Baker v. Carr (1962)

Key Takeaway:

This case first explains the difference between lack of subject matter jurisdiction and nonjusticiability.  Lack of subject matter jurisdiction means that the case does not rise to the level of “case and controversy” as required under Article III of the Constitution.  Nonjusticiability means that the case might arise as a “case and controversy” but the judicial branch is essentially not equipped to identify the breach and create a judicially molded solution. 

The Court then lays out a formula for determining if the case before them is a political question and thus nonjusticiable.

Key Quotes:

Lack of subject matter vs. Nonjusticiability

“The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court’s inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not ‘arise under’ the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, s 2), or is not a ‘case or controversy’ within the meaning of that section; or the cause is not one described by any jurisdictional statute.”

Political Question Factors

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

BAKER V. CARR

Supreme Court of the United States, 1962

369 U.S. 186

Mr. Justice BRENNAN delivered the opinion of the Court.

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 In light of the District Court’s treatment of the case, we hold today only (a) that the 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) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes.¹⁶ Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at the trial.

II.

JURISDICTION OF THE SUBJECT MATTER.

 The District Court was uncertain whether our cases withholding federal judicial relief rested upon a lack of federal jurisdiction or upon the inappropriateness of the subject matter for judicial consideration—what we have designated ‘nonjusticiability.’ The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court’s inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not ‘arise under’ the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, s 2), or is not a ‘case or controversy’ within the meaning of that section; or the cause is not one described by any jurisdictional statute. Our conclusion, see 369 U.S., pp. 208—237, 82 S.Ct., pp. 705—720, infra, that this cause presents no nonjusticiable ‘political question’ settles the only possible doubt that it is a case or controversy. Under the present heading of ‘Jurisdiction of the Subject Matter’ we hold only that the matter set forth in the complaint does arise under the Constitution and is within 28 U.S.C. s 1343, 28 U.S.C.A. s 1343.

 Article III, s 2, of the Federal Constitution provides that ‘The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.’ It is clear that the cause of action is one which ‘arises under’ the Federal Constitution. The complaint alleges that the 1901 statute effects an apportionment that deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were ‘so attenuated and unsubstantial as to be absolutely devoid of merit,’ Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795, or ‘frivolous,’ Bell v. Hood, 327 U.S. 678, 683, 66 S.Ct. 773, 776, 90 L.Ed. 939.¹⁷ That the claim is unsubstantial must be ‘very plain.’ Hart v. B. F. Keith Vaudeville Exchange, 262 U.S. 271, 274, 43 S.Ct. 540, 541, 67 L.Ed. 977. Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have dismissed the complaint for want of jurisdiction of the subject matter. And of course no further consideration of the merits of the claim is relevant to a determination of the court’s jurisdiction of the subject matter. We said in an earlier voting case from Tennessee: ‘It is obvious that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States.’ Swafford v. Templeton, 185 U.S. 487, 493, 22 S.Ct. 783, 785, 46 L.Ed. 1005. ‘For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.’ Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776. See also Binderup v. Pathe Exchange, 263 U.S. 291, 305—308, 44 S.Ct. 96, 98—99, 68 L.Ed. 308.

Since the complaint plaintly sets forth a case arising under the Constitution, the subject matter is within the federal judicial power defined in Art. III, s 2, and so within the power of Congress to assign to the jurisdiction of the District Courts. Congress has exercised that power in 28 U.S.C. s 1343(3), 28 U.S.C.A. s 1343(3):

‘The district courts shall have original jurisdiction of any civil action authorized by law¹⁸ to be commenced by any person (t)o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States.’¹⁹

An unbroken line of our precedents sustains the federal courts’ jurisdiction of the subject matter of federal constitutional claims of this nature.

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We hold that the District Court has jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint.

III.

STANDING.

 A federal court cannot ‘pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ Liverpool, N.Y. & P. Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing. It is, of course, a question of federal law.

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IV.

JUSTICIABILITY.

 In holding that the subject matter of this suit was not justiciable, the District Court relied on Colegrove v. Green, supra, and subsequent per curiam cases.²⁹ The court stated: ‘From a review of these decisions there can be no doubt that the federal rule is that the federal courts will not intervene in cases of this type to compel legislative reapportionment.’ 179 F.Supp. at 826. We understand the District Court to have read the cited cases as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a ‘political question’ and was therefore nonjusticiable. We hold that this challenge to an apportionment presents no nonjusticiable ‘political question.’ The cited cases do not hold the contrary.

Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection ‘is little more than a play upon words.’ Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759. Rather, it is argued that apportionment cases, whatever the actual wording of the complaint, can involve no federal constitutional right except one resting on the guaranty of a republican form of government,³⁰ and that complaints based on that clause have been held to present political questions which are nonjusticiable.

 We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause. The District Court misinterpreted Colegrove v. Green and other decisions of this Court on which it relied. Appellants’ claim that they are being denied equal protection is justiciable, and if ‘discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.’ Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497. To show why we reject the argument based on the Guaranty Clause, we must examine the authorities under it. But because there appears to be some uncertainty as to why those cases did present political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the ‘political question’ doctrine.

Our discussion, even at the price of extending this opinion, requires review of a number of political question cases, in order to expose the attributes of the doctrine—attributes which, in various settings, diverge, combine, appear, and disappear in seeming disorderliness. Since that review is undertaken solely to demonstrate that neither singly nor collectively do these cases support a conclusion that this apportionment case is nonjusticiable, we of course do not explore their implications in other contexts. That review reveals that in the Guaranty Clause cases and in the other ‘political question’ cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the ‘political question.’

 We have said that ‘In determining whether a question falls within (the political question) category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.’ Coleman v. Miller, 307 U.S. 433, 454—455, 59 S.Ct. 972, 982, 83 L.Ed. 1385. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the ‘political question’ label to obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of those threads catches this case.

Foreign relations: There are sweeping statements to the effect that all questions touching foreign relations are political questions.³¹ Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature;³² but many such questions uniquely demand single-voiced statement of the Government’s views.³³ Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question ‘governmental action must be regarded as of controlling importance,’ if there has been no conclusive ‘governmental action’ then a court can construe a treaty and may find it provides the answer. Compare Terlinden v. Ames, 184 U.S. 270, 285, 22 S.Ct. 484, 490, 46 L.Ed. 534, with Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464, 492—495, 5 L.Ed. 662.³⁴ Though a court will not undertake to construe a treaty in a manner inconsistent with a subsequent federal statute, no similar hesitancy obtains if the asserted clash is with state law. Compare Whitney v. Robertson, 124 U.S. 190, 8 S.Ct. 456, 31 L.Ed. 386, with Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218.

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Dates of duration of hostilities: Though it has been stated broadly that ‘the power which declared the necessity is the power to declare its cessation, and what the cessation requires,’ Commercial Trust Co. v. Miller, 262 U.S. 51, 57, 43 S.Ct. 486, 488, 489, 67 L.Ed. 858, here too analysis reveals isolable reasons for the presence of political questions, underlying this Court’s refusal to review the political departments’ determination of when or whether a war has ended.

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 Validity of enactments: In Coleman v. Miller, supra, this Court held that the questions of how long a proposed amendment to the Federal Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp.⁴¹ Similar considerations apply to the enacting process: ‘The respect due to coequal and independent departments,’ and the need for finality and certainty about the status of a statute contribute to judicial reluctance to inquire whether, as passed, it complied with all requisite formalities.

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The status of Indian tribes: This Court’s deference to the political departments in determining whether Indians are recognized as a tribe, while it reflects familiar attributes of political questions,⁴²United States v. Holliday, 3 Wall. 407, 419, 18 L.Ed. 182, also has a unique element in that ‘the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else. (The Indians are) domestic dependent nations in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.’ Cherokee Nation v. Georgia, 5 Pet. 1, 16, 17,8 L.Ed. 25.⁴³ Yet, here too, there is no blanket rule.

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It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

 Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence. The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.

 But it is argued that this case shares the characteristics of decisions that constitute a category not yet considered, cases concerning the Constitution’s guaranty, in Art. IV, s 4, of a republican form of government. A conclusion as to whether the case at bar does present a political question cannot be confidently reached until we have considered those cases with special care. We shall discover that Guaranty Clause claims involve those elements which define a ‘political question,’ and for that reason and no other, they are nonjusticiable. In particular, we shall discover that the nonjusticiability of such claims has nothing to do with their touching upon matters of state governmental organization.

Republican form of government: ***---***

Just as the Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question so has it held, and for the same reasons, that challenges to congressional action on the ground of inconsistency with that clause present no justiciable question. ***---***

In only a few other cases has the Court considered Art. IV, s 4, in relation to congressional action. It has refused to pass on a claim relying on the Guaranty Clause to establish that Congress lacked power to allow the States to employ the referendum in passing on legislation redistricting for congressional seats. Ohio ex rel. Davis v. Hildebrant, supra. And it has pointed out that Congress is not required to establish republican government in the territories before they become States, and before they have attained a sufficient population to warrant a polularly elected legislature. Downes v. Bidwell, 182 U.S. 244, 278—279, 21 S.Ct. 770, 783—784, 45 L.Ed. 1088 (dictum).⁵³

We come, finally, to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable ‘political question’ bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home⁵⁴ if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.

This case does, in one sense, involve the allocation of political power within a State, and the appellants might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on that clause would be futile. But because any reliance on the Guaranty Clause could not have succeeded it does not follow that appellants may not be heard on the equal protection claim which in fact they tender. True, it must be clear that the Fourteenth Amendment claim is not so enmeshed with those political question elements which render Guaranty Clause claims nonjusticiable as actually to present a political question itself. But we have found that not to be the case here.

In this connection special attention is due Pacific States Tel. & T. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377. In that case a corporation tax statute enacted by the initiative was attacked ostensibly on three grounds: (1) due process; (2) equal protection; and (3) the Guaranty Clause. But it was clear that the first two grounds were invoked solely in aid of the contention that the tax was invalid by reason of its passage:

‘The defendant company does not contend here that it could not have been required to pay a license tax. It does not assert that it was denied an opportunity to be heard as to the amount for which it was taxed, or that there was anything inhering in the tax or involved intrinsically in the law which violated any of its constitutional rights. If such questions had been raised, they would have been justiciable, and therefore would have required the calling into operation of judicial power. Instead, however, of doing any of these things, the attack on the statute here made is of a wholly different character. Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes it (sic) not on the tax as a tax, but on the state as a state. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power, assailed on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the state that it establish its right to exist as a State, republican in form.’ 223 U.S. at 150—151, 32 S.Ct. at 231.

The due process and equal protection claims were held nonjusticiable in Pacific States not because they happened to be joined with a Guaranty Clause claim, or because they sought to place before the Court a subject matter which might conceivably have been dealt with through the Guaranty Clause, but because the Court believed that they were invoked merely in verbal aid of the resolution of issues which, in its view, entailed political questions. Pacific States may be compared with cases such as Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, wherein the Court refused to consider whether a workmen’s compensation act violated the Guaranty Clause but considered at length, and rejected, due process and equal protection arguments advanced against it; and O’Neill v. Leamer, 239 U.S. 244, 36 S.Ct. 54, 60 L.Ed. 249, wherein the Court refused to consider whether Nebraska’s delegation of power to form drainage districts violated the Guaranty Clause, but went on to consider and reject the contention that the action against which an injunction was sought was not a taking for a public purpose.

 We conclude then that the nonjusticiability of claims resting on the Guaranty Clause which arises from their embodiment of questions that were thought ‘political,’ can have no bearing upon the justiciability of the equal protection claim presented in this case. Finally, we emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define ‘political questions,’ and no other feature, which could render them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable because they touch matters of state governmental organization. Brief examination of a few cases demonstrates this.

 When challenges to state action respecting matters of ‘the administration of the affairs of the State and the officers through whom they are conducted’⁵⁵ have rested on claims of constitutional deprivation which are amenable to judicial correction, this Court has acted upon its view of the merits of the claim. For example, in Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 12 S.Ct. 375, we reversed the Nebraska Supreme Court’s decision that Nebraska’s Governor was not a citizen of the United States or of the State and therefore could not continue in office. In Kennard v. Louisiana ex rel. Morgan, 92 U.S. 480, 23 L.Ed. 478, and Foster v. Kansas ex rel. Johnston, 112 U.S. 201, 5 S.Ct. 8, 28 L.Ed. 629, we considered whether persons had been removed from public office by procedures consistent with the Fourteenth Amendment’s due process guaranty, and held on the merits that they had. And only last Term, in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, we applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a discriminatory impairment of voting rights, in the face of what a majority of the Court of Appeals thought to be a sweeping commitment to state legislatures of the power to draw and redraw such boundaries.⁵⁶

Gomillion was brought by a Negro who had been a resident of the City of Tuskegee, Alabama, until the municipal boundaries were so recast by the State Legislature as to exclude practically all Negroes. The plaintiff claimed deprivation of the right to vote in municipal elections. The District Court’s, 167 F.Supp. 405, dismissal for want of jurisdiction and failure to state a claim upon which relief could be granted was affirmed by the Court of Appeals, 5 Cir., 270 F.2d 594. This Court unanimously reversed. This Court’s answer to the argument that States enjoyed unrestricted control over municipal boundaries was:

‘Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. ‘It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.

To a second argument, that Colegrove v. Green, supra, was a barrier to hearing the merits of the case, the Court responded that Gomillion was lifted ‘out of the so-called ‘political’ arena and into the conventional sphere of constitutional litigation’ because here was discriminatory treatment of a racial minority violating the Fifteenth Amendment.

‘A statute which is alleged to have worked unconstitutional deprivations of petitioners’ rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was not Colegrove v. Green.

‘When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.’ 364 U.S. at 347, 81 S.Ct. at 130.⁵⁷

We have not overlooked such cases as In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402, and Walton v. House of Representatives, 265 U.S. 487, 44 S.Ct. 628, 68 L.Ed. 1115, which held that federal equity power could not be exercised to enjoin a state proceeding to remove a public officer. But these decisions explicitly reflect only a traditional limit upon equity jurisdiction, and not upon federal courts’ power to inquire into matters of state governmental organization. This is clear not only from the opinions in those cases, but also from White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 43 L.Ed. 199, which, relying on Sawyer, withheld federal equity from staying removal of a federal officer. Wilson v. North Carolina, 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865, simply dismissed an appeal from an unsuccessful suit to upset a State’s removal procedure, on the ground that the constitutional claim presented—that a jury trial was necessary if the removal procedure was to comport with due process requirements—was frivolous. Finally, in Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548, 20 S.Ct. 890, 1009,44 L.Ed. 1187, where losing candidates attacked the constitutionality of Kentucky’s resolution of a contested gubernatorial election, the Court refused to consider the merits of a claim posited upon the Guaranty Clause, holding it presented a political question, but also held on the merits that the ousted candidates had suffered no deprivation of property without due process of law.⁵⁸

Since, as has been established, the equal protection claim tendered in this case does not require decision of any political question, and since the presence of a matter affecting state government does not render the case nonjusticiable, it seems appropriate to examine again the reasoning by which the District Court reached its conclusion that the case was nonjusticiable.

We have already noted that the District Court’s holding that the subject matter of this complaint was nonjusticiable relied upon Colegrove v. Green, supra, and later cases. Some of those concerned the choice of members of a state legislature, as in this case; others, like Colegrove itself and earlier precedents, Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795;Koenig v. Flynn, 285 U.S. 375, 52 S.Ct. 403, 76 L.Ed. 805, and Carroll v. Becker, 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807, concerned the choice of Representatives in the Federal Congress. Smiley, Koenig and Carroll settled the issue in favor of justiciability of questions of congressional redistricting. The Court followed these precedents in Colegrove although over the dissent of three of the seven Justices who participated in that decision. On the issue of justiciability, all four Justices comprising a majority relied upon Smiley v. Holm, but in two opinions, one for three Justices, 328 U.S. at 566, 568, 66 S.Ct. at 1209, and a separate one by Mr. Justice Rutledge, 328 U.S. at 564, 66 S.Ct. at 1208. The argument that congressional redistricting problems presented a ‘political question’ the resolution of which was confided to Congress might have been rested upon Art. I, s 4, Art. I, s 5, Art. I, s 2, and Amendment XIV, s 2. Mr. Justice Rutledge said: ‘But for the ruling in Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795, I should have supposed that the provisions of the Constitution, Art. I, s 4, that ‘The Times, Places and Manner of holding Elections for Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations’; Art. I, s 2 (but see Amendment XIV, s 2), vesting in Congress the duty of apportionment of representatives among the several states ‘according to their respective Numbers’; and Art. I, s 5, making each house the sole judge of the qualifications of its own members, would remove the issues in this case from justiciable cognizance. But, in my judgment, the Smiley case rules squarely to the contrary, save only in the matter of degree. Assuming that that decision is to stand, I think that its effect is to rule that this Court has power to afford relief in a case of this type as against the objection that the issues are not justiciable.’ 328 U.S. at 564—565, 66 S.Ct. at 1208. Accordingly, Mr. Justice Rutledge joined in the conclusion that the case was justiciable, although he held that the dismissal of the complaint should be affirmed. His view was that ‘The shortness of the time remaining (before forthcoming elections) makes it doubtful whether action could, or would, be taken in time to secure for petitioners the effective relief they seek. I think, therefore, the case is one in which the Court may properly, and should, decline to exercise its jurisdiction. Accordingly, the judgment should be affirmed and I join in that disposition of the cause.’328 U.S., at 565—566, 66 S.Ct. at 1208.⁵⁹

Article I, ss 2, 4, and 5, and Amendment XIV, s 2, relate only to congressional elections and obviously do not govern apportionment of state legislatures. However, our decisions in favor of justiciability even in light of those provisions plainly afford no support for the District Court’s conclusion that the subject matter of this controversy presents a political question. Indeed, the refusal to award relief in Colegrove resulted only from the controlling view of a want of equity. Nor is anything contrary to be found in those per curiams that came after Colegrove. This Court dismissed the appeals in Cook v. Fortson (Turman v. Duckworth), 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596, as moot. MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, held only that in that case equity would not act to void the State’s requirement that there be at least a minimum of support for nominees for state-wide office, over at least a minimal area of the State. Problems of timing were critical in Remmey v. Smith, 342 U.S. 916, 72 S.Ct. 368,96 L.Ed. 685, dismissing for want of a substantial federal question a three-judge court’s dismissal of the suit as prematurely brought, D.C., 102 F.Supp. 708; and in Hartsfield v. Sloan, 357 U.S. 916, 78 S.Ct. 1363, 2 L.Ed.2d 1363, denying mandamus sought to compel the convening of a three-judge court—movants urged the Court to advance consideration of their case ‘Inasmuch as the mere lapse of time before this case can be reached in the normal course of business may defeat the cause, and inasmuch as the time problem is due to the inherent nature of the case.’ South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834, like Colegrove appears to be a refusal to exercise equity’s powers; see the statement of the holding, quoted, supra, 369 U.S., p. 203, 82 S.Ct. p. 703. And Cox v. Peters, 342 U.S. 936, 72 S.Ct. 559, 96 L.Ed. 697, dismissed for want of a substantial federal question the appeal from the state court’s holding that their primary elections implicated no ‘state action.’ See 208 Ga. 498, 67 S.E.2d 579. But compare Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152

Tedesco v. Board of Supervisors, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357, indicates solely that no substantial federal question was raised by a state court’s refusal to upset the districting of city council seats, especially as it was urged that there was a rational justification for the challenged districting. See La.App., 43 So.2d 514. Similarly, in Anderson v. Jordan, 343 U.S. 912, 72 S.Ct. 648, 96 L.Ed. 1328, it was certain only that the state court had refused to issue a discretionary writ, original mandamus in the Supreme Court. That had been denied without opinion, and of course it was urged here that an adequate state ground barred this Court’s review. And in Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40, the Supreme Court of Tennessee held that it could not invalidate the very statute at issue in the case at bar, but its holding rested on its state law of remedies, i.e., the state view of de facto officers,⁶⁰ and not on any view that the norm for legislative apportionment in Tennessee is not numbers of qualified voters resident in the several counties. Of course this Court was there precluded by the adequate state ground, and in dismissing the appeal, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157, we cited Anderson, supra, as well as Colegrove. Nor does the Tennessee court’s decision in that case bear upon this, for just as in Smith v. Holm, 220 Minn. 486, 19 N.W.2d 914, and Magraw v. Donovan, D.C., 163 F.Supp. 184;D.C., 177 F.Supp. 803, a state court’s inability to grant relief does not bar a federal court’s assuming jurisdiction to inquire into alleged deprivation of federal constitutional rights. Problems of relief also controlled in Radford v. Gary, 352 U.S. 991, 77 S.Ct. 559, 1 L.Ed.2d 540, affirming the District Court’s refusal to mandamus the Governor to call a session of the legislature, to mandamus the legislature then to apportion, and if they did not comply, to mandamus the State Supreme Court to do so. And Matthews v. Handley, 361 U.S. 127, 80 S.Ct. 256, 4 L.Ed.2d 180, affirmed a refusal to strike down the State’s gross income tax statute—urged on the ground that the legislature was malapportioned—that had rested on the adequacy of available state legal remedies for suits involving that tax, including challenges to its constitutionality. Lastly, Colegrove v. Barrett, 330 U.S. 804, 67 S.Ct. 973, 91 L.Ed. 1262, in which Mr. Justice Rutledge concurred in this Court’s refusal to note the appeal from a dismissal for want of equity, is sufficiently explained by his statement in Cook v. Fortson, supra: ‘The discretionary exercise or nonexercise of equitable or declaratory judgment jurisdiction in one case is not precedent in another case where the facts differ.’ 329 U.S. at 678, n. 8, 67 S.Ct. 21, at 22, 91 L.Ed. 596. (Citations omitted.)

We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment.

The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.