Baker v. Carr

Baker v. Carr, 369 U.S. 186 (1962), argued 19–20 Apr. 1961, set for reargument 1 May 1961, reargued 9 Oct. 1961, decided 26 Mar. 1962 by vote of 6 to 2; Brennan for the Court, Stewart and Clark concurring, Frankfurter and Harlan in dissent, Whittaker not participating. After serving for fifteen years on the Supreme Court, Chief Justice Earl Warren, himself the author of the Court's opinion in the celebrated school desegregation case, Brown v. Board of Education (1954), called Baker v. Carr “the most vital decision” during his service on the Court, and the apportionment revolution it inaugurated as the most important achievement of his Court. Baker v. Carr did not establish the “one‐person, one vote principle”—that was first announced in Gray v. Sanders (1963) and was confirmed with respect to congressional and legislative districts in Wesberry v. Sanders (1964) and Reynolds v. Sims (1964). But Baker v. Carr opened the federal courts to urban interests that had been unable to force state legislators to reapportion state legislatures or to redistrict congressional seats to reflect the urbanization of the United States, or to secure any redress of their grievances either from Congress or their respective state courts.

Warren might have exaggerated the importance of the case, but it clearly inaugurated a decade of lawsuits, at the end of which the political map of the nation had been redrawn. Some have termed this a revolution in redistributing political power, although there is continuing controversy as to whether the realignment of legislative districts that clearly did transfer legislative votes from the rural to the urban and suburban populations has had significant policy consequences.

Baker v. Carr was initiated in Tennessee in 1959 when a number of plaintiffs from Memphis, Nashville, and Knoxville brought an action before the federal district court in Nashville against Joseph Cordell Carr, the Tennessee secretary of state, and George McCanless, the attorney general. The Tennessee Constitution required the General Assembly to apportion the members of the General Assembly among the state's ninety‐five counties after each decennial census. But the last time it had done so was in 1901, and even then it had failed to give city voters a fair share of seats. The Tennessee courts had been equally unsympathetic and declined to intervene.

The Baker plaintiffs, pointing out that the federal courts were the only forum that offered any promise of relief, asked for a declaratory judgment that the Tennessee apportionment act was unconstitutional and an injunction to prevent state officers from conducting any more elections under it. The three‐judge district court, following established precedent, dismissed the complaint on the grounds that the relief requested and the legal wrongs alleged were not within the scope of judicial power conferred on federal courts by Article III of the Constitution and the federal statutes implementing that article. Furthermore, said the district court, even if the Courts had jurisdiction, the questions presented to it were nonjusticiable, that is, they were “political questions” unsuited for judicial inquiry and adjustment.

On direct appeal to the Supreme Court, amicus briefs were filed by various urban‐based groups, and most importantly, by Solicitor General Archibald Cox in behalf of the recently inaugurated Kennedy administration. As Justice Tom Clark pointed out in his concurring opinion, Baker v. Carr was one of the “most carefully considered” Supreme Court decisions of modern times. The Court heard three hours of oral argument on 19 and 20 April 1961, three times more than it gives to most cases, and then held the case for another three hours of argument at the opening of the 1961 term. And as Justice Clark commented, Baker was considered “over and over again by us in Conference and individually” (p. 258).

The Court announced its decision on 26 March 1962 in five opinions taking up 163 pages. The opinions were unusually sharp toned for their day. Justice Clark, for example, characterized Justice Felix Frankfurter's 64‐page dissent as “bursting with words that go through so much and conclude with so little.”

Justice William Brennan, speaking for the Court, carefully avoided explicit discussion of the merits of the case. There was little doubt that the majority felt that Tennessee had acted unconstitutionally, but it limited its holding to questions of jurisdiction, standing, and justiciability. Justice Brennan distinguished between the two grounds relied upon by the district court—jurisdiction and nonjusticiability—pointing out that in instances of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right can be judicially molded. Where jurisdiction is lacking, however, the case goes no further.

Justice Brennan quickly concluded that the subject matter was within the jurisdiction of federal courts, and that the plaintiffs had a sufficient interest in the weight of their votes to have standing. More difficult to decide was whether the question presented was justiciable. In revisiting the doctrine of political questions, first announced by Chief Justice Roger B. Taney in Luther v. Borden (1849), Justice Brennan asserted that political questions chiefly relate to separation of powers issues (which raise questions about relations among coequal branches of the national government) and thus call for judicial deference. In contrast, federalism questions (which raise issues about the consistency of a state's action with the federal Constitution) do not call for such judicial deference. “Prominent on the surface of any case held to involve a political question,” he wrote, “is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question” (p. 217). He also distinguished between questions such as those presented by Luther v. Borden, arising under the Guarantee Clause of Article IV, where “judicially manageable standards are lacking,” and those arising under the Equal Protection Clause, where standards are “well developed and familiar” (p. 226).

Perhaps the most difficult obstacle for the majority was the one precedent of Colegrove v. Green (1946). In Colegrove the Court had refused to force the Illinois legislature to correct the inequities in the state's congressional apportionment that had given Illinois both the largest and smallest congressional districts in the United States, one nine times the size of the other. Colegrove was a 3 to 3 to 1 decision (Justice Robert Jackson had been absent as the U.S. prosecutor at the Nuremberg War Crimes Tribunal, and no one had as yet been appointed to replace the recently deceased Chief Justice Harlan F. Stone). Justice Frankfurter, speaking for the Court, but with the concurrence of only two other justices, coined the phrase political thicket, which has come to be the recognized shorthand warning against federal courts intervening in political questions where they allegedly have neither commission nor competence to decide. Justice Brennan, however, dismissed Justice Frankfurter's opinion as “the minority opinion,” arguing that four of the seven sitting judges in Colegrove had found no constitutional obstacles to federal courts reviewing the constitutionality of legislative apportionments.

Although in Baker the Court limited its holding to jurisdictional matters, it did not restrict its holding to situations such as in Tennessee where the legislature had failed to comply with its own constitution. Justice Brennan made it clear that any legislature that failed to reapportion its districts in such a fashion as to reflect in some way population equality was in jeopardy of violating the Equal Protection Clause. His opinion thus called into question the constitutionality of legislative apportionment in practically every state in the Union. “We conclude,” wrote Justice Brennan, “that the complainant's allegations of denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision” (p. 237).

Justices William O. Douglas, Tom Clark, and Potter Stewart, while joining the opinion of the Court, wrote separate concurrences. To Justice Douglas the issues were uncomplicated: it was a voting rights case and voting rights have long been within the protection of federal courts. Justice Clark took issue with Justice Harlan's dissenting opinion, which contended that the Court's decision would mean that the Equal Protection Clause required “mathematical equality among voters.” (In this, Justice Clark was a poor prophet, for that is what before too long became the controlling standard.) Rather, Justice Clark concluded that all that had to be decided was that Tennessee's apportionment is a “crazy quilt without rational basis” (p. 254). Unless the federal courts provided relief, he claimed, there could be no remedy for what he believed to be a patent violation of the Equal Protection Clause.

Justice Stewart wrote to emphasize that the Court had only decided three things and no more: that federal courts possessed jurisdiction of the subject matter, that the appellants had standing to challenge the Tennessee apportionment statutes, and that reapportionment was a justiciable issue.

Justice Frankfurter, in the last opinion he would write before retiring from the Court, was obviously distressed by the short shrift given to his Colegrove opinion and by what he alleged to be the Court's “massive repudiation of the experience of our whole past in asserting destructively novel judicial power demands” (p. 251). He reiterated his Colegrove view that the federal courts should not intervene in the “essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined” (p. 267). He predicted that the injection of the courts into this clash of political forces in political settlements could undermine their authority. As in Colegrove, Frankfurter told those aggrieved by the Tennessee legislature that the remedy “must come through an aroused popular conscience that sears the conscience of the people's representatives” (p. 270). The Court, he contended, was being asked to “choose among competing bases of representation—ultimately, really, among competing theories of political philosophy” (p. 300) and that was not an appropriate issue for judges. He pointed out that representation according to population is not, in our history or Constitution, enshrined as the only standard or the standard by reference to which the reasonableness of apportionment plans may be judged.

Justice John M. Harlan, in his dissenting opinion, went to the merits. He contended that even if federal courts had jurisdiction—which he did not think to be the case—there is no federal constitutional requirement that state legislatures must be structured so as to reflect equally the voice of every voter. There is nothing in the federal Constitution, said Justice Harlan, to prevent Tennessee, if it so wishes, from giving rural voters more electoral weight than urban ones. Moreover, he warned that “the majority has wholly failed to reckon with what the future may hold in store” when federal courts try to determine what is and what is not a constitutional apportioning policy (p. 339).

In an extended appendix, Justice Harlan set out to prove the inadequacy of arithmetical formulas as measures of the “irrational rationality” of Tennessee's apportionment. The disparity in electoral strength among the various counties in Tennessee, he argued, may be accounted for by various economic, political, and geographic considerations. It is a constitutionally permissible decision to preserve the electoral strength of the rural interests, notwithstanding shifts in population.

It did not take long for other states to go through the door opened by Baker v. Carr. In one year, thirty‐six states had become involved in reapportionment lawsuits. During the next several years the Court rounded out the reapportionment revolution. Justices Harlan and Frankfurter proved to be inaccurate prophets about the difficulties that the courts would have in finding appropriate judicial standards. The judges quickly retreated from the “rationality test”—that apportionment plans were to be evaluated in terms of whether or not they had any rational basis—to what many think to be a simplistic but nonetheless more manageable standard of mathematical strict equality—one person, one vote. Within a short time the Court had concluded that no factors—not geographical districts, nor a desire to keep governmental units intact, nor a federal, compromise in which one chamber would represent population and the other governmental units such as counties—but strictly equal population districts would pass constitutional muster. The Court, in a series of cases, moved from a requirement of “substantial equality among districts” to “precise mathematical equality” to a distinction between congressional districts where strict equality is required, and state legislative districts where some tolerance is allowed to permit consideration of other appropriate factors.

See also Fair Representation; Justiciability; Political Questions; Reapportionment Cases.

Bibliography

Jack W. Peltason , Federal Courts in the Political Process (1955).
Jack W. Peltason , Fifty‐Eight Lonely Men: Southern Federal Judges and School Desegregation (1971).
Jack W. Peltason , Understanding the Constitution, 12th ed. (1991).

J.W. Peltason