Scholle v. Hare/Dissent Harlan

by John Marshall Harlan II

United States Supreme Court

369 U.S. 429

Scholle  v.  Hare

Mr. Justice HARLAN, dissenting.

The Court remands this case to the Supreme Court of Michigan 'for further consideration in the light of Baker v. Carr, 369 U.S. 186 (82 S.Ct. 691, 7 L.Ed.2d 663).' In my opinion nothing decided or said by the majority in Baker casts any light upon, still less controls, the only issue actually adjudicated by the Michigan Supreme Court in the present case. I think that either this appeal should be dismissed for want of a substantial federal question or probable jurisdiction should be noted and the case set for argument.

The sole and dispositive question decided by the Michigan Supreme Court was concisely put by Justice Edwards, speaking for four members of that eightman court:

'Does the Fourteenth Amendment to the United States Constitution prohibit any State from enacting provisions for electoral districts for 1 house of its legislature (the State Senate) which result in substantial inequality of popular representation in that house?' Scholle v. Secretary of State, 360 Mich. 1, at 85, 104 N.W.2d 63, at 107.

These four members of the state court concluded that nothing in the Fourteenth Amendment or in the decisions of this Court construing the Equal Protection Clause 'prohibits a State from establishing senate electoral districts by geographic areas drawn generally along county lines which result in substantial inequality of voter representation favoring thinly populated areas as opposed to populous ones.' 360 Mich., at 91, 104 N.W.2d, at 110. Accordingly, the original petition for mandamus filed in the Supreme Court of Michigan was dismissed. ^[1] The opinion of the four judges did not so much as mention questions pertaining to the 'jurisdiction' of the court, the 'standing' of the appellant, or the 'justiciability' of his claim.

Appellants filed a timely notice of appeal to this Court, and on docketing the record submitted a jurisdictional statement which set forth the questions presented for review. ^[2] These papers, along with the motion to dismiss or affirm, taken in light of the prevailing opinion in the Michigan Supreme Court, leave no room for doubt but that the precise and single issue in this case is the one presented as Question IV in the jurisdictional statement: 'Do the 1952 amendments to Art. V, § 2 and § 4 of the Michigan Constitution, and the implementing legislation thereto, offend the Fourteenth Amendment to the U.S.C.onstitution, including the due-process and equal protection clauses thereof?' That issue is the more precisely delineated by three circumstances: (1) the legislative branch with which this case is concerned is the State Senate (not the entire State Legislature, as in Baker v. Carr); (2) the challenged electoral apportionment reflects the desires of Michigan's citizenry, as expressed in a 1952 popular referendum (and is not, as in Baker v. Carr, the product of legislative inaction); ^[3] and (3) the present apportionment is prescribed by the Michigan Constitution (and is not in conflict with the State Constitution, as in Baker v. Carr).

Were there anything in this Court's recent decision in Baker v. Carr intimating that the constitutional question in this case ought to have been decided differently than it was by the Michigan Supreme Court, I would be content, for reasons given in my dissent in Baker (369 U.S. 186, 330, 82 S.Ct. 691, 771, 7 L.Ed.2d 663), simply to note my dissent to the Court's failure to dismiss this appeal for want of a substantial federal question. But both the majority opinion in the Baker case and a separate concurrence written to dispel any 'distressingly inaccurate impression of what the Court decides,' 369 U.S., at 265, 82 S.Ct., at 736, were at pains to warn that nothing more was decided than '(a) that the (federal district) court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) * * * that the appellants have standing to challenge the Tennessee apportionment statutes.' 369 U.S., at 197-198, 265, 82 S.Ct. at 699, 736. How any of the extensive discussion on these three subjects in the Baker majority opinion can be thought to shed light on the discrete federal constitutional question on which the present case turns-a question which was indeed studiously avoided in the majority opinion in Baker-is difficult to understand.

Moreover, the remand cannot be justified on the theory that Baker v. Carr for the first time suggests-albeit sub silentio-that an arbitrary or capricious state legislative apportionment may violate the Equal Protection Clause. For the Michigan Supreme Court assumed precisely that proposition and nonetheless said of the existing apportionment: 'In the face of * * * history and * * * precedent, we find no way by which we can say that the classification we are concerned with herein is 'wholly arbitrary,' and hence repugnant to the Fourteenth Amendment of the United States Constitution as the United States supreme court has construed it to this date.' 360 Mich., at 106, 104 N.W.2d, at 118.

With all respect, I consider that in thus remanding this case the Court has been less than forthright with the Michigan Supreme Court. That court is left in the uncomfortable position where it will have to choose between adhering to its present decision-in my view a faithful reflection of this Court's past cases-or treating the remand as an oblique invitation from this Court to hold that the Equal Protection Clause prohibits a State from constitutionally freezing the seats in its Senate, with the effect of maintaining numerical voting inequalities, even though that course reflects the expressed will of the people of the State. (Note 3, supra.)

In my view the matter should not be left in this equivocal posture. Both the orderly solution of this particular case, and the wider ramifications that are bound to follow in the wake of Baker v. Carr, demand that the Court come to grips now with the basic issue tendered by this case. This should be done either by dismissing the appeal for want of a substantial federal question or by noting probable jurisdiction and then deciding the issue one way or another. For reasons given in my separate dissent in the Baker case, I think dismissal is the right course.

Notes

1. On appeals to the Supreme Court of Michigan the result of an equally divided court is that the judgment below is affirmed. Mich.Stat.Ann. § 27.46 (1938), Comp.Laws 1948, § 601.26. Although no statute expressly controls, it appears that Michigan follows the general rule that no affirmative action may be taken on an original petition unless a majority of the justices considering the case vote to grant relief. Consequently the effect of an equal division on an original petition for a writ of mandamus would be a dismissal of the petition. Cf. In re Hartley, 317 Mich. 441, 27 N.W.2d 48.
2. The appellant listed the following as the 'Questions Presented':
3. The disputed provision of the Michigan Constitution, Art. V, § 2, which establishes permanent state senatorial districts not subject to change because of fluctuations in population, was adopted as initiative Proposition No. 3 in a referendum held throughout the State in November 1952, Pub.Acts 1953, p. 438.