Guest Essayist: Joerg Knipprath

In 1962, the Supreme Court embarked on what has been described by one scholar as “the most significant reformist activism in which the Warren Court engaged,” other than civil rights cases involving blacks. The constitutional arena was the apportionment of legislative districts, and the case was Baker v. Carr. Chief Justice Earl Warren called Baker “the most important case of [his] tenure on the Court.” Apportionment is the periodic drawing of lines by a state for its congressional districts and for its state legislative districts. Until Baker, federal courts had stayed out of what Justice Felix Frankfurter in a prior case had called a “political thicket,” because it was a “non-justiciable political question.” Such questions could not be resolved by courts for reasons that Justice William Brennan addressed in Baker.

The case arose out of the failure of the Tennessee legislature to reapportion its districts for a half-century, despite a requirement in the state’s constitution that both legislative chambers must be organized on the basis of population. Due to both population growth and migration from rural to urban areas, the relative populations of these districts changed, sometimes producing significant disparities. Malapportionment created disproportionate power for rural districts over cities and the growing suburbs. Tennessee was not the only offender. Only 36 state constitutions required reapportionment after each national census. Even among those, 24 state chambers (senates or assemblies) had not been reapportioned in thirty years or more. The issue took on greater urgency in the South, because rural malapportionment benefitted the Democratic Party and contributed to the South being a “one-party” region.

The Court’s reluctance to intervene in legislative districting can be traced to the 1849 case Luther v. Borden, which arose out of a tumult in Rhode Island, the “Dorr War,” over the adoption of a new constitution. In that remarkable case, the Court was asked to decide which was the legitimate government of Rhode Island, the old Charter government or the new People’s Convention government. Formally, the Court chose neither, characterizing the matter as inherently political and, therefore, non-justiciable under Article IV, Section 4, the “Guaranty Clause.” (“The United States shall guarantee to every State in this Union a Republican Form of Government.”) That controversy, too, had arisen out of voting restrictions and malapportioned legislative districts.

The Court adhered to that position as recently as Colegrove v. Green in 1946. Thereafter, however, it upheld, using the 15th Amendment, a challenge to a race-based drawing of a district that excluded a large number of blacks from voting in the city of Tuskegee, Alabama. Other reapportionment cases were brewing, and, in 1959, Charles Baker, a Republican voter and politician, sued as the named plaintiff on behalf of a well-organized group of political activists and lawyers to mount a long-planned challenge to the Tennessee apportionment.

When the case reached the Supreme Court, Justice Brennan first had to overcome the Colegrove hurdle of non-justiciability. “Justiciable” means capable of being resolved in a court. Brennan identified six classes of non-justiciable cases. There are those where the Constitution’s text has placed the resolution of the issue in a coordinate political department (Congress or the President), for example, in matters involving impeachment. Also, there are cases where courts as tribunals to resolve legal matters are institutionally incapable of acting because they lack an appropriate standard to resolve the matter or where the issue involves a policy determination clearly for non-judicial discretion. Among those might be an attempt to enjoin executive action in enforcement of federal law. Finally, there are cases where prudential considerations counsel against judicial involvement, such as matters that involve the courts in the internal operations of another branch or where sensitive questions of war and peace, foreign relations, or national security arise.

Brennan concluded that none of these applied. As to the most obvious, that the Guaranty Clause prevented a decision on the merits, Brennan declared that the reason such claims historically had been refused consideration is not that the Guaranty Clause itself precluded the Court from hearing such a case. Rather, particular cases brought under that clause had one or more of the other characteristics of non-justiciable political questions. There would be no blanket rejection of all Guaranty Clause cases, but only of those which, on a case by case analysis, met one of his six characteristics. Regarding the related argument that there was no recognizable judicial standard as to what was a proper representational structure for the states, Brennan offered that the claimants had presented their claim under the Equal Protection Clause, which courts had frequently used in constitutional analysis and could provide a proper standard to evaluate the issue.

Justices Felix Frankfurter and John Marshall Harlan II dissented. Frankfurter, the author of the prior Colegrove opinion, was particularly skeptical. He quite rightly dismissed Brennan’s use of the Equal Protection Clause and declared the matter to be a Guarantee Clause claim masquerading under a different label. He agreed with Brennan that it is the characteristic of the controversy that makes it non-justiciable, not the specific clause under which it is brought. Where Brennan went wrong, according to Frankfurter, was in not properly applying his own test. Where the facts are such that courts cannot decide such a case, “judicial competence…cannot be created by invoking one clause of the Constitution rather than another.” Indeed, the Court itself in an earlier case had rejected using the Equal Protection Clause as a guise to have it hear what was really a Guarantee Clause claim. It was an inescapable fact that the controversy was over an allocation of influence and power within a republic. Republics take many forms, and the judges would be choosing one such among many. Quoting Justice Levi Woodbury in Luther, Frankfurter pointed out the dangers of such a course:

“If the people…should ever think of making judges supreme arbiters in political controversies, when not selected by nor, frequently, amenable to them…they will dethrone themselves and lose one of their invaluable birthrights; building up this way…a new sovereign power in the republic,…one more dangerous…than the worst elective oligarchy.”

Brennan’s opinion only addressed the preliminary justiciability issue, which cleared the way for a resolution of the constitutional merits. As with the school desegregation cases, the Court declined to specify an immediate remedy, mindful of the disruption of the political order that the opinion would produce. However, Brennan’s discussion of the Equal Protection Clause made the framework of the remedy clear for future litigants. The only issue would be what was meant by “Equal.”

One of the confusing aspects of the controversy was to determine exactly what right was injured. The Court framed this as a right to vote, but, as Frankfurter pointed out, all could vote, and their votes were counted. The Court also talked about vote dilution, but, as Frankfurter noted, something cannot be diluted until its value has been determined. For a vote, this depends on the chosen political system, so, inescapably, the Court was taking it upon itself to define what a proper republic looks like.

Two years after Baker, the Court applied a rigid equality analysis to strike down Georgia’s congressional apportionment (Wesberry v. Sanders), Alabama’s state legislative apportionment (Reynolds v. Sims), and Colorado’s state legislative apportionment (Lucas v. 44th General Assembly District).

All three were based on dubious assertions by the Court about the true nature of representative government, thereby doing exactly what Frankfurter had feared in Baker, that is, picking among competing theories of political philosophy. What was worse, in Reynolds, the Court struck down a system that was patterned after Congress, with one house apportioned on population, while the other was based primarily on geographic units. The Court declared the “federal analogy” inapposite, declaring that to have been a political compromise between sovereign states. Justice Harlan’s lengthy discussion of historical precedent and understanding to the contrary was in vain, just as Frankfurter’s had been in Baker. Harlan’s discussion of the text and structure of the 14th Amendment and of first principles of state self-government under dual federalism fared no better with a reformist Court determined to rule by ideology.

The “federal analogy” also was popular with voters, who had approved such a system in a number of states, including California and Colorado. Even overwhelming popular support did not help with the justices, as amply shown in Lucas. There, Colorado voters overwhelmingly approved a “federal-style” apportionment for their legislature. The initiative passed in every political subdivision. The Colorado Assembly would be apportioned by population. For the state senate, population was the principal consideration, but geographic factors would also be used. The reason, as Justices Potter Stewart and Tom Clark pointed out in dissent, was that Colorado had varied geographic features over large areas, along with different industries, while the population was clustered in pockets of a relatively narrow strip along the eastern side of the Rocky Mountains, in Denver, Pueblo, and Colorado Springs. Those urban area voters would elect the governor and the lower house of the legislature, based on majority voting. By factoring in geography in the apportionment of the state senate, Colorado voters had tried to give some representational voice to voters dispersed around the rest of the state. As Stewart showed, rural voters were still too few to block urban districts even in the state senate. Nevertheless, Chief Justice Earl Warren was unconvinced and declared that even a popular majority could not deprive an individual of his constitutional rights.

Since then, the Court has loosened its strict equality test under certain circumstances. For a state’s congressional districting, the Court requires the state to “make a good faith effort to achieve precise mathematical equality.” A plan that had less than 1% average deviation from perfect equality was struck down in White v. Weiser (1973). For internal state and local legislative districting, however, the Court only requires “substantial equality” and upheld a plan in Mahan v. Howell (1973) that deviated 16% from the ideal between the largest and smallest districts. Then-Justice Rehnquist wrote that the state was permitted to consider political subdivision boundaries, such as counties and cities, to avoid splitting such jurisdictions between districts, as long as any deviations from population ideal were reasonable in relation to that goal.

Additional problems arose with the equality test. Thus, in 2016, the Court in Evenwell v. Abbott considered whether a state must look at the numbers of eligible voters in the districts to determine equal population size. As states traditionally have done, Texas uses total residents, not voters, for drawing district lines. In a unanimous ruling, the Court upheld the Texas approach. The justices did not outright prohibit states from using voters as the measure, but the implication was that residents, not voters, should be used. Justice Ruth Bader Ginsburg wrote, “Nonvoters have an important stake in many policy debates.” The problem, of course, is that the Court for over 50 years has described the constitutional right affected as the “right to vote” and prohibited unequal districts as unconstitutional “vote dilution.” Indeed, In Reynolds, the Court specifically declared that “citizens, not history or economic interests, cast votes.”

Suddenly recasting the right as “ensuring that each representative is subject to requests and suggestions from the same number of constituents” illogically conflates disparate concepts of voting and representation, just as critics of the early reapportionment cases argued. The result in Evenwell helps Democrats, because those who are ineligible to vote, such as noncitizens, legal or otherwise, count as part of the relevant district population. At the same time, the value of votes in districts that have fewer ineligible voters relative to other districts is diluted when total population between those districts must be the same.

Another problem that has evaded a judicial resolution is the hoary practice of partisan gerrymandering, that is, drawing districts to favor the dominant political party. Both parties do this with alacrity, and current computerized maps of voter affiliation allows very finely-tuned line drawing. In 2004, in Vieth v. Jubelirer, the Court rejected a challenge to Pennsylvania’s redistricting plan. Justice Antonin Scalia, writing for a four-person plurality, found partisan gerrymandering to be a non-justiciable political question, as he saw no judicially discoverable standard that could determine when there has been such systemic exclusion of a political party that “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group” have been shown. Justice Kennedy concurred in the result, but was unwilling to say that such a standard might never be discovered, despite the failure of 18 years of effort by various lower courts to develop such a standard.

It is particularly ironic that the Court has gone back to the future and declined to enter this most political of thickets, partisan gerrymandering. As Justice Harlan and other critics pointed out long ago in Reynolds, it was precisely the decision of the Supreme Court to prohibit the use of political subdivisions as the principal factor to draw lines that has enshrined partisan districting. Under the “federal analogy” plans, legislatures were stuck with preexisting city and county boundaries when drawing district lines. Now, such boundaries can be only a subsidiary consideration. Moreover, other factors, such as “history; ‘economic or other sorts of group interests’; area, geographical considerations, a desire ‘to insure effective representation for sparsely settled areas’; ‘availability of access of citizens to their representatives’; theories of bicameralism; occupation; ‘an attempt to balance urban and rural power; the preference of a majority of voters in the state” are off the table. Thus, the most expansive discretion politicians have in this area is to draw district lines by political affiliation of the residents.

The law of unintended consequences has struck in another way. The Warren Court embarked on its constitutional journey to reapportion legislatures consistent with its vision of proper republican government in the hope of breaking the power retained by rural interests in malapportioned legislatures. The expected result was that more liberal, more Democratic urban areas would benefit, which would result in more liberal policies, particularly in the South. Instead, political scientists have concluded, the principal beneficiaries were moderate-to-conservative suburban areas controlled by Republicans. Somewhere, Justices Frankfurter and Harlan are smiling.

Baker v. Carr (1962) Supreme Court decision:

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

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