Washington Law Review


Justice Felix Frankfurter, dissenting in the Tennessee Reapportionment Case, characterized the holding of that decision as "a massive repudiation of the experience of our whole past." Whether or not this is true we may presently discover, but in the meanwhile Baker v. Carr may safely be described as a truly momentous constitutional decision. Without wishing to labor the obvious, legislative apportionment can be a violently partisan problem which, in the normal course of things, we might expect the Court to bend every effort to avoid. It is an area in which judicial standards are elusive and in which judicial remedies could be hard to apply and easy to avoid. The Court could have easily avoided the decision in Baker by adhering to a line of contrary precedents, but it chose instead to abandon an excellent defensive position in favor of a more active judicial role. I do not presume to pass on the wisdom of that choice, but more narrowly to inquire whether it was, in fact, the "massive repudiation" described by the venerable Justice. Time and space do not permit an examination of the whole doctrine of judicial self-restraint. This work is concerned more narrowly with that aspect of judicial self-restraint most germane to Baker v. Carr, the doctrine of "political questions."

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