BAKER v. CARR 369 U.S. 186 (1962)

Chief Justice earl warren considered Baker v. Carr the most important case decided by the Warren Court. Its holding was cryptic: "the right [to equal districts in the Tennessee legislature] is within the reach of judicial protection under the fourteenth amendment." Many people expected reapportionment under Baker to vitalize American democracy. Others feared that it would snare the judiciary in unresolvable questions of political representation, outside the proper bounds of its constitutional authority.

Tennesseans, like others, had moved from countryside to urban and suburban districts, but no redistricting had taken place since 1901. Supporters of reapportionment claimed that the resulting swollen districts made "second-class citizens" of city voters; they blamed "malapportionment" for urban woes and legislative apathy. Finding little legislative sympathy for these claims, they turned to the courts.

But they had several hurdles to clear. The framers of the Fourteenth Amendment had repeatedly denied that it protected the right to vote. Perhaps it protected rights of representation, but the Court had found such rights too cloudy, too sensitive, and too "political" to settle judicially. (See political questions.)

The central hurdle was the "standards problem" expounded by Justice felix frankfurter in colegrove v. green (1946) and in his Baker dissent. How could the Court tell lower courts and legislatures the difference between good representation and bad, lacking clear constitutional guidance? The Constitution was a complex blend of competing and countervailing principles, not a mandate for equal districts. "What is actually asked of the Court … is to choose among competing bases of representation—ultimately, really, among competing theories of philosophy—in order to establish an appropriate form of government for … the states.…" Frankfurter accused the Court of sending the lower courts into a "mathematical quagmire."

Writing for the majority, Justice william j. brennan argued that the Colegrove court had not found apportionment a political question but had declined to hear it using equity discretion. But he did not answer Frankfurter's challenge to lay down workable standards, nor Justice john marshall harlan's objection, later reasserted in reynolds v. sims (1964), that nothing in the Constitution conveyed a right to equal districts. Brennan merely claimed that "judicial standards under the equal protection clause are well developed and familiar," and that "the right asserted is within the reach of judicial protection under the Fourteenth Amendment."

The concurring Justices, william o. douglas and tom c. clark, were not so cautious. Clark felt that "rational" departures from equal districts, such as districts approved by popular referendum, should be permitted. Douglas emphasized that the standards would be flexible (though he would later vote for rigid standards).

These opinions, and Baker 's place in history, make sense only in the context of Solicitor General Archibald Cox's amicus curiae brief supporting intervention. To take on a cause that could, and later did, jeopardize the seats of most of the legislators in the country, and invite formidable political reprisals, the Justices had to move with caution. Cox's brief reassured them that the john f. kennedy administration, like its predecessor, favored intervention. The executive support probably swayed the votes of at least two Justices, Clark and potter stewart. Had these voted against intervention, the Court would have divided 4–4, leaving intact the lower court's decision not to hear the case.

Moreover, Cox's brief did address Harlan's and Frankfurter's challenges. As with brown v. board of education (1954), he argued, constitutional authority could be demonstrated from social need, as perceived by social scientists, incorporated into a spacious reading of the Fourteenth Amendment. As for standards, there were two possibilities: an absolute, individual right to vote, perhaps grounded on the equal protection clause, and a loose, group right to equal representation, perhaps grounded on the due process clause. Of the two, Cox seemed to favor the looser one, forbidding "egregious cases" of "gross discrimination." He even showed how such a standard might be drawn on a map of Tennessee. Because he was explicit, Brennan could afford to be cryptic and let the Cox brief draw most of Frankfurter's and Harlan's fire.

Within two years the Court announced in Reynolds v. Sims that equal representation for equal numbers was the "fundamental goal" of the Constitution and laid down standards so strict that every state but one, Oregon, was compelled to reapportion. Compliance with Baker was widespread and quick. Opposition was strong but late. By 1967 the states had come within a few votes of the two-thirds needed to call a constitutional convention to strip courts of redistricting power, but by then reapportionment was largely completed, and the movement died.

Reapportionment added many urban and suburban seats to legislatures, replacing rural ones, but there is little evidence that it produced any of the liberalizing, vitalizing policies its proponents had predicted. What it did bring was a plague of gerrymandering, renewed after each census, because it forced legislators to redistrict without forcing them to be nonpartisan. The Court since Baker has been powerless to control gerrymanders. Packing or diluting a group in a district can strengthen or weaken the group, or do both at once. There is no way short of commanding proportional representation to equalize everyone's representation. Nor is there a workable way to equalize representation in the electoral college, the Senate, the national party conventions, party committees, runoff elections, executive appointments, or multimember districts. The Court opened these doors when it announced that representation was the fundamental goal of the Constitution, but it closed them when it found that they raised the standards problem too plainly to permit intervention, exactly as Frankfurter had warned.

Baker has left us two legacies. The good one is equalizing district size. The bad one is rhetorical indirection, constitutional fabrication, and a penchant for overriding the wishes of people and their representatives, as for example, in Lucas v. Forty-fourth General Assembly (1964). Whether the good legacy is worth the bad, and whether it even added on balance to equal representation, can be told only with reference to the full breadth of representation which was too complicated for the Court to touch.

Ward E. Y. Elliott
(1986)

Bibliography

Cox, Archibald 1967 The Warren Court: Constitutional Decision as an Instrument of Reform. Cambridge, Mass.: Harvard University Press.

Dixon, Robert G., Jr. 1968 Democratic Representation: Reapportionment in Law and Politics. New York: Oxford University Press.

Elliott, Ward E. Y. 1975 The Rise of Guardian Democracy: The Supreme Court's Role in Voting Rights Disputes, 1845–1969. Cambridge, Mass.: Harvard University Press.

Navasky, Victor 1971 Kennedy Justice. New York: Atheneum.