One of you asked the following, insightful question after class Monday night:
QUESTION: If the problem in Colgrove v. Green was that the Court could not discover a "judicially manageable standard" to malapportionment claims brought under the Guaranty Clause of Article IV, how did the standard become manageable in Baker v. Carr simply because the constitutional claim was grounded in the Equal Protection Clause of the Fourteenth Amendment? That is, is not the standard identically manageable or unmanageable regardless of which constitutional clause the claim is brought under?
ANSWER: I agree. I don't see how it is any more manageable. If the Court could manage a "one person, one vote" standard under the Equal Protection Clause, it is entirely opaque as to why they could not manage the same standard as an interpretation of the Guaranty Clause. (Certainly Justice Frankfurter agreed with this view, and thus thought the issue was settled.) Why did the result actually change? I would point to two reasons: (1) the composition (and ideological disposition) of the Court changed between 1947 and 1962, and (2) it became increasingly apparent that, if the courts did not intervene, the political process was not going to heal itself (and the dominant national political regime now strongly supported bringing more political power to urban areas). Why didn't the Court simply overrule Colgrove v. Green. I think it is simply a matter of risk aversion and the norm of stare decisis. If there is a way to get there without overruling precedent, the Court is likely to take that course. (Notice that this is why Congress justified the Civil Rights Act of 1964 as an exercise of its commerce power rather than as a use of its power under Section 5 of the Fourteenth Amendment.) The justices might also have feared what opening up the Guaranty Clause to justiciable claims would have meant in other cases that they could not yet anticipate.