From Baker v. Carr to Bush v. Gore, and back.

• Author: Lund, Nelson
• Position: Law Review Symposium 2011: Baker v. Carr After 50 Years: Appraising the Reapportionment Revolution

This Article advances three propositions. First, Baker v. Carr (1) and its early one person, one vote progeny were wrongly decided. Second, in light of the case law generated by these decisions, Bush v. Gore (2) was correctly decided. Third, even without Baker v. Carr and its progeny, the decision in Bush v. Gore would still have been legally correct.

Justice Harlan proved the first proposition in his dissenting opinions in the early cases, and the majority never even made an effort to respond to his arguments and evidence. I have established the second proposition in a series of articles that have received a similar form of silent treatment from the legal academy. I believe that the third proposition is novel, and that everyone should agree with it, even if they disagree about the first two.

1. BAKER V. CARR WAS WRONGLY DECIDED

   Justice Frankfurter's impassioned dissent in Baker v. Carr, like Justice Breyer's in Bush v. Gore, contended that the Supreme Court was risking its institutional legitimacy by intruding into political disputes where even the appearance of judicial impartiality would be difficult or impossible to maintain. (3) Frankfurter soon fell ill and retired, so he was not there to watch as the Court's apportionment revolution took place quickly and without significant political resistance. Baker v. Carr is now among the least controversial landmarks of the Warren Court. Breyer's portentous concern with the public's confidence in the Court also appears to have been misplaced. (4) Notwithstanding the clamorous and continuing howls of outrage from the legal academy about Bush v. Gore, (5) the public's confidence in the Court appears to have been unaffected. (6)

   When we look back at Baker v. Carr, there is a natural temptation to focus on Justice Brennan's famous six-factor restatement of the political question doctrine, and on the role of this case in fulfilling the visionary dicta of Carolene Products' footnote 4. It is easy to see the kind of unequal apportionment that was challenged in Baker v. Carr and its early progeny as an obvious failure of ordinary political processes, and one that only federal courts could correct because incumbent politicians had all the wrong incentives. Frankfurter doubted that the political process could be reformed using a judicially manageable legal doctrine, (7) but he was soon proved wrong. The very next year, the Court promulgated a simple legal rule--one person, one vote--that it has been able to apply without much difficulty. (8) A few decisions have produced odd results, (9) and a few exceptions were eventually created, (10) but it would not be easy to find many legal rules about which the same could not be said. As judicial statesmanship goes, and perhaps as legal craftsmanship goes as well, not a bad performance. Game over.

   Or so it would seem. Frankfurter and Breyer both cited Alexander Bickel's ode to "the passive virtues." (11) Appeals to this form of judicial restraint are frequently offered as a substitute for legal analysis, and they ring a little hollow when the active virtues (or vices) produce results that become well accepted. But if we take a closer look at Baker v. Carr and its early progeny, a somewhat different critique emerges from the dissenting opinions of Justice Harlan. Although he joined Frankfurter's opinion in Baker v. Carr, he also wrote a dissent of his own, which Frankfurter joined. (12) Harlan's opinion did not focus on the political question doctrine or the political risks that the Court was running. Instead, he asked a very pointed and uncomfortable legal question: how could the unequal apportionment of the Tennessee legislature--the practice challenged in Baker v. Carr--possibly be thought to violate the Constitution? (13)

   There were two major holdings in Baker v. Carr. (14) First, nonjusticiable "political questions," including those found in Guarantee Clause cases, arise from the relationship between the judiciary and the coordinate branches of the federal government, not between federal courts and the states. The resulting doctrine is therefore a function primarily of the separation of powers, not federalism, and does not apply to challenges brought against state apportionment schemes. (15) Second, the federal courts have subject-matter jurisdiction to resolve claims that a state's irrational apportionment of its legislature violates the Fourteenth Amendment. (16) For present purposes, I am happy to accept the validity of both the justiciability and jurisdictional holdings. (17) As Harlan pointed out, however, the majority failed to explain why the district court's dismissal of the case should not be affirmed on a separate ground: the complaint failed to state a claim upon which relief can be granted. (18)

   Harlan's argument for dismissing the case had four main points. First, there is no general constitutional principle requiring equipopulous districts, as the U.S. Senate proves. (19) Second, a requirement of equipopulous legislative districts had no basis in our legal tradition or in the legislative history of the Fourteenth Amendment, and many states did not adhere to this rule in 1868 or adopt it in the wake of ratification. (20) Third, the Court had repeatedly and recently rejected challenges to unequal districts. (21) Fourth, Tennessee's apportionment plan easily survived scrutiny under the applicable rational basis test for violations of the Equal Protection Clause. (22)

   Brennan's majority opinion completely ignored all of the evidence about the original meaning of the Fourteenth Amendment. He did seek to distinguish the numerous precedents upholding unequal districts, by characterizing them either as Guarantee Clause cases (rather than Fourteenth Amendment cases) or as instances of judicial restraint by courts of equity. (23) One wonders why such equitable restraint would suddenly become inoperative if the plaintiffs in this case prevailed on the merits of their claim, but Harlan's crucial argument was that they could not in any event prevail under existing law.

   Here is Brennan's entire analysis of that question: "Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action." (24) Brennan cited no cases setting forth these "well developed and familiar" judicial standards. But that does not mean he was wrong to say they existed. In fact, there were such standards, and Harlan accurately described them:

   All that is prohibited is "invidious discrimination" bearing no rational relation to any permissible policy of the State .... And in deciding whether such discrimination has been practiced by a State, it must be borne in mind that a "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." (25) Brennan made no effort to refute Harlan's argument that the Tennessee apportionment easily survived under this standard. (26) Tennessee had not reapportioned its legislature for sixty years, and urban areas had during that time experienced faster population growth than the rural areas. (27) In Harlan's view, the legislature could rationally have decided to refrain from reapportionment in order to preserve a desirable geographic and demographic balance and to foster governmental stability. (28) Even if the legislature deliberately sought to protect the state's agricultural interests from being overwhelmed by the sheer numbers of city dwellers, that would no more violate the Equal Protection Clause than tax statutes that favor agricultural interests. (29) This is a straightforward application of standard rational basis review, and the analogy with tax statutes shows why cases involving racial or religious discrimination were irrelevant.

   Together with his stony silence about the original meaning of the Fourteenth Amendment, Brennan's casual disregard of Harlan's other legal arguments suggested that the Court's detailed effort to find only narrow and distinguishable holdings in the precedents was little more than a groundbreaking ceremony. The next three major cases, which came in short order, confirmed that hint. Within two years, the Court announced the one person, one vote rule and applied it, in slightly different versions, to elections to statewide offices, to congressional elections, and to state legislatures. In each case, Harlan argued in detail that the decision had no basis either in the Constitution or in any other kind of law.

   In Gray v. Sanders, (30) the Court reviewed Georgia's use of a "county unit" system in primary elections for the U.S. Senate and other statewide offices. Under this system, each county was allocated a number of "unit votes" depending on its population, and a candidate was required to win a majority of these unit votes to secure the nomination. (31) The practical effect was to give greater weight to individual votes in the less populous counties. Thus, for example, the most populous county had about 14 percent of the state's population, but it was allocated less than 2 percent of the county unit votes. (32)

   The Court declared that this system violated the Equal Protection Clause. Justice Douglas's majority opinion dismissed the analogy of the Electoral College on the ground that it was "the result of specific historical concerns" (33) and found the basis for the Court's decision elsewhere: "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing --one person, one vote." (34)

   Harlan pointed out that whatever the motives for the design of the Electoral College, it is certainly in the Constitution and is not based on the one person, one vote "conception of political...