Fortson v. Toombs/Dissent Harlan
Mr. Justice HARLAN, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
This is the first time that the Court, after plenary briefing and argument, has been called on to consider the propriety of interim arrangements prescribed by a district court pending the effectuation of its decision requiring reapportionment of a branch of a state legislature.
After holding that the House of Representatives of the General Assembly of Georgia was unconstitutionally composed, a decision which is not called into question on this appeal, the three-judge District Court ordered: (1) that the election in 1964 of the legislature to serve in 1965 (the 1965 legislature) might proceed under the State's existing methods of apportionment; (2) that until a properly apportioned legislature took office no other legislature could propose to the electorate, except through the calling of a convention of popularly elected delegates, the adoption of a new state constitution; and (3) that (except for reapportionment legislation) the 1965 House should be 'limited,' notwithstanding any provision of state law, 'to the enactment of such legislation as shall properly come before the said Legislature during the regular 1965 45-day session' provided by Georgia law. After the State's appeal was filed in this Court this last provision was in effect abrogated by the District Court with the approval of the parties. 
This appeal draws in question the validity of items (2) and (3) above, similarly numbered in the District Court's order. It is contended by the appellees, however, that both these issues have now become moot.
The Court's disposition of this case, of course, involves a holding that at least as to item (2) the case is not moot. For, contrary to what my Brother GOLDBERG says in his dissenting opinion (post, pp. 636-638) and as my Brother CLARK seems to recognize (ante), the Court does not remand the case to the District Court for a determination on the issue of mootness, but only to decide whether any injunctive relief is now appropriate in light of what has transpired since such relief was first granted.
While it may be that the Court's implicit holding on mootness does not reach beyond the portion of the District Court's decree that goes to the submission of a proposed new state constitution (par. (2) of the decree), I would also hold not moot the pronouncement of that decree placing limitations on the functioning of the 1965 State Legislature (original par. (3) of the decree).
As to paragraph (2), it is sufficient to say that the injunction has continuing effect, not only with respect to the 1965 legislature, but also as to any successor legislature if it is found to be 'mal-apportioned.' Any alleged 'speculativeness' as to whether a new state constitution may be proposed to the electorate before a 'constitutional' legislature comes into being, goes not to mootness but only to the question whether the District Court (assuming its power in the premises, see below) should have granted any relief on this score.  So far as original paragraph (3) of the decree is concerned (limiting the activities of the 1965 legislature) it was not rendered moot by the District Court's modification after the case had been taken for review by this Court. Analytically, the situation is tantamount to a confession of error at this level, at most relieving this Court of the necessity of making a definitive exposition of its views on this subject (compare the suggestion of my Brother GOLDBERG, post, pp. 638-639), but not depriving the question of the attribute of justiciability. Cf. Young v. United States, 315 U.S. 257, 258-259, 62 S.Ct. 510, 511-512, 86 L.Ed. 832.
The position adopted by the Court is that although the case is not moot, at least as to the 'constitution-submission' issue, decision of that question could be avoided if the District Court chose to vacate that part of its injunction in light of the change in circumstance which has made the need for such relief speculative; the Court therefore remands the case to afford the District Court that opportunity. I do not think that such avoidance as to either question is called for in this case. The Court's reapportionment decisions have pressed district courts onto an uncharted and highly sensitive field of federal-state relations with little more to guide them than the elusive 'one-person-one-vote' aphorism. District courts, as courts of first instance, must necessarily fashion remedies for themselves, and the passage of time and the variety of remedies chosen by them may ultimately help this Court to wend its way through this treacherous constitutional terrain. But it is essential that the lower courts at least be launched in the right general direction and not allowed to range so far afield as to hamstring state legislatures and deprive States of effective legislative government. Paragraphs (2) and (3) of the injunction involved in this case do range that far afield. Absent disapproval by this Court, the decision below, rendered by a distinguished panel, cannot fail to furnish a strong practical, if not legal, precedent for other district courts. I do not think this should be allowed to happen.
I would hold the decree below improvident in both the aspects before us.
As to the provision forbidding submission to the electorate of a legislatively proposed new state constitution, I can find nothing in the Fourteenth Amendment, elsewhere in the Constitution, or in any decision of this Court which requires a State to initiate complete or partial constitutional change only by some method in which every voice in the voting population is given an opportunity to express itself. Can there be the slightest constitutional doubt that a State may lodge the power to initiate constitutional changes in any select body it pleases, such as a committee of the legislature, a group of constitutional lawyers, or even a 'malapportioned' legislature-particularly one whose composition was considered, prior to this Court's reapportionment pronouncements of June 15, 1964, to be entirely and solely a matter of state concern? 
Similarly as to the provision of the lower court's original decree limiting the functions of the 1965 legislature, it seems scarcely open to serious doubt that so long as the federal courts allow this Georgia Legislature to sit, it must be regarded as the de facto legislature of the State, possessing the full panoply of legislative powers accorded by Georgia law.
I think that the State of Georgia is entitled to a clear-cut pronouncement from this Court that nothing in its reapportionment decisions contemplated such unheard-of federal court intrusion into state political affairs as the decree before us evidence. Beyond that, for this Court to temporize with important interstitial matters of this kind, deeply affecting the even course of federal-state relations, can only serve to aggravate the confusion which last June's reapportionment cases have left in their wake. 
I would modify the decree below by striking therefrom paragraph (2) and approving the substitute for original paragraph (3) as framed by the District Court.
^1 The full text of the District Court's order and the amendment of item 3 are printed in the dissenting opinion of MR. JUSTICE GOLDBERG as Appendices A and B, respectively. Post, pp. 639, 641.
^2 See National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 821; Southern Pac. Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498, 514-515, 31 S.Ct. 279, 283, 55 L.Ed. 310.
^3 If, as I believe, a State is not federally restricted in its choice of means for initiating constitutional change, the question of whether, under Georgia law, the proposed new Georgia Constitution should have been initiated by a popularly elected convention instead of by the legislature is not a matter for federal cognizance.
^4 To hold as I think the Court should on these issues would not in any way impair the federal courts' ability to prevent frustration of their reapportionment decrees.