Because most redistricting laws enacted by state legislatures show evidence of varying degrees of boundary manipulation for partisan or factional advantage, they also serve as interesting forums from which to examine the role of the Supreme Court as it engages the politics of minority representation and how it ascertains what the basic structure of political community ought to be. Bybee argues that in its constitutive role, the Court’s involvement in the politics of minority representation confronts the Court with an important duty, that of articulating the foundations of its own political authority in the name of the people (8).

A long line of cases in minority representation raises the question of just what is at stake in Supreme Court decisions on this issue. In Baker v. Carr in 1962, the Court ruled that federal courts had jurisdiction over lawsuits challenging the apportionment of legislative districts on the grounds that malapportioned districts violate the equal protection clause of the Fourteenth Amendment. Of course, in so saying in the Baker case, the Court was overruling its previous decision in a 1946 case, Colegrove v. Green, in which it held that the issue of malapportioned legislative districts was a political question in which relief was best appropriated through the political process. At issue in the Baker case was to compel the Tennessee legislature to redistrict state legislative districts on a population basis pursuant to its constitution which, of course, had been ignored for more than 60 years. It is common knowledge that before Baker, many state legislatures refused to provide for equitable apportionment for state and congressional districts.

While reflecting the majority of the Court’s view in Baker, the decision stood for the proposition that it is unrealistic to seek to achieve a fair system of representation through the ballot box alone since state legislators would often maintain themselves in power through gerrymandering and flat refusals to redistrict. Subsequent Court decisions in Gary v. Sanders (1962) introducing the “one man one vote” concept; in Westberry v. Sanders (1964) holding that “state and congressional districts must be drawn on the basis of substantial equality in population;” and in Reynold v. Sims (1964) requiring that “both houses of a bicameral state legislature must be apportioned on population basis,” sought to affirm the basic constitutional principle that voting equality can only mean one thing: one person, one vote. A further refinement occurred in the 1990s, specifically in Shaw v. Reno (1993) and in Miller v. Johnson (1995), decisions in which the Court held that race alone cannot be the sole factor for districting congressional seats. Critics argue that the Court not only effectively altered the meaning of “fair minority representation” in the 1965 Voting Rights Act, but also contradicted its early decisions that precipitated the passage of the initial act 30 years before. Despite the fact that Congress has amended the Voting Rights Act four times since 1965, the handling of minority representation issues in the 1990s demonstrates that the Court is still the focal point of policy making and conflicts that define American democracy. Bybee skillfully addresses the significant questions raised by these events, namely: What is at stake in the Court’s actions/decisions? How should judicial involvement in minority representation politics be understood? What direction should the Court pursue in the future? While Bybee lays down concrete answers to the first two questions as shown below, in my view the jury is still out on his suggested remedy of “deliberative jurisprudence/politics” on the issues of minority representation politics.

In Chapter 1, Bybee focuses on the historical overview of the Voting Rights Act of 1965 (16) and its ensuing amendments, with emphasis on the Court’s role in its development and enforcement. His evaluation of the Act reveals that despite the Court’s affirmative rulings up until the 1990s, the Act and/or its rulings garnered greater criticism and mounted controversies. He views level of growth in political membership and representation of minorities as inversely related to the negative or high levels of cynicism surrounding voting rights issues. In effect, he argues that as the Voting Right Act has shifted from simple questions of access toward more complicated questions of political membership, so too has the level of public disagreement. He concludes that this is the case because the central issues have become how minorities should count rather than whether they should count at all (13, 14, 29).

In his very engaging Chapter 2, Bybee develops an analytical framework in which the Court’s participation in politics of minority representation can be properly appreciated. He asserts that questions of political identity are always at the heart of debates over political representation because rival claims of representational communities are always tied to prior notions of who is to be represented. Because this is the case, a Court engaged in the politics of minority representation is better situated to gauge the political dynamic of representational debates. In a democracy, the unique position occupied by the Court provides a leverage that compels it to articulate its authority on significant issues on behalf of the people. Because the role of political identity is significant and much better defined when the Court participates in the politics of representation, when adjudicating issues of representation, the Court can also undertake other possibilities. For example, it can either choose between rival conceptions of “the people” in the case at the bar or select a conception of “the people” on whose behalf it would speak (31). Hence, as with metapolitical theories of representation, the judicial discourse of representation includes conflicting visions of political community as well as the Court’s own vision of these communities. This is hardly a contradiction because the role of identity and how the Court perceives identity, according to Bybee, are more significant when the Court participates in the politics of representation in a “deliberative” fashion (31, 147). Bybee believes that we ought to consider not only “what notions of political identity are at stake” but also “whether judicial reliance on such notions ultimately preserves the capacity of the people to speak for themselves” (147) when we assess the role played by the Court in the politics of minority representation.

Chapter 3 focuses on identifying the role of political identity in the public debate over minority representation. Evaluating public debates over the Voting Right Act of 1965, Bybee demonstrates that various ideological positions on issues of minority representation have been animated by sharply divided conceptions of “the people” that many commentators have either misapprehended or simply neglected. He contends that conflicting claims between conservatives and progressives have defined the outer limits of the debate, thus making any meaningful discussion of minority representation a sharply contested and polarized affair. Within such a context of mutually exclusive assertions, even centrists’ attempt to strike a reasonable balance or, better yet, to defuse conflict has been either incomplete or conceptually shallow. Thus, without acknowledging the current conceptual gap in the existing disagreements, Bybee argues, any attempt to advance the debate of minority representation is bound to fail. Put into proper perspective, Bybee maintains that if our government is to be democratic, then the Court must not rely on prior conceptions of “the people” or create conceptions that would prevent self-government and/or the citizenry from speaking for itself. Claims of identity should therefore be recognized, as well as the independence of “fair representation,” and the “judicial power” to state how notions of identity should be exercised.

Assessing the debate over the Voting Rights Act in the Court, as it developed over the years (Chapter 4), Bybee concludes that during the 1960s and 1970s the Court adopted a diversified approach to issues of minority representation. It did so, he argues, by organizing various views around such conceptions as “popular vigilance,” “abstract individualism,” “legislative learning,” and “interest group competition” (70) that were problematic because each approach sustained an understanding of judicial authority that ultimately failed to preserve the capacity of the people to speak for themselves. Specifically, Bybee maintains that each member of the Court relied on “questionable notions of political identity and judicial authority” (97). Overall, he presents a detailed account of the Court’s opinion on several key decisions on minority representation in the 1960s and 1970s. He argues that the development of views across the various decisions was neither linear nor continuous because members of the Court never fully converged on one uniform or hard universal theory of representation. The lack of consensus on the bench is not surprising because actual claims of judicial representativeness also provided other ways for justifying judicial authority to members of the political community.

Chapter 5 continues with similar coverage by focusing on the Court’s decisions for the 1980s–1990s. Bybee argues that during this period the Court abandoned its original diversity views and adopted a dichotomous treatment of minority representation with a focus more on the notion of “individualist” and “group” political identity. He maintains that the new focus has not brought any added benefit but rather has fractured the Court’s membership just as the previous conflicting version of political identity dispersed the broader ideological debate in the Court in the 1960s and 1970s. While acknowledging that both approaches have thus far yielded few results, Bybee argues that the Court has finally stumbled over a mistaken account of political identity that impairs the prospects for popular sovereignty. Specifically, Bybee argues that both the individualistic and group views have an important feature in common, that “each takes political identity to be something prior to and apart from politics itself ” (9). The standard notion that political identity is “prepolitical,” he maintains, has hardened the lines of opposition, thereby creating a zero-sum debate that forecloses valuable democratic options for a meaningful dialogue on the issue of minority representation. Thus, by predicating judicial authority on an essentialized conception of identity, in his view the Court has truncated the range of political possibilities, ultimately leaving the people to control the grounds on which the political community is structured (98, 141).

Finally, Bybee concludes in Chapter 6 by postulating how the debate over minority representation can be advanced within the current atmosphere of political polarization. He questions whether the perspectives the Court has adopted thus far can enable it to speak on behalf of the people without preventing the people from speaking for themselves. The current context, Bybee maintains, has been polarized to the extent that both individualist and group efforts to reorient the jurisprudence of minority representation toward a theory of political deliberative positions are inadequate, partly because both sustain a notion of juridical power at too high a cost for democratic rule. Continued fixation on individualists and groupness, he argues, forecloses any possibility of judging the value of any given choice of political representation. He proposes a middle-ground solution that adopts a theory of judicial entrepreneurship that forges alternatives in articulating sets of coherent and workable sets of decisions on particular claims, explicitly on the relationship between popular sovereign and judicial authority. Such a focus, he urges, should adopt a “deliberative understanding” of political identity, using the Court’s power to bolster the democratic pursuit of common interests under the Voting Rights Act (147).

Bybee is aware that his appeal to “political deliberationy” is not a panacea and certainly will raise eyebrows, because even though appeal to such an option is seductive, few have grappled with it in practical politics. He therefore anticipates this criticism by providing guidelines for the enforcement of his proposed deliberative procedures while acknowledging, of course, that in reorienting the jurisprudence of minority representation toward a theory of political deliberation, no single approach will resolve the controversy surrounding issues of actual political membership. Thus, it remains unclear how this proposal will fare in practice in pluralist American politics, which stresses conflict more than resolution. This book, nevertheless, is an excellent expos of the real issues that underlie the debate of redistricting. Students of political participation, public law, and political theory will find Bybee’s book informative and an excellent classroom contribution.