Congress, the Solicitor General, and the Path of Reapportionment Litigation

Abstract:     
The Supreme Court’s decision in Baker v. Carr (1962) unleashed the reapportionment revolution, and it was largely driven by litigation in the lower federal courts, with additional guidance by the Supreme Court. That litigation continues to the present day, revived every decade by census data, and further complicated by the demands of the Voting Rights Act and other factors. Less appreciated has been the role of Congress and the President in influencing that litigation. Baker was initially quite controversial, and the hostility was manifested by bills in Congress which would have restricted the impact of the case. That opposition soon receded, and Baker came to be supported by most policy-makers and the public. In 1976 Congress abolished the much criticized three-judge district court, but demonstrated its support for Baker by leaving it intact as a forum for litigation of reapportionment cases. The reasons for that decision are not clear, but one appears to be to reduce the pressures on one judge in such politically charged cases by making three judges responsible. The President, through amicus curiae briefs filed by the Solicitor General, supported the result in Baker, and influenced the doctrinal development of subsequent reapportionment cases. Those briefs also provided political support for federal court intrusion on apportionment matters heretofore left to state legislatures. This article addresses the consequences of these actions by the legislative and executive branches on federal court reapportionment cases since Baker, and situates that interbranch interaction in the academic literature focusing on the institutional context and aftermath of Supreme Court decisions.

Number of Pages in PDF File: 42

Keywords: Baker v. Carr, election law, reapportionment, Voting Rights Act, Congress, President

JEL Classification: K19, K39

Accepted Paper Series