The Most Skillful Liberal

Paul Hosefros/The New York Times/Redux
Justice William J. Brennan in his Supreme Court chambers, Washington, D.C., 1986

In 1946, in the case of Colegrove v. Green, the Supreme Court rejected an attempt to get the federal courts to address the festering problem of political districts grossly unequal in population. At the time, for example, Connecticut was districted so that the 177,000 citizens of Hartford elected two members of the state House of Representatives; so did the town of Colebrook, population 592. Of course the largely rural beneficiaries of the malapportionments were disinclined to correct the distortions. But Justice Felix Frankfurter, in finding that a claim of unconstitutional discrimination was not fit for judicial resolution, wrote: “Courts ought not to enter this political thicket.”

In the years after that decision the Court rejected ten more challenges to unequal districts—summarily, without opinions. The issue seemed to be dead. Then, in 1960, a case called Baker v. Carr came to the Court from Tennessee, and the Court agreed to hear it. One of Justice William J. Brennan Jr.’s law clerks that year, Richard S. Arnold, noted in his diary that four justices had voted to hear the case, the minimum number required. He added:

They want to overrule Colegrove. The boss doubts they will have the votes. So do I.

After argument—twice—of Baker v. Carr, the Court was divided: four for sticking to Colegrove and four for overruling it. The ninth justice, Potter Stewart, was willing to have districting questions go to the courts, but with no intimation of what constitutional test would be applied. Chief Justice Earl Warren assigned the opinion of the Court to Justice Brennan, believing that he would have the best chance of building a majority.

Justice Brennan wrote an opinion aimed at securing Stewart’s vote. It eschewed any discussion of what the Constitution would require if unequal apportionments were put to the test. The opinion was a scholarly examination of what are called political questions, matters on which courts should stay their hand, concluding that districting was not one. Justice Stewart joined unreservedly. Then Justice William O. Douglas wrote a concurring opinion demanding absolute population equality in political districts. That moved Justice Stewart to add a concurrence emphasizing the limited nature of what the Court was actually deciding. The situation was in danger of unraveling, but Justice Brennan held it together. Then one of the original four opponents, Justice Tom C. Clark, switched to Brennan’s side. And another, Justice Charles E. Whittaker, retired because of ill health. The vote to overrule Colegrove was 6–2.1 The day after the decision a former Brennan law clerk, Daniel Rezneck, wrote him:

Bravo! That was a memorable day yesterday, one of the great ones in the Court’s history…. I think a certain dissenting colleague of yours must have been reminded of the last words of General Custer: “Where did…

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