Baker v. Carr

PETITIONER:Charles W. Baker et al.
RESPONDENT:Joe C. Carr et al.
LOCATION: Tennessee State Capitol

DOCKET NO.: 6
DECIDED BY:
LOWER COURT: Federal district court

CITATION: 369 US 186 (1962)
ARGUED: Apr 19, 1961 / Apr 20, 1961
REARGUED: Oct 09, 1961
DECIDED: Mar 26, 1962

ADVOCATES:
Archibald Cox – Solicitor General, Department of Justice, as amicus curiae, by special leave of Court
Charles S. Rhyne – for the appellants at argument and reargument
James M. Glasgow – for the appellees
Jack Wilson – reargued for the appellees
Z. T. Osborn, Jr. – reargued the cause for the appellants

Facts of the case

Charles W. Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the state’s General Assembly was virtually ignored. Baker’s suit detailed how Tennessee’s reapportionment efforts ignored significant economic growth and population shifts within the state.

Question

Did the Supreme Court have jurisdiction over questions of legislative apportionment?

Media for Baker v. Carr

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

Audio Transcription for Oral Reargument – October 09, 1961 (Part 1) in Baker v. Carr

Earl Warren:

Number 6, Charles W. Baker, et al., Appellants, versus Joe C. Carr, et al.

Mr. Rhyne.

Charles S. Rhyne:

Mr. Chief Justice, may it please the Court.

This is a voting rights case.

It’s brought here on appeal by 11 Tennessee voters who seek federal court protection to end flagrant discrimination against their right to vote.

These 11 Tennessee voters lived in five of the largest cities of Tennessee.

They are the intended and actual victims of a statutory scheme which devalues reduces their right to vote to about 120th of the value of the vote given to certain rural residents.

Since the right to vote is the greatest civil right, the most fundamental civil right under our system of Government, this system under the statute of Tennessee is as shocking as it is purposeful and successful.

These appellants bring their case here under the Fourteenth Amendment in the Civil Rights Act.

Now the District Court in passing on their complaint said that it entirely agreed that their rights were violated and that the evil was a serious one which should be corrected without delay but that court found that it either did not have the power or should not exercise it under the precedents to which it refer.

Potter Stewart:

Did the court indicate which rights were violated?

Did it indicate that they were federal constitutional rights or only the right —

Charles S. Rhyne:

It did —

Potter Stewart:

— under the Tennessee statute?

Charles S. Rhyne:

It did Mr. Justice Stewart.

If you will look at the opinion of the court, you will find that it indicated both.

I realized that our adversaries have said that the court only had reference to the violation of the state constitution but if you will look at page 219, the court says it —

William J. Brennan, Jr.:

Page what?

Charles S. Rhyne:

Page 219 of the record, Mr. Justice Brennan, the third line.

The court said it is strenuously argued by the plaintiff that the case alleged in the complaint is one involving a clear violation of their individual rights guaranteed by the Fourteenth Amendment.

And then when the court later on refers to both the state constitution and rights, Mr. Justice Stewart, I think that it’s a fair reading of the opinion of the court that it had reference to both rights under the Fourteenth Amendment and rights under the Constitution of Tennessee.

Earl Warren:

Where is that language Mr. Rhyne?

Charles S. Rhyne:

On page 219.

Earl Warren:

Both?

Is it following in the same sentence, you begin that what the court’s observation like what —

Charles S. Rhyne:

Yes, Mr. Chief Justice, I think that I can — I’ll read it all in order that there’ll be no mistake about it.

The part that I read which referred to violation of their individual rights guaranteed by the Fourteenth Amendment is about one, two, three, four, five lines there at the top.

Earl Warren:

I see that.

Charles S. Rhyne:

And it said — and for this reason that the court should in some way overcome its reluctance to intervene in matters of a local political nature and formulate a remedy which would adequately protect their rights.

They refer to their rights under the Fourteenth Amendment.

Earl Warren:

Yes.

Charles S. Rhyne:

It is insisted that the wrong committed against them by the failure and refusal of the state legislature to abide by the state constitution is clear and unmistakable and that the court should not leave such wrong without a remedy.

With the plaintiffs’ argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiff, the court entirely agrees and I submit Your Honors that a fair reading indicates that the court had reference to rights under the Fourteenth Amendment because it referred to a wrong under the state constitution and rights under the Fourteenth Amendment.

And of course, the next sentence refers to the — to the evil and their statement that they entirely agreed that a serious one that should be corrected without delay.

Felix Frankfurter:

You don’t mean to imply because it referred to wrongs under the state constitution, they had no rights under the state constitution.

Charles S. Rhyne:

I certainly did not Mr. Justice Frankfurter because we contend that our right to vote that these voters are speaking of stems from the state constitution.

Felix Frankfurter:

Well, I’m suggesting is therefore that — you should make of the word “wrong” is a little limited.

Charles S. Rhyne:

I did not intend to, Mr. Justice Frankfurter.

I meant to — to say that we claim both rights under the state constitution and rights under the Fourteenth Amendment because it’s our — to say a little plain, I think they’re both — say the same thing.

Now, the right to vote in Tennessee is created by the Constitution for all over 21 years of age who have resided in the State for one year or in the county where they want to vote for three months.

And the constitution also provides that voting shall be free and equal.

Now, true it is that this appeal is based on still higher authority, the great principle of equality under the Fourteenth Amendment, principle of equality of man which was set forth in the Declaration of Independence in which is so deeply embedded in the — in the conscience and morals of our people.

The way in which these voting rights of the plaintiffs have been effectively denied, so effectively we say as to be effectively destroyed is by a so-called reapportionment statute adopted in 1901.

Now, the ultimate thrust of that statute today is that one-third of the qualified voters living in the rural areas of the State of Tennessee elect two thirds of the State Legislature.

Now, that 1901 statute not only violates this requirement of equality in voting, which I had just referred to the Tennessee Constitution, not only violates the requirement of equality in the Fourteenth Amendment of the Constitution of the United States of America.

But it plies directly in the teeth of and openly and flagrantly violates another provision of the Tennessee Constitution which is designed to by periodic 10-year reapportionment of the state legislature to guarantee this equality of which the Tennessee Constitution speaks.

Felix Frankfurter:

The ratio you gave a minute ago was as of today or as of 1901?

Charles S. Rhyne:

It’s as of today, Mr. Justice Frankfurter.

Felix Frankfurter:

What was it at 1901?

Charles S. Rhyne:

19 and — in 1901, there were 11 representatives under this 1901 Act assigned to counties and districts who were not entitled to them.

That is 11 out of 99.

I’m not a good enough mathematician to give you the exact ratio.

But when this 1901 Act was adapted, the legislature failed two things.

It failed to enumerate the qualified voters as required by the constitution.

And it failed to follow the constitution or provision which I was just going to refer to that requires this enumeration and then apportionment of representation the 99 members of the House of Representatives and the 33 members of the Senate according to the voting population among the counties and districts of Tennessee.

Now, that is a mathematical formulary.

There’s no question but what it was violated by the 1901 Act.

And since 1901, Mr. Justice Frankfurter, the situation has grown steadily worse.

Felix Frankfurter:

Let me see if I understand.

In 1901, according to your mathematics, 11 counties had a larger representation and they were entitled to under the Tennessee Constitution.

Charles S. Rhyne:

That’s right, Mr. Justice Frankfurter

Felix Frankfurter:

And since then that disparity has increased merely because nothing was done since 1901 and there’s been a shift in the population between rural and urban, is that right?

Charles S. Rhyne:

That’s very true.

And we have filed with the marshal some figures bringing up-to-date the exhibits to the complaint because we did not have when we argued this case before, the voting population figures from the census.

Under those voting population figures, Mr. Justice Frankfurter, there are now 29 representatives assigned to counties and districts who are not entitled to them under this constitutional formulary because of what you referred to, the growth in population and the shifts in population.

And they also reveal the fact that in some of these rural counties in the last 10 years, they lost as much as 21% of their qualified voters so there’s a tremendous shift going on from the rural areas to the city urban areas in — in Tennessee.

William J. Brennan, Jr.:

Well, Mr. Rhyne, am I right (Inaudible)

Charles S. Rhyne:

Yes, Your Honor.

William J. Brennan, Jr.:

(Inaudible)

Charles S. Rhyne:

On 232, Exhibit 5, it shows there the counties who were given 11 more if you’ll subtract the 7 of the — from the 18, the number they were entitled to by the formulary and —

William J. Brennan, Jr.:

Am I right (Inaudible)

Charles S. Rhyne:

In 1900, yes.

William J. Brennan, Jr.:

1901?

Charles S. Rhyne:

Yes.

William J. Brennan, Jr.:

(Inaudible)

Charles S. Rhyne:

The ratio today is given in these latest figures that —

William J. Brennan, Jr.:

Of the constitution?

Charles S. Rhyne:

Yes, these revised figures which we have given you.

And it’s entitled to — its Exhibit Number 5, the second page, Mr. Justice Brennan, addendum to Exhibit 5.

And it shows that the number of direct representatives that shall be — is entitled to under the formula is 15.

The actual number they have is seven.

William J. Brennan, Jr.:

Well that’s (Inaudible)

Charles S. Rhyne:

Yes.

William J. Brennan, Jr.:

(Inaudible)

Charles S. Rhyne:

Yes, yes.

Earl Warren:

Mr. Rhyne —

Charles S. Rhyne:

Now —

Earl Warren:

I just want to get over (Inaudible) a little on this.

I understood you to say at the outset that the voting rights of these people had been reduced to 1 to 20 if I compare it —

Charles S. Rhyne:

Yes.

Earl Warren:

— with other voters.

Charles S. Rhyne:

Yes.

Earl Warren:

Then I understood you to say that one-third of the voters of the state represented two-thirds of the legislators.

Charles S. Rhyne:

Yes.

Earl Warren:

Now —

Charles S. Rhyne:

I —

Earl Warren:

— how do you have you equate those (Voice Overlap) —

Charles S. Rhyne:

I explain that this way, Mr. Chief Justice.

I’m taking more county where the — Moore county has —

Earl Warren:

Oh, this was just one county you were —

Charles S. Rhyne:

One county.

Earl Warren:

— referring to.

Charles S. Rhyne:

I’m using it as illustration.

That is —

Earl Warren:

Alright.

Charles S. Rhyne:

That is the extreme.

Earl Warren:

I’ll take no more time.

Charles S. Rhyne:

That’s the extreme.

Moore — well, I — if Moore county has, for example 2300 and Shelby County 312,000, they have seven, Moore county has one and that’s comes out to a mathematical 20 to 1.

It’s true that in the exhibits which you have before you which were just completed, that I think the situation around creates Oak Ridge is even worst now because of the influx there in Anderson County.

But the 20 to 1 exist with respect to — to Shelby and Moore County.

Its not — that’s throughout in the state.

It’s an average about one-tenth.

Earl Warren:

Is Oak Ridge one of the five cities?

Charles S. Rhyne:

Not — it’s not one of the five.

It has a voter representative before the court now.

William J. Brennan, Jr.:

What were the other five?

Knoxville —

Charles S. Rhyne:

Knoxville, Nashville, Chattanooga and Memphis.

William J. Brennan, Jr.:

(Inaudible) the fifth?

Charles S. Rhyne:

The fifth one —

Felix Frankfurter:

No, no, the four.

Charles S. Rhyne:

Is East Tennessee —

The Oak Ridge is —

Charles S. Rhyne:

— area.

No it does not include — its Montgomery County, Tennessee.

Our voter is a — is a judge of the county court of Montgomery County.

Felix Frankfurter:

That’s not a city, isn’t it?

Charles S. Rhyne:

Well, it’s an urban area —

Felix Frankfurter:

Alright then.

Charles S. Rhyne:

Mr. Justice.

Hugo L. Black:

That would be the fifth city,(Inaudible)

Charles S. Rhyne:

I counted Montgomery County as a — as a city or an urban area.

I should’ve said five of the largest urban areas.

Felix Frankfurter:

(Inaudible) enacted the 1901 Act.

It’s without (Inaudible)

Charles S. Rhyne:

Yes, it was

Tom C. Clark:

It applies the same ratio in Knoxville (Inaudible)

Charles S. Rhyne:

Yes, they did violate it in this 1901 Act because they assigned —

Tom C. Clark:

They violated the Act.

Charles S. Rhyne:

Well, up until that time, they have complied with the constitutional formula.

There were 3 — well 9 in 19 and — or 1880, 1890 reapportionment, we have no — no quarrel with it, evidently it were — it carried out mathematical formula.

Now, this mathematical formulary was contained in the Constitution of Tennessee way back in 1835 and reembodied —

Tom C. Clark:

(Voice Overlap)

Charles S. Rhyne:

— in — in the new constitution.

Tom C. Clark:

(Inaudible) largest city in (Inaudible) going with the representatives in the (Inaudible) cities have changed this, suppose that’s true.

Charles S. Rhyne:

Well, I would imagine that at that time, Tennessee was largely a rural state.

This urban growth has come greatly since that time.

Now, I would say simply on the — the factual situation that we have tried to — to update that with the figures that we have given the Court to show of what we said the last time was that this situation is growing worse instead of better all the time.

And our position is that when Tennessee creates this right to vote, it must give it inequality to all who qualify.

Charles S. Rhyne:

And no one can say that under this reapportionment statute of 1901, all the voters are treated equally and partially and uniformly and this Court has said a good many times that the Fourteenth Amendment strikes down discriminations whether they are sophisticated or simpleminded.

And we think that whether you cloak it under the terms of reapportionment or any other cloaks, no matter how ingeniously or geniously contrived that this is a discrimination which is clear from the facts on — in the complaint.

And under those facts, these voters have a constitutional right that is invaded and have standing to maintain this suit because a man’s right to vote is personal to him.

It’s not shared with anyone.

And when these people have their right to vote invaded, deluded, rendered worthless or practically so by this 1901 Act, it’s a personal wrong to them to have their vote so affected.

Felix Frankfurter:

Mr. Rhyne, is there any state constitution of any other 50 states that has an explicit provision aligned inequality in the voting rights or providing for inequality?

Charles S. Rhyne:

You mean expressly saying that?

Felix Frankfurter:

Yes.

Charles S. Rhyne:

Well, there are, as you well know Mr. Justice Frankfurter, many states where there is not equality.

I know no state that actually —

Felix Frankfurter:

No, no, no.

Charles S. Rhyne:

— spells it out.

Felix Frankfurter:

I don’t mean — I don’t mean the practical wordings of —

Charles S. Rhyne:

Yes, you mean (Inaudible)

Felix Frankfurter:

— the electoral system.

Is there any of the fifth — in any of the 50 state’s constitution, is there a provision authorizing the apportionment of voting rights in state representatives or for congressional representatives providing for inequalities that some region or some classes or some — whatever the distinction is?

Charles S. Rhyne:

I don’t believe not in those — those terms.

I say the —

Felix Frankfurter:

Well in any terms.

Charles S. Rhyne:

The inequality —

Felix Frankfurter:

Any terms.

Charles S. Rhyne:

The inequality exists as a matter of fact.

And of course, some of the state legislatures are —

Felix Frankfurter:

I was trying to deal with —

Charles S. Rhyne:

— are set up.

Felix Frankfurter:

I wasn’t trying to deal with that problem.

Charles S. Rhyne:

Yes.

Felix Frankfurter:

I wanted to know whether any state constitution authorizes by its constitution unrelated to what the federal constitution may have to say about it inequality in voting rights.

Charles S. Rhyne:

I would say not.

I have not read —

Tom C. Clark:

What county unit said it?

Charles S. Rhyne:

Well, that — as I — I didn’t understand his question to reach that kind of a situation where the constitution —

Felix Frankfurter:

Man for man, man for man —

Charles S. Rhyne:

It doesn’t say —

Felix Frankfurter:

— does any —

Charles S. Rhyne:

— any expressed words, the county union — unit system, the town system in — in New England and all the things that the Solicitor General has reviewed in his brief.

I do, of course, provide for inequality.

But I understood Mr. Justice Frankfurter to say is there any state that — that in express language, violates the great principle of equality.

And I say there is no state constitution adopted — the people would’ve adopted if that spells out — the people over here are not going to have an equal vote with the other people.

I —

Felix Frankfurter:

You mean the rural people who want more votes wouldn’t adopt it if it were put into the constitution?

Charles S. Rhyne:

Well, I just can imagine such a discriminatory provision being put in any — the basic fundamental law of any state.

Now —

Earl Warren:

They do as between the Houses of the legislature, do they not?

Charles S. Rhyne:

Oh, yes.

Earl Warren:

Some states say that one House will be according to population and the others will be according to counties.

Charles S. Rhyne:

Yes, Mr. Chief Justice.

But again, I had understood Mr. Chief — Justice Frankfurter’s question to exclude that situation and to ask me whether or not —

Felix Frankfurter:

Whether in the popular legislature —

Charles S. Rhyne:

— it was written as —

Felix Frankfurter:

Whether in the popular legislature.

Is there any state in the union which in terms discriminates between man and man as to numbers, not as to — as to the weight of his voting powers.

Charles S. Rhyne:

Oh well now, if you — if you bring all of this geographic div — division of state ledgers by — legislatures by the county unit system in — in Georgia or the town system up in New England, why of course they are inequalities.

But I thought you wanted to know —

Felix Frankfurter:

Those are —

Charles S. Rhyne:

— if it was written out.

Felix Frankfurter:

Those are op — those are operating inequalities.

I’m talking about explicit inequality.

Charles S. Rhyne:

Now, that’s what I thought.

There is no provision in any state constitution that makes — doesn’t say one man, one vote.

Felix Frankfurter:

That’s what —

Charles S. Rhyne:

That’s what I’m —

William J. Brennan, Jr.:

(Inaudible) that’s not observed (Inaudible) even in the populous counties.

Every county (Inaudible)

Charles S. Rhyne:

Now, that is a rather common provision throughout the country.

Some say its in Kansas.

You may have noticed in the brief amicus curiae I filed here, any county that has over 250 people is entitled to one representative.

William J. Brennan, Jr.:

(Inaudible) counties rather.

Charles S. Rhyne:

Yes, now I think, Mr. Justice Brennan, they’re almost as many different provisions with respect to this as there are states.

There is no great uniformity throughout the nation.

Felix Frankfurter:

Most of the New England states allow every town where it has 20 people in it as in New Hampshire, many a town has not more than 20 or 24 or 20,000, just one representative.

That is what I was talking about.

Charles S. Rhyne:

Alright.

Now, proceeding —

Tom C. Clark:

Now, I wonder if the — if Texas was to come up with what you’ve just mentioned, this limits the representation (Inaudible) of a county of, say 100,000 population.

It was for 100,000.

Charles S. Rhyne:

Yes, Texas —

Tom C. Clark:

To me it’s different (Inaudible)

Charles S. Rhyne:

Well now, that — I think that — that Texas certainly takes into consideration changes in population and — and is in many respects —

Tom C. Clark:

They have — give one vote to each person (Inaudible)

Charles S. Rhyne:

No.

Tom C. Clark:

(Inaudible)

Charles S. Rhyne:

No.

No and — and we’re not arguing for absolute mathematical equality here.

We’re saying we have a — a mathematical formula in the Tennessee Constitution.

But we are asking for the reasonable equality required by the Fourteenth Amendment.

Felix Frankfurter:

But the case —

Charles S. Rhyne:

Now —

Felix Frankfurter:

— will be different for you if it weren’t in the Tennessee Constitution, exactly the same reapportionment statute, exactly the same consequences but no such provision as you rely on it with Tennessee Constitution, would the case be different for you under the federal —

Charles S. Rhyne:

I would say —

Felix Frankfurter:

— constitution?

Charles S. Rhyne:

I would say yes because the Tennessee Constitution is one of the important, the very important legal facts that this Court must consider in relating this up to the — to the Fourteenth Amendment.

It shows what Tennessee intended with respect to — to voting rights and the extent of the violation of that intention and then also indicates a measurable remedy.

I think the Tennessee Constitution has tremendous significance in this case because in each state I think that in considering the Fourteenth Amendment, you have to consider the totality of the facts and the legal provisions and —

Felix Frankfurter:

And the total —

Charles S. Rhyne:

— when you do that.

Felix Frankfurter:

And the totality doesn’t include the construction, the definitive construction by the State’s Supreme Court of the Tennessee Constitution?

Charles S. Rhyne:

I wouldn’t say to you, Mr. Justice Frankfurter that the Tennessee Supreme Court has never really construed this reapportionment provision.

All it did was say that it’d be chaos if we enforced it they did not say —

Felix Frankfurter:

It hasn’t —

Charles S. Rhyne:

— that the 1901 Act was constitutional.

They didn’t pass on that question.

Felix Frankfurter:

You don’t — well, it’s passed on it by denying a right under it.

If that isn’t passing on it, I don’t know what it’s passing on.

Charles S. Rhyne:

Well, I was going to say that one of the big factors in this case is that we are at the end of road.

Obviously, we can get no relief.

We’ve exhausted all of our remedies in Tennessee.

The Tennessee state court will give us no relief.

Its obvious that this state legislature in the last 60 years which hasn’t reapportioned itself in which never once has the Senate given more than 13 votes in favor of reapportionment, never once has the House given more than 36 votes in favor of reapportionment.

There is no remedy there.

The Governor can do the —

Tom C. Clark:

When was the last time the legislature was — asserted this legislature.

Charles S. Rhyne:

It’s — it — it passed a resolution at the last session to provide for a steady —

In 1959, it turned it down.

Charles S. Rhyne:

And in 1959 it turned it down.

There is an exhibit, Exhibit 2 attached to the complaint of Mayor West which sets forth every time that the legislature has considered it for the last 60 years even though about — which has turned it down.

And I say, never more than 13 in the Senate, never more than 36 in the House.

And of course, you’ll remember there — there are 33 votes in the Senate and there are 36 votes, I mean 99 votes in the House.

Now, with respect —

Tom C. Clark:

In that record, many of these — letting it to say — I didn’t understand.

Charles S. Rhyne:

Yes, they appointed a committee to — to study last year.

But so far as I know, it hasn’t done anything —

Tom C. Clark:

Do you have any —

Charles S. Rhyne:

— you remember the — the Assistant Attorney General advised this Court of that study group last argument.

Tom C. Clark:

And they (Inaudible) had the report back or just —

Charles S. Rhyne:

No, they made no report at all, so far as I know.

I think they’ve had a hearing.

William J. Brennan, Jr.:

Do I — do I understand that constitutional changes cannot be made in Tennessee except by a constitutional convention called by the legislature?

Charles S. Rhyne:

That’s true.

And two legislatures have to vote on it so that (Inaudible)

William J. Brennan, Jr.:

The people themselves have no way of initiating a constitutional (Inaudible)

Charles S. Rhyne:

That’s true.

There’s no initiative and — and referendum in — in Tennessee.

And the Governor can do nothing.

If you’ll look at this Exhibit 2, the Governors have repeatedly asked the legislature to reapportion itself and this fallen off on deaf ears.

So I think we’re at the end of the road.

Felix Frankfurter:

Is this the only proposal of the Governor of Tennessee over the years the legislature has not adopted?

Charles S. Rhyne:

Of course not, Mr. Justice Frankfurter.

Now, the right —

Earl Warren:

May I ask you — may I ask you this, Mr. Rhyne.

Do you rely wholly on the state constitution — provision or would you still be here if there — if there was no state provision such as you’re relying on?

Charles S. Rhyne:

I would say this that we would probably still be here.

But I do — do not want to — to say for one second that we don’t rely on the state constitution —

Earl Warren:

No —

Charles S. Rhyne:

— to show the kind of vote that has been created —

Earl Warren:

Yes.

Charles S. Rhyne:

— in Tennessee and to show the — the facts that relate up this Fourteenth Amendment question which we bring here to the Court.

We’re here under the Fourteenth Amendment —

Earl Warren:

Yes.

Charles S. Rhyne:

— because of discrimination against the votes of — of these voters.

Earl Warren:

Yes.

Charles S. Rhyne:

And —

Earl Warren:

But I don’t ask you to give up anything, I’m just — just asking you though if — if you would still be here under the Fourteenth Amendment if there was no such guarantee —

Charles S. Rhyne:

Well, I think —

Earl Warren:

— from the state constitution.

Charles S. Rhyne:

Assuming the — the same kind of — of discrimination Mr. Chief Justice —

Earl Warren:

In fact it’s the same.

Charles S. Rhyne:

And assuming a lot of conjectural things, of course you’d — you’d bring in the fact of whether you’d have conflicting statutes and all of that so I think that merely points out the importance of the Tennessee constitutional provision, the fact that it is in the basic law there.

The fact it is tremendously important in this case.

And it’s certainly much more important than if it were just a statute of the — of the State of Tennessee that would bring on all these other things.

Now —

Potter Stewart:

Mr. Rhyne —

Charles S. Rhyne:

— in connection with —

Potter Stewart:

Mr. Rhyne, just to pursue that a moment.

What if the state constitution explicitly provided the precise apportionment that now exists in Tennessee, would you be here?

Charles S. Rhyne:

Well, if it were not carried out.

If the —

Potter Stewart:

No, it were — would be carried out.

The state constitution (Voice Overlap) —

Charles S. Rhyne:

Well, we would not be here —

Potter Stewart:

— my assumption would — would provide —

Charles S. Rhyne:

We would not be here (Voice Overlap) —

Potter Stewart:

— if that apportionment had now in fact exists.

Charles S. Rhyne:

Well, if — if it were done by the constitution, I don’t know — we would be here.

Yes, because —

Potter Stewart:

Well, I thought you would.

And therefore, why — how was the state constitution have any real importance at all?

Charles S. Rhyne:

Well, I think it’s tremendously important because I say it shows what a vote means in Tennessee.

It shows how much discretionary area there is in dealing with the — the — a right to vote in Tennessee according to the fundamental law of Tennessee.

Potter Stewart:

But you’re here under the fundamental organic law of the — of the federal union, not — not any law of Tennessee.

Charles S. Rhyne:

Yes, we’re here under the Fourteenth Amendment of the Civil Rights Act.

But we are saying that this Tennessee constitutional provision had tremendous significance because it shows the fundamental law of Tennessee what the people of Tennessee think about this and we’re not saying that this Court has to — to carry out that formula but we’re saying that it’s one of the things that the Court should consider in deciding whether or not there’s a violation of the Fourteenth Amendment.

Because Mr. Justice Stewart, I think when analyze it, you’ll see that the Tennessee requirement of equality, the Fourteenth Amendment requirement of equality are one and the same thing.

They’re —

William J. Brennan, Jr.:

Well, are you —

Charles S. Rhyne:

— they’re not in (Voice Overlap) —

William J. Brennan, Jr.:

Are you saying this Mr. Rhyne that this, at least, is one of the important fact — ground facts from which you draw the conclusion of capriciousness under the Fourteenth Amendment?

Charles S. Rhyne:

Yes.

Yes, it is.

William J. Brennan, Jr.:

Is that it?

Charles E. Whittaker:

Mr. —

Charles S. Rhyne:

Yes, it is.

Charles E. Whittaker:

— Rhyme, did I correct (Inaudible) you are not here insisting that Tennessee must carry out the formula of its constitution?

Charles S. Rhyne:

No.

I say we are here insisting that the formulary in Tennessee should be carried out.

We think that that measures the right.

It’s a measurable right.

Now, it’s true that this Court can either, having jurisdiction under the Fourteenth Amendment, it can use any of the things that are available to it to — to ensure that the voting rights of these people are carried out.

This Court could if it shows — interpret the Tennessee — having jurisdiction under the Fourteenth Amendment, interpret the Tennessee Constitution and not even have to reach the Fourteenth Amendment.

It’s done that in — in cases.

Felix Frankfurter:

What’s —

Charles S. Rhyne:

It’s —

Felix Frankfurter:

— the case in which it has done that?

Charles S. Rhyne:

It’s done it in the case, Mr. Justice —

Felix Frankfurter:

Don’t tell me —

Charles S. Rhyne:

— Frankfurter, the Greene —

Felix Frankfurter:

Don’t tell me the case that I wrote is a compact case.

Charles S. Rhyne:

This is Greene versus Nashville — Louisville Railroad, 244 U.S. 499 in which the — the question there was discriminatory taxation.

The court explicitly took jurisdiction under the Fourteenth Amendment and decided the case under the Kentucky Constitution and said, “We don’t have to reach the Fourteenth —

Felix Frankfurter:

As against —

Charles S. Rhyne:

— Amendment question.”

Felix Frankfurter:

As against the determination of the state court that the state constitution gets no legal rights?

Charles S. Rhyne:

You enforce the — the state constitution of Kentucky in that case Mr. Justice Frankfurter.

Felix Frankfurter:

Just answer my question, please.

Under — in defiance of a State Supreme Court that the state constitution creates no legal rights?

Charles S. Rhyne:

I would answer your question in this way.

The Supreme Court of Tennessee did not decide in the McCanless case that the Constitution of Tennessee creates no rights.

Felix Frankfurter:

It didn’t — it —

Charles S. Rhyne:

It said it would not enforce those rights, Mr. Justice Frankfurter.

That is the way I read that decision.

And I think that is a fair reading of it because all it said is, if we enforce these rights, we’ll have chaos in Tennessee.

Felix Frankfurter:

Well if li — litigant came before the con — the Tennessee Court, it asked for certain remedies and the Supreme Court of Tennessee with full knowledge of its state constitution said, “This is not an enforceable legal right.”

That’s what that decision says or it says nothing?

Charles S. Rhyne:

Well, I — I can see that we read it differently, Mr. Justice Frankfurter.

Felix Frankfurter:

Well, how can — did it dismiss the complaint or didn’t it?

Charles S. Rhyne:

It did.

And I call your attention to the fact the Chancellor of the lower court there upheld the rights.

Felix Frankfurter:

I know but the Chancellor was reversed by the higher court.

Charles S. Rhyne:

I can see that the — I say we disagree on interpretation of the — of what —

Felix Frankfurter:

But we —

Charles S. Rhyne:

— the Tennessee Supreme Court did.

Felix Frankfurter:

We can’t disagree that the Supreme Court overruled the Chancellor and we can’t disagree that the Supreme Court denied relief, can we?

Charles S. Rhyne:

We cannot Mr. — but —

Felix Frankfurter:

Alright.

Charles E. Whittaker:

Mr. Rhyne, if I might ask you to help me in this respect.

If Tennessee was rid of its constitutional provision had then no systems for the allocation of its legislators, how would they be allocated?

Charles S. Rhyne:

How would they —

Charles E. Whittaker:

If they absent this constitution.

Charles S. Rhyne:

How would the voters be affected by inequality?

Charles E. Whittaker:

How — no, no, no, no.

Charles E. Whittaker:

How would the 99 members of the House and the 33 Senators be allocated if there were no constitutional provision?

Charles S. Rhyne:

I frankly don’t know because — to the fact that the Constitution provides for 99 and 33 is one of the important facts in this case which proves the importance of the Tennessee Constitution, Mr. Justice Whittaker.

Charles E. Whittaker:

Now must Tennessee have some system for the allocation of its legislators, the district’s accounts.

Charles S. Rhyne:

Well, since they held a system, I would rest on that.

I would say that — that — certainly in treating the right to vote for members of the legislature, all the states have some system and I can’t imagine them not having one.

Charles E. Whittaker:

Even if they were rid of this Constitution and could do precisely the people — this is — what is being done, would that then come forth with the Fourteenth Amendment in your view?

Would that be a system if they adopted as a system what they have now if they could lawfully, being rid of the constitution, would that be an adequate system, a proper choice of basis by the people of Tennessee?

Charles S. Rhyne:

Not what they have now, Mr. Justice Whittaker.

But I — I say I — I’m a little hesitant to speculate about if this and if that because I think we have to take the facts and the law in — that we have here in this case because in this case, we have a — a delusion of a — a voter right, a kind of thing that this Court has in good many cases held will not stand up against the ban of the Fourteenth Amendment.

The — the Texas Jaybird case for example where — that you held that Negroes must be allowed to vote in the Jaybird primary as well as the Democratic primary in the general election because that’s the only place that their vote could be affected.

And I think that in — in this case as in Classic that — which we cite in our brief and in Saylor that the delusion of a vote is a denial of the vote.

And this Court has held time and time again that fundamental rights can be lost by indirection as — as well as direction and that under those circumstances, this Court will give relief because voters have standing to complain and come here to get this Court to protect their rights.

John M. Harlan II:

Could I ask you a question?

Do you claim that the Fourteenth Amendment requires that each person’s vote in the state be given equal weight?

Charles S. Rhyne:

Reasonable equality.

John M. Harlan II:

Well, reas —

Charles S. Rhyne:

Reasonable equality.

Charles E. Whittaker:

As a matter of fiscal —

Charles S. Rhyne:

Not mathematical equality —

John M. Harlan II:

Not mathematical —

Charles S. Rhyne:

— Mr. Justice Harlan.

John M. Harlan II:

— equality.

Charles S. Rhyne:

But reasonable equality.

I think that that is the thrust of the equal protection of the law’s requirement of the Fourteenth Amendment, reasonable equality.

William J. Brennan, Jr.:

Well to put that kind of treaty Mr. Rhyne, I already pointed out to it that 1901 shall be entitled to 8, actually had only 7 whereas today shall be entitled to —

Charles S. Rhyne:

15.

Potter Stewart:

— 15 actually has gone to 7.

You might say that there was in Fourteenth Amendment stance, no denial of equal protection the 1901 with 8 — entitled to 8, having only 7 whereas you might have a different view of the 1961 entitled 15 and having only 7.

Charles S. Rhyne:

Because of the grossness.

Yes, Your Honor —

Felix Frankfurter:

Am I interrupting —

Charles S. Rhyne:

— I would agree.

Felix Frankfurter:

Am I entitled to ask you what you would say to 13 instead of 15?

That’s the —

Charles S. Rhyne:

Well —

Felix Frankfurter:

–11, let me begin with 11.

Charles S. Rhyne:

Mr. Justice Frankfurter, I think this Court has from time immemorial taken the facts in each case and passed on them.

And you yourself in this — I think it’s this D’Amico case versus Maryland said that you didn’t have to draw a line for all time.

You draw it case by case.

And so I think that we do have the required — 15 here in — in dealing with the actual facts rather than speculative facts that that is a violation of — of —

Felix Frankfurter:

But I —

Charles S. Rhyne:

— the Fourteenth Amendment.

Felix Frankfurter:

But I do have to think of the road as I’m going on, what kind of road you’re inviting me considering the fact that this isn’t a unique Tennessee situation.

This isn’t a unique Tennessee situation.

The Solicitor General gives heavy figures as to the number of states that are affected.

From my point of view, if you are right, from my point of view, if you are right, I see no difference between writing into a constitution equal representation and not writing in it so far as the Fourteenth Amendment is concerned.

Charles S. Rhyne:

Well —

Felix Frankfurter:

Where — where — where this is essential, where the state power which is ultimately lodged in the highest court of a state in construing a constitutional provision says there’s no legal right.

Charles S. Rhyne:

Well, Mr. Justice Frankfurter —

Felix Frankfurter:

So I have to think about not in this case.

15 —

Charles S. Rhyne:

Well —

Felix Frankfurter:

I have to think about Maryland which I’m told is — many (Inaudible) more disparaged to this.I have to think of a lot of state and not say this is just Tennessee.

For me, this is the United States, not Tennessee.

Charles S. Rhyne:

Well I would say, Mr. Justice Frankfurter, the main thing we have to think about here is — is voting rights in disparagement, in degrading, in delusion of those rights all over the United States of America.

I grant you that this is a rotten situation that exists in most of the states.

And that it’s destroying the integrity of State Government.

But the only way to restore that integrity is to carry out voting rights and that is the very point that we’re making here.

And we’re saying that under the Civil Rights Act that the Congress has done all it can by conferring upon the federal courts the power and the duty to protect voting rights.

As a matter of fact, in 1957 in amending the Civil Rights Act, it quote, “including the right to vote”, it aided that specifically.

Charles S. Rhyne:

And in 1960, it added an amendment said that the word vote “shall include all measures necessary to make it effective.”

Now, the Congress certainly recognized that voting rights were not being protected throughout the United States of America.

And it deliberately chose to spread them the equity powers of the federal courts as the way to protect those voting rights, not the state courts but the federal courts.

And —

Felix Frankfurter:

But the Congress of the United States never dealt with this problem although the inequalities in reference to congressional representation precisely would say and in coming to this law of flagrancy.

Charles S. Rhyne:

I think that the picture with respect to congressional representation, Mr. Justice Frankfurter, isn’t the same.

You don’t have people attacking the integrity of the Congress of the United States of America on the disproportionate —

Felix Frankfurter:

Well that’s a — that’s a —

Charles S. Rhyne:

— population thing which you do in this thing.

There’s a more compelling situation that exist.

Felix Frankfurter:

That’s there choice of the words.

Lots of people use the word “integrity” —

Charles S. Rhyne:

Well —

Felix Frankfurter:

— loosely and narrowly.

Charles S. Rhyne:

— I think though that there is — Professor Anderson said in the affidavit that’s attached to the Michigan brief amicus curiae that this thing is — is very deep.

This denial of equality has gotten to the point of ethics and where even the school children wonder about the morals of their seniors who flagrantly violate the state constitution.

This is an entirely different situation than the congressional situation.

Felix Frankfurter:

I commend you — I commend you the matters as a dependent — dependency to the opinion in Colegrove and Green.

I just have you to look at those matters —

Charles S. Rhyne:

Yes, Mr. Justice —

Felix Frankfurter:

— then you’ll see an inequality.

Charles S. Rhyne:

Yes, Mr. Justice Frankfurter.

I recently looked at those and I’m merely saying to you that this is an entirely different situation.

Now, with respect to the jurisdiction of this Court, this Court has never held — it’s never held in any court decision that it doesn’t have jurisdiction.

And in Smiley versus Holm, Carroll versus Becker and Koenig versus Flynn, it expressly invalidated state reapportionment statutes on the suits by voters.

Charles E. Whittaker:

You’re speaking of jurisdiction in the sense of power.

Charles S. Rhyne:

Of power, jurisdiction in the sense of power.

Then, in Colegrove versus Green, the vote was four-to-three for a jurisdiction.

I grant you, it was four-to-three differently composed not to exercise it because it was found that certain compelling circumstances were not there.

But, since Colegrove versus Green, you do have the fact that in this 1957 Act and the 1960 Act, the — the — the — the law was changed and the federal courts were told that the action rather than inaction was expected of them.

Charles S. Rhyne:

And I say to this Court on the jurisdictional power that this case has all the traditional prerequisites for the exercise of equity power because the 1901 Act is clearly unlawful.

The damage to these voters is irreparable and the remedy at law is inadequate.

Now to refer these people to a political process which is — is no remedy at all, if you’re going to refer them to any remedy, it must have a reasonable chance of being effective but to refer these people back to the political process really is a — is a mockery of justice because until voting rights are en — enforceable in the federal courts and you have equal or reasonable equality, the ballot box is no remedy for the kind of situation that exist here.

Felix Frankfurter:

Will you or the Solicitor General tell us what the remedies would be here other than to declare this unconstitutional.

Charles S. Rhyne:

Yes, Mr. Justice Frankfurter.

Felix Frankfurter:

What the remedy will be.

Charles S. Rhyne:

I certainly did express — I would address myself to that in just a moment.

But first of all, I would like to say that the compelling circumstances which Mr. Justice Rutledge found absent in Colegrove versus Green are here and that those compelling circumstances are these, number one, there is a clear violation of a constitutional right.

Number two, there is no reasonable basis for the voting discrimination which is laid out in this complaint.

And the defendants offer no justification for it and they cannot offer it on these facts.

And as I have just said, there is no other remedy.

We’re at the end of the road.

If this a judicial no man’s land, these people, the two-thirds of the voters of Tennessee are consigned to be second class citizens for the rest of their life because these defendants exalt their position into an untouchable absolute justice.

In Gomillion — in Gomillion, the defendants there said, “Well, you can’t touch us because a state can carve up its political subdivisions anyway it wants to.”

But this Court held that there was no such thing as an absolute insofar as constitutional rights were concerned.

There’s no such thing as an absolute that gives anybody an untouchable right and power to destroy voting rights in this country.

And true it is, that was — that was geographical discrimination favoring I guess, I hate to call it favoring, white as against colored.

I don’t quite in — in — interpret that as a — as a favor to the white.

But here, you have geographical demo — discrimination of even worse, more gruesome character of the — discriminating in favor of the rural people against the urban people.

And I say there’s nothing in the Constitution of the United States of America that ordains and nothing in the Constitution of the te — of Tennessee that ordains that state government is and must remain an agricultural commodity.

And there’s nothing in neither one of those constitutions that said, “It takes 20 city residents to equal one farmer.”

Felix Frankfurter:

Mr. —

Charles S. Rhyne:

Now —

Felix Frankfurter:

Mr. Rhyne, may I ask you this question.

Does on the fact, just the fact, every fact that you now put before the Court taking into account, does this case differ from the fact in Kidd and McCanless on the facts?

Charles S. Rhyne:

I would say the only difference between Kidd versus McCanless on the facts and here is the fact that the situation has grown worse since then on the facts because this thing has become more and more gross which I say calls more and more — is a more and more compelling circumstances for relief here.

And —

Felix Frankfurter:

But the disparity or from your point of view, in defense to one been in McCanless?

Charles S. Rhyne:

Oh, yes.

Oh, yes, they weren’t then and they aren’t here.

Felix Frankfurter:

Now, since the facts in Kidd against McCanless were exactly the same from the point of view of constitutional consideration, I put this to you.

You talk as though Colegrove against Green, a four to three decision with Justice Rutledge concurring with the judgment on the ground that he did stood alone.

Kidd against McCanless — in Kidd against McCanless, he appealed to this Court on your ground was dismissed on the — and the basis for dismissal was given in the per curiam because Colegrove and Green and the Anderson case were cited.

So Colgrove and Green doesn’t hang in this dubious situation in which you indicate it does.

Not only that, but the Anderson case before that also cited Colegrove and Green.

And while in the Anderson case there was a dissent noted.

In Kidd against McCanless, no dissent was noted.

Is that correct?

Charles S. Rhyne:

As you state the facts, Mr. Justice Frankfurter, I would agree with them.

I wouldn’t agree with any conclusion that the citation of Colegrove versus Green and Kidd versus McCanless or any other many cases that’s been cited, stands for the fact that this Court lacks power —

Felix Frankfurter:

No, all I’m —

Charles S. Rhyne:

— to protect voting rights.

Felix Frankfurter:

All I’m saying is it isn’t a four-to-three decision with one dubious and what is more important in Kidd against McCanless as well as in Anderson, a claim was made that the lower court decision, California in one case, Tennessee in the other, rested under state ground.

This Court in dismissing did not take that thing.

It rested on Colegrove and Grove without qualification.

Charles S. Rhyne:

Well —

Hugo L. Black:

Am I right in —

Charles S. Rhyne:

— Mr. Justice —

Hugo L. Black:

Am I right in thinking, if you’re asking us to reconsider those cases whatever they have?

Charles S. Rhyne:

Yes.

Felix Frankfurter:

Oh, alright.

Charles S. Rhyne:

Yes, yes.

I — but my only point is that this Court has never under — in any case that I know of, have held that it doesn’t has — have power.

It’s held that it should not exercise power under particular — under particular factual situations.

And I am saying that in this case, the compelling circumstances which did not in — exist in Colegrove versus Green, do exist.

And one of the compelling circumstances, one of the great differences, Mr. Justice Frankfurter, I insist here is that this state legislative situation has reached the point of a — of a great national tragedy.

And I think that’s a compelling thing because there is no cure of that other than action by this Court.

The legislatures are not going to do anything about it.

It’s obvious that there’s no other remedy where — as I say, we’re at the end of the line and the only way that that situation can be cured is by this Court enfo — enforcing the voting rights of these voters.

Tom C. Clark:

What about Congress, did they have any —

Charles S. Rhyne:

I think, Mr. Justice Clark that Congress has gone about as far as it can in giving to the federal courts in the 1957 and the 1960 Civil Rights Amendment, a strengthened equity jurisdiction.

And if you’ll look at the history of those particular acts, they were trying to protect votes no matter where they were cast or how they were cast and the method that Congress shows was the equity jurisdiction of the courts.

Now, I think Congress has gone about as far as it could because it would have to choose some agency other than itself to do this and it shows the courts.

And I think that under those circumstances and under the compelling circumstances of this case not only does the power exist but it must be exercised because either it’s exercised are the great right to vote which is here before this Court for either vindication or denial will be denied.

And I cannot imagine courts, courts that were created —

William J. Brennan, Jr.:

Well, let me —

Charles S. Rhyne:

— for the very purpose.

William J. Brennan, Jr.:

Mr. Rhyne isn’t that — is that entirely true?

Certainly some State Supreme Courts, say —

Charles S. Rhyne:

New Jersey.

William J. Brennan, Jr.:

— the Supreme Court in New Jersey have.

Charles S. Rhyne:

Yes.

Well I would not —

William J. Brennan, Jr.:

And other State Supreme Courts also have dealt with this problem, haven’t they and they —

Charles S. Rhyne:

Yes.

William J. Brennan, Jr.:

— stated that pretty quickly once they —

Charles S. Rhyne:

Once they have faced up to it, yes.

Now —

Potter Stewart:

Many state constitutions confer upon the state courts.

The very function of saying that the —

Charles S. Rhyne:

I think they’re about — about 12 of them.

Potter Stewart:

Yes.

Charles S. Rhyne:

Now, that brings me —

Hugo L. Black:

Has the Tennessee Supreme Court directly held either that this apportionment is in accordance with its constitution or that it’s against its constitution?

Charles S. Rhyne:

Mr. Justice Black, it refused to pass on that particular point.

In the record here we have its — its decision.

And we have also its decision.

Its decision starts on page 59.

And over on we have also, it’s — it’s a decision on rehearing.

Because on rehearing, they asked the Court to pass on that point.

Charles S. Rhyne:

And over on 66, it says, “No, it was not going to pass on that.

It didn’t have to pass on anything other than the one point that this would cause chaos.”

It did not interpret (Voice Overlap) —

Hugo L. Black:

Well, am I — am I correct in thinking that your argument based on the fact that the Constitution requires this would be done in your way and that that therefore denies equal protection of the law?

Charles S. Rhyne:

Yes.

Hugo L. Black:

Based on the principle that they have a law of Tennessee.

It does not — which does require what you (Inaudible) and it’s being enforced with a discriminatory eye or an invidious eye so that it become necessary for them to apply the law equally.

Charles S. Rhyne:

Yes.

Hugo L. Black:

And that you say that the Supreme Court of Tennessee has not decided one way or the other on that question.

Charles S. Rhyne:

It has not.

Hugo L. Black:

We had a case on Tennessee where they had a tax law, state tax law.

And it was written one way in the book and enforced another.

We held that since they were doing it discriminatorily as I recalled it, did that deny the equal protection of the law?

I have read very greatly but my recollection is that — substance to what we held.

On the outset —

Charles S. Rhyne:

In that case if it’s the Browning case, Mr. Justice Black, you held — in my interpretation of — of that opinion that the power to classify railroad property — another property existed in the Constitution.

Hugo L. Black:

They brought it by Custom.

Charles S. Rhyne:

And that this Court couldn’t find that there was enough discrimination there to upset the CUSTOM and upset that interpretation.

Hugo L. Black:

Dictation from the law as construed and applied through the years.

Charles S. Rhyne:

Yes.

Now here —

Hugo L. Black:

(Inaudible) here that there had been no decisions of the Supreme Court of the United States and that the Custom is not sufficient to bring it within the ruling of the Browning case.

Charles S. Rhyne:

I think that’s — that’s — I think that is true.

Now, on remedy — on remedy —

Tom C. Clark:

Coming back to that power of the Congress, I was just wondering if under its authority to implement the Fourteenth Amendment and appearing that half of the states have this same discrimination that you mentioned at various degrees, would it be within their authority and power to appoint a commission to go into that and perhaps pass some general law, an Act of Congress with reference to this?

Charles S. Rhyne:

I’d say it — it certainly would be within their power to appoint a commission.

But they have designated the federal courts instead.

They have even asked the federal courts in — under the 1960 Act to act as referees on registration Mr. Justice Clark.

So, I think Congress thinks it’s done all it needs to do because the courts have been the traditional protectors of Civil and Constitutional Rights and so they referred this to the courts.

Now, I’d like to say —

Felix Frankfurter:

Is there anything in the — is there anything in the congressional debate which referred to — to the federal — which indicated that Congress conferred as explicitly as you seem to indicate, jurisdiction on the federal court to deal with the enforcement of state constitutional provision regarding the apportionment?

Charles S. Rhyne:

They were dealing, Mr. Justice —

Felix Frankfurter:

Well, just answer that, yes or no.

Did they?

Charles S. Rhyne:

No.

Felix Frankfurter:

Alright.

Charles S. Rhyne:

They were dealing with the use of the Fourteenth Amendment to protect the voting rights free of the states.

Now, I’d like —

Felix Frankfurter:

Are these of — particularly of all colored — colored citizens, isn’t it?

Charles S. Rhyne:

Well, they did not specify —

Felix Frankfurter:

We know they didn’t but all the legislation was about that.

Charles S. Rhyne:

They were, I think, concerned also about other citizens who were discriminated against in their right to vote.

Felix Frankfurter:

Such as the Puerto Ricans?

Charles S. Rhyne:

Yes —

Felix Frankfurter:

Yes.

Charles S. Rhyne:

— and others.

And —

Felix Frankfurter:

What others?

What —

Charles S. Rhyne:

Well, I — I would say they could have this urban situation in mind too.

Felix Frankfurter:

Do you think there is anything in the — I’m asking you whether in the debates there is any reference to this urban situation?

Charles S. Rhyne:

I do not — I do not know whether there is or not, Mr. Justice —

Hugo L. Black:

As I recall —

Charles S. Rhyne:

— Frankfurter.

Hugo L. Black:

— within the Slaughter-House case.

A statement was made with the Fourteenth Amendment at the time it was passed probably not so to include — to protect anybody with color (Inaudible) has it been limited that way?

Charles S. Rhyne:

No, it’s been held — Mr. Justice Harlan’s —

Hugo L. Black:

Construing the question I asked you a moment ago just going a point further.

As I understand it, do you say that there has been no ruling by the Supreme Court of Tennessee what is done here is in accordance with the constitutional provision —

Charles S. Rhyne:

That’s right.

Hugo L. Black:

— do you say that they refused to decide it?

Charles S. Rhyne:

That’s right.

Hugo L. Black:

Why did they refuse to decide?

Charles S. Rhyne:

They said they didn’t have to in their opinion on rehearing which I cited to you.

They said they didn’t have to point — pass on that point because they had decided the case under this other point that it would destroy the State Government if they enforced these voting rights.

Hugo L. Black:

Now, if they have refused to decide this question, this constitutional question that it is a meritorious question, why would it not come up on the question of equal protection of the law under the doctrine of Mooney against Holohan?

Charles S. Rhyne:

It would and it’s here.

Now, I’d like to say just a word about remedy and my time is —

Felix Frankfurter:

Before you pass that, in the Browning case, did the Tennessee Supreme Court say that the Tennessee Constitution didn’t require equality of tax treatment or did they say that while it’s in the Constitution, 50 years have elapsed since that has been disregarded which?

Charles S. Rhyne:

They said the latter —

Felix Frankfurter:

Alright.

Charles S. Rhyne:

— Mr. Justice Frankfurter.

Felix Frankfurter:

So they didn’t construe the Constitution to read otherwise in its language way — did they?

Charles S. Rhyne:

Yes.

I think it indicated that there was power to classify there Mr. Justice Frankfurter.

Hugo L. Black:

Did they have —

Charles S. Rhyne:

I think I’d better reserve the balance of my time —

Hugo L. Black:

Did they have any —

Charles S. Rhyne:

— for rebuttal.

Hugo L. Black:

— cases in that court in that field from this Court indicating that the probability was it was some kind of a political matter of which courts could have no possible jurisdiction?

Was that in the Browning case?

Charles S. Rhyne:

No, there was not an argument about it being politics there as far as I know Mr. Justice Black in my reading of it.

May I reserve the balance of time?

Earl Warren:

You may Mr. Rhyne.

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

I would like to state first as clearly as possible the issues which we think this case presents, which ones need to be decided at this time and which we think can be deferred and finally the position of the United States with respect to each of these issues.

The central question of course is whether the District Court had jurisdiction over this case.

The complaint alleges an intentional invidious discrimination depriving the plaintiffs of their rights under the Fourteenth Amendment.

The general jurisdictional statues give the District Courts jurisdiction over all claims for depravation of constitutional rights under color of state law.

Archibald Cox:

And I remind the course — Court that under Bell and Hood incomparable cases, it’s enough that the complaint state a colorable cause of action in order to give the court jurisdiction without going on to pass upon the merits of the Constitution.

Potter Stewart:

In that connection, Mr. Cox, preliminarily, am I right in my recollection that the defendants filed a motion to dismiss based upon two grounds.

Want of jurisdiction over the subject matter and secondly, failure to state its cause of action.

Archibald Cox:

Yes.

There were two — there were four in that as a matter fact.

But they were on those two grounds, Mr. Justice Stewart.

And the court — the court’s order refers to both grounds.

There’s no question about that either.

It seems to me, the meaning of the dismissal for one of jurisdiction is fine I take it.

There’s some dispute about the meaning of the dismissal for failure to state a claim upon which relief could be granted.

I emphasized the latter words because it seems to me that that was the meaning that the District Court attached to the order rather than the notion that there wasn’t a substantive claim stated.

Because if you read as Mr. Rhyne pointed out the Court’s opinion, it refers to the claim of rights under the Fourteenth Amendment, to the claim of rights under the state constitution.

And then in the next sentence it says, “We agree that there has been both the violation of the state constitution and the plaintiffs’ rights”, which I take it referrs back to the first seven.

Potter Stewart:

Do you think that the —

Archibald Cox:

But in any event, the court’s opinion plainly discusses only the remedy.

It does nothing — there’s not a word in dealing with the substantive claim of a violation of Fourteenth Amendment Right.

Potter Stewart:

Well, now why —

Archibald Cox:

So I think that —

Potter Stewart:

While we’re still on this rather dull subject of procedure of pleading, Mr. Rhyne emphasized at one point that the state had not sought to justify this system and am I not correct in thinking that against the matter of procedure or pleading that the — that that point has not yet arrived?

The — the state filed a motion and has not yet answered on the merits, isn’t that correct?

By the state — I mean the defendants in this case.

Archibald Cox:

Well, I think — I would think a difference might be taken then.

It would seem to me that on the argument of the motion to dismiss going to the merits of the Fourteenth Amendment claim, it would be permissible for the state to say, “Look at this apportionment.

This is explained by our desire to represent people according to the proportion of taxes paid.” Or look, “This is explained by our desire to give every county or every town as in New England, a representative.”

So that it would seem to me that procedurally, that issue might arise under acts upon it called a demurrer rather than a motion to dismiss.

On the other hand, it is a question that might require proof of some fact —

Potter Stewart:

That would —

Archibald Cox:

— and in that event it would come up to the — a later stage.

Potter Stewart:

In the event that this Court should — should — should decide that the District Court had jurisdiction, all those matters would be matters of affirmative defense if you will or — or as it (Voice Overlap) —

Archibald Cox:

That’s quite true.

Archibald Cox:

The one thing that it seems to me must be decided.

Finally now is the narrow question whether the District Court had jurisdiction of the subject matter, the sense of power to deal with it.

That issue, I think, has to be decided, inescapable.

And we argue of course that the District Court had jurisdiction.

As the circuit question presented, somewhat related to the first which is whether the District Court may consider the merits of appellants’ claim —

William J. Brennan, Jr.:

Well Mr. Cox —

Archibald Cox:

Yes.

William J. Brennan, Jr.:

— before you leave that, what else have to be decided?

Archibald Cox:

What else?

William J. Brennan, Jr.:

What else do we have to decide — we are here to?

Archibald Cox:

Well, I’ve just — let me say there — there is a second question in the case which is whether the bill should be dismissed in the exercise of an equitable discretion.

There is the doctrine, which I’m sure the Court is familiar with after the first argument, that sometimes, when an equity court has jurisdiction over the subject matter and even though there is no adequate remedy of law still because the matter is not suitable for the Chancellor’s action either because their act would be against the public interest or because it would entangle in a non-traditional function.

The bill will be dismissed for one of equity.

Potter Stewart:

Well, wouldn’t that — at least in the first instance also be a matter for — to be canvassed by the District Court (Inaudible)

Archibald Cox:

I think that it — substantially, yes.

It would seem to me it stated most accurately, this question may be before the Court.

Are the chances of framing some kind of effective relief so small and the likely danger to the public from continuing with the case so great that the Court should shut off further investigation of that question at this stage?

Before it looked at the merits, investigated the alleged wrong or before there was a full hearing and discussion on the question of relief.

I simply say that it is not that clear and the Chancellor can exercise his discretion or at some later stage of the case if it does appear that there is no way to grant relief within circumscribed by the limits of the judicial function.

And we argue that there are enough possibilities of relief so that the plaintiffs’ case shouldn’t be shut off at the outset.

Felix Frankfurter:

Mr. Solicitor, you cite my academic interest.

Take the classic case of (Inaudible) where a — or take — take a — a famous singer befalls on that context and Mr. Bing, Rudolf Bing brings the proceeding in the New York District Court to mandatory injunction.

Now, plainly enough, I suppose on a technical view, there is jurisdiction in the sense that there is a right he broke a contract, not contested, you certainly could get damages against her but a court of equity would dismiss it because it doesn’t enforce a personal service like making a person sing because that it approaches too much in slavery, isn’t that right?

Is that a —

Archibald Cox:

On the —

Felix Frankfurter:

(Inaudible)

Archibald Cox:

My recollection is that there is precedent for granting a negative injunction.

Potter Stewart:

You can stop her —

Archibald Cox:

But didn’t —

Potter Stewart:

— from singing for everybody else.

Archibald Cox:

(Voice Overlap) —

Felix Frankfurter:

(Inaudible) singing else where, yes.

But the —

Archibald Cox:

And —

Felix Frankfurter:

The affirmative, you can’t get the prayer that he sings and carry out a contract, it would be dismissed, wouldn’t it?

Archibald Cox:

Well, if it was — let’s — let us just add a little bit to the case and assume —

Felix Frankfurter:

I’m not saying that this is this case.

I’m trying to give (Inaudible)

Archibald Cox:

No.

No, but I think this case — I think your case, it does illustrate one of the points I was trying to make.

Let’s assume that the prayer was for an injunction compelling her to sing plus a prayer for other and further relief.

And let’s assume that it was suggested during the argument on the original motion to dismiss that may be the negative injunction would do some good.

On the other hand, the defendants said, “No, it won’t do any good at all.

You can’t frame a negative injunction that will work.”

It would seem to me that would be quite proper for the Chancellor under those circumstances to say, “We’re not going to shut the door, and is it Mr. Bing who had the first contract, we are going to investigate this question of relief.”

Felix Frankfurter:

But I don’t think there’s any doubt that — the suggestion of my Brother Stewart.

She — Mr. Bing could get a negative injunction.

She shouldn’t sing — sing for the New York Opera House, forgot about that or equity could even retain the injunction, the — as a subsidiary to it in order to assess damages.

But the — the prayer for a mandatory injunction certainly deny, wouldn’t it?

Archibald Cox:

Yes, and I suppose that in this case if the complainants were to say to the Court, “The only thing that we ask is an injunction against the legislature of Tennessee and there were no prayer for other relief and they disclaimed any desire for other relief.”

Well, then there might be nothing more to the case —

Felix Frankfurter:

And you are going to —

Archibald Cox:

— at this stage.

Felix Frankfurter:

You are going to tell us what — you are going to envisage possible remedies or tell us whether there was any case in this Court in which we granted — in which we recognized jurisdiction without seeing where the exercise of jurisdiction leads.

Archibald Cox:

I —

Felix Frankfurter:

Any case in which in the abstract, we said there was power without indicating, adumbrating in some way either money damages or injunction or mandamus or whatnot.

Archibald Cox:

I shall later try to suggest some of the possible forms of relief.

I wouldn’t want my ignorance of all the Court’s decision indicated was not in that category.I don’t know of one.

There is a third question which is potentially in the case and which I think I should note expressly that is of course the question of whether the fact stated in the complaint do make out a cause of action.

As I suggested before that issue does not in our judgment need to be decided at this stage of the case.

Archibald Cox:

On the other hand, as Mr. Justice Black suggested during the original argument, it is a question that here — here without a decision below but nevertheless here, if there is jurisdiction that may arise sooner or later.

And I take that the complainants would have no objection to a decision on it now.

If there is any doubt about it, we think it is clear that at least a colorable case is stated and that this Court would be well advised to remand the case so the District Court might give it the benefit of a full opinion investigation of the question which might be on the facts and not just on the pleading.

That last question is involved in the question of jurisdiction, I think, to this extent.

The justiciability of the case depends in part upon whether the merits of the constitutional claim that is made are need for or amenable to judicial consideration, upon whether the interest that deserve constitutional protection here are sufficiently identifiable.

The fact is that — would have to be taken into account are sufficiently articulateable so that the case can be adjudicated and so you can take a hold of it and reach a conclusion.

As I say, I don’t indicate final decision on that point need be made.

But since it does bear upon the justiciability of the cause, I’m going to direct my attention to it first and then go on in sequence to the other aspects of the question of jurisdiction and finally to deal with the argument concerning equitable discretion.

The right to be free from hostile or capricious discrimination in the definition of the person invited — entitled to vote or the exercise of the franchise is a federal right protected by the Fourteenth Amendment.

Although the clearest examples involved racial discrimination, the Fourteenth Amendment ex — extends this course, prohibits of course arbitrary and capricious actions against other classes of people.

And surely it would violate both the Equal Protection and Due Process Clauses for a state to deny the franchise, say to all people who would ever visit at the British Commonwealth or to all red-headed women or on any other entirely arbitrary basis.

It seems to me that the geographical —

Potter Stewart:

Or is it the — or it could be done with respect to all women, couldn’t it?

Archibald Cox:

So far as the Fourteenth —

Potter Stewart:

So far as the Fourteenth Amendment lands, it required an additional amendment to the Constitution to give females the road, did it not?

Archibald Cox:

I suppose the question would be raised whether that was an arbitrary discrimination.

Potter Stewart:

It was raised.

Felix Frankfurter:

It was raised.

Potter Stewart:

It was raised, it was raised.

Archibald Cox:

I’d forgotten the case.

Potter Stewart:

And it was decided in this Court.

Archibald Cox:

That it was not an arbitrary —

Potter Stewart:

That all women could be denied to vote under the con — under the Fourteenth Amendment and not to the Constitution generally until we got the suffrage amended.

Archibald Cox:

But it — it seems to me that the fact that a rational line can be drawn in voting between men and women does not go to — it indicate that a rational line can be drawn in terms of race or in terms of geography.

Surely a —

Potter Stewart:

A rational line can certainly be drawn between the sexes on — in many areas but —

Archibald Cox:

Oh, and in voting.

Potter Stewart:

Or was —

Archibald Cox:

Well, in — in terms of the whole —

Potter Stewart:

(Voice Overlap) —

Archibald Cox:

— legal background.

It seems to me that I would not have quarreled with the decision of the Court.

Surely, nothing in the decision and I think this is the only important one.

Surely nothing in the decision indicates that the Fourteenth Amendment does not prohibit irrational differentiations with respect to the exercise of the right to vote.

And a geographical discrimination I think must be agreed, can be as arbitrary and discriminatory as many others.

Nobody would debate the case.

If a state were to say that the voters in the eastern half shall have 10 votes and the voters at the western half shall each have one or one vote and one-tenth of the vote.

If I — the process of apportioning representatives, the state gives 10 representatives to each of the sparsely settled counties in the eastern half and only one to each of the well-settled counties of the western half.

That seems to me just as arbitrary and just as capricious as labeling of the fraction of the vote that those underrepresented are entitled to get.

Certainly, there is no merit in the argument that the appellees make that the constitution guarantees only the right to cast a ballot and have it physically counted but it doesn’t guarantee you anything with respect to the value of the count that it gets and that it may be neglected from then on.

Now of course, the present case isn’t quite as clear as my examples although I think it is a very clear one.

But in relation to it and in relation to the question whether this is a justiciable problem, the question does arise unless the constitution guarantees exact numerical equality, how can a court determine whether a malapportionment violates the Fourteenth Amendment.

In my judgment, there are two steps to the analysis.

One of which the Court certainly can take and the other — and which is sufficient for this case.

The other of which a court might take or might take it in part that the first step is simply to inquire whether there is any rational justification or any coherent purpose for the discrimination or differentiation of something other than sheer caprice or indifference or the perpetuation of unjustified political power.

Since there is no foundation for the discrimination in this case, it seems to me that there is no need to go further.

Potter Stewart:

Again, do we know that really?

You — we can guess that you can argue that but the state has not yet, as a matter of procedure, had any opportunity to factually justify this system, isn’t that true?

Archibald Cox:

Well, I think — I suppose all I am really arguing that is — insofar as the pleadings go, that would be a fair conclusion.

There are a good many things that points strongly in favor of that conclusion.

And one of them, if I may deal at this point, was the question that was raised, one of them is the fact that the only basis permitted by the Tennessee Constitution for apportionment is equality of representation according to population.

And it seems to me that it hardly lies in the mouth of Tennessee to say, “Oh, but there was another rational reason for doing it”, which doesn’t appear.

I think for the state, I won’t say that in the matter of law, the state could not possibly come in and show another rational foundation.

I do say that the fact that there is this provision that permits no other, the fact —

Potter Stewart:

And make it —

Archibald Cox:

— that 60 years —

Potter Stewart:

— embarrassing for the state to do so.

Archibald Cox:

— had gone by may indicate pretty strongly certainly enough to put the burden on them to come forward and to indicate the rational basically first.

Potter Stewart:

Now, we are getting pretty close to the — to the Browning case.

And the fact is the state couldn’t say, “Well, this is our system and could justify it.”

Archibald Cox:

If the state — as far as my argument is concerned, if the state had written this provision into its constitution —

Potter Stewart:

Yes.

Archibald Cox:

— nothing I say is directed to the proposition that it would then be constitutional.

I would still be here if I could find the complainant’s argument come in as amicus, I would still be here arguing that it violated the Fourteenth Amendment.

Potter Stewart:

Move it to Tennessee and become a complainant yourself.

Felix Frankfurter:

Mr. Solicitor, may I put this to you.

You belong to an administration that has had signal experience with the inability of two Houses of the legislature.

You agree on highly desirable legislation.

And it may well be that Tennessee may have had difficulties from year to year in getting the two Houses to agree to a proper apportionment.

Now, I take it mandamus couldn’t lie so that the constitutional right derived from the fact from two Houses that legislate can’t agree on what is proper legislation.

I didn’t mean to be — say anything except to the call attention to a well-known legislative fact to which the last session of Congress (Inaudible) administration.

The difficulty of getting a comport between two Houses of a legislature and legislature will deem highly desirable.

Archibald Cox:

I — I cannot speak with any great degree of knowledge without the political history of Tennessee.

My reading of the allegations in the complaint would indicate that the difficulty wasn’t in getting the two Houses to agree.

It was simply that minority who have these unjustified, as we say of power, won’t give it up.

Felix Frankfurter:

But we know that legislation doesn’t merely mean the process of legislation, isn’t merely what gets on the floor of legislatures.

We know that the legislative process, its agreement in what is — the reference to the (Inaudible) called the “cloakroom”, we know that the process involved agreement or disagreement between those who wield political power.

And it may well be, looking ahead and I for one has to look ahead, it may well be that this is one of these situations.

And therefore, it isn’t merely — we’re not here engaged on abstract questions.

Is their jurisdiction abstractly considered but what can you do about it?

Not you meaning what is — can a court do about it or what is involved.

I take it you agree that you couldn’t mandamus control apportionments, could you?

Archibald Cox:

Well, I would — I had hoped to pros — postpone until later the question —

Felix Frankfurter:

Alright.

Archibald Cox:

— of what the — the degree might be.

I was going to suggest that there were a considerable number of possibilities here.

Felix Frankfurter:

You couldn’t mandamus a legislature, could you?

Archibald Cox:

No, I tried — you could not.

Charles E. Whittaker:

Oh, even if you couldn’t tell them what to do, does that mean there isn’t power to tell them that what they are doing is unlawful?

Archibald Cox:

It does not.

Archibald Cox:

And frequently, telling them what they are doing is unlawful supplies the necessary impetus to achieve a solution of the matter.

Felix Frankfurter:

And you think if you can’t go beyond that, that that is a fair legal argument to say —

Archibald Cox:

I — I —

Felix Frankfurter:

— that you might push them into doing something which legally, you couldn’t compel them to do —

Archibald Cox:

Mr. Just —

Felix Frankfurter:

Isn’t that the fair argument?

Archibald Cox:

I think that is a factor to be taken into —

Felix Frankfurter:

Do you think that’s a fair argument to address to this Court that you might push them into doing things although legally, you couldn’t make them?

Archibald Cox:

I think in determining — first I have not suggested that there is no other relief that the Court could frame.

I think that in determining how to exercise its discretion, one of the factors that this Court may take into account, I think it frequently has taken it into account, is the very great likelihood that public officials and others in this country will comply with the law where it is clearly had declaimed.

Felix Frankfurter:

I know of only one such case, Mr. Solicitor, just one such case.

And it’s a case that ought to give a court force and that is the suit brought by Virginia against West Virginia which this Court dawdled over nearly 20 years because of the difficulties of seeing the end of the road in case West Virginia (Inaudible) that the Court and you couldn’t cease the state house.

There’s just one such case in the whole history.

I (Inaudible) you to believe you couldn’t contradict that statement.

Archibald Cox:

Well, Mr. Justice, there have been other cases I think where the Court had rarely had to resort to its physical power.

It’s very doubtful whether the decree would ever have been made effective.

There was the decree of course which John Marshall said — of which Andrew Jackson said John Marshall has made a decree now letting enforcement.

There’d been case — there’s a case if my memory is right where the Court —

Felix Frankfurter:

That’s because all you’re suggesting, a case where the President of United States was disobedient apart from the fact that it’s very dubious whether Jackson ever said it.Nobody has been able to trace the accuracy of that statement.

Archibald Cox:

There have also been cases, there was one, I think where Governor Phillips of Oklahoma was enjoined from declaring Martial Law.

I suppose if you’d really been determined to go on, he could have called out the army and stopped the building of the dam, I think it was that he was going to build.

But my point — I’d spoke too slowly I guess because I only got about one-tenth of my answer to Your Honors’ question.

I suggest that this is a legitimate consideration.

Now, I don’t argue to this Court that it is the only consideration or that this is the only ground on which it might decide to exercise of the jurisdiction here.

I do stress it’s important.

I do think that by and large the people in this country recognize that a representative democracy depends upon voluntary compliance with law and that once this Court or another court focus its attention on what the law is, then the chances that the legislature or other public officials will comply with it are very great and much greater than they are while the issue remains (Inaudible)

William J. Brennan, Jr.:

Mr. Solicitor —

Archibald Cox:

Now, we do have some —

William J. Brennan, Jr.:

— what’s the record in — in those instances where state judiciaries have intervened in that one in Minnesota, was it, or a federal district (Voice Overlap) —

Archibald Cox:

The —

William J. Brennan, Jr.:

(Inaudible) what’s the record been of compliance, not necessarily with order but merely with the suggestion that this —

Archibald Cox:

In the —

William J. Brennan, Jr.:

— was wrong and should be corrected?

Archibald Cox:

The recent cases are decisions by the Federal District Court of Minnesota following which the legislature reapportionment.

It was a decision by a single district judge in Hawaii which was followed by reapportionment.

There was a decision by the Supreme Court of New Jersey which went to — if I may speak colloquially, right down to the wire but the New Jersey legislature did reapportion.

There is also — it’s also reported, I suppose nobody can vouch for this to prove it’s authenticity that the fact of the decision was five-to-four and — four-to-three in Colegrove and Green, induced Governor Green to accept a reapportionment, prepare that the next time there might be nine members sitting.

William J. Brennan, Jr.:

What about Wisconsin?

Archibald Cox:

So that — I don’t know about the earlier cases.

William J. Brennan, Jr.:

What about Wisconsin?

That’s not too recent but —

Archibald Cox:

But there have been —

William J. Brennan, Jr.:

— that has been —

Archibald Cox:

There have been a number of state cases holding apportionment acts invalid and the state banished one way or another.

I can’t give the detail (Voice Overlap) —

Potter Stewart:

Most of these had been under — invalid under the state constitution and not having passed (Inaudible)

Archibald Cox:

Yes, yes.

Felix Frankfurter:

And also the state constitutions have had a particularity, very different from the part — unparticularity of the Fourteenth Amendment.

Archibald Cox:

That — that is — that’s — they are more particular — most of them are more particular, not all.

There are some states for example which have never specified in their constitution at all what the basis of apportionment as debated.

There are three or four of them.

I don’t recall the exact names.

Now, I think that on the question — the question concerned what remedies might be awarded.

I’d been trying to emphasize the flexibility that the court of equity had and the likelihood that perhaps taking jurisdiction or a decision on the merits would induce a favorable result.

Now, it seems to me that simply looking at the map of Tennessee and the facts that we have here that there are some other possibilities.

One would be to require an election at large.

Another would be to follow the suggestion of two judges in the Supreme Court of New Jersey allow the election to go forward in the existing districts but wait the votes which might be permitted to cast in the legislature.

With respect to the House, it seems to me that if I were the Chancellor, I would consider doing this.

I’d take those — before I make a suggestion let me back up a little, the Tennessee Constitution, because it has a degree of specificity greater than the Fourteenth Amendment, does limit inevitably the possible ways of reapportionment.

It requires that the — no county be broken up that if two counties are combined they must be adjacent.

Archibald Cox:

It requires the representation in both Houses to be made according to population.

And I take it we would also agree that if a court were compelled to interfere with the way the next election is held that it should prescribe these few changes as possible.

Now, the two things which occurred to me might be done by the Court, take first the Tennessee House of Representatives.

Suppose that the Court were to enjoin the holding of another election which is — what would violate the plaintiffs’ rights unless the following steps were taken.

And then we are to prescribed that the election authorities should allocate to each of the counties in the smallest group, say having 8000 voters or less, one representative and then we are to allocate representatives to all the other counties if the relation of their population and the ratio of their population to a county, this would give you a somewhat larger legislature than Tennessee has today and somewhat larger than the constitutional limit fixed in Tennessee.

But one would then come up against this question.

Tennessee is plainly violating its own constitution today in a number of instances.

I would think that the one fixing a ceiling on the numbers was far less important than the requirement of the Fourteenth Amendment and of the Tennessee Constitution

Felix Frankfurter:

And you have the federal court violate a state constitution in order to correct some vio — some other — some violation of another provision of the state constitution, is that —

Archibald Cox:

I suggest this is one possibility.

I can suggest another —

William J. Brennan, Jr.:

Well, you are — that’s very inconsistent.

You already told us that the — while the state constitution provides is fundamentally, fundamentally irrelevant to your argument.

Archibald Cox:

Well, I would think in — it’s fundamentally irrelevant to the argument that the present system violates the Fourteenth Amendment.

William J. Brennan, Jr.:

And it —

Archibald Cox:

I assume that in framing any decree, the federal court —

William J. Brennan, Jr.:

As a matter of colony would — would — would —

Archibald Cox:

Would follow it.

William J. Brennan, Jr.:

Deviate it as it was possible —

Archibald Cox:

That’s correct.

William J. Brennan, Jr.:

— possible

Archibald Cox:

But in framing the remedy, of course, it’s a matter of federal law.

Now, from using that —

William J. Brennan, Jr.:

Do you think that would be — the Court would be reapportionment, would they follow that decision?

Archibald Cox:

I take it that it in a loose — in a loose sense, that could be said, yes.

Felix Frankfurter:

And —

Archibald Cox:

That is what some state courts have done.

Felix Frankfurter:

I know but state courts have state constitutions and different conceptions of judicial powers than this Court have —

Archibald Cox:

Well I —

Felix Frankfurter:

— as well know — as you well know.

Archibald Cox:

I think basically here the argument does turn on a question of what is the proper scope of judicial power.

It involves the debate about that conception.

Felix Frankfurter:

Yes, but you can therefore invoke state courts which had advisory opinions which don’t care about the standing the way this Court does, any number of limitation that this Court for very good reason in view of the nature of its jurisdiction has imposed upon itself as against the provision of many, many of state court.

Archibald Cox:

It seems to me that it is proper to take account.

Its where — if this Court is not bound by it of course to take accounts of the experience of state courts in dealing with this kind of question.

If looking at that experience shows that they have not become involved in the politics of the people, as Your Honors called it, and have not lost standing in exercising the judicial function that its some evidence half persuasive as a matter of judgment that this Court in exercising more power than was exercised in Colegrove and Green might not do any damage to the fundamental character of our institutions or to the Court.

Now may I on the matters of the remedy suggest one other possibility that is outlined in our brief in more detail and this time I refer to the Senate of Tennessee.

There are five pairs of Tennessee counties — of Tennessee senatorial districts, excuse me.

Each of which has a representative today which if they were combined would have just about the right number of voters to entitle them to one representative.

They are adjacent.

They are each — and in a separate district, senatorial district now.

You could put them together.

Take the five votes thus saved in the Senate and distribute them among the four heavily unrepresented senatorial districts and the result would be — not to achieve a proper apportionment but to cure the most egregious unfairness in the present setup.

Now, I suggest that that is far from remapping Tennessee.

It takes the existing district just about as they stand except for seeing out as one does on the zoning map the lines between each of these five pairs, everything else would be just as the Tennessee legislature set it up and just as the elections have been conducted in the past.

It’s neither —

William J. Brennan, Jr.:

Well I’m not — I’m not quite sure that I’ve — perhaps you already said it and I didn’t catch it, are you suggesting that if we reverse the District Court, we should make these suggestions as possible remedies?

Archibald Cox:

No, I’m — I’m going —

William J. Brennan, Jr.:

(Voice Overlap) —

Archibald Cox:

I’m going a step beyond that I think.

I’m suggesting that the decree of the District Court, if the case came to that, that the decree of the District Court could with respect to the Senate, enjoin the holding of an election in these five pairs of county except in accordance with the putting together that I suggest

Felix Frankfurter:

Well, they couldn’t enjoin that — could you enjoin an election before there was an appeal to this Court?

Archibald Cox:

No.

Felix Frankfurter:

I might —

Archibald Cox:

You’ve certainly grant a stay.

Felix Frankfurter:

On a — in an — on a foreseeable agreement without any conflict in this Court as to what we think about this regarding the Constitution of Tennessee on matters that are not before us?

Archibald Cox:

I assume that any relief in a case of this kind would not become final beyond the possibility of the stay are supersedeas until this Court had acted.

Hugo L. Black:

Well, suppose you could —

Felix Frankfurter:

And do you foresee — and do you foresee that all the 30 odd states, I think that are at least 30 are involved, would at one say, “Aye, aye”, and was one apportioned according to your theory?

Archibald Cox:

Well, they — they certainly would apportion and have great freedom to apportion according to their own pairings.

Archibald Cox:

As we try to suggest in our brief, the job of making the apportionment is something which is up to the individual state legislature.

William J. Brennan, Jr.:

Well, you’re not suggesting anyway are you that this is the litany of remedies available — to be applied in every one of these situations in a state?

Archibald Cox:

No, no, all — all I’m trying to do is to suggest that one with all the facts in front of him, it isn’t hopeless to find the remedy which would not —

William J. Brennan, Jr.:

Certainly before this case?

Felix Frankfurter:

Do you —

Archibald Cox:

That’s correct.

Felix Frankfurter:

Do you draw encouragement for — for the things that you envisioned from the response that this Court has had for its decree in regard to an ever so much a simpler situation of segregation?

You ain’t drawing encouragement from the — that lesson of experience with reference to this problem?

Archibald Cox:

Well, I’m not sure first that I would class that as a similar situation.

Felix Frankfurter:

I didn’t say it’s similar, I said simpler.

Archibald Cox:

And I meant to say simpler.

I’m not sure that I would class it as the simpler situation by any means.

Felix Frankfurter:

Do you think the prejudice is on this business of urban versus rural which is just as strong in New York as it is in Tennessee?

Isn’t this — is not even more deep seated and more pervasively seated, deep-seated?

Archibald Cox:

Well, I — I would I have — I would myself doubted that.

I maybe wrong —

Felix Frankfurter:

Who would doubt that?

Archibald Cox:

— that I would doubt whether it was a deep-seated.

Hugo L. Black:

You would probably have associates.

Felix Frankfurter:

Look at the alibi of Mapp for a good illustration.

Archibald Cox:

But one of — one of the parts that bothers me here, Mr. Justice, it’s — it’s the converse in a sense of what I said earlier.

I spoke of the affirmative effect of a decree pointing out the constitutional duty of the legislature.

And it seems to me that when a court says, “This isn’t justiceable.

We can’t do anything about it.”

That it comes very close to saying in the lay mind, “Oh, this isn’t a serious problem.

It shouldn’t be worried about.”

I arch to saying there is since there’s no remedy, there isn’t any wrong at all.

Indeed, if Your Honor will forgive me, it seems to me that in speaking of the decision of the Supreme Court of Tennessee, you said since the Supreme Court of Tennessee refused to act, that established that there was no violation of the Tennessee Constitution.

Felix Frankfurter:

That isn’t what I said.

I said that that decision isn’t done nothing.

Felix Frankfurter:

That decision says there’s no legal right under that state constitution just as it said there was no legal right in the Browning case.

Archibald Cox:

Well, I’m not sure even if I may that that is correct.

For example, when this Court in Giles and Harris dismissed the bill in equity, it did not, at least for all time, established the proposition that they are victim of racial discrimination with respect to a state election, had no legal right.

It is established the proposition for a time at least that there was no remedy in equity.

Very shortly later and actual damages was allowed in a substantially the same situation which established that there was a substantive right.

Felix Frankfurter:

So Giles and Harris didn’t go on the ground — there’s no right in equity, it said the case was practically moot because the election was almost over.

Archibald Cox:

I think if Your Honor runs the case down in Sheppard, you will find that Mr. Justice Brandeis often cited it for the proposition that there was no legal right of equity.

Felix Frankfurter:

Well, I think —

Archibald Cox:

I think I’d — I’d misspoke myself that there was no remedy in equity for that political right.

Felix Frankfurter:

(Inaudible)

Archibald Cox:

And —

Felix Frankfurter:

That isn’t the way I read a case, hurry the case for an opinion to find out what the opinion said although later on it may have had a different (Inaudible)

But the case went on in Brown, didn’t it?

Archibald Cox:

That was one of the grounds mentioned.

I think if you read the opinion you will find that the other ground was involved, too.

I’ve covered my point somewhat —

Felix Frankfurter:

There is a different — there is a difference, lots of — lots of things that — for which money damages are — of court is available for which equitable remedies are not available, that’s nothings (Inaudible)

Archibald Cox:

No.

Oh, no.

Not at all, but it does establish the proposition that the in — unavailability of an equitable remedy which was held what was not available in Tennessee does not establish the proposition that there is no substantive right which was the only point I was seeking to make.

Now, the difficulty I —

Felix Frankfurter:

But we have an equity — if you go on that narrow ground, we’ve got an equity case here.

So, we are going to say that although Tennessee didn’t give an equitable right, we will give an equitable right.

I’m not saying that’s impossible.

Archibald Cox:

No, but —

Felix Frankfurter:

All I’m saying is that the mere fact that there’s a — a rocky situation doesn’t mean a court should act.

Archibald Cox:

That of course is quite true.

And I am arguing that a remedy which the Tennessee court withheld should be granted in the lower court if upon further examination of this case, it appears both that relief is necessary because the state refused to act when its federal constitutional duty was pointed out and if it appears that a suitable remedy can be framed.

I do want to make just one or two further remarks about the nature of the substantive right that we’re relying on here.

And of necessity, they will have to be very brief.

Archibald Cox:

I want to emphasize that ours is not a purely mathematical argument.

We recognized that although one should start with equality of voting weight under our tradition that that’s not the end of the question.

And in our brief, we indicated through a study of the state constitution of what other opposing desiderata have been taken into account.

As a matter of fact, they’re not very numerous.

And no doubt there could be more.

And now we fully recognize that weighing and balancing such considerations is the function of the state legislature and that the arts of accommodation compromise the political maneuvers that frequently creep in are all within the political power of the state.

But we say that the fact that the state has very wide discretion in the exercise of that political power and of the fact that the Court recognizes its broad political power does not require exulting that aspect of the state’s power into an absolute to quote Gomillion and Lightfoot.

Indeed, it seems to us that in principle the case of Gomillion and Lightfoot is very similar to us.

I did not see why a case should be more justiciable because it arose under the Fifteenth Amendment rather than the Fourteenth.

And it does not seem to me that the — that the principle should be limited to racial discrimination.

There are other forms of discrimination that maybe equally invidious.

I want to say one — one word, if I may Mr. Justice, in the case of this importance on the point of judicial philosophy that Justice Frankfurter mentioned earlier.

This is obviously a very important case one which will affect our representative institution for a long time so far as anyone could judge.

The issue is not confined to Tennessee.

It affects number of states all over the country.

Plainly, it’s also a very important question for this Court in terms of this Court’s place in our tripartite governmental system.

Probably, the most difficult questions are those that involve a determination of the proper limits of the judicial function.

We fully recognized that there wrongs which can be righted only by the people or by the legislature.

This Court doesn’t carry the whole burden of Government and for it to rush in to try and deal — right political wrongs instead of leaving them to the other branches, the political branches of the Government could impair its usefulness and it’s 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.

They also do them indeed greater damage including the judicial prayer.

The question it seems to me, was very well put by Professor Freud in another connection where he said the question is not whether the courts — court can do everything.

The question is whether the Court can do something.

And he went on to point out that education and self-improvement maybe fostered by judicious views of judicial power.

And the force of a court decision, I would emphasize, is not confined simply by the scope of its decree.

It has a vast influence upon the state court and upon their ability and willingness to deal with this question under the state constitution which is where very much of it should be handled.

Furthermore, the course of the decision extends because of the moral power of this Court influence, a great deal farther.

Justice Jackson just before he went out on the Court wrote, “A court which is governed by a sense of self-restraint does not thereby become parallels.

It simply conserves its strength to strike more telling blows in the course of working democracy.”

I suggest this is the occasion for such a blow.

Earl Warren:

Mr. Wilson.

Jack Wilson:

Mr. Chief Justice, may it please the Court.

I am told that a few months ago at the theological school of one of the great universities in the East, a most interesting discussion was held.

The discussion of Senator (Inaudible), the parable of the Good Samaritan and as we lawyers would say that was a particular feast of that parable under discussion.

The story is that the particular point was why did the Levite and the priest both passed by that certain man who had fallen among thieves?

A theologian of national eminence leading the discussion and evidently he was the man of the world as well as a man of the church and he gave this response.

He says, “I think the trouble was this, both the priest and the Levite were en route to a conference to discuss the question who is a Good Samaritan?”

I suggest, may it please the Court that did — that in this most important case that the Solicitor General and the appellants are perhaps en route to a conference to discuss constitutional law.

I suggest that up to this point, they have not discussed nor touched upon some of the great principles with — with which this Court has been concerned throughout its entire history.

Now, reference has been made here as to whether this case is justiciable.

Actually, what we are talking about when we come to that phase of the case?

Is this a case of controversies under the Constitution of the United States?

If it isn’t then this Court is not concerned with it in any particular.

Now what — what is a case of controversy?

Well, what — why do we have that provision in the Constitution?

Isn’t it this?

Were not — were not our colonial judges concerning themselves with a great deal of matters and subjects that were not judicial in nature?

As the priest is used in the market place today, was they not politicking?

Or when they found this team to write the Constitution of the United States, they said that the judiciary would be concerned with cases and controversies unlike some of the subjects, the colonial judges were concerned with.

I wish to call this Court’s attention to the complaint in this case.

And I think you test the complaint not alone by their votes but by the type of relief that is asked.

Earl Warren:

We’ll recess now, Mr. —