¹ The leading work in this field is that of Walter F. Murphy. See especially “Lower Court Checks on Supreme Court Power,“ this Review, 53 (December, 1959), 1017, 1018, 1022; and Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964), pp. 95–97, 107 Google Scholar. A similar conclusion is suggested by Schmidhauser, John R., The Supreme Court: Its Politics, Personalities, and Procedures (New York: Holt, Rinehart and Winston, 1963), pp. 82–83 Google Scholar; and by Sorauf, Frank, Political Parties in the American System (Boston: Little, Brown and Company, 1964), pp. 123, 124 Google Scholar. Monrad G. Paulson has demonstrated that some state supreme court judges continued to employ the doctrine of substantive due process to implement their economic theories despite the United States Supreme Court's abandonment of this practice in 1937: “The Persistence of Substantive Due Process in the States,” 34 Minnesota Law Review 91 (1950)Google Scholar. The only published work which compares state and federal judicial behavior on the basis of empirical research is Kenneth, Vines' “Southern State Supreme Courts and Race Relations,“ Western Political Quarterly 18 (1965), 5 Google Scholar.

² Murphy, , “Lower Court Checks. …,” pp. 1017, 1022 Google Scholar.

³ “Political Party Affiliation and Judges' Decisions,” this Review, 55 (December, 1961), 843–850.

⁴ This problem could be avoided by means of a simulation technique, such as that employed by Theodore Becker in a different context. If differences in the behavior of state and federal judges result from the pressures of their political environments, it is likely that they would not be revealed by such a procedure. If, however, the significant differences between state and federal judges are a function of the judge rather than his situation (if state and federal judicial systems recruit differentially, or if state and federal judges have internalized different role perceptions, for example) then such a technique should produce positive results. Becker, Theodore L., Political Behavioralism and Modern Jurisprudence (Chicago: Rand. McNally, 1964)Google Scholar; “A Survey Study of Hawaiian Judges: The Effect on Decisions of Judicial Role Variations,” this Review, 60 (September, 1966), 677–680.

⁵ Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964). Note that we are comparing state appeals courts of last resort and federal trial courts.

⁶ Colegrove v. Green, 328 U.S. 549 (1946).

⁷ Strictly speaking, this is not correct. Since a ruling in a legislative reapportionment case occurs within the context of all previous decisions in that subject area, by necessity, this context must differ for each subsequent decision. However, this study does exclude the impact of additional stimuli bythe United States Supreme Court, or of major national political events related to the subject matter of the cases. Also, the distribution of the state and federal cases throughout the time period under study is shown to be comparable, in a statistical sense, by means of the Mann-Whitney U Test.

⁸ The federal cases occurred in Alabama, California, Colorado (two cases), Connecticut, Delaware, Florida, Georgia (three cases), Idaho, Illinois, Indiana, Iowa, Louisiana, Michigan, Minnesota, Nebraska, New York, North Dakota, Oklahoma (two cases), Pennsylvania, Tennessee (two cases), Virginia, Washington, and Wisconsin.

The state cases occurred in Alabama, California, Colorado, Idaho, Kansas, Louisiana, Maryland, Michigan (two cases), Mississippi, New Hampshire (two cases), New York, Oklahoma, Rhode Island (two cases), Wisconsin, Wyoming, and Vermont.

The obvious sectional bias to consider is an overproportion of southern states in either group. Following V. O. Key's usage of treating the 11 states of the Confederacy as southern, we find that 10 of the 29 federal cases were decided in southern courts, as were 4 of the nineteen state cases. This difference is not statistically significant. Fisher's Exact Probability Test for this distribution produces a p of .16.

⁹ Bickel, Alexander, “The Durability of Colegrove v. Green ,” 72 Yale Law Journal 39, 42 (1962)CrossRefGoogle Scholar.

¹⁰ The following are illustrative of the extensive literature which can be cited to document the lack of precision in Baker: Neal, , “Baker v. Carr, Politics in Search of Law,” 1962 Supreme Court Review 252 Google Scholar: McClosky, , “The Reapportionment Case,” 76 Harvard Law Review 54 (1962)Google Scholar; Lucas, , “The Meaning of Baker v. Carr,” 61 Michigan Law Review 711 (1963)CrossRefGoogle Scholar Friedelbaum, , “ Baker v. Carr: New Doctrine of Judicial Intervention and Its Implications for American Federalism,” 29 University of Chicago Law Review 673 (1962)CrossRefGoogle Scholar.

¹¹ Federal cases: Baker v. Carr, 206 F. Supp. 341 (1962); Baker v. Carr, 222 F. Supp. 648 (1963); Butterworth v. Dempsey, 229 F. Supp. 754 (1964); Daniel v. Davis, 220 F. Supp. 601 (1963); Davis v. Synhorst, 217 F. Supp. 492 (1963), 225 F. Supp. 689 (1964); Dorsey v. Fortson, 228 F. Supp. 259 (1964); Drews. Scranton, 229 F. Supp. 308 (1963); Germano v. Kerner, 220 F. Supp. 230 (1963); Hearne v. Smylie, 225 F. Supp. 645 (1964); Hedlund v. Hanson, 213 F. Supp. 172 (1962); League of Nebraska Municipalities v. Marsh, 209 F. Supp. 189 (1962); Lein v. Sathre, 205 F. Supp. 536 (1962); Lisco v. McNichols, 208 F. Supp. 471 (1962); Lisco v. Love, 219 F. Supp. 922 (1963); Mann v. Davis, 213 F. Supp. 577 (1962); Marshall v. Hare, 227 F. Supp. 989 (1964); Moss v. Burkhart, 207 F. Supp. 885 (1962), 200 F. Supp. 149 (1963); Nolan v. Rhodes, 218 F. Supp. 953 (1963); Sanders v. Gray, 203 F. Supp. 158 (1962); Silver v. Jordan, unpublished, Federal District Court, Southern District, California, Civil No. 62–953-NC (1962); Sims v. Frink, 205 F. Supp. 245 (1962), 208 F. Supp. 431 (1962); Sincock v. Terry, 207 F. Supp. 205 (1962), 210 F. Supp. 396 (1962), 215 F. Supp. 169 (1963); Sobel v. Adams, 208 F. Supp. 316 (1962), 214 F. Supp. 811 (1963); Stout v. Hendricks, 228 F. Supp. 568 (1964); Thigpen v. Meyers, 211 F. Supp. 826 (1962); Toombs v. Fortson, 205 F. Supp. 248 (1962); Valenti v. Dempsey, 211 F. Supp. 911 (1962); WMCA Inc. v. Simon, 208 F. Supp. 368 (1962); Wisconsin v. Zimmerman, 205 F. Supp. 673 1962), 209 F. Supp. 183 (1962).

State Cases:

In re Apportionment of the Michigan State Legislature, 126 N.W. 2d 731 (1964), 127 N.W. 2d 862 (1964), 128 N.W. 2d 350 (1964); Blaikie v. Power, 193 N.E. 2d 55 (1963); Caesar v. Williams, 371 P. 2d 241 (1962); Davis v. McCarty, 388 P. 2d 480 (1964); Glass v. Hancock County Election Committee, 156 So. 2d 825 (1963); Griffin v. Board of Supervisors, 384 P. 2d 421 (1963), 388 P. 2d 888 (1964); Le Doux v. Parish Democratic Executive Committee, 156 So. 2d 48 (1963); Harris v. Shanahan, 390 P. 2d 722 (1964); In re Legislative Reapportionment, 374 P. 2d 66 (1962); Levitt v. Attorney General, 180 A. 2d 827 (1962); Levitt v. Maynard, 182 A. 2d 897 (1962); Maryland Committee For Fair Representation v. Tawes, 180 A. 2d 656 (1962), 184 A. 2d 715 (1962); Mikell v. Rousseau, 183 A. 2d 817 (1962); Opinion to the Governor, 183 A. 2d 806 (1962); Rice v. Frink, 143 So. 2d 848 (1962); Scholle v. Hare, 116 N.W. 2d 350 (1962); Sweeney v. Notte, 183 A. 2d 296 (1962); Wisconsin v. Zimmerman, 126 N.W. 2d 551 (1964); Wyoming v. Gage, 377 P. 2d 299 (1963).

While five of these cases did not deal with the apportionment of state legislatures, they are immediately relevant to several of the hypotheses. Sanders v. Gray involved the Georgia county unit system. Blaikie v. Power dealt with the selection of members of the New York City Council. Heldund v. Hanson, Glass v. Hancock County Election Committee and Griffin v. Board of Supervisors dealt with the apportionment of county governments.

Since many of the cases were handled in several stages, it is possible for a given case to appear in what would seem to be contradictory categories if a court significantly modified its position or its strategy between opinions.

¹² Beiser, Edward N., “The Treatment of Legislative Apportionment by the State and Federal Courts: A Comparative Analysis of the Judicial Process” (unpublished Ph.D. dissertation, Princeton University, 1967)Google Scholar.

¹³ Davis v. Synhorst, 217 F. Supp. 492, 497 (1963).

¹⁴ WMCA Inc. v. Simon, 208 F. Supp. 368, 372 (1962).

¹⁵ Lisco v. McNichols, 208 F. Supp. 471, 376 (1962).

¹⁶ Hearne v. Smylie, 225 F. Supp. 645, 651 (1964).

¹⁷ Mann v. Davis, 213 F. Supp. 577, 586 (1962). Dissenting opinion.

¹⁸ It is important to remember that the choice between a state or federal court by a litigant was not randomly made.

¹⁹ Daniel v. Davis, Davis v. Synhorst (first opinion), Germano v. Kerner, Hearne v. Smylie, Lisco v. Love, Lisco v. McNichols, Sobel v. Adams, Wisconsin v. Zimmerman, and WMCA Inc. v. Simon. Citations are in note 11. The state cases were: Caeser V. Williams, Davis v. McCarty, In re Apportionment of the Michigan Legislature, and Mikel v. Rousseau. Citations in note 11.

²⁰ Fisher's p = .20. The negative cells in the calculation include only those courts which explicitly stated that the Supreme Court had not reached the merits of Baker, or indicated specific guidelines for the lower courts.

The particular results of this study allowed me the luxury of avoiding an important methodological point which may be significant in future research. While I employed Fisher's Exact Probability Test to consider whether the observed results could have occurred as a matter of chance, I am not prepared to defend this as the exclusive decision-rule for determining the validity of the hypotheses tested. Consider this example: If ten of fourteen federal judges refused to apply Baker v. Carr to Congressional apportionment, while only one of five state judges acted in this manner, these results would not be statistically significant. Yet I would be inclined to say that the difference between these two groups of judges ought not be rejected. The problem is that, with small N's, when one uses the question “could this result have occurred as a matter of chance more than five times in one hundred” to decide whether observed differences are meaningful, he may be requiring results which are more extreme than he would expect on the basis of his theory and experience.

²¹ Baker v. Carr, Davis v. Synhorst (later opinion), Moss v. Burkhart, and Toombs v. Fortson, citations in note 11. Moss v. Burkhart was the only decision—state or federal—which understood the Supreme Court to require equally populated districts in both houses of a state legislature.

²² Maryland Committee v. Tawes. Citation in note 11. This applies only to interpretations of Baker v. Carr. Other courts reached such conclusions after the Supreme Court's decisions in Gray v. Sanders and Wesberry v. Sanders.

²³ Fisher's p = .26. The negative cells in the calculation include those courts which failed to reach the merits, as well as those courts which expressed a negative view.

²⁴ The twelve federal cases were: Baker v. Carr, Daniel v. Davis, Germano v. Kerner, Lisco v. Love, Lisco v. McNichols, Mann v. Davis, Marshall v. Hare, Sanders v. Gray, Sobel v. Adams, Thigpen v. Meyers, Toombs v. Fortson, and WMCA Inc. v. Simon. The seven state cases were: Caeser v. Williams, Davis v. McCarty, Griffin v. Board of Supervisors, Levitt v. Attorney General, Levitt v. Maynard, Maryland Committee v. Tawes, and Sweeney v. Notte. Citations in note 11.

²⁵ Fisher's p = .23. The negative cells include both courts stating that non-population factors could not be considered, and those expressing no opinion.

²⁶ Anderson, dissenting in Butterworth v. Dempsey, 229 F. Supp. 754, 774 (1964).

²⁷ Germano v. Kerner, 220 F Supp. 230, 233 (1963).

²⁸ The ten federal cases were: Daniel v. Davis, Hearne v. Smylie, Hedlund v. Hanson, League of Nebraska Municipalities v. Marsh, Lein v. Sathre, Silver v. Jordan, Sims v. Frink, Sincock v. Terry, Stout v. Hendricks, and Wisconsin v. Zimmerman. The six state cases were: Glass v. Hancock, In re Apportionment of the Michigan Legislature, In re Legislative Reapportionment, Maryland Committee v. Tawes, Rice v. Frink, and Wyoming v. Gage. Citations are in note 11.

²⁹ Fisher's p = .24.

³⁰ Rice v. Frink. Citation in note 11.

³¹ The state cases were Glass v. Hancock and In re Apportionment of the Michigan State Legislature. The federal cases were Hearne v. Smylie and Wisconsin v. Zimmerman. Citations in note 11.

³² Daniel v. Davis, League of Nebraska Municipalities v. Marsh, Lein v. Sathre, Sims v. Frink, Sincock v. Terry, Stout v. Hendricks, and Wisconsin v. Zimmerman. Citations in note 11.

³³ Maryland Committee v. Tawes, Wyoming v. Gage. Citations in note 11.

³⁴ Fisher's p = .16.

³⁵ The problem of measuring malapportionment in a way which will permit comparative analysis has been discussed recently in Glendon Schubert and Charles Press, “Measuring Malapportionment,” this Review, 58 (June, 1964), 302–327; 302 (1964), and Henry F. Kaiser, “A Measure of the Population Quality of Legislative Apportionment,” this Review, 62 (March, 1968), 208–215.

³⁶ Op. cit.

³⁷ In only one instance did federal and state judges comment on the constitutionality of the same apportionment. The eight-judge Michigan Supreme Court was forced to decide which of a group of apportionment plans most closely corresponded to the requirements of the state constitution. In the course of their opinions, five of the eight applied the Fourteenth Amendment of the Federal Constitution to the apportionment legislation: three held that it was constitutional, two that it was not. Shortly thereafter, a three-judge federal district court ruled—two to one—that the apportionment did not violate the Fourteenth Amendment. It is interesting that the three state judges and two federal judges who up-held the constitutionality of the Republican-authored Michigan apportionment were all Republicans. The two state judges and the dissenting federal judge who held it unconstitutional were Democrats. In re Apportionment of the Michigan State Legislature, 126 N.W. 2d 731 (1964). Marshall v. Hare, 227 F. Supp. 989 (1964).

³⁸ Baker v. Carr, Davis v. Synhorst, Drew v. Scranton, Mann v. Davis, Moss v. Burkhart Sincoek v. Duffy, Sobel v. Adams, Thigpen v. Meyers, Toombs v. Fortson. Citations in note 11.

³⁹ Harris v. Shanahan, Mikell v. Rousseau, Scholle v. Hare, Sweeny v. Notte, Wisconsin v. Zimmerman. Citations in note 11.

⁴⁰ Fisher's p = .17.

⁴¹ Thigpen v. Meyers, Sims v. Frink, Baker v. Carr (later opinion), and Moss v. Burkhart. Citations in note 11.

⁴² Butterworth v. Dempsey; Drew v. Scranton. Citations in note 11.

⁴³ Wisconsin v. Zimmerman. Citation in note 11.

⁴⁴ Fisher's p = .43.

⁴⁵ Indeed, with respect to race relations cases, Kenneth Vines suggests that “[t]he role of the southern state supreme court has parallelled that of the national Supreme Court. In both cases, the higher court has tended to protect minority groups by reversing decisions made against them in lower courts.” Vines, op. cit. (note 1) p. 16.

⁴⁶ Ibid., p. 10

⁴⁷ Ibid.