will gain or lose power-whether, indeed, it will be so important as many at first believed-is open to question. 24 One clear contrast with Brown is that in 1954 the Court was unanimous and spoke through a single opinion of 10 pages while in Baker the opinions total 163 pages and-though Mr. Justice Whittaker was ill and did not participateMr. Justice Brennan's opinion for the Court was only one among six opinions: three concurring, by Justices Douglas, Clark, and Stewart, and two dissenting, by Justices Frankfurter and Harlan. Doubtless the clearest contrast of all is that in Brown the Court was dealing with the merits of the cause; in Baker the only issue decided by the Court was justiciability. The comparisons by some journalists and scholars of Baker to Marbury v. Madison " may be farfetched, but it is relevant that both rulings involve the issue of jurisdiction, or as stated in Baker, justiciability. For that matter, in the Dred Scott case, so the majority of the Court originally-on the authority of Strader v. Graham,"-believed, the only issue was one of jurisdiction. Of course jurisdiction and justiciability are not synonyms. The first asks which court will deal with the cause; the second, whether the cause is one that any court of law can properly deal with. Nevertheless-and in addition to the fact that the Court in Baker occasionally seems to use the terms interchangeably-Baker exhibits similarities to some of the decisions in American history that are exceptionally interesting to the student who, like Alexis de Tocqueville, is primarily concerned with the peculiar role of the judiciary in the American variety of constitutional democracy. 25 "This civil action was brought under 42 U.S.C. §§ 1983 and 1988 to redress the alleged deprivation of Federal constitutional rights. The complaint, alleging that by means of a 1901 statute of Tennessee apportioning the members of the general assembly among the State's 95 counties, 'these plaintiffs and others similarly situated, are denied the equal protection of the laws accorded them by the Comstitution of the United States by virtue of the debasement of their votes,' was dismissed by a three-judge court convened under U.S.C. §§ 2281 in the Middle District of Tennessee." 2 So begins Mr. Justice Brennan's opinion for the Court. He goes on to say that the Supreme Court "noted probable jurisdiction" of the appeal and, in a footnote (there is much of importance in the footnotes, some of them very long), that the Court had heard argument at the 1960 term and again at this 1961 term when the case was set for reargument. The decision was not arrived at after hasty or cursory consideration. The lower court had held that it lacked jurisdiction of the subject matter, that no claim was stated "upon which relief could be granted," that, in brief, it was not of a justiciable nature. Why? To the layman there had been, and was, rank discrimination in Tennessee as between the rural counties and the cities, and even between some rural counties and others. The Tennessee constitution stipulated apportionment "among the several counties or districts according to the number of qualified voters in each." 28 No reapportionment of seats in the State legislature had occurred since 1901, in spite of the growth of cities and resulting changes in the distribution of population; all proposals for reapportionment had failed to pass the legislature of the State. Tennessee had no popular initiative. Constitutional amendment-not needed if the legislature had reapportioned seats as provided in the State constitution and laws-was impossible because the legislature refused to act. If the distribution of representatives in the legislature required by the State constitution was to be attained, the only recourse, the only source for a redress of grievance was the judiciary. Yet the three-judge Federal court held that it had no jurisdiction: the cause was not justiciable. The reason for this decision is found in decisions of the Supreme Court, but, before considering those cases, the ruling in Baker should be stated clearly. The Court held "that the dismissal was error" 2 and remanded the case to the district court for trial. In other words, it held that the cause was justiciable, that it was suitable for judicial decision, and that the Federal courts 21 Cranch 137 (1803). Dred Scott v. Sanford, 19 Howard 393 (1857). 2010 Howard 821 (1850). 369 U.S. 186. 187-188 (1962). 29 Ibid. 188-189. Under the existing apportionment the largest district in the lower house had a population of 79.301, the smallest 3,454. See the National Municipal League figures given in its Compendium on Legislative Apportionment (2d ed 1962). It is indicated in footnote 4 that Tennessee had long ago given up counting qualified voters as the basis for distribution of legislative seats and had accepted instead the U.S. census-in other words, population-because the number of qualified voters had proved too difficult to ascertain with any degree of accuracy. This change from voters to persons does not appear to have been a contested issue in either State or Federal courts. 2369 U.S. 186, 188. had authority under the equal protection clause of the 14th amendment to upon the merits of the complaint presented by the plaintiff. The numerous supe cussions of this historic decision have often been so concerned with the of justiciability that the sole reliance upon the equal protection clause and to bearing upon the future applications of the decision have sometimes overlooked. Though issues of justiciability go back at least to Luther v. Borden, central line of relevant cases begins with Colegrove v. Green" in 1946. in tha case the Court, by an uncertain (because decidedly divided) majority, reftised to take jurisdiction of an action seeking a redistribution of congressional die tricts in Illinois and a redress of gross inequalities in population there. Seves justices participated in the decision. Mr. Justice Frankfurter "announced the judgment of the Court" in an opinion to which only Justices Reed and Burt fully subscribed. Relying upon Wood v. Broom, Smiley v. Holm," and others handed down in brief and unilluminating per curiam treatments, Mr. Just. Frankfurter ruled that "the petitioners ask of this Court what is beyond "* competence to grant *** [that this issue is] of a peculiarly political nata and therefore not meet for judicial determination ***. It is hostile to a den » cratic system to involve the judiciary in the politics of the people ・・・. Cours ought not to enter this political thicket." 35 Since Mr. Justice Black, joined by Justices Douglas and Murphy, dissented emphatically, stating that the equal protection clause had been violated, tha the Court should hold the apportionment act invalid because of the "gross equality in voting power," and that previous decisions afforded precedents for such use of the Court's authority," the three Justices for whom Mr. Justi Frankfurter spoke needed the support of Mr. Justice Rutledge. He gave it if a short opinion 3 which is less clear on the point at issue than that of his brother Frankfurter. He assumes, indeed, "that the controversy is justiciable,” b "that the jurisdiction should be exercised only in the most compelling circun stances." He denied there is any "abstract right" to "absolute equality in ing [i.e., representation]. At best there could be only a rough approximative" and "there is obviously considerable latitude" for the legislatures in dividing a State into districts. 38 Colegrove v. Green is only one of many previous decisions of the Court di cussed in the voluminous opinions of the six members of the Court who wro them. Only the Chief Justice and Mr. Justice Black voted with the majoruz and refrained from writing an opinion. Mr. Justice Brennan's opinion for the Court consists almost entirely of a series of interpretations of, and distinctions from, previous cases. It is impossible to recapitulate or summarize both briefi and adequately either that opinion or the dissenting opinion of Mr. Justice Fras furter. Some aspects of the several opinions, however, and especially of Mr Justice Brennan's for the Court, are of exceptional interest and almost certaint of future importance. Matters would be simpler had the majority opinion announced that insofar as the generally accepted view that Colegrove-and numerous other rulings on the justiciability of petitions to require equitable redistricting-prevented the Federa courts from taking jurisdiction, they were overruled. Mr. Justice Brennat perhaps because the Court has been often criticized in recent years for change of doctrine, chooses instead to hold that no case precludes a finding that “appe lants do have standing to maintain this suit." He discusses at some length the applicability, or rather the nonapplicability, of the clause guaranteeing to each State a republican form of government." More difficult is the doctrine of politica? 30 Footnote 15 makes clear the exclusive reliance upon the equal protection class Neither the due process clause nor the State constitutional requirement is the basis is decision. 817 Howard 1 (1849). 32 328 U.S. 549. 287 U.S. 1 (1932). This case like Colegrove, and also like Carroll v. Baker, 283 US 380 (1932), Koenig v. Flynn, 285 U.S. 375 (1932), and Smiley v. Holm, 285 U.S. 355 (1932) involved a congressional statute establishing standards to be followed by State legislat in the construction of congressional districts. In Baker the issue is the relative population of districts for the election of members of the State legislature. 4285 U.S. 355 (1932). 36328 U.S. 549, 552, 554, 556. 36 Ibid., pp. 566-574. 7 Ibid., pp. 564-566. The concurring opinion of Mr. Justice Stewart is an exception. It is brief. 30 369 U.S. 186, 206. 40 Article IV, sec. 4. Mr. Justice Brennan always refers to the "guaranty clause." In Mr. Justice Frankfurter's dissent it is the "guarantee clause." stions, a doctrine of uncertain contours, though not a pointless or needless and he reduces its sprawl-and at least temporarily its applicability-by ancing that it applies properly to “the relationship between the judiciary and coordinate branches of the Federal Government, and not the Federal judi's relationship to the States. ***"41 It is, he continues, "primarily a tion of the separation of powers." After a considerable excursion among the edents he comes "finally to the ultimate inquiry whether our precedents as that constitutes a nonjusticiable 'political question' bring the case before us er the umbrella of that doctrine." 12 He finds none. The question before the rt is "the consistency of State action with the Federal Constitution." 43 No tion decided by a political branch of government “coequal with this Court" is Ived. Matters of foreign relations are not present. Then appears the only ement in the opinion which approaches a positive ground for taking jurisdicrather than a series of reasons why the precedents do not require a decision the issue is not justiciable. The appellants, says Mr. Justice Brennan, do not the Court to enter upon policy determinations for which manageable standare lacking. Judicial standards under the Equal Protection Clause are well ·loped and familiar. * * *"“ What those standards are when applied to the lem of apportionment remains both a mystery and the subject of very conrable differences of opinion. 45 f more than passing interest is the discussion of Gomillion v. Lightfoot ded in the previous term. In that case the Court, speaking by Mr. Justice nkfurter, held an act redrafting the municipal boundaries of Tuskegee, Ala., s to exclude nearly all Negroes from the city-and therefore from voting in icipal elections-to be contrary to the 15th amendment. Mr. Justice Whitr, concurring, would have rested the decision on the equal protection clause he 14th." A sound reason supported such a holding; the Negroes were not ed the suffrage. The area in which they lived was simply placed outside city limits. But because the Court rested the decision on the 15th amendt, it is not a precedent for Baker. It does appear, in retrospect, an indication he intention of the Court to intervene in cases of obvious discrimination re voting districts are involved. To be sure, Gomillion is concerned with , not with discrimination by rural legislators against persons living in the s or their suburbs.. But the 14th amendment stipulates that no State "deny to any person within its jurisdiction the equal protection of the ," and its application has not been limited to discrimination based upon race. r. Justice Douglas' concurrence is based not on Gomillion, but on his interation of the cases which had been assumed to preclude judicial intervention revent discrimination in legislative apportionment by State legislatures. He s that "Today's treatment of those cases removes the only impediment to cial cognizance of the claims stated in the complaint,” and that “any relief orded can be fashioned in the light of well-known principles of equity."" footnote he suggests that the district court need not “undertake a complete portionment. It might possibly achieve the goal of substantial equality ely by directing respondent to eliminate the egregious injustices." 48 That es us wondering what is "substantial equality" under equal protection of the He doesn't say. 49 r. Justice Clark has sometimes been classified as the Justice most likely to w the principle of stare decisis. His concurring opinion in Baker is, however, ularly freewheeling for a Justice bound by accepted interpretations. After ing that the alleged precedents do not cover the present situation -as the er court and, indeed, most students of constitutional law had assumed-he son to characterize Tennessee's apportionment as "a crazy quilt without onal basis." 50 He provides tables to support this sweeping generalization 369 U.S. 186, 210. See also the summation of this part of the opinion, ibid., p. 217. Ibid., p. 226. Ibid. Ibid. 364 U.S. 339 (1960). Ibid., p. 349. Mr. Justice Douglas, though not, somewhat surprisingly, Mr. Justice k, concurs in an opinion of one sentence which expresses his adherence to the dissents olegrove v. Green, 328 U.S. 549 (1946) and South v. Peters, 339 U.S. 276 (1950). Ibid., 18. 369 U.S. 186, 250. Ibid., note 5. Ibid., pp. 251-255. His characterization of Mr. Justice Frankfurter's dissent begins the tactful comment that it is "bursting with words that go through so much and cone with so little." Ibid., p. 251. Ibid., p. 254. and says that unless the Supreme Court acts there is no "other relief available t the people of Tennessee." 1 He would have the Supreme Court rule beyond tə holding of justiciability. He urges that a decision on the merits of the cze should be made by the Court, not left to the three-judge court which, as bees phasizes, is furnished no guidelines to follow. Discrimination is present, has ¤ been contradicted or explained, and the Court should give redress. It is a 201 and sound principle for "this Court to practice self-restraint and disciplte a constitutional adjudication, but never in its history have those principles rece sanction where the national rights of so many have been so clearly infringed f * so long a time." 52 Mr. Justice Stewart's concurring opinion of two pages is the one short our t of the six. He finds it necessary to make clear just what the Court does and de not decide: that the Court has jurisdiction of the subject matter, that a fa ticiable cause of action has been stated, that the appellants have stardiz challenge the Tennessee apportionment statutes. He is apparently moved reiterate these points made at greater length by Mr. Justice Brennan for A. Court because of a remark in Mr. Justice Harlan's dissenting opinion to effect that under this ruling "State legislatures must be so structured as to refe with approximate equality the voice of every voter." 3 Stewart asserts to contrary that the States are allowed a wide range of discretion, that the e protection clause does not ordain or require even approximate equality population of districts; it need only follow some "rationale," i.e., nonarbitra principle or system. Mr. Justice Frankfurter's dissenting opinion, apparently the last opinion in La illustrious 23 years as an Associate Justice," is 64 pages in length. He interpre a the precedents quite differently from the members of the majority. His operat bristles with statements to the effect that the Court is not only departing fr long-established rules but is "injecting itself into the clash of political fores is getting into "a mathematical quagmire," is departing from the . democratic principle that appeal in issues of this kind "must be to an infor civically militant electorate*** relief must come through an aroused page to conscience that sears the consequence of the people's representatives." The art of the Court is judicially "unseemly, self-defeating *** [guilty of mak in terrorem pronouncements *** [indulging in] merely empty rhetoric, som a word of promise to the ear, sure to be disappointing to the hope.” 54 B** agrees flatly with the interpretation of Colegrove v. Green and other cases burn ing on the issue by Mr. Justice Brennan, finds that the cases on Negro franchisement are irrelevant, and, in general, reaffirms his previously sta belief that the Court should not “undertake decision where standards meet ** judicial judgment are lacking." At some length he explores the cases ans • sues involved in the doctrine of political questions, and at greater length re pitulates the history of geographical distribution of legislative districts in F: land and the United States, arriving at the conclusion that if "there is an ** erally prevailing feature, that feature is geographical inequality in relation * the population standard." 62 Whether such inequality is harmonious with later day conceptions of equal protection is not considered. 59 The dissenting opinion of Mr. Justice Harlan dwells but briefly on the p dents. He is content, as well he might be, with Mr. Justice Frankfurter's deonstration "of the abrupt departure the majority makes from judicial history Justice Harlan finds nothing in the equal protection clause which "express impliedly supports the view that State legislatures must be so structured as reflect with approximate equality the voice of every voter." Of course, 61 Ibid., pp. 258-259. 62 Ibid., p. 262. 53 Ibid., p. 265; ef. ibid., p. 332. 54 It is his last signed opinion. He became ill shortly after Baker was announced and v unable to participate in subsequent cases of the term. His retirement was achout Aug. 29, 1962. The second sentence of his opinion makes this very clear: "The impressive bedr rulings thus cast aside reflected the equally uniform course of our political history rezsi 2 the relationship between population and legislative regulation. **" Ibid., p. 267. 5 Ibid. 57 Ibid., p. 268. 58 Ibid., p. 270. 60 Ibid., p. 285. 65 majority had not so held, but Harlan, unlike Stewart, thought that something of the kind was implied or necessarily involved in the finding of justiciability. Indeed, Mr. Justice Harlan does not even think that the Tennessee apportionment system is "capricious" or unconstitutionally irrational. He is careful to distinguish between discrimination on the basis of race or religion, and inequality of population-though, to repeat what was remarked earlier, the equal protection clause makes no mention of race or religion, and its application has not been confined to them. He concludes by indicating his conviction that the action of the Court, this "adventure in judicial experimentation," " will probably be ineffective, and strongly implies that the Court's "break with the past" will detract from its stature and the respect in which it is held. He also adds an appendix to which he gives the title, "The Inadequacy of Arithmetical Formulas as Measures of the Rationality of Tennessee's Apportionment." *7 This appears to be partly an answer to the "list of 'horribles' cited by my Brother Clark," partly an argument supplementing the general proposition that a latitude should be given to the legislative control of districting comparable to that allowed legislatures in economic regulation and in taxation. Equality of representation is unattainable, nor need the legislature attempt to attain it. 68 Just 4 weeks after Baker, the Court, in a one-sentence per curiam, vacated a judgment of the Supreme Court of Michigan and remanded it for further consideration in the right of Baker. The Michigan court, by a 5 to 3 vote, had dismissed a petition asking for a mandamus to the State secretary of State preventing him from carrying into effect a provision in the State constitution prescribing a division into senatorial districts which gave "disproportionate representation to rural districts." The Supreme Court of the United States did not hold this distribution of seats to be contrary to the equal protection clause. It simply sent the case back for trial on its merits. On June 11 the Court also vacated the judgment of a three-judge district court for the southern district of New York which had dismissed a complaint alleging violation of the U.S. Constitution by New York's constitutional and statutory provisions governing apportionment of both State senate and assembly seats. The per curiam opinion in this case runs to nearly a page, but its principal doctrine is found in the statement that "we believe that the court below should be the first to consider the merits of the Federal constitutional claim, free from any doubts as to its justiciability and as to the merits of alleged arbitrary invidious geographical discrimination." " In neither the Michigan nor the New York cases did the Supreme Court even suggest any principles or guidelines to be followed in arriving at a system of districting which would not violate the equal protection clause. Nor did it indicate whether the same principle should apply in both houses of the legislature. The principles are to be worked out by the lower Federal and the State Courts and then approved or disapproved by the Supreme Court. All that is clear at the present time is that both Federal and State courts moved with anprecedented speed toward invalidating the accumulated instances of malapportionment in at least 14 States by September, 1962." Federal courts acted in Alabama, Georgia, Tennessee, Florida, and Oklahoma. State courts acted in nine others: Vermont, Rhode Island, Maryland, Michigan, Kansas, North Dakota, Mississippi, Idaho, and Pennsylvania." It seems certain that the more extreme examples of discrimination against urban and suburban voters will, sooner or later, be challenged in nearly every State. By the first week in September suits had been instituted in at least 31 States. But it is not so clear what the final outcome will be. We do not know whether what Mr. Justice Harlan disparagingly terms the attempt "to reflect with approximate equality the voice of every voter" will be applied to both houses of State legislatures, or even to one. W.M.C.A. Inc. v. Simon, 370 U.S. 190 (1962). For material on the merits at an earlier stage of this litigation see Ruth C. Silva, "Reapportionment of the New York State legislature" this Review, vol. 55 (December 1961), pp. 870-881. It is a Mr. Justice Harlan dissented in both the New York and the Michigan cases. "Paul T. David and Ralph Eisenberg, "State Legislative Redistricting" (Public Adminis tration Service, Chicago), p. 2. This study is the most comprehensive I have seen. sequel to the same authors' admirable "Devaluation of the Urban and Suburban Vote," vol. I (1961), vol. II (1962), published by the Bureau of Public Administration, the University of Virginia. David and Eisenberg, "State Legislative Redistricting," p. 2. |