most issues.

It’s hard to overstate how alienating and disillusioning it is the degree to which our system is naturally designed to prioritize the arbitrary interests of select minority groups at the expense of the rest of society. We have increasingly lost the ability to distinguish between protecting minority rights against the tyranny of the majority and entrenching a tyranny of the minority over the majority, and I foresee much more of the latter becoming the norm than the former. It’s not a system that will be able to address the litany of upcoming crises that will face our nation, and I fear that reality will significantly increase the likelihood of unrest and violence becoming a norm of American political life as more people lose faith in the system to address their needs.

It would have catastrophic consequences for democracy, but I'm almost sure Kavanaugh wouldn't touch this.  Barrett probably wouldn't, either.

[Tartarus Sauce]

I think I’m more worried about this case being overturned than any other by this Supreme Court. The justices are already prepared to go on a spree of decisions returning power to the states. If they also re-allow malapportioned state legislative chambers at the same time, it would cripple one of the last remaining avenues for democratic accountability. A minority cultural bubble of rural conservatives will be able to impose its specific agenda on the rest of the population with very little recourse left over no matter how out of touch their policies become on most issues.

It’s hard to overstate how alienating and disillusioning it is the degree to which our system is naturally designed to prioritize the arbitrary interests of select minority groups at the expense of the rest of society. We have increasingly lost the ability to distinguish between protecting minority rights against the tyranny of the majority and entrenching a tyranny of the minority over the majority, and I foresee much more of the latter becoming the norm than the former. It’s not a system that will be able to address the litany of upcoming crises that will face our nation, and I fear that reality will significantly increase the likelihood of unrest and violence becoming a norm of American political life as more people lose faith in the system to address their needs.

It would have catastrophic consequences for democracy, but I'm almost sure Kavanaugh wouldn't touch this.  Barrett probably wouldn't, either.

What's your reasoning on that? I genuinely don't know what the current conservative justices' opinions are on the precedence underlying this case.

[politicallefty]

A couple of comments about recent posts:
1 - To politicallefty and Nathan: It may be of interest to you that the supremely right-wing Mr. Bumble you know as Judge Robert Bork actually agreed with your points about the Guarantee Clause. At one point in “The Tempting of America,” Bork described the facts of the case of Baker v. Carr, then wrote:

There is no doubt in my mind, though many commentators whom I respect disagree, that plaintiffs deserved to win. The crucial question was the constitutional theory on which they won, because that would determine what the Court ordered as a lawful method of apportionment. Since a majority of Tennessee voters could not govern, they were denied representative government. The most obviously relevant clause of the Constitution was article IV, section 4, which states, in part, ‘The United States shall guarantee to every State in this Union a Republican Form of Government. …’ More than a hundred years ago, the Court held that it could not apply that clause in a dispute about which of two rival groups was the lawful government of Rhode Island. Since then, for no very good reason, the Court has held that it may not enforce the clause under any circumstances. Baker v. Carr was a case in which the guarantee clause should have been applied, precisely because a situation in which the majority is systematically prevented from governing is not what the Founders meant by a republican form of government. Use of that clause would have resulted in an order that a majority of the state’s voters be permitted to reapportion their legislature, whether by referendum, convention, or some other mechanism. The Court would not tell Tennessee’s voters what system of representation they were required to ‘choose.’

You may find this surprising, but I am in agreement with Judge Bork in what he said there. I'm not sure what his ideas for a remedy would be though. He does mention referendum, although many states do not allow such a mechanism. If a state legislature is gerrymandered to the point where not even a 10-15% popular vote win can overcome the map, I think it is fair to say that representative democracy has broken down. What is the remedy if there is also no mechanism for statewide referenda?

On the other hand, Bork was also against the Reynolds decision. I'm not aware of his thoughts on Wesberry.

I think that maybe, when Bork referred to people who were concerned about "the way in which the Court arrived at a moral result without demonstrating its mooring in the historic Constitution," one of the people he may have been referring to was Judge Learned Hand. Hand mildly criticized the Brown decision, and I think Bork was hinting that even Hand might have changed his mind about it if Warren had written the opinion the way Bork says he should have.

I'm not convinced by what Bork said on Brown. He first focused on simply educational facilities. While that was the main focus of Brown, it was not the main focus in Plessy. Brown was really the culmination of a line of cases that had been building since the mid-late 1940s. From what I can tell, it started with 1948's Sipuel v. Board of Regents of the University of Oklahoma. In the years just before Brown, there were a number of cases dealing with segregation and they all were unanimously striking it down. The major change was the one in society with the beginnings of the Civil Rights Movement.

I'm not arguing that originalism requires separate but equal. However, I am arguing that the current understanding of the Equal Protection Clause is not based on originalism. It took 86 years to end public school segregation as a matter of constitutional law. It took nearly a century to protect the right of interracial marriage.

Hugo Black also argued, twice so far as I know, that he did believe the Brown decision was reconcilable with the original intent of the EPC of the 14th. Six years after Brown, Hugo wrote a letter to his friend Edmond Cahn in which he said that he supported the Brown decision because he did believe doing so would fulfill the original intent. "My decision was not the result of brushing aside history nor on the theory that time had made something unconstitutional that had been so since the Fourteenth Amendment was adopted. Some articles that have been written indicating that we did go against history in that case are not in accord with my own views." (Letter from HLB to Cahn dated 11/22/1960.) Six more years after that, writing a dissent in Harper v. Virginia Board of Elections, Black included a footnote which said:

In Brown v. Board of Education, the Court today purports to find precedent for using the Equal Protection Clause to keep the Constitution up to date. I did not vote to hold segregation in public schools unconstitutional on any such theory. I thought when Brown was written, and I think now, that Mr. Justice Harlan was correct in 1896 when he dissented from Plessy v. Ferguson, which held that it was not a discrimination prohibited by the Equal Protection Clause for state law to segregate white and colored people in public facilities, there, railroad cars. I did not join the opinion of the Court in Brown on any theory that segregation, where practiced in the public schools, denied equal protection in 1954, but did not similarly deny it in 1868, when the Fourteenth Amendment was adopted. In my judgment, the holding in Brown against racial discrimination was compelled by the purpose of the Framers of the Thirteenth, Fourteenth and Fifteenth Amendments completely to outlaw discrimination against people because of their race or color.

His reading, at least in that citation, is quite interesting. He reads the Reconstruction Amendments as a whole in terms of intent and purpose. When people attempt to do the same with respect to the Bill of Rights, they are generally viciously attacked by those that proclaim themselves to be originalists.

What's your reasoning on that? I genuinely don't know what the current conservative justices' opinions are on the precedence underlying this case.

I have to agree with you here. There were at least four votes to hear the NC case. That is highly disturbing. At least one of Kavanaugh and/or Barrett agreed to hear this.