Chapter 5 A Changing Concept of Equality
5.4 A Crying Necessity
Theoretically at least, respect for the principle of separation of powers requires that the courts only rule on cases which are ‘justiciable’410
in order to preserve the distinctions between the ‘political’ and ‘judicial’ functions.411
The idea behind this demarcation is simply but importantly to preserve the principle of representative government which is clearly established by the Constitution. That the threat to representative government was originating from citizens’ legislative representatives was an irony lost on none of those involved in the battle against malapportionment.
As noted in the previous section, Baker v Carr arose partly as a consequence of long-term concerns among civil society groups in the U.S. over malapportionment by state legislatures. Groups like the LWV and other civil society groups were acutely aware of the constitutional requirements of their own states and wanted their state representatives to uphold the oaths they had taken.412 Individuals and municipal officials repeatedly sought relief through political channels but were thwarted by what Smith called “a conspiracy of inaction.”413
The case standing in the way of federal support to end the iniquity of malapportionment was Colegrove v Green in which Justice Felix Frankfurter wrote the majority opinion calling for judicial abstention and arguing that
408 Baker v Carr (Oral Argument).
409 See Holmes, p. 168; 307. “Locke granted the power to reapportion the elected assembly to the unelected executive.” Holmes noted that Locke’s argument was echoed by Chief Justice Warren in his opinion in Reynolds v Sims.
410 Subject to adjudication in the federal courts. See, for example, 'Justiciability', in Legal Information Institute, (New York: Cornell University Law School).
411 See Sweet, 'Why Europe Rejected American Judicial Review: and Why it May Not Matter', p. 2777. 412
Smith, p. 52. 413 Ibid. p. 5.
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the courts should not wade into “the political thicket.”414
Almost sixteen years later and Frankfurter was still adamantly opposed to the Court getting involved in reapportionment. However, six new justices had joined the Court in the intervening years and malapportionment by the states was on the agenda of the executive branch.
The publication of the Kestnbaum Report in 1955 on the relationship between the federal government and the states had highlighted the issue of malapportionment.415 Senator John F. Kennedy referred to the issue of malapportionment as “The Shame of the States” in an article he wrote for New York Times Magazine in 1958.416 Support for those fighting malapportionment in the states also extended to the federal government. J. Lee Rankin, the Solicitor General in the Eisenhower Administration saw malapportionment as an invidious practice which required judicial relief. During the transition period to the incoming Kennedy Administration Rankin arranged for the Justice Department to file an amicus brief in support of the Tennessee appellants, of whom Baker was the first named on the appeal.417 Such amicus support from the executive branch of the federal government for an appellant is quite unusual,418 and possibly convinced two of the justices, Potter Stewart and Tom Clark, that only the federal courts could resolve malapportionment.419 Perhaps more interestingly, the amicus support highlighted how malapportionment had created an unspoken alliance between the federal government and civil society against the states.
The reapportionment cases showed how existing American values, particularly equality, were recapitulated in the context of a period where the demand for civil rights for all Americans had never been stronger and where, for once, civil society and the federal government were equally active in driving the rights agenda.420 Constitutionalism requires a higher principle—political processes which are logical and
414 Colegrove.
415 Its official title was the ‘Commission on Intergovernmental Relations’. In the preface, the Chairman of the Commission, Meyer Kestnbaum referred to the report as “an intensive study of National-State-local relationships--the first official undertaking of its kind since the Constitutional Convention in 1787.” 416 John F. Kennedy, 'The Shame of the States', in New York Times Magazine, (New York, 1958). 417
Smith.
418 In total, seven amicus briefs were filed in support of Baker, much higher than the mean average for the period 1955-1965 of 1.90, and indicating a large degree of support from the executive branch of the federal government, and from civil society groups including trade unions and the League of Women Voters. See Joseph D Kearney and Thomas W Merrill, 'The Influence of Amicus Curiae Briefs on The Supreme Court', University of Pennsylvania Law Review, 148, (2000), 754.
419 See Cornell W Clayton, The Politics of Justice: Attorney General and the Making of Government Legal Policy, (Routledge, 2015), p. 134.
420 Wolin puts this slightly differently, noting that the democratic gains from the mid twentieth century onwards were “mainly initiated, not by the state, but by an increasingly politicised civil society.” Wolin, The Presence of The Past : Essays on The State and The Constitution, p. 78.
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not arbitrary, and a set of statutory and policy outcomes that do not infringe either the citizen’s constitutional rights or more fundamental ones.421
Equality was such a higher principle and its providence in American political history is beyond reproach, but it did not fundamentally figure in Baker as a justification for the decision; it would have to wait till Reynolds v Sims. Rather, the main question at issue was justiciability and whether malapportionment was a ripe topic for judicial oversight.
To some, the involvement of a court in managing the processes of representative democracy raised the spectre of the counter-majoritarian difficulty which was discussed in the previous chapter. With the reapportionment cases, the Supreme Court acted to support majority rule and the demands of civil society by ensuring that representative government functioned properly. That was not to say—and this was the key point that arises in the reapportionment cases—that properly functioning representative government need necessarily mean perfect equality in terms of one person one vote; certainly the American framers never viewed republican government in such generous democratic terms. Some required only that a government not be a monarchy to meet the republican test. 422
One irony was that nor did Solicitor General Archibald Cox who appeared in Baker as amicus curae to support the appellants’ case against the State of Tennessee. During oral arguments, Cox went out of his way to emphasise that population equality was not required by the Fourteenth Amendment: “I am not […] intending to suggest that the Fourteenth Amendment requires the apportionment of Representatives in both houses of the Legislature, in the ratio to the population. It's quite plain [to me] that that is not the Fourteenth Amendment requirement.”423 Cox was being deliberately cautious in not seeking a more sweeping ruling from the justices in Baker as he felt that might jeopardise his fundamental goal that the Court reverse the precedent in Colegrove v Green and declare reapportionment a justiciable issue. Despite arguing for the Court to wade into the political thicket in Baker, Cox’s position was, like his former law professor, Felix Frankfurter, cautious about how judicial power ought to be used. As much as Cox wanted the Court to step into the reapportionment issue, which he saw as the only way of resolving it, his caution about the Court wading into enunciating a mathematical standard too fast likely bolstered the credibility of his argument among the
421 Indeed, as Murphy notes, constitutionalism is predominantly concerned with value outcomes. See Walter F Murphy, 'An Ordering of Constitutional Values', S. Cal. L. Rev., 53, (1979), 729.
422
See Ely, p. 123.
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justices whose votes were needed to overturn Colegrove. During the re-argument of Baker, Cox observed:
This Court doesn't carry the whole burden of Government and for it to rush in to try and right political wrongs instead of leaving them to the other branches—the political branches of the Government—could impair its usefulness in our constitutional system. But I suggest to you that judicial inaction through excessive caution or through a fancied impotence in the face of crying necessity and very serious wrong may also do damage to our constitutional system.424
Wrapping up his remarks, Cox then shrewdly reminded the justices of Robert Jackson’s thoughts on the relationship between the Court and democracy prior to him being appointed to the Court in 1941. Then Attorney General, Jackson wrote in The Struggle for Judicial Supremacy425:
W]hen the channels of opinion and of peaceful persuasion are corrupted or clogged, these political correctives can no longer be relied on, and the democratic system is threatened at its most vital point. In that event, the Court, by intervening, restores the processes of democratic government; it does not disrupt them.[…] [A] court which is governed by a sense of self-restraint does not thereby become paralyzed. It simply conserves its strength to strike more telling blows in the cause of a working democracy.
Jackson’s view here echoes Madison’s speech in Congress introducing the Bill of Rights where he referred to the judiciary as “an impenetrable bulwark against every assumption of power in the legislative or executive.”426
However, it also represents the essence of footnote four of Carolene Products.
The majority opinion in Baker rejected the idea that granting relief was a violation of separation of powers boundaries, arguing that the individual states were not protected by the political question doctrine, and that the only relevant issue was “the consistency of state action with the Federal Constitution”. Without deciding on the merits of the claim, the majority opinion of Justice William Brennan held that “the complaint’s allegations of a denial of equal protection presented a justiciable
424 Ibid.
425 Robert H. Jackson, The Struggle for Judicial Supremacy : A Study of a Crisis in American Power Politics, Caravelle edn (New York: Vintage Books, 1941).
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constitutional cause of action upon which appellants are entitled to a trial and a decision.”427
Although the eventual result in Baker was 6-2, it had been a fairly evenly divided Court for much of the deliberations. Cox did not want to risk the decision going in Tennessee’s favour by asking the justices to decide on the principle at issue in the case (i.e. whether the malapportionment constituted a Fourteenth Amendment violation), let alone ask them to come up with a solution to the question of what the standard of representative government should be. Cox was simply trying to avoid the case getting thrown out, which likely would have killed all attempts to tackle malapportionment for a generation. While Cox argued that the case looked like a Fourteenth Amendment violation, he did not want to push the justices to making that call, because if they had been forced to decide Baker on the merits of the case rather than merely the justiciability question, they would then have had to supply a remedy for which there probably was insufficient votes.428 Indeed, had the Court felt compelled to decide on the principle at issue, it would also have had to decide whether a principle—such as equality—would have to apply to both houses of a bicameral legislature.
Justice Tom Clark was also concerned about stepping into Frankfurter’s “political thicket”429
and began to write an opinion rejecting the complaint of Baker and the other Tennessee voters who were seeking relief. After trying to muster arguments against granting relief to the Tennessee voters, Clark changed his mind, accepting Cox’s argument that the situation would never resolve itself without the intervention of the federal courts.430 Once he recognised this, Clark was keen for the Court to leap in and decide the case on its merits, by stating that the Tennessee malapportionment was a clear violation of the Equal Protection Clause.431 Clark went on to say in his concurrence opinion that the apportionment picture in Tennessee was “a topsy-turvical of gigantic proportions” and “a crazy quilt without rational basis”.432
Once the Court had ruled that reapportionment was justiciable in Baker, the question before the justices
427 Baker v Carr, p. 187.
428
After the 6-2 decision came down in Baker, Cox wrote in a memorandum to Attorney General: “It is no exaggeration to recognize among ourselves that we played the most important role in Baker v Carr, and our brief and argument may even have determined the result.” See Clayton, pp. 134-35.
429 This was in Frankfurter’s majority opinion in Colegrove v Green which was overturned by Baker. 430 Smith, pp. 88-89.
431
Baker v Carr, p. 251. 432 Ibid. p. 254.
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in future cases was whether they ought to simply restore a modicum of rationality to the process or would have to come up with a constitutional standard of representation.