Instrumentalist and Holmesian Voices in the Rhetoric of Reapportionment: The Opinions of Justices Brennan and Frankfurter in Baker v. Carr

Abstract

In his autobiography, Chief Justice Earl Warren described Baker v.Carr as “the most important case of [his] tenure on the Court.” Following Brown v. Board of Education by eight years, Baker was the second “blockbuster” case of the Warren Court. Warren felt that, if the progeny of Baker had preceded Brown, Brown would have been unnecessary.

As with other major Supreme Court cases, Baker featured rhetoric from highly influential justices, two of whom in this case were Justice William Brennan and Justice Felix Frankfurter. Justice Brennan would write the groundbreaking opinion for the Court that would be part of “the critical mass of the Brennan legacy.” Justice Frankfurter would write a scathing dissent that would defend the status quo staunchly. Although the case contained various opinions, the opinions of Brennan and Frankfurter were particularly important, especially because of how well they contrasted the respective judicial philosophies of their authors. Brennan’s instrumentalist philosophy in the majority opinion looked to use the federal courts to promote justice for urban voters, while Frankfurter’s Holmesian philosophy in a lengthy dissent aimed to pass the problem of fair representation along to Congress for resolution.

This article takes a retrospective look at how the two differing judicial philosophies of Brennan and Frankfurter, instrumentalist and Holmesian in nature, vied to influence the outcome of Baker v. Carr. To do so, the article initially provides an overview of four major judicial philosophies, including instrumentalism, Holmesianism, formalism, and natural law. Consideration of all four judicial philosophies provides for a more thorough understanding of instrumentalism and Holmesianism. Next, the article offers background on the Baker case. After offering background on the case, the article identifies the various philosophical ingredients at work in the opinions of Brennan and Frankfurter. Finally, the article makes some observations regarding the judicial philosophies at work in the two main opinions in Baker.

Keywords: Baker v. Carr, Judicial Philosophy, William Brennan, Felix Frankfurter, Apportionment