THE FEDERAL ANALOGY AND STATE
APPORTIONMENT STANDARDS
Robert B. McKay*
Baker v. Carr' appears at first impression to be a prime example in the
American judicial tradition of deciding no more than is absolutely essential
for disposition of the immediate case. It purported to decide only questions
of jurisdiction, justiciability, and standing to sue2 where a claim was made
that state legislative apportionment in Tennessee arbitrarily impaired voting
rights. But only the wilfully blind could fail to see an invitation, if not a command,
to a reordering of state legislative apportionment laws and practices.
Indeed, Mr. Justice Brennan, in a footnote to his opinion for the Court, almost
gave the whole show away when he referred to "our holding that the complaint
states a federal constitutional claim of violation of the Equal Protection Clause."'
Justice Douglas, in his separate concurring opinion, stated flatly that "if the
allegations in the complaint can be sustained a case for relief is established." 4
And Mr. Justice Clark was ready to decide the case on the merits. Because he
found "that Tennessee's apportionment is a crazy quilt without rational basis, 5
he concluded that "the Tennessee apportionment statute offends the Equal
Protection Clause. . ".."6 Although the majority more conservatively remanded
the case to the three-judge district court where it had originated, the reaction
in that court demonstrated that the Supreme Court opinions were read to
foreclose continuance of the existing apportionment. By the time the case came
back to the district court for reconsideration in light of Baker, the defendants
had conceded the invalidity of the existing laws and the Tennessee legislature
had enacted a new apportionment formula, which the three-judge court also
* B.S., LL.B.; Professor of Law, New York University; Member, District of Columbia,
Kansas, and United States Supreme Court Bars.
1 369 U.S. 186 (1962). 2 So Mr. justice Brennan said for the Court. Id. at 197-98. Mr. justice Stewart stated
that the Court decided these "three things and no more." Id. at 265 (concurring opinion). 3 Id. at 195 n.15. Perhaps he used the word "claim" in the sense of "allegation,
