All Eyes on the Rookie
In two big upcoming Supreme Court cases, Samuel Alito will play a pivotal role
WEB EXCLUSIVE
By Cliff Sloan
Special to Newsweek

Feb. 24, 2006 - No issues are more fundamental to the political process than money and territory—how much a candidate may raise and spend and how a candidate's district is drawn. In two high-profile cases this week, the Supreme Court will consider the constitutional rules for these crown jewels of politics. On both, the court has been sharply divided, a fact that makes the arrival of rookie Justice Samuel Alito especially important.

The campaign finance case, Randall v. Sorrell, to be argued on Feb. 28, concerns Vermont's strictest-in-the-nation campaign finance laws, which severely limit contributions and spending in state campaigns. The redistricting fight, LULAC v. Perry, to be argued the next day, on March 1, involves the celebrated redistricting of Texas' congressional districts, in which former Majority Leader Tom DeLay played a prominent role.

Both cases involve issues at the very heart of legislatures' interest in the political process. And both illustrate that easy clichés about judicial activism and the role of federal courts can result in unexpected outcomes when they crash into the reality of actual constitutional litigation, with powerful competing claims on both sides.

Campaign-finance reform is a divisive issue for the Supreme Court. In December 2003, the court narrowly upheld most provisions of the sweeping McCain-Feingold Act for federal elections. But the vote was 5-4, with Justice Sandra Day O'Connor, the woman Alito has replaced, joining the court's four liberals (John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer). The majority viewed the new restrictions as reasonable legislative steps to control the flow of money in politics. The four dissenters (now-deceased Chief Justice William Rehnquist, and Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy) would have struck down many of the limits as violations of the First Amendment.

The key question in the Vermont case is how Alito and his fellow rookie Chief Justice John Roberts will approach campaign-finance reform. Are spending caps constitutional? More than 30 years ago, in Buckley v. Valeo, the court considered the constitutionality of post-Watergate campaign-finance laws. It famously upheld contribution limits but rejected spending caps on the ground that the caps violated a candidate's right to engage in political speech. The Vermont law narrowly limits candidate spending—to $300,000 for a governor's race, $100,000 for a lieutenant governor's race, and down to $2000 for a state legislative race. Critics blast the limits as a muzzle on speech. Defenders vehemently maintain that the spending caps will reduce corruption and allow office-holders to focus on their jobs, rather than raising money. Beyond the spending caps, are low contribution limits constitutional? Vermont's contribution limits—down to $200 for contributions to state legislative races—are the nation's most draconian, and will test the constitutional boundaries for such restrictions.

The Texas redistricting saga already is the stuff of political lore. Under the 2000 census, the Lone Star State was entitled to two new congressional seats. But Republicans and Democrats each controlled one house of the state legislature, and they could not agree on a new map. A federal court imposed a redistricting plan. Republicans then swept the legislature in 2002, and wanted to proceed with their own redistricting. Democratic legislators fled the state to prevent a quorum, a ploy that led then-Majority Leader DeLay, himself a Texas Republican playing a key role in the redistricting, to use the federal government to track their location. Eventually, the legislature adopted a new plan, which was used in the 2004 elections with dramatic results: the Republicans in Texas' 32-member congressional delegation increased from 16 to 21.

The core question is whether federal courts may consider claims that voting districts are unconstitutional because they have been drawn solely for a political party's partisan advantage. No redistricting ever has been set aside as a partisan gerrymander, and four justices repeatedly have said that such claims should be off limits. Just last year, in Vieth v. Jubelirer, the court split 4-4-1. The conservative justices (Rehnquist, Scalia, and Thomas, joined on this issue by centrist and former state legislator O'Connor) maintained that federal courts have no business considering claims that redistricting is too political. The liberal justices (Stevens, Souter, Ginsburg, and Breyer) responded that districts crafted solely for a party's political advantage violate a voter's right to equal protection and political participation. Swing vote Kennedy voted with the conservatives, but emphasized that claims of unconstitutional partisan gerrymanders could be brought if a manageable standard for deciding them emerged.

In the Texas case, all eyes will be on Alito and Roberts. If both vote the same way as the justice they replaced, the swing vote on partisan gerrymanders again will belong to Kennedy. But, if, for example, Alito surprises observers and votes with the liberals, the balance on the court on this issue will tip dramatically. In Alito's confirmation hearings, his memo criticizing the role of federal courts in one-man, one-vote litigation came under fire, and he said that he strongly believes in the importance of federal courts in guaranteeing that right. Could Alito, the son of the man who charted New Jersey's legislative districts, now provide the vote that would enshrine a role for federal courts in ensuring that partisan gerrymanders can be challenged on constitutional grounds?

The cases have enormous practical importance. The Vermont case has the potential either to open the door to broad new campaign finance restrictions, or to pull back from what the court decided was permissible in the McCain-Feingold case. The Texas case similarly has the potential either to usher in an era in which partisan gerrymandering cases can be brought in federal court, or to shut down the possibility of such claims.

Taken together, the cases illustrate the emptiness of the usual phrases about judicial restraint. On campaign-finance cases, it is the "liberal" bloc that urges deference to legislatures and a restrained role for federal courts, and it is the "conservative" bloc that urges an aggressive role for federal courts to reject legislative judgments and enforce constitutional claims. In partisan gerrymandering cases, the opposite is true. And, in both of the pending cases, the arrival of Samuel Alito will tell us a great deal about how the court will approach these bedrock political issues in the coming years.

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