A divided Supreme Court held that a Louisiana congressional district is a constitutionally impermissible racial gerrymander because no “compelling interest” prescribed by federal law justified the state’s intentional use of race to draw the boundaries of the district.
Many landmark decisions are cited in the justices’ opinions. No opinion mentions the case I lost half a century ago, in which the neighborhood of Williamsburg in Brooklyn, N.Y., was victimized by an acknowledged deliberate racial gerrymander.
Before 1972, Williamsburg’s Jewish community (called “the Hasidic community” in the court’s opinions) was represented by one state senator and one assemblyman. The Jewish vote obviously controlled these seats. To increase the likelihood of nonwhite representation and secure federal approval under the federal Voting Rights Act, New York in 1974 sliced the Jewish Hasidic Assembly and Senate districts in half.
All acknowledged that this was done to create election districts with at least 65% eligible nonwhite voters. Members of the Jewish community of Williamsburg asked me to represent them in challenging this blatant racial gerrymander.
The federal complaint I drafted (misspelling Williamsburg to match the colonial American town) seemed straightforward. Racial criteria are forbidden by the post-Civil War constitutional amendments. The new district lines were unquestionably racially motivated. When we physically filed my complaint in the office of the federal court in Brooklyn, a Puerto Rican young clerk read it quickly, stamped it, and said prophetically, to my distinct recollection, “This case looks like it will go to the Supreme Court.”
The case was randomly assigned to the judge on the Brooklyn federal court, who, all agreed, was the least qualified to render a learned decision. We asked for an immediate hearing and order suspending the law. The judge’s comments from the bench before a mid-morning recess leaned in our favor, but after a break (during which he was probably called by political cronies), he changed his tune.
We lost in the trial court. The Court of Appeals for the Second Circuit affirmed the district judge’s decision notwithstanding a compelling dissent from District Judge Marvin Frankel (which probably cost him a place on the Court of Appeals). My petition for Supreme Court review was granted. I argued the case almost 50 years ago—on Oct. 6, 1976.
Robert Bork, who was then the solicitor general, opposed me. The court’s decision, announced by Justice Byron White in March 1977, was fractured. There were many separate concurrences, and several justices joined only a portion of White’s opinion. Justice Potter Stewart concurred in the judgment and filed an opinion that was joined only by Justice Lewis Powell.
The sole dissenter was then Chief Justice Warren Burger. He rejected the legal position endorsed by the rest of the court—that Section 5 of the 1965 Voting Rights Act empowered New York to design a significant nonwhite voting majority. Burger’s dissent said, in language that foreshadowed the court’s recent ruling: “Manipulating the racial composition of electoral districts to assure one minority or another its ‘deserved’ representation will not promote the goal of a racially neutral legislature.”
I recall encountering Stewart shortly after the decision was announced. I was descending the front steps of the court building, and he was coming up, probably after lunch. (In those days, the front steps were open to all.) He said to me, “Nat, that was a hard case you gave us.” I replied, “So why did I get so little support?”
The passage of half a century, the enactment of additional civil-rights election laws and the issuance of many Supreme Court opinions in recent decades have driven into obscurity my 1967 personal experience with racial gerrymandering that harmed the Jewish electorate.
The 1960s legislature that supported New York’s Jewish population is gone. Jews today are fighting antisemitism in the New York legislature, as well as in its cities and streets.
Is there a legal path that will secure for New York’s Jewish voters the capacity to elect legislators who will protect their interests, just as the state’s nonwhite voters of the 1960s were fortified by the distinctive relief that I unsuccessfully challenged? It will take imaginative legislation, but the possibility exists under the Supreme Court’s latest decision because it invalidated only legislation that squarely discriminates based on race and thereby conflicts with the 14th and 15th amendments.
