Baker v. Carr (1962)
Introduction
Chief Justice Earl Warren considered Baker v. Carr (1962) to be the most important case in his sixteen-year tenure on the Court, and with some good reason. Almost overnight, it triggered a “reapportionment revolution” that upended voting and political representation, transforming American democracy in the process. But as the latest round of gerrymandering wars ripple across the contemporary American electoral scene, debates around the wisdom of the Court’s leap into the “political thicket” of redistricting continue.
The Enumeration Clause, Apportionment and the Long History of Gerrymandering
Two provisions in the Constitution reflect the framers’ decision to tie representation in the House of Representatives to population. In the Enumeration Clause of Article I Section 2, the number of representatives in the House is to be “apportioned among the several States . . . according to their respective Numbers” with the “actual enumeration [to be] made . . . within every . . . Term of ten Years . . .” The Elections Clause of Article I Section 4 assigned “the Times, Places and Manner of holding Elections” to the legislatures of the respective states. In other words, it was the states’ prerogative to choose the method of elections representatives as they wished. As a result, election practices were shaped from the outset by two developments. One was that states used a wide range of practices to draw boundaries for representatives in Congress and state legislatures. The second was that, as long as state legislatures have been responsible for crafting legislative districts, partisans have bent those boundaries as best they could to serve their party nationally and in their state. Consequently, the practice of gerrymandering, mapping electoral districts for political advantage, is as old as the Republic itself. With the very first congressional maps in 1788, the anti-Federalists tried to district James Madison out of Congress, narrowly failing to do so. The origins of the term date to 1812, when Massachusetts Governor Elbridge Gerry (a participant in the 1787 Constitutional Convention and James Madison’s first vice president) drew a snake-like state senate district to increase the Democratic-Republicans’ seats in the chamber.
The twists and turns of 19th Century gerrymandering exceed the limits of this essay. The commitment to single-member electoral districts came in the Apportionment Act of 1842. Hardball gerrymandering became especially pervasive in the 1870s-1890s, with intense partisan loyalties, high voter participation, and the two main parties closely competing for national power (sound familiar, anyone?). The turn of the century brought a dramatic partisan realignment that ultimately produced the malapportionment that the Court confronted in Baker. With the spread of Jim Crow in the wake of Plessy v. Ferguson (1896), conservative Democrats came to dominate politics in the South, while Republican asserted control in the north. The deep partisan polarization and the loss of intra-party competition in many states, combined with the end of the expansion of the House of Representatives, eliminated the incentive for state legislatures to conduct redistricting within their borders.
As a result, the first half of the 20th century was marked by wholescale abandonment of redistricting within states that would take demographic shifts into account. Congressional and state legislative maps changed very little from decade to decade, as states went decades without redrawing boundary lines. Republican Connecticut drew a map in 1912 that stood until 1962. Democratic Louisiana did likewise. While the realigning election of 1932 tilted the balance of power in some states in a Democratic direction, districts within those states mostly remained the same, despite significant changes in the distribution of the populations within those states.
While state electoral districts remained static, massive demographic shifts were taking place, as the country morphed from agrarian to industrial, from rural to urban. By the early 1960s, states’ districting schemes had grown severely malapportioned, with densely populated urban districts having the same representation as sparsely populated rural districts. In California, where state representatives were allotted by country, Los Angeles Country’s six million residents had a single representative, as did Alpine County (population four hundred). In Georgia, Fulton County, where Atlanta was located, had the same representation as the smallest county with one hundredth the population. These wild disparities notwithstanding, rural representatives were disinclined to yield their disproportionate power. While urban representatives (many of whom represented expanding Black populations who were moving to cities) desired change, rural majorities in state legislatures closed any path to reform.
Colegrove v. Green (1946) and the Avoidance of the Political Thicket
The woefully malapportioned state and congressional districts received increasing attention, including legal challenges. Eventually, the Supreme Court granted review of a lawsuit filed by residents of Illinois who objected on equal protection grounds to badly imbalanced congressional districts. The state had not redrawn its congressional districts since a 1901 redistricting that followed the 1900 census. Meanwhile large numbers of Black citizens migrating north and rural Illinoisans moving into and around Chicago stoked substantial urban population growth. In the absence of redistricting, legislative districts in the state ranged in population from 914,000 to 112,000, or a ratio of 8:1. Despite those imbalances, the Court in Colegrove v. Green (1946) determined that the relief sought was “beyond [the Court’s] competence to grant.” Justice Frankfurter wrote for the Court that the issue was of a “peculiarly political nature” and not subject to judicial determination. He considered it “hostile to a democratic system to involve the judiciary in the politics of the people.” It was incumbent for the Courts “not to enter this political thicket.” Any remedy for unfair districting “ultimately [lay] with the people” to “secure State legislatures that will apportion properly . . .” Alternatively Congress was free to act if it determined that states were failing to meet a constitutional obligation to provide fair representation. It was not the job of the courts to compensate for a lack of vigilance of the people in exercising their political rights. Justice Black dissented, arguing that the Constitution required each citizen's vote to carry equal weight. Black acknowledged that there was no "express provision requiring that congressional election districts established by the States must contain approximately equal populations." Nevertheless, the “constitutionally guaranteed right to vote, and the right to have one's vote counted clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight to each vote cast."
Baker v. Carr and the Justiciability of Malapportionment Claims
Following Colegrove v. Green, the disproportionate weighting of votes in the states only worsened. A 1960 decision by the Court in Gomillion v. Lightfoot hinted that the Court’s resolve might be weakening. In that case, the Supremes concluded that Alabama legislators had violated the Fifteenth Amendment proscription against the denial of voting on the basis of race by deliberately drawing municipal boundaries to minimize the voting rights of black citizens. One week after Gomillion was handed down, the Count announced that it was granting review in Baker v. Carr, a dispute involving malapportioned state legislative seats in Tennessee. The Tennessee state Constitution tied representation to population in the state’s ninety-five counties, requiring the Assembly to apportion its members by county after each decennial census. The last time the Assembly had done so was 1901. Since then, the state’s number of qualified voters had increasing fourfold. The Assembly’s inaction had left the state legislative districts badly skewed. The largest electoral district had nineteen residents per state legislator for each resident in the smallest districts. The vote value of a Shelby County resident, where Memphis was located, was one-eighth that of a resident of rural Chester County. In a recent election, 37% of the voters statewide elected twenty of the thirty-three senators (60%), while 40% of the voters elected sixty-three of the ninety-nine house members (64%). Legislative efforts to amend the apportionment scheme were completely nullified due to the lopsided balance of power in the Assembly. Suits brought in Tennessee state courts to compel apportionment had likewise proven fruitless. The litigation that would ripen into Baker v. Carr originated with plaintiffs from Memphis, Knoxville and Nashville suing the state, claiming that reliance on the 1901 Apportionment Act denied them equal protection under the Fourteenth Amendment, by virtue of the debasement of their votes.
The plaintiffs’ claims were dismissed by a three-judge federal district court panel which relied on Colegrove to find that the lawsuits fell outside the scope of judicial power under Article III and presented nonjusticiable “political questions” unsuitable for judicial resolution. The case was appealed directly to the U.S. Supreme Court, where the plaintiffs’ cause was joined by Solicitor General Archibald Cox of the Kennedy administration. The appeal proved a supreme challenge for the Court. Three hours of oral arguments extended over two days in April 1961, only for the case to set for rehearing in the fall, when the justices and lawyers engaged in three additional hours of oral argument. On March 16, 1962, the Court finally issued a 6-2 decision for the plaintiffs, with five opinions running to a total of 163 pages.
The Majority Opinion by Justice Brennan
Justice William Brennan wrote on behalf of the six-judge majority. After perfunctorily dealing with jurisdictional and standing issues, Brennan turned his attention to the main question, that of the justiciability of the claims and the applicability of the “political question” doctrine. Brennan distilled the analysis down to two dominant considerations. The first was the appropriateness of “attributing finality to the action of the political departments,” the second whether there was a “lack of satisfactory criteria for a judicial determination.” Brennan distinguished political questions from federalism conflicts. The former chiefly related to “separation of powers issues” and relations among co-equal branches of the national government, and demanded judicial deference. In contrast, federalism questions as to whether state action complied with the U.S. Constitution required no such deference. Brennan then laid out the criteria for determining whether a political question was presented. Those included:
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 the 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.
Proceeding through the litany of considerations, Brennan found nothing to implicate the “political questions” doctrine. He maintained that there were “well developed and familiar” judicial standards for potential breaches of the Equal Protection Clause. He cited the newly minted Gomillion v. Lightfoot opinion as evidence that challenges to actions of state officers that rested on federal constitutional provisions were in fact amenable to judicial correction. Brennan concluded that the allegations of an equal protection infringement due to malapportionment presented “a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.”
Brennan skirted the application of Colegrove, casting Frankfurter’s opinion as a minority opinion not representative of the majority views of the seven justices who took part in that decision. He also took great care to sidestep any discussion of the nature of the judicial review a court might engage in, or the remedy it might provide. He simply ignored the dissent’s contention that there were no workable standards the Court could employ to appropriately weigh the competing interests at stake in the task of apportionment. At the same time, Brennan’s opinion had a potentially vast reach. He did not limit the holding to situations like Tennessee’s, where the legislature had simply failed to act. Rather any legislature whose reapportionment efforts lacked some notion of population parity was in peril under the Equal Protection Clause. By so concluding, Brennan called into question the constitutionality of legislative apportionment in virtually every state.
The Concurrences
There were multiple concurring opinions, of which Justice Clark’s was the most extensive. After detailing the wide disparity in voting strength between large and small counties, Clark described Tennessee’s apportionment as “a crazy quilt without rational basis.” He expressed unease at the Court’s intervention in the matter, but deemed it necessary given the lack of “any other relief available to the people of Tennessee.” Since Tennessee lacked an initiative process by which the issue could be taken directly to the polls, the voters were “caught up in a legislative strait jacket.” The state’s political system was captive to self-interested political factions that could resist and repel legislative or popular efforts to reform. In light of the failures of the Assembly or the Tennessee courts to act, Clark concluded that the “people of Tennessee are stymied and without judicial intervention will be saddled with the present discrimination in the affairs of the state government.” Clark did part ways with Brennan in noting that mathematical equality between districts was not necessarily required, but that “there must be some rational design to a State’s districting.”
The Dissenters
In light of his majority opinion in Colegrove, Justice Frankfurter’s dissent in Baker was expected. It would be the final one he would author before retiring from the Court. He went out in style, with an animated, sixty-four page opinion. Frankfurter was offended by the Court’s cavalier treatment of precedent, calling it a “massive repudiation of the experience of our whole past in asserting destructively novel judicial power.” It flew in the face of a slew of cases decided in the wake of Colegrove, all of which reinforced the proposition that courts ought not to make themselves arbiters of issues around “political organization historically committed to other institutions and for whose adjustment the judicial process is ill-adapted.” Frankfurter worried that the Court’s authority would be badly tarnished by its intrusion into “political entanglements” and “the clash of political forces” that cases such as the one before the Court presented. He reminded the Court that “[t]here is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power.” In this instance, the only remedy lay with “an aroused popular conscience that sears the conscience of the people’s representatives.”
Frankfurter took issue with Brennan’s feint in the direction of the need for representation tied to political equality. After cataloging the variations across districts in state after state, he argued that representation according to population was not, either by history or constitutional text, the only standard by which reasonableness of apportionment plans had to be judged. “The notion that representation proportioned to the . . . population . . . as a necessary element of equality between man and man that it must be taken to be the standard of a political equality preserved by the Fourteenth Amendment . . . is, to put it bluntly, not true.” There was no generally accepted standard of electoral equality, nor was there “a standard by which the place of equality as a factor in apportionment can be measured.” Frankfurter accused the majority of choosing “among competing bases of representation . . . among competing theories of political philosophy.” The range of legislative responses to the reapportionment demands of the 1960 Census confirmed for Frankfurter complexities of apportionment and representation which did not “lend themselves to evaluations of a nature that are the staple of judicial determinations or for which judges are equipped to adjudicate . . .” Given that apportionment battles were at their core party or intra-party contests, it would surely “add a virulent source of friction and tension in federal-state relations to embroil the federal judiciary in them.”
Justice Harlan added a brief dissent in which he characterized the issues at stake as requiring “classic legislative judgment.” Hard questions implicated political interests around geographic and demographic representation, a governmental interest in stability of government, agricultural interests, the balance between rural and urban interests, and the like. These were “matters of local policy, on the wisdom of which the federal judiciary is neither permitted nor qualified to sit in judgment.” The majority had “wholly failed to recognize . . . what the future may hold in store” for courts tasked with attempting to discern what is or is not a constitutional apportioning policy.
The Consequences of the Decision
Baker v. Carr was striking for the immediacy of its impact, which really was to launch a “reapportionment revolution” that transformed American politics almost overnight. Within a year, litigation had been commenced in thirty-six states challenging their modes of apportionment (or lack thereof). The concerns of Harlan and Frankfurter proved inaccurate, at least in the short term, as courts quickly settled on clear judicial standards. Clark was also off the mark when he assured that there would be no requirement of mathematical equality. Baker was followed two years later by the seminal pair of cases, Wesberry v. Sanders and Reynolds v. Sims, which established the “one-person one-vote” standard that came to rule both congressional and state legislative districting efforts. In those cases, the Court jettisoned Clark’s “rational basis” test in favor of a mathematical test that proved both more workable and certainly further reaching and more destabilizing. Wesberry ended up calling into question 90% of the legislative districts in the House, and Reynolds did the same for state legislatures. Within a few years of those cases, the nation’s electoral map had been completely overhauled. With it ended the stranglehold that rural legislators held in Congress and state legislative bodies despite a rapidly urbanizing country.
Justice Frankfurter was more prescient in his reproach of the Court for necessarily choosing among political theories. Take Chief Justice Warren’s classic formulation in Reynolds that “legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” Warren continued:
The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. . . But the basic principle of representative government remains, and must remain, unchanged – the weight of a citizen’s vote cannot be made to depend on where he lives.
But to elevate perfect mathematical voting equality to the exclusion of other considerations that genuinely shape political interests would be a pyrrhic victory for effective political representation. Yet that is what arguably occurred in the decades after Baker v. Carr. As one-person one-vote was translated into precise mathematical equality in practice, other factors that raised legitimate political interests deserving of representation – natural geographic boundaries, respect for pre-existing governmental units, other communities of interest – were sacrificed at the altar of precise equal population districts. Warren seems naïve in his assumption that most problems would be resolved via practical politics and not the courts provided “everyone in this country has the opportunity to participate on equal terms with everyone else and can share in electing representatives who will be representative of the entire community and not of some special interest.” Baker and its progeny hardly removed the Court from micromanaging redistricting practices. Nor has the maintenance of precise voting equality withstood the scourge of gerrymandering that has reached new heights in the modern context of tribal partisan loyalties and near party parity.
A Postscript – The Warren Court Versus the Roberts Court
Chief Justice Warren called Baker v. Carr the “most vital decision” during his time on the Court, and the reapportionment revolution it sparked his Court’s most important achievement. The current Supreme Court, under Chief Justice John Roberts’ leadership, appears intent on undoing Warren’s reapportionment legacy. It has flipped the script, first in Rucho v. Common Cause (2019), in which it deemed partisan gerrymandering, while possibly “incompatible with democratic principles,” a nonjusticiable political question beyond the Court’s competence to decide. Second, the Court has shown a willingness to regulate race-based gerrymandering; in the current term, it struck down Louisiana’s creation of two majority-Black districts as an unconstitutional racial gerrymander. Louisiana v. Callais (2026) These decisions signal a Court desirous of (1) removing the judiciary from the business of overseeing partisan line drawing while (2) constraining the use of race in redistricting. The two major parties have responded with a new wave of mid-decade gerrymandering in an effort to gain control of the House. In the coming years, it seems likely that the arguments of Justices Frankfurter and Harlan in Baker – that remedies for curbing gerrymandering run amok lies with Congress, the states and the people they represent – will be put to the test.
