White v. Weiser, 412 U.S. 783 (1973)

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring.

Had I been a member of the Court when Kirkpatrick v. Preisler, 394 U.S. 526 (1969), and Wells v. Rockefeller, 394 U.S. 542 (1969), were decided, I would not have thought that the Constitution -- a vital and living charter after nearly two centuries because of the wise flexibility of its key provisions -- could be read to require a rule of mathematical exactitude in legislative reapportionment. Moreover, the dissenting opinions of Justices Harlan* and WHITE and the concurring opinion of Justice Fortas in those cases demonstrated well that the exactitude required by the majority displayed a serious misunderstanding of the practicalities of the legislative and reapportioning processes. Nothing has occurred since Kirkpatrick and Wells to reflect adversely on the soundness, as I view it, of the dissenting perceptions. Indeed, the Court’s recent opinions in Mahan v. Howell, 410 U.S. 315 (1973), Gaffney v. Cummings, ante p. 735, and White v. Regester, ante, p. 755, strengthen the case against attempting to hold any reapportionment scheme -- state or congressional -- to slide-rule precision. These more recent cases have allowed modest variations from theoretical "exactitude" in recognition of the impracticality of applying the Kirkpatrick rule as well as in deference to legitimate state interests.

However all of this may be, Kirkpatrick is virtually indistinguishable from this case, and unless and until the Court decides to reconsider that decision, I will follow it. Accordingly, I join the Court’s opinion.

* MR. JUSTICE STEWART joined Mr. Justice Harlan’s opinion.