Scholle v. Hare/Concurrence Clark

Mr. Justice CLARK and Mr. Justice STEWART, concurring.

If we were able to read the several opinions in the Michigan Supreme Court the way our Brother HARLAN does, we would find much to persuade us that this case should not be remanded. But the state court opinions are not that clear to us. A careful reading of the opinions leaves us with the fixed impression that all but three members of the Michigan court were convinced that, whatever the underlying merits of the appellant's Equal Protection claim, it was, in the words of one of the justices, 'not enforcible in the courts.' 360 Mich. 1, 112, 104 N.W.2d 63. 121. In Baker v. Carr we held that such a claim is judicially cognizable. Accordingly, we join in the Court's order remanding this case to the Supreme Court of Michigan.

Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.

The present order of course reflects no views on the merits of the appellant's Equal Protection claim. It may well turn out that the assertion of invidious discrimination is not borne out by the record. Today's order simply reflects out belief that the Michigan Supreme Court should be the first to consider the merits of the federal constitutional claim, free from any doubts as to its justiciability.

Mr. Justice HARLAN, dissenting.