Colegrove v. Green

Me. Justice Frankfurter

announced the judgment of the Court and an opinion in which Mr. Justice Reed and Mr. Justice Burton concur.

This case is appropriately here, under § 266 of the Judicial Code, 28 U. S. C. § 380, on direct review of a judgment of the District Court of the Northern District of Illinois, composed of three judges, dismissing the complaint of the appellants. These are three qualified voters in Illinois districts which have much larger populations than other Illinois Congressional districts. They brought this suit against the Governor, the Secretary of State, and the Auditor of the State of Illinois, as members ex officio of the Illinois Primary Certifying Board, to restrain them, in effect, from taking proceedings for an election in November 1946, under the provisions of Illinois law governing Congressional districts. Illinois Laws of 1901, p. 3. Formally, the appellants asked for a decree, with its incidental relief, § 274 (d) Judicial Code, 28 U. S. C. § 400, declaring these provisions to be invalid because they violated various provisions of the United States Constitution and § 3 of the Reapportionment Act of August 8, 1911, 37 Stat. 13, as amended, 2 U. S. C. § 2a, in that by reason of subsequent changes in population the Congressional districts for the election of Representatives in the Congress created by the Illinois Laws of 1901 (111. Rev. Stat. Ch. 46 (1945) §§ 154-56) lacked compactness of territory and approximate equality of population. The District Court, feeling bound by this Court’s opinion in Wood v. Broom, 287 U. S. 1, dismissed the complaint. 64 F. Supp. 632.

The District Court was clearly right in deeming itself bound by Wood v. Broom, supra, and we could also dispose of this case on the authority of Wood v. Broom. The legal merits of this controversy were settled in that case, inasmuch as it held that the Reapportionment Act of June 18, 1929, 46 Stat. 21, as amended, 2 U. S. C. § 2 (a), has no requirements “as to the compactness, contiguity and equality in population of districts.” 287 U. S. at 8. The Act of 1929 still governs the districting for the election of Representatives. It must be remembered that not only was the legislative history of the matter fully considered in Wood v. Broom, but the question had been elaborately before the Court in Smiley v. Holm, 285 U. S. 355, Koenig v. Flynn, 285 U. S. 375, and Carroll v. Becker, 285 U. S. 380, argued a few months before Wood v. Broom was decided. Nothing has now been adduced to lead us to overrule what this Court found to be the requirements under the Act of 1929, the more so since seven Congressional elections have been held under the Act of 1929 as construed by this Court. No manifestation has been shown by Congress even to question the correctness of that which seemed compelling to this Court in enforcing the will of Congress in Wood v. Broom.

But we also agree with the four Justices (Brandéis, Stone, Roberts, and Cardozo, JJ.) who were of opinion that the bill in Wood v. Broom, supra, should be “dismissed for want of equity.” To be sure, the present complaint, unlike the bill in Wood v. Broom, was brought under the Federal Declaratory Judgment Act which, not having been enacted until 1934, was not available at the time of Wood v. Broom. But that Act merely gave the federal courts competence to make a declaration of rights even though no decree of enforcement be immediately asked. It merely permitted a freer movement of the federal courts within the recognized confines of the scope of equity. The Declaratory Judgment Act “only provided a new form of procedure for the adjudication of rights in conformity” with “established equitable principles.” Great Lakes Co. v. Huffman, 319 U. S. 293, 300. And so, the test for determining whether a federal court has authority to make a declaration such as is here asked, is whether the controversy “would be justiciable in this Court if presented in a suit for injunction . . .” Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 262.

We are of opinion that the appellants ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power which cannot be met by verbal fencing about “jurisdiction.” It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination.

This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens. The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity. Compare Nixon v. Herndon, 273 U. S. 536 and Lane v. Wilson, 307 U. S. 268, with Giles v. Harris, 189 U. S. 475. In effect this is an appeal to the federal courts to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation. Because the Illinois legislature has failed to revise its Congressional Representative districts in order to reflect great changes, during more than a generation, in the distribution of its population, we are asked to do this, as it were, for Illinois.

Of course no court can affirmatively re-map the Illinois districts so as to bring them more in conformity with the standards of fairness for a representative system. At best we could only declare the existing electoral system invalid. The result would be to leave Illinois undistricted and to bring into operation, if the Illinois legislature chose not to act, the choice of members for the House of Representatives on a state-wide ticket. The last stage may be worse than the first. The upshot of judicial action may defeat the vital political principle which led Congress, more than a hundred years ago, to require districting. This requirement, in the language of Chancellor Kent, “was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each state, a due influence in the choice of representatives, so as not to leave the aggregate minority of the people in a state, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils.” 1 Kent, Commentaries (12th ed., 1873) *230-31, n. (c). Assuming acquiescence on the part of the authorities of Illinois in the selection of its Representatives by a mode that defies the direction of Congress for selection by districts, the House of Representatives may not acquiesce. In the exercise of its power to judge the qualifications of its own members, the House may reject a delegation of Representatives-at-large. Article I, § 5, Cl. 1. For the detailed system by which Congress supervises the election of its members, see e. S. C. §§ 201-226; Bartlett, Contested Elections in the House of Representatives (2 vols.); Alexander, History and Procedure of the House of Representatives (1916) c. XVI. Nothing is clearer than that this controversy concerns matters that bring courts into immediate and active relations with party contests. From the determination of such issues this Court has traditionally held aloof. It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law.

The appellants urge with great zeal that the conditions of which they complain are grave evils and offend public morality. The Constitution of the United States gives ample power to provide against these evils. But due regard for the Constitution as a viable system precludes judicial correction. Authority for dealing with such problems resides elsewhere. Article I, § 4 of the Constitution provides 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, . . .” The short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House and left to that House determination whether States have fulfilled their responsibility. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with' the people. Whether Congress faithfully discharges its duty or not, the subject has been committed to the exclusive control of Congress. An aspect of government from which the judiciary, in view of what is involved, has been excluded by the clear intention of the Constitution cannot be entered by the federal courts because Congress may have been in default in exacting from States obedience to its mandate.

The one stark fact that emerges from a study of the history of Congressional apportionment is its embroilment in politics, in the sense of party contests and party interests. The Constitution enjoins upon Congress the duty of apportioning Representatives “among the several States . . . according to their respective Numbers, . . .” Article I, § 2. Yet, Congress has at times been heedless of this command and not apportioned according to the requirements of the Census. It never occurred to anyone that this Court could issue mandamus to compel Congress to perform its mandatory duty to apportion. “What might not be done directly by mandamus, could not be attained indirectly by injunction.” Chafee, Congressional Reapportionment (1929) 42 Harv. L. Rev. 1015, 1019. Until 1842 there was the greatest diversity among the States in the manner of choosing Representatives because Congress had made no requirement for districting. 5 Stat. 491. Congress then provided for the electioA of Representatives by districts. Strangely enough, the power to do so was seriously questioned; it was still doubted by a Committee of Congress as late as 1901. See e. g., Speech of Mr. (afterwards Mr. Justice) Clifford, Cong. Globe, April 28, 1842, 27th Cong., 2d Sess., App., p. 347; 1 Bartlett, Contested Elections in the House of Representatives (1865) 47, 276; H. R. Rep. No. 3000, 56th Cong., 2d Sess. (1901); H. R. Doc. No. 2052, 64th Cong., 2d Sess. (1917) 43; United States v. Gradwell, 243 U. S. 476, 482, 483. In 1850 Congress dropped the requirement. 9 Stat. 428, 432-33. The Reapportionment Act of 1862 required that the districts be of contiguous territory. 12 Stat. 572. In 1872 Congress added the requirement of substantial equality of inhabitants. 17 Stat. 28. This was reinforced in 1911. 37 Stat. 13, 14. But the 1929 Act, as we have seen, dropped these requirements. 46 Stat. 21. Throughout our history, whatever may have been the controlling Apportionment Act, the most glaring disparities have prevailed as to the contours and the population of districts. Appendix I summarizes recent disparities in the various Congressional Representative districts throughout the country and Appendix II gives fair samples of prevailing gerrymanders. For other illustrations of glaring inequalities, see 71 Cong. Rec. 2278-79, 2480 et seq.; 86 Cong. Rec. 4369, 4370-71, 76th Cong., 2d Sess. (1940); H. R. Rep. No. 1695, 61st Cong., 2d Sess. (1910); (1920) 24 Law Notes 124; (October 30, 1902) 75 The Nation 343; and see, generally, Schmeckebier, Congressional Apportionment (1941); and on gerrymandering, see Griffith, The Rise and Development of the Gerrymander (1907).

To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress. The Constitution has many commands that are not enforceable by courts because they clearly fall outside the conditions and purposes that circumscribe judicial action. Thus, “on Demand of the executive Authority,” Art. IV, § 2, of a State it is the duty of a sister State to deliver up a fugitive from justice. But the fulfilment of this duty cannot be judicially enforced. Kentucky v. Dennison, 24 How. 66. The duty to see to it that the laws are faithfully executed cannot be brought under legal compulsion, Mississippi v. Johnson, 4 Wall. 475. Violation of the great guaranty of a republican form of government in States cannot be challenged in the courts. Pacific Telephone Co. v. Oregon, 223 U. S. 118. The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and, ultimately, on the vigilance of the people in exercising their political rights.

Dismissal of the complaint is affirmed.

Mr. Justice Jackson took no part in the consideration or decision of this case.

For opinions of Rutledge and Black, JJ., see post, pages 564, 566.

APPENDIX I.

APPENDIX II.

APPENDIX II.

APPENDIX II.

APPENDIX II.

* These years were chosen at random.