Avery v. Midland County/Dissent Stewart

Mr. Justice STEWART, dissenting.

I would dismiss the writ as improvidently granted for the reasons stated by Mr. Justice HARLAN and Mr. Justice FORTAS.

Since the Court does reach the merits, however, I add that I agree with most of what is said in the thorough dissenting opinion of Mr. Justice FORTAS. Indeed, I would join that opinion were it not for the author's unquestioning endorsement of the doctrine of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. I continue to believe that the Court's opinion in that case misapplied the Equal Protection Clause of the Fourteenth Amendment that the apportionment of the legislative body of a sovereign State, no less than the apportionment of a county government, is far too subtle and complicated a business to be resolved as a matter of constitutional law in terms of sixth-grade arithmetic. My views on that score, set out at length elsewhere, closely parallel those expressed by Mr. Justice FORTAS in the present case.