Editing Archibald Cox (section)

====Reapportionment cases====
The cases that troubled Cox the most during his tenure, and the area where he differed widest from Robert Kennedy, involved malapportionment of voting districts. Over the years failure to re-allocate voting districts particularly in state legislatures, produced wildly disproportionate districts, with rural areas having many fewer voters than urban districts as a result of the urbanization of America.{{efn|In 1962 more than half the states had failed to re-apportion legislative districts for more than a quarter of a century.{{sfn|Schlesinger|1978|p=1:413}}}} The result was dilution of the urban vote with policy resulting accordingly; rectification would benefit Democrats politically, while malapportionment stood as an obstacle to legislation that improved the lot of city-dwellers, minorities and the poor.<ref>{{cite journal|last=Terris|first=Bruce J.|title=Attorney General Kennedy versus Solicitor General Cox: The Formulation of the Federal Government's Position in the Reapportionment Cases|journal= Journal of Supreme Court History|volume=32|number=3|pages=335–345|date=November 2007|doi=10.1111/j.1540-5818.2007.00171.x|s2cid=145128085 }}<!--|access-date=March 31, 2016--></ref> The problem was that Justice Frankfurter had written in a plurality decision in 1946 that such issues amounted to a [[political question]]—a matter not appropriate for the Court to resolve.{{efn|Frankfurter's decision in'' [[Colegrove v. Green]]'', 328 U.S. 549 (1946), was joined in by only two other justices. The two others making the majority decided on other grounds.}} On the other hand, given that political interests were entrenched, and those with disproportionate power were not likely to give up their greater share, a political solution was unlikely. But a case surfaced from Tennessee that seemed ideal to test that ruling. Tennessee had not reapportioned its legislature since 1910 and, as a result, there were urban districts that had eleven times the citizens of rural districts. Cox decided to submit an ''[[amicus curiae]]'' brief supporting the plaintiffs in ''[[Baker v. Carr]]''. The case was argued once in April 1961 and re-argued in October. In between Cox was subjected to an unpleasant onslaught by Frankfurter at a public dinner and relentless questions in the October argument.{{sfn|Gormley|1997|pp=165–168}} When the decision was announced, however, Frankfurter was joined by only Harlan; the result was 6–2.<ref>''[[Baker v. Carr]]'', 369 U.S. 186 (1962)</ref>

The first case proved far easier than Cox expected.{{efn|It also became, to Warren's mind on his retirement, the single most important contribution to Constitutional law during his tenure: "I think ''Baker v. Carr'' was the most important case that we decided in my time, because that gave to the courts the power to determine whether or not we were to have fair representation in our governmental system, and ''Reynolds v. Simms'' [377 U.S. 533 (1964)] was merely the application of that principle."{{sfn|Lake|1969|p=130}}}} The holding was relatively narrow, simply providing federal court jurisdiction, and followed the points in Cox's brief.<ref>{{cite journal|url=http://heinonline.org/HOL/Page?handle=hein.journals/cwrlrv62&start_page=1109&collection=journals&set_as_cursor=0&men_tab=srchresults&id=1147|last=Solimine|first=Michael E.|title=Congress, the Solicitor General, and the Path of Reapportionment Litigation|journal=Case Western Reserve Law Review|volume=62|number=4|date=Summer 2012|pages=1109–1152, 1121|access-date=March 31, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160625044130/http://heinonline.org/HOL/Page?handle=hein.journals%2Fcwrlrv62&start_page=1109&collection=journals&set_as_cursor=0&men_tab=srchresults&id=1147|archive-date=June 25, 2016|url-status=live|df=mdy-all}}</ref> But Cox had much more difficulty with the follow-up cases, because he could not persuade himself that history or legal theory would demand a one-man-one-vote standard in all cases. He developed what he later called a "highly complex set of criteria," but in the end when the Court finally erected the one-man-one-vote standard it simply made the general rule subject to all the exceptions that Cox had tried to weave into his proposed standards. As Chief Justice Warren's clerk later told him "all the Chief did was take your brief and turn it upside down and write exceptions to the one-person one-vote that covered all the cases that you had attempted to exclude by this complicated formula.".{{sfn|Hilbink|2000|pp=2:168–169}} The case was ''[[Reynolds v. Sims]]'', 377 U.S. 533 (1964), holding that election districts must be roughly proportional to population.