Vol. 9 No. 11 (November 1999) pp. 513-516.

MISTAKEN IDENTITY: THE SUPREME COURT AND THE POLITICS OF MINORITY REPRESENTATION by Keith J. Bybee. Princeton, N.J.: Princeton University Press, 1998. p. xi, 194. Cloth, $35.00.

Reviewed by David T. Canon, Department of Political Science, University of Wisconsin, Madison.

The middle ground in any debate would appear to be a safe haven for moderates and fertile ground for serious problem solvers. By diplomatically balancing extremist arguments, drawing on the strengths of polar views, and rejecting the parts that do not work, the centrist is able to moderate between conflicting views. Ideally, the centrist-as-problem-solver can change the terms of the debate and get competing factions to think about their problems in new ways. However, the centrist is just as likely to serve as a lightening rod. Disgruntled that their views have not "won" the debate, both extreme factions may turn on the well-intentioned centrist for not supporting their positions. Time will tell whether Keith Bybee will end up in the first or second category, but at a minimum he should force competing sides in the debate over racial redistricting to examine the foundations of their positions.

Bybee is not bashful about taking on the "lightening rod" role; indeed he saves some of his harshest criticism for fellow moderates who have failed to consider the normative roots of their position. Bybee argues that both factions on the Court (the individualist and group-based wings) base their decisions on a "mistaken identity": the view that political identities arerelatively fixed and formed independent of the political system. This zero-sum approach has "foreclosed valuable democratic options" that would have allowed people "to control the grounds on which the political community is constructed" (p. 9). Bybee also reminds participants in the debate over racial redistricting, especially centrists, that ". . .questions of political identity are always at the heart of debates over representation" (p. 7). The stakes of this debate are high: the Supreme Court, through its series of decisions on racial redistricting, is determining the structure and content of the political community.

It is clear that Bybee is also a problem solver; he is willing to serve as a lightening rod to try to change the terms of the debate. Indeed, the central purpose of this book is to help clarify definitions of "the people" and political identity that are imbedded in the court cases and accompanying controversy over minority districting. If these terms and their political implications are better understood, Bybee hopes that the political process will generate decisions and laws that will "allow the people to speak for themselves" (pp. 8-9; see also pp. 42 and 49).

As a centrist on these issues myself, I find Bybee's arguments reasonable and appealing. I also applaud this book for drawing on the three subfields of political science that examine racial redistricting: normative theory, legal analysis, and empirical studies of representation. Far too

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often these subfields sit at Gabriel Almond's "separate tables." Bybee's work is situated squarely at the intersection of legal analysis and normative theory, but he also shows familiarity with the relevant empirical work. This book presents a masterful summary and critique of voting rights cases in the context of a normative theory rooted in the work of "deliberative democrats" such as Amy Gutmann, Dennis Thompson, Benjamin Barber, and Joseph Bessette. A brief chapter outline will summarize Bybee's argument.

Chapter One provides a review of voting rights cases from Reconstruction through the mid-1990s. These cases show the Court's struggle to define "meaningful political membership" for racial minorities. The next chapter addresses that debate more explicitly in a far-ranging discussion of Hannah Pitkin, Alexander Bickel, and the Founders (Madison, Marshall, and Hamilton). In formulating an analytic framework for understanding representation, Bybee examines several possible models of judicial representation. He rejects Bruce Ackerman's "Court as political agent" for the people, and critiques John Hart Ely's and James Boyd White's more nuanced views of judicial representation. He argues for an incremental, case-by-case approach in which the Court recognizes the importance of political identity.

Chapter Three explores the conservative (e.g. Abigail Thernstrom), liberal (e.g. Lani Guinier), and centrist views of the 1965 Voting Rights Act and the associated views of political identity. He is critical of all three approaches, but singles out the centrists, calling the approach "incomplete and conceptually shallow" (p. 51). Bybee argues that centrists duck the difficult normative issues and big theoretical questions such as "what is fair representation?" The debate does not hinge on "simple matters of fact," but interpretations of those facts and different normative values attached to those facts (pp. 59-69). While I think that centrists such as Bernard Grofman, David Lublin, and me are more sensitive to normative and theoretical issues than Bybee claims, this is a useful summary and critique of the various perspectives (in fairness to Bybee, much of the recent centrist work was published after his book came out).

Chapter Four asks the question, if centrists fail to recognize the centrality of political identity and normative issues, has the Court done any better? This excellent review of the early voting rights cases examines the Court's evolving understandings of political identity from COLEGROVE v. GREEN (1946) to WHITE v. REGESTER (1973): popular vigilance, abstract individualism, legislative learning, and interest group competition (p. 70). The next chapter examines the polarization of the judicial debate that started in the late 1970s. Throughout the summary of cases in these two chapters, Bybee explores the Court's evolving notions of "the people" who are represented by alternative voting schemes. How are the political communities defined and what role should the Court play in forming those definitions? At the core of this debate is the group-based versus individualistic conceptions of political identity. The concluding chapter examines the "possibilities of legislative learning" and presents Bybee's argument for a deliberative, bipartisan process that will "allow the people to speak for themselves" (pp. 154-72).

Despite my admiration for this book, I have a few concerns. First, while Bybee does an excellent job of describing the

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tensions between the individualist and group-based conceptions of "the people," he does not clearly articulate his own view other than saying it should be a "more flexible, politically informed rendering of 'the people'" (p. 9). This new definition is to be produced by the open, bi-partisan deliberative process he outlines in the last chapter. This process, unlike the one created by the current line of court cases, will allow the people to "speak for themselves." However, by the end of the book it becomes clear that the people will not be speaking for themselves, but indirectly through their elected representatives. Bybee notes, "As an engine of political deliberation, the Voting Rights Act has an obvious limitation . . . [it] directs attention toward the possibility of deliberation within the legislature rather than among the citizenry at large" (p. 165).

On balance it makes more sense to place one's hopes for a transformative, deliberative process in the legislature rather than the public. However, there are several reasons that this focus is less than ideal. First, it takes some of the punch out of normative argument that advocates allowing people to speak for themselves. Second, it discounts the efforts to promote deliberative democracy on a mass scale, such as President Clinton's "national conversation on race" (Bybee briefly refers to mass-based efforts of James Fishkin and Benjamin Barber, but this point is not fully developed, p. 165). Although critics ridiculed Clinton's effort as "cheap

talk," it is precisely the transformative process envisioned by Bybee. Finally, Bybee's approach places too much faith in the deliberative capacity of Congress to deliver just results. After all, it was the non-deliberative Congress of the 1950s and early 1960s that stymied civil rights legislation. Although Congress is unlikely to turn back the clock to the 1950s, some observers argue that key provisions of the Voting Rights Act may not be extended in 2007 when they are up for renewal (see Valelly 1999).

Finally, it is difficult to envision how "legislative learning" and the bipartisan political deliberation Bybee advocates in the concluding chapter could serve as a concrete judicial standard in voting rights cases. Bybee offers the following explanation, "Rather than attempting to discern whether race has been a predominant factor in redistricting, the goal is to ensure that redistricting is conducted in a deliberative fashion" (p. 167); and then this example, "[I]n considering the North Carolina district that was the subject of Shaw, a deliberative Court would pay particular attention to the fact the redistricting had been dominated by a single party. From this perspective, the problem would not be that the legislature drew districts that granted racial groups political recognition but that the drawing of such districts occurred without degrees of conflict, debate, and coordination that bipartisan procedures would engender" (p. 172). However, it is difficult to imagine a redistricting process that was more contentious and deliberative than in North Carolina. In the initial stage alone, before the courts got involved, the state legislature proposed ten formal plans, held many hearings, and solicited extensive involvement from outside groups. The entire process started anew when the Justice Department refused reclearance on the first plan, which created only one black majority district. The Republicans in the state legislature had been pushing for two districts (or even three), but had envisioned a second black district across the southern tier of counties, running from Charlotte to Wilmington. Such a configuration would have weakened at least two white Democratic incumbents and could have lead

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to a 6-6 balance in the state delegation, or even a 7-5 Republican edge. Instead, the Democrats came up with the infamous I-85 district that was the target of SHAW v. RENO (1993) (which produced a 8-4 Democratic delegation). If deliberation is the new legal standard, the I-85 district would have passed with flying colors. Rather than serving as the deliberative referee, a more plausible role for the Court that flows directly from the deliberative, legislative-centered approach advocated by Bybee may be found in Justice Souter's impassioned plea for restraint in his dissent in BUSH v. VERA (1996). Souter argues that Court should abandon the SHAW experiment, let the state legislatures create congressional districts as they sees fit, and enter the "political thicket" only when there are clearviolations of the Voting Rights Act.

None of these concerns detract from the strength of the book, which is to refocus attention on the important underlying questions concerning redistricting. Bybee convincingly argues that we must struggle with questions of political identity and the nature of the people who are being represented. This work will generate a stimulating conversation between legal scholars and normative theorists that will advance the debate over racial redistricting. Empirically oriented students of representation would also benefit greatly from reading this compelling book.


Valelly, Richard. 1999. "Voting Rights in Jeopardy." THE AMERICAN PROSPECT.


BUSH v. VERA, 517 U.S. 952 (1996).

COLEGROVE v. GREEN, 328 U.S. 549 (1946).

SHAW v. RENO, 509 U.S. 630 (1993).

WHITE V. REGESTER, 412 U.S. 755 (1973).