[RADIOLAB INTRO]

 

Suzie Lechtenberg:

Well, I think we should start the story on June 25th, 1969.

 

Jad Abumrad:

Well, first, you should say who you are.

 

Suzie Lechtenberg:

I'm Suzie Lechtenberg.

 

Jad Abumrad:

I'm Jad Abumrad. This is More Perfect. Okay, so why June 20... When was it?

 

Suzie Lechtenberg:

June 25th, 1969.

 

Jad Abumrad:

Why then?

 

Suzie Lechtenberg:

Supreme Court Chief Justice Earl Warren is retiring. Earl Warren of the Warren Court.

 

Jad Abumrad:

Is that a big court?

 

Suzie Lechtenberg:

Yeah. That's really big.

 

Jad Abumrad:

No. Come on, humor me.

 

Suzie Lechtenberg:

I think, if you think of legendary Supreme Court justices, he's probably in, I don't know, top five.

 

Jad Abumrad:

So, he was one of the Mount olympians?

 

Suzie Lechtenberg:

He's a big deal.

 

Chief Justice Earl Warren:

Constitutional rights.

 

Jad Abumrad:

All right. So, he's retiring.

 

Suzie Lechtenberg:

So, he's retiring, he's been on the court for 16 years. And he's in an interview. And he's asked...

 

Interviewer:

What would you list, Mr. Chief Justice, as the Supreme Court's most important decision, in your 16 years here?

 

Suzie Lechtenberg:

And he says something that is kind of astounding.

 

Chief Justice Earl Warren:

I think the reinforcement, not only of state legislatures. But-

 

Suzie Lechtenberg:

Wait. Before you hear the answer.

 

Jad Abumrad:

Yeah.

 

Suzie Lechtenberg:

I think that you need to know, that he could have said all kinds of cases. He was the Chief Justice during [crosstalk 00:01:11] I don't know, Miranda.

 

Chief Justice Earl Warren:

... during the interrogation. To be advised either of his rights to remain silent.

 

Suzie Lechtenberg:

That's you have the right to remain silent.

 

Jad Abumrad:

Oh.

 

Chief Justice Earl Warren:

Clarence Earl Gideon, petitioner.

 

Suzie Lechtenberg:

Or Gideon versus Wainwright.

 

Chief Justice Earl Warren:

It is the duty of the state...

 

Suzie Lechtenberg:

Which is, you have the right to an attorney.

 

Chief Justice Earl Warren:

To appoint counsel.

 

Jad Abumrad:

Yeah. That seems big.

 

Suzie Lechtenberg:

Or...

 

Chief Justice Earl Warren:

Segregation has no place in our democracy.

 

Suzie Lechtenberg:

Brown versus Board of Education.

 

Jad Abumrad:

Okay.

 

Chief Justice Earl Warren:

That there was no better place to [crosstalk 00:01:33].

 

Jad Abumrad:

That one I know. That one I know.

 

Suzie Lechtenberg:

Desegregating the schools. That's big.

 

Jad Abumrad:

Yeah. What could be bigger than that?

 

Suzie Lechtenberg:

He doesn't say any of those.

 

Jad Abumrad:

What does he say?

 

Suzie Lechtenberg:

He says this little case called...

 

Chief Justice Earl Warren:

The Baker versus Carr case.

 

Suzie Lechtenberg:

Baker versus Carr.

 

Chief Justice Earl Warren:

I think that that case, is perhaps the most important case that we've had, since I've been on the court.

 

Jad Abumrad:

He thought that case, whatever it is, is more important than the case to desegregate the schools?

 

Suzie Lechtenberg:

He did.

 

Jad Abumrad:

Wow. So, what the hell is it?

 

Suzie Lechtenberg:

Exactly.

 

Jad Abumrad:

No, really. What is it?

 

Suzie Lechtenberg:

It's this case that was so dramatic, and so traumatic, that it apparently broke two justices.

 

Kent Whittaker:

There was an instance, in which my brother, found my father going upstairs, to get a shotgun.

 

Jad Abumrad:

Wow.

 

Speaker 4:

The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention. Oyez! Oyez! For the court is now sitting. Oyez! God save the United States and this Honorable Court. Oyez! [inaudible 00:02:53] Oyez!

 

Jad Abumrad:

Okay. So, this is More Perfect, a miniseries about the Supreme Court. Just to frame the story we're about to hear for a second. As we were putting the show together, we hosted a panel discussion, and a couple of us were on stage. And a woman in the audience asked the following question.

 

audience woman:

Yes. Could you address what I see as the increasing politicization of the court? The apotheosis of which, I guess, was voting, or electing Bush to be our president. Has the court always been this way? Is this just my perception that it's becoming more politicized?

 

Jad Abumrad:

So, this turns out to be a really interesting question. It turns out, I didn't know this until Suzie started looking into it, that there was a moment, when the Pandora's box just got ripped open.

 

Suzie Lechtenberg:

So, I think to understand that moment in this story, you have to get to know three characters. And these aren't necessarily the three most important justices of all time. Because at that time you had Chief Justice Earl Warren, and William Brennan on the court. And these were kind of giants of the Supreme Court.

 

Jad Abumrad:

Gotcha.

 

Suzie Lechtenberg:

But, for this story, these three guys are key. One of them is on the right. One of them is on the left. And one of them is just stuck right in the middle. Tragically in the middle.

 

Jad Abumrad:

Ooh.

 

Suzie Lechtenberg:

So, on the conservative side.

 

Felix frankfurter:

[inaudible 00:04:23] What difference does it make, whether its in the constitution, or in any other expression, or action, by the state?

 

Suzie Lechtenberg:

You had a guy named Felix Frankfurter.

 

Tara grove:

So, justice Frankfurter was one of the most...

 

Jad Abumrad:

Wait, his name was really Frankfurter?

 

Suzie Lechtenberg:

Yes.

 

Tara grove:

One of the most influential Justices of all time.

 

Suzie Lechtenberg:

That's Tara Grove, she teaches constitutional law at William and Mary Law School.

 

Tara grove:

He was a very influential scholar at Harvard Law School, before he became a justice. Was a close advisor to Franklin Delano Roosevelt. He was extremely smart.

 

Suzie Lechtenberg:

Towering figure.

 

Tara grove:

But, as a person, justice Frankfurter. He wasn't necessarily the nicest person.

 

Suzie Lechtenberg:

I heard that from everyone I talked to.

 

Mike Seidman:

I always call him a Bantam rooster.

 

Sam Issacharoff:

He was a difficult, crusty figure.

 

Mike Seidman:

He was short, and he had little bit of a pouch on him.

 

Craig Smith:

He was one of the most.

 

Mike Seidman:

Condescending.

 

Craig Smith:

Egotistical of justices.

 

Alan Kohn:

He was a tough customer.

 

Tara grove:

When a clerk would come to the US Supreme Court chambers, to deliver a message, and the person at the door, tried to hand justice Frankfurter the paper. Frankfurter would inevitably let it drop to the ground. So, the person had to bend down, and pick it up, to hand it to him again.

 

Jad Abumrad:

Dude, that's a wiener move.

 

Suzie Lechtenberg:

And by the way, the voices you heard, besides Tara Grove, are professors Mike Seidman.

 

Mike Seidman:

George Town University Law Center.

 

Suzie Lechtenberg:

Sam Issacharoff.

 

Sam Issacharoff:

NYU Law School. [inaudible 00:05:47]

 

Suzie Lechtenberg:

Craig Smith.

 

Craig Smith:

California University of Pennsylvania.

 

Suzie Lechtenberg:

And ex-Supreme Court clerk, Alan Kohn.

 

Alan Kohn:

Kohn. K-O-H-N.

 

Suzie Lechtenberg:

Okay. So, Frankfurter is on one side of the aisle. And his nemesis, is a gentleman on the other side of the aisle, a liberal named William O. Douglas.

 

Speaker 4:

Here is justice Douglas now, in the Supreme Court chambers.

 

Suzie Lechtenberg:

This is a recording from a 1957 interview with justice Douglas.

 

Speaker 4:

He looks very well. His face his tan, rugged, his eyes sparkle.

 

Suzie Lechtenberg:

Douglas was this mountain climbing environmentalist. Big on civil liberties.

 

Justice William O Douglas:

I think that this oncoming generation, is more aware of the importance of civil liberties than perhaps my generation was.

 

Suzie Lechtenberg:

And like justice Frankfurter.

 

Sam Issacharoff:

Douglas was a prick to everybody around him. Everybody hated him.

 

Suzie Lechtenberg:

All those same adjectives.

 

Mike Seidman:

Condescending.

 

Craig Smith:

Egotistical.

 

Tara grove:

Abrasive.

 

Suzie Lechtenberg:

Applied. Here's how the New York Times described him.

 

New York Times:

A habitual womanizer, heavy drinker and uncaring parent. Douglas was married four times. Cheating on each of his first three wives with her eventual successor.

 

Wedding interviewer:

Do you believe in kissing your bride, sir?

 

Justice William O Douglas:

Oh, sure.

 

Suzie Lechtenberg:

This is footage from his last marriage, to his wife Kathleen. He was 67. She was 23.

 

Justice William O Douglas:

Oh yes.

 

Sam Issacharoff:

So, yes, yes. That is William Douglas.

 

Suzie Lechtenberg:

So, you have these two guys. Frankfurter, the Bantam rooster. Douglas the prick.

 

Mike Seidman:

And...

 

Suzie Lechtenberg:

As you can imagine.

 

Mike Seidman:

They hated each other. They just despised each other.

 

Suzie Lechtenberg:

So, Frankfurter had this habit of monologue-ing. And while he would go on, and on, Douglas would just pull out a book right in front of him, and just start reading.

 

Mike Seidman:

He was just open in his disdain for Frankfurter.

 

Suzie Lechtenberg:

I actually found a series of interviews that were done with Douglas in the early '60s, where he basically calls Frankfurter names.

 

Justice William O Douglas:

Bossy, evil, utterly dishonest. Intellectually, he was very, very devious. He spent his time going up and down the halls, putting poison in everybody's spring.

 

Jad Abumrad:

Wow. Why'd they hate each other so much?

 

Suzie Lechtenberg:

Well, according to Mike Seidman.

 

Mike Seidman:

Some of that comes from maybe their difference in background. Frankfurter was a Jewish immigrant from Austria. Douglas was a Westerner.

 

Suzie Lechtenberg:

But, according to him, the core of their hatred, actually was ideological.

 

Mike Seidman:

They had reflected a really important split.

 

Suzie Lechtenberg:

Over how powerful the court should be though.

 

Mike Seidman:

Though, for Frankfurter, courts just ought not to intervene.

 

Tara grove:

He believed that many matters should be left up to the political process. And that courts should stay out of those issues.

 

Mike Seidman:

Douglas, he thought just the opposite. He thought that courts ought to intervene, to protect, for example, minority groups, free speech rights. Things of that sort.

 

Suzie Lechtenberg:

So, you had this personal feud going. You had this ideological war that was brewing in the court. And into the middle of all this, walks Charles Whittaker. You might call him the swing vote.

 

Alan Kohn:

Okay...

 

Suzie Lechtenberg:

This is Alan Kohn.

 

Alan Kohn:

I was a supreme court clerk for Justice Whittaker, from 1957 to 1958.

 

Suzie Lechtenberg:

Whittaker grew up in a small town in Kansas, called Troy.

 

Kate:

The antithesis of flashy.

 

Suzie Lechtenberg:

This is his granddaughter Kate.

 

Kate:

He attended kind of a one room schoolhouse.

 

Alan Kohn:

Proverbial little red schoolhouse.

 

Suzie Lechtenberg:

Worked on the farm.

 

Kate:

But, he determined that was not the life for him.

 

Suzie Lechtenberg:

Kate says, when he was around 16, he became obsessed with the idea of becoming a lawyer. And she says, he would actually practice law to the animals.

 

Kate:

Can you imagine? Pushing the plow along in the fields. And then, lecturing and arguing cases to the cows, or to the horses, or whatever.

 

Suzie Lechtenberg:

And did you really hear that he was lecturing [inaudible 00:09:45]?

 

Kate:

Yes.

 

Alan Kohn:

Oh, and on the side he would hunt. He would hunt squirrels.

 

Suzie Lechtenberg:

Possum.

 

Alan Kohn:

Raccoons.

 

Suzie Lechtenberg:

Skunks. And he'd sell the pelts for a few dollars.

 

Alan Kohn:

And he amassed, I think, $700.

 

Suzie Lechtenberg:

With that money he put himself through law school.

 

Kate:

My understanding is that he simultaneously went to law school and high school.

 

Jad Abumrad:

What?

 

Kate:

Which is just mind boggling. But...

 

Suzie Lechtenberg:

Yeah. Apparently he went to the head of the law school in Kansas City, and he's like, "I don't have a high school diploma. But, you need to let me in." The Dean just saw how ambitious he was, and he was impressed. And he was like, "All right. You're in."

 

Jad Abumrad:

I love this guy. He's like Mr Bootstraps.

 

Suzie Lechtenberg:

Totally. Anyhow, to make a long story short.

 

Alan Kohn:

Soon he became a top lawyer.

 

Suzie Lechtenberg:

And Alan Kohn says, that's because he would do better than all of his opponents. He would outwork them, out prepare them.

 

Alan Kohn:

Great attention to detail. Great presence before a jury.

 

Suzie Lechtenberg:

And then, he becomes a judge. First, a federal district judge, and then an appeals court judge. Then, in February of 1957, he gets the call.

 

Kent Whittaker:

As I recall, it was in the evening. And they asked if he could be in Washington in the next morning, and [crosstalk 00:10:48].

 

Suzie Lechtenberg:

This is Kent Whittaker, Charles Whittaker's son.

 

Kent Whittaker:

He said certainly. But, my best blue suit is at the cleaners tonight.

 

Suzie Lechtenberg:

What did he wear?

 

Kent Whittaker:

As a matter of fact, my mother, or someone else, got the cleaners to open up at night.

 

Justice Charles Whittaker:

In the first instance, there must be allegations, tending to show that the corporation's right of exercise of free will have been destroyed.

 

Suzie Lechtenberg:

This is one of the first times that Whittaker spoke on the bench. And he interjects with a question for the attorney. And he is Midwestern polite.

 

Justice Charles Whittaker:

[inaudible 00:11:21] I hesitate. You had so many interruptions. But, I have a question or two. I wonder if I might have the privilege of asking you.

 

Tennessee lawyer:

Sure.

 

Justice Charles Whittaker:

I think it may last [crosstalk 00:11:29].

 

Suzie Lechtenberg:

The thing that's crazy to me, is that he walked into the highest court in the land, and he didn't even go to college.

 

Alan Kohn:

I think it's important to understand, that he had no formal education really. In other words, he never took history, or political science, or social science.

 

Suzie Lechtenberg:

But, he loved the law.

 

Kent Whittaker:

My father was not an ideologue. He expected the court to be an arena, in which there were lively arguments on legal issues. And that's what he enjoyed. What he was really good at. What he loved.

 

Suzie Lechtenberg:

As Kent Whittaker puts it, his dad was kind of the walking embodiment, of that thing, that Chief Justice John Roberts said, back in 2005, during his confirmation hearing.

 

John Roberts:

Mr Chairman, I come before the committee with no agenda.

 

Suzie Lechtenberg:

He was sort of a blank slate.

 

John Roberts:

It's my job to call balls and strikes. And not to pitch, or bat.

 

Kent Whittaker:

My father was not interested in advancing a cause, or a theory. But, is really...

 

Suzie Lechtenberg:

Frankly, that seems how a justice should be. That you are approaching it without a political agenda, and that you're deciding it.

 

Kent Whittaker:

I think, in theory, that's exactly right. But in practice, so many of their cases, there is no law to turn to, to decide those cases.

 

Suzie Lechtenberg:

Kent says, that his dad quickly discovered, that law at the Supreme Court is never clean cut. Cases make it there, precisely because the law isn't clear.

 

Kent Whittaker:

Many of their cases are just without precedent.

 

Suzie Lechtenberg:

And it's in those cases.

 

Kent Whittaker:

At least you must have your ideology, as a starting point.

 

Suzie Lechtenberg:

And the fact that he didn't have an ideology, that left him vulnerable.

 

Tara grove:

He was definitely getting lobbied from both sides.

 

Suzie Lechtenberg:

Frankfurter on one side, Douglas on the other.

 

Kent Whittaker:

He was the new kid on the block and was being pulled by each one.

 

Kate:

He didn't like the way the judges bullied for votes.

 

Suzie Lechtenberg:

Within his first three months, he found himself in the middle of a death penalty case.

 

Justice Charles Whittaker:

She was found in her bedroom by a fireman, and taken outside. And soon thereafter, pronounced dead.

 

Suzie Lechtenberg:

A guy had been tried for arson and murder. And Douglas and the liberals wanted to intervene to help him. They felt like he'd been treated unfairly by the lower courts. But, Frankfurter and the conservatives, thought that the Supreme Court should be cautious. They should honor precedent.

 

Tara grove:

Now according to justice Douglas, justice Whittaker was undecided all the time.

 

Suzie Lechtenberg:

Douglas would tell him one thing.

 

Tara grove:

He'd say, "Oh well. Yeah. That seems right." And then, justice Frankfurter would say something else. And he would say, "Oh, gosh. That sounds right."

 

Kent Whittaker:

I think there were some thought, that he might side with the guy who talked with him last.

 

Suzie Lechtenberg:

He ends up being so undecided on this death penalty case, that he forces the court to delay the vote, until the next term. And there were a series of cases like this.

 

Justice Charles Whittaker:

Albert hill [inaudible 00:14:18].

 

Suzie Lechtenberg:

[crosstalk 00:14:18] Where the law would be fuzzy, ideologies would harden. And Whittaker, he would be right in the middle.

 

Craig Smith:

The physical depictions of him in that first year, from people who saw him, describe somebody who was restless.

 

Kent Whittaker:

Terribly unhappy.

 

Craig Smith:

Had lost a lot of weight.

 

Kent Whittaker:

Nervous.

 

Craig Smith:

Was agitated most of the time.

 

Kate:

It was a lot of stress on him.

 

Chief Justice Earl Warren:

[inaudible 00:14:41] Justice Whittaker, that in normal course, under California procedure the [inaudible 00:14:49] probation [crosstalk 00:14:50].

 

Kate:

But, over the next few years, he bounces back. He finds his feet.

 

Justice Charles Whittaker:

You say that judgments on probation.

 

Kent Whittaker:

His production increased substantially.

 

Mike Seidman:

In his third year, his fourth year, and part of his fifth year. He wrote, as many opinions as any other judge. He wrote as many dissenting opinions as any other judge. He was one of the nine, he was fully implored. And he wrote some very important opinions during that period of time. And along came of Baker versus Carr, and it broke him.

 

Jad Abumrad:

That's coming up.

 

Speaker 19:

I feel like I am looking at a future that is just dark.

 

Anna Sale:

There's so much that feels scary right now, including our finances. I'm Anna Sale, host of the podcast, Death, Sex, and Money, from WNYC studios.

 

Amanda Clayman:

And I am financial therapist Amanda Clayman. Yes, financial therapy is a thing, because money is always something that's more emotional than people realize.

 

Anna Sale:

Listen to Death, Sex and Money's new financial therapy series, wherever you get your podcasts.

 

Jad Abumrad:

Hey, this is More Perfect. I'm Jad Abumrad. Let's get back to our story from Suzie Lechtenberg, about the case that broke two justices.

 

Chief Justice Earl Warren:

Number 103, Charles W. Baker et al, Appellants versus Joe C. Carr et al.

 

Suzie Lechtenberg:

Okay. So, it's April 19th, 1961.

 

Justice Charles Whittaker:

Chief Justice, may it please the court.

 

Suzie Lechtenberg:

The Supreme Court is hearing Baker versus Carr.

 

Justice Charles Whittaker:

This is an individual voting rights case, brought by 11 qualified voters in the state of Tennessee.

 

Suzie Lechtenberg:

Now, on the surface, Baker versus Carr was about districts, and how people are counted in this country. And this is one of the most basic ways that political power gets assigned in America.

 

Jad Abumrad:

Yeah. Like as populations grow in size, that growth should be reflected, in the number of congress people that are representing them.

 

Suzie Lechtenberg:

But, at that time in Tennessee.

 

Tara grove:

Tennessee hadn't changed it's legislative districts.

 

Justice Charles Whittaker:

It's last reapportionment was in 1901.

 

Tara grove:

Since 1901.

 

Suzie Lechtenberg:

Which was...

 

Justice Charles Whittaker:

60 years.

 

Suzie Lechtenberg:

60 years earlier.

 

Tara grove:

Well, this created big problems for urban areas.

 

Suzie Lechtenberg:

Like Memphis. Because in those 60 years, people had moved to the cities in droves.

 

Tara grove:

And rural areas were getting smaller.

 

Suzie Lechtenberg:

But, the Tennessee State legislature, had refused to update its count. And it was still giving more representation to those rural areas.

 

Sam Issacharoff:

In Tennessee. The figure was 23 to one.

 

Suzie Lechtenberg:

NYU law professor Sam Issacharoff. For people that don't understand it, how does it actually dilute your vote?

 

Sam Issacharoff:

Well, this is very simple. You have one district that has one person in it, and you have another district that has 23 people in it. The district that has one person, gives all the power to that one person. The district that has 23 people, spreads it out over all 23.

 

Jad Abumrad:

Wait, what?

 

Suzie Lechtenberg:

All right. Think of it this way. At that time, a person in the city in Tennessee, had 123rd as much of a voice in the legislature, as a person living in the countryside.

 

Jad Abumrad:

Oh.

 

Suzie Lechtenberg:

And here's sort of the insidious underbelly of that. It just so happened that the people living in the countryside, were mostly white. And a large percentage of the people living in the city, were black.

 

Doug smith:

Underlying all of the reapportionment litigation, at least in the south, was white supremacy.

 

Suzie Lechtenberg:

That's Doug Smith.

 

Doug smith:

Historian and the author of On Democracy's Doorstep. This was deeply tied to white supremacy, and the maintenance of Jim Crow, was a method of making sure that rural white legislators, continue to control the power structure.

 

Suzie Lechtenberg:

So, you had this situation, he says, where a small minority was choking the majority.

 

Doug smith:

Choking the cities, and the growing suburban areas, from any sorts of funds.

 

Suzie Lechtenberg:

The cities couldn't get the money they needed, for roads, education, social services. So, the question at the Supreme Court was, and they would actually tackled this in two separate hearings. What should they do about this?

 

Justice William O Douglas:

Here you have geographical [inaudible 00:19:13][crosstalk 00:19:15].

 

Jad Abumrad:

And here's where you get to the ideological smack down. Liberals in the court, like Douglas, basically agreed with the plaintiff, when they argued.

 

Justice William O Douglas:

I say there's nothing in the Constitution of the United States of America, that ordains, and nothing in the Constitution of Tennessee that ordains, that state government is, and must remain, an agricultural commodity. And there's nothing in either one of those constitutions that said, it takes 20 city residents to equal one farm.

 

Suzie Lechtenberg:

Liberals were like, "Yeah. This is clearly an injustice. People in the cities are getting screwed."

 

Justice William O Douglas:

Their voting rights have been diluted and debased to the point of nullification.

 

Suzie Lechtenberg:

But, the conservatives are like, "Yes, people are getting hurt."

 

Doug smith:

But, we're not going to do anything about it.

 

Suzie Lechtenberg:

We can't.

 

Doug smith:

Frankfurter.

 

Felix frankfurter:

[inaudible 00:19:59] a rotten situation doesn't need a court today.

 

Doug smith:

Most vociferously said we cannot get involved. That as bad as this is, it was not an issue that the court should get involved in.

 

Jad Abumrad:

Why not?

 

Suzie Lechtenberg:

Well...

 

Felix frankfurter:

I do have to think of the road as I'm going on, what kind of road you're inviting me.

 

Suzie Lechtenberg:

He was like, "Think of where this will lead."

 

Felix frankfurter:

Considering the fact that this isn't a unique Tennessee situation. This isn't a unique Tennessee situation.

 

Suzie Lechtenberg:

If we end up doing this in Tennessee, pretty soon we'll be intervening in California.

 

Felix frankfurter:

Maryland.

 

Suzie Lechtenberg:

South Carolina. Pretty soon we'll be rewriting the entire U.S. legislative map.

 

Felix frankfurter:

I have to think of a lot of states. And not say this is just Tennessee. For me, this is the United States, not Tennessee.

 

Suzie Lechtenberg:

Yeah. So, basically, he felt like this would force the courts to get involved in politics. And he really believed that the court should never, ever get involved in politics. This is an idea that goes way back to something called.

 

Sam Issacharoff:

The political question doctrine.

 

Doug smith:

Political question doctrine.

 

Tara grove:

The political question doctrine says, no federal court can decide this issue at all.

 

Doug smith:

The courts simply had no business, getting into what were considered to be fundamentally political questions. And what could be more fundamental, and political, than the makeup of a legislature.

 

Craig Smith:

It's a philosophy rooted in the notion, that unelected lifetime judges, should not be substituting their will, for the will of the people's elected representatives.

 

Suzie Lechtenberg:

Frankfurter felt like, even if you have a terrible political situation. If the justice's stepped in, and overruled the legislature, that would be worse than doing nothing at all. Because it would be fundamentally undemocratic.

 

Tara grove:

He viewed the political question doctrine, as a crucial limitation, on the federal judicial power.

 

Suzie Lechtenberg:

And he wasn't alone, the courts have followed this guideline for about 150 years. And even with the current case in Tennessee.

 

Doug smith:

The federal court that first heard the case recognized the situation and actually referred to it as an evil.

 

Speaker 4:

The evil is a serious one, which should be corrected without further delay. End quote.

 

Doug smith:

But, this is a political question. The malapportionment was a political question, and only the political branches can handle this.

 

Speaker 4:

Supreme Court. They have no power to do anything about protecting and enforcing the voting rights of these claims.

 

Suzie Lechtenberg:

So...

 

Speaker 4:

[inaudible 00:22:15] submit in this court [crosstalk 00:22:17].

 

Suzie Lechtenberg:

When the lawyer for Tennessee got up there.

 

Tennessee lawyer:

I am not here defending the legislature of Tennessee.

 

Suzie Lechtenberg:

He didn't try to defend her Tennessee was counting, or not counting its people. He basically said, "Yeah, what we're doing is bad. But, it's nobody's job but ours to fix."

 

Tennessee lawyer:

Is it worse for the legislature of Tennessee not to reapportion? Or is it worse for the Federal District Courts to violate the age old doctrine? Separation of powers.

 

Suzie Lechtenberg:

He basically said, "If you step in, you're going to screw up the balance of power in America. The power in America comes from we the people, not the courts. So, this matter should be left up to the people of Tennessee, and their elected representatives.

 

Jad Abumrad:

Wait a second. If the whole problem is that you don't have a voice in the legislature, then how can you suddenly just have a voice in the legislature? I mean, the only way to change it, would be if the legislature itself, were to give up power. And why would they do that?

 

Suzie Lechtenberg:

Because of course, once elected officials are in power, they have a vested interest in keeping their districts exactly as they are. Because those were the districts that elected them.

 

Guy charles:

And fundamentally, electoral representatives knew that if they redrew the lines, that they would be voting themselves out of political power.

 

Suzie Lechtenberg:

That's Guy Charles. Professor, Duke Law School.

 

Guy charles:

So, they had an incentive, not to do anything about this.

 

Suzie Lechtenberg:

So, for the liberals in the court, they felt like this was a fundamental flaw in our democracy that needed to be fixed. And nobody was going to fix it, if they didn't fix it. But, for Frankfurter, he's like, "If you fix this one, you're going to have to fix that one. And that one, and that one, and that one. And where's it going to stop?"

 

Guy charles:

If you do this, there is no way out.

 

Suzie Lechtenberg:

The courts going to get stuck in what he called...

 

Guy charles:

The political thicket.

 

Alan Kohn:

The political thicket.

 

Doug smith:

The court must not enter the political thicket.

 

Alan Kohn:

That sounds like Frankfurter. He must have written those words.

 

Doug smith:

And the imagery of the thicket, is that the deer very proudly with his new horns, goes into the thicket, gets entangled, and can never get out. Frankfurters plane was, once the courts are in, there will be nothing beyond it. And someday, the courts will be forced to declare winners, and losers, of very high profile elections.

 

Suzie Lechtenberg:

Okay. So, after the oral arguments are over, in Baker versus Carr. The justices head into conference. That's a meeting with just the nine.

 

Doug smith:

And when they went into the conference, basically the court was divided.

 

Suzie Lechtenberg:

Right down the middle. And Charles Whittaker, he was a potential swing vote.

 

Doug smith:

Whittaker was deeply torn.

 

Suzie Lechtenberg:

He'd been leaning Frankfurters way.

 

Doug smith:

But...

 

Justice Charles Whittaker:

If there is a clear, constitutional right that's being violated.

 

Doug smith:

During that first argument, he asked a number of questions that suggested a great deal of sympathy with the plaintiffs.

 

Justice Charles Whittaker:

Then, is there not both power, and duty, in the courts, to enforce that constitutional right?

 

Doug smith:

There was a lot of thought, that he might actually come down on the side of the plaintiffs, in that case. I think that's where Frankfurter really, really, began to rip into him.

 

Tara grove:

Justice Frankfurter, right after the first oral argument, during the conference. He gave a 90 minute speech. So, talked for 90 plus, straight minutes. Darting around the room, pulling books, off the shelves.

 

Craig Smith:

Pulling books off the shelf, reading from prior cases.

 

Tara grove:

Gesticulating wildly, to make his point.

 

Craig Smith:

And the whole time, looking directly at Whittaker. There was one account that I heard, where Frankfurter went on for four hours. For hours.

 

Mike Seidman:

[inaudible 00:26:00] really lecturing Whittaker. Really, really belittling him.

 

Suzie Lechtenberg:

This guy.

 

Craig Smith:

Yes, it was horribly intimidating.

 

Suzie Lechtenberg:

At one point, one of the justices on the liberal side, Justice Hugo Black. He took Whittaker aside.

 

Craig Smith:

Black was trying to make him feel better. And Black said to Charles Whittaker, "Just remember, we're all boys grown tall. We're not the gods who sit on high, and dispense justice." But, it's very difficult not to see yourself in that role.

 

Suzie Lechtenberg:

Particularly, if your vote might be the vote that decides everything.

 

Tara grove:

This started to weigh heavily on Whittaker's mind. He was disturbed by having the weight of the Supreme Court on his shoulders.

 

Suzie Lechtenberg:

According to his family, Kate and Ken.

 

Kate:

My mother tells me, that he, at that time, was under a lot of stress. And spoke as though he were dictating, spoke his punctuation. "Hello Judith. Comma. It's very nice to meet you. Period." Clearly, thinking about everything that he might say, being recorded.

 

Kent Whittaker:

I remember his stating, that he felt like all the words that he uttered, were being chiseled in stone. As a result, of which, he said, "You don't talk much."

 

Suzie Lechtenberg:

So, after they heard the case the first time, Whittaker couldn't make up his mind. And actually, incidentally, there was another justice.

 

Tara grove:

Justice Stewart, who was the other swing vote in the case.

 

Suzie Lechtenberg:

Who also couldn't make up his mind. The court decided to hear the case again in the fall, just because they needed more time. And over the summer.

 

Doug smith:

Interestingly enough, Whittaker said he remained deeply divided. That he'd actually written memos on both sides of the issue.

 

Suzie Lechtenberg:

Doug Smith says Whittaker wrote both an opinion for intervening in Baker versus Carr, and a dissent against intervening in Baker versus Carr, at the same time. Meanwhile, as he's doing this.

 

Tara grove:

Justice Frankfurter circulates a 60 page memo explaining how this was a political question, that should not be decided by the courts.

 

Craig Smith:

He's got a fire in his belly. He's not going to let this one go.

 

Chief Justice Earl Warren:

Number six. Charles W. Baker et al, Appellants, versus Joe. C. Carr et al.

 

Suzie Lechtenberg:

Monday [crosstalk 00:28:29] October 9th, 1961. It's 10 AM, and the court is back in session.

 

Tennessee lawyer:

Chief Justice, may it please the court.

 

Suzie Lechtenberg:

The lawyer arguing the case against the Tennessee legislature, begins to talk.

 

Tennessee lawyer:

Tennessee voters seek federal court protection [crosstalk 00:28:43].

 

Suzie Lechtenberg:

Frankfurter sits quietly for about five minutes listening.

 

Tennessee lawyer:

[crosstalk 00:28:46] corrected without delay.

 

Suzie Lechtenberg:

And then.

 

Felix frankfurter:

You don't mean to imply that [inaudible 00:28:50] are wrong, under the state constitution had no right to [inaudible 00:28:54].

 

Tennessee lawyer:

I certainly did not Mr. Justice Frankfurter.

 

Felix frankfurter:

The ratio you gave a minute ago. [inaudible 00:28:59] determination of a state [inaudible 00:29:01][crosstalk 00:29:01] and I wanted to know. And the totality doesn't include. Is there any state in the uniquely different for [inaudible 00:29:08]. Well, it's passed on it by denying a right under it. If that isn't passing on it, I don't know what is passing on it.

 

Tennessee lawyer:

Of course not Mr. Justice Frankfurter. [crosstalk 00:29:17].

 

Suzie Lechtenberg:

Frankfurter hammers the attorneys with questions. During the course of oral arguments, he speaks approximately, 170 times.

 

Jad Abumrad:

170.

 

Suzie Lechtenberg:

170.

 

Jad Abumrad:

Damn.

 

Suzie Lechtenberg:

Charles Whittaker.

 

Justice Charles Whittaker:

Tennessee have some system for the allocation of its legislators to districts accounts.

 

Suzie Lechtenberg:

17 times.

 

Tennessee lawyer:

Well, since they have.

 

Suzie Lechtenberg:

After nearly four hours of oral arguments.

 

Chief Justice Earl Warren:

We'll recess now.

 

Suzie Lechtenberg:

The justices recess, and go into conference.

 

Alan Kohn:

Frankfurter needed desperately. He had to get Whittaker. And he would, kept after him, like a dog after a bone. Trying to persuade them. And that harassing he got, I have to make a point here. It was a nightmare. And I saw the nightmare.

 

Suzie Lechtenberg:

How so? Describe it to me.

 

Guy charles:

Well, he was a nervous wreck, and like a cat on a hot tin roof.

 

Suzie Lechtenberg:

I found out I don't know if he told me, or his wife told me, he was on tranquilizers.

 

Craig Smith:

To try to overcome what he thought, was just work related stress. Well clearly, something was taking hold of him.

 

Alan Kohn:

He had trouble concentrating.

 

Guy charles:

Highly fraught.

 

Craig Smith:

I would characterize his eventual breakdown as something of a slow descent. By the early spring, after the court had returned from its winter recess. Whittaker was absent from the court.

 

Jad Abumrad:

You mean like he didn't show for work one day?

 

Suzie Lechtenberg:

Apparently so.

 

Craig Smith:

His clerks didn't know where he was. The other justices didn't know his whereabouts. He just disappeared. Really, in the middle, of what's going to become one of the monumental decisions of the 20th century. He disappears. He had to escape.

 

Jad Abumrad:

Where'd he go?

 

Craig Smith:

Well, he went to, really, what would be a cabin in the woods. In the middle of Wisconsin. And he called up one of his former law associates in Kansas City, to come up and join him.

 

Jad Abumrad:

And according to Craig Smith. He and this guy, whose name was Sam Moby. They would just sit there, on the bank of the lake, in silence.

 

Craig Smith:

They would sit for hours on end, not talking to each other. Just waiting for the justice to speak.

 

Justice Charles Whittaker:

There is no cause for pride in what has happened [inaudible 00:32:27].

 

Suzie Lechtenberg:

We have no way of knowing what he was thinking at that moment. But, I imagine he was just sitting there, and he was thinking about these two realities that could unfold. On the one hand, if the court stepped into politics. They could protect people.

 

Speaker 30:

Sonoma Alabama became a signing [inaudible 00:32:45].

 

Speaker 31:

You are to disperse. You are all to disperse.

 

Suzie Lechtenberg:

But, on the other hand, what kind of precedent would this set?

 

Speaker 32:

It's a sad day in America, Mr President, when we can't...

 

Suzie Lechtenberg:

Would it make the court too powerful?

 

Chief Justice Earl Warren:

George W. Bush and Richard Cheney versus Albert Gore.

 

Suzie Lechtenberg:

In which case...

 

Speaker 32:

George W. Bush of the state of Texas has received as President of the United States, two hundred and [crosstalk 00:33:10].

 

Suzie Lechtenberg:

Who would protect the people from the court? I imagine his mind went back and forth, and back and forth.

 

Chief Justice Earl Warren:

[inaudible 00:33:15] will not [inaudible 00:33:15].

 

Craig Smith:

And when Whittaker decided that he really had to get back to work, then his protege would say to him, "No. Just relax. Just take it easy, and get yourself together, before you decide to go back."

 

Suzie Lechtenberg:

After three weeks, justice Whittaker returns to D.C.

 

Kent Whittaker:

Back to Washington for a few days.

 

Suzie Lechtenberg:

That's Kent again, his son.

 

Kent Whittaker:

We found my father to be really an extremist. [inaudible 00:33:51] and I think borderline suicidal.

 

Suzie Lechtenberg:

When you said he was suicidal, what do you mean?

 

Kent Whittaker:

There was an instance, in which my brother, found my father going upstairs, to get a shotgun.

 

Suzie Lechtenberg:

Oh.

 

Kent Whittaker:

Yeah.

 

Suzie Lechtenberg:

A few days later, Charles Whittaker checks himself into a hospital.

 

Craig Smith:

There is some evidence, that it was really justice Douglas, who convinced Whittaker, to go to the hospital.

 

Justice William O Douglas:

I do recall justice Whittaker had had a nervous breakdown.

 

Craig Smith:

That's justice William Douglas again.

 

Justice William O Douglas:

He was at Walter Reed Hospital. And I'd been up to see him, and the chief had been up to see him. And he was in very poor physical condition. Very worried, and very depressed. He asked me what I thought he should do. I told him, I didn't think he'd be in a position to decide what he should do, until he'd get well.

 

Suzie Lechtenberg:

A few weeks later.

 

Speaker 4:

March 29th, 1962. The presidential press conference, from the new state department auditorium, Washington D.C.

 

Justice William O Douglas:

Several announcements to make. It is with extreme regret, that I announce the retirement of Associate Justice of the Supreme Court, Charles Evans Whittaker, effective April 1st. Justice Whittaker, a member of the Supreme Court for nearly five years, and of the federal judiciary, for nearly eight years, is retiring at the direction of his physician, for reasons of disability. I know that the bench and the bar of the entire nation, join me in commending Mr justice Whittaker, for his devoted service to his country, during a critical period in its history. Next, I want to take this opportunity to stress again the importance of the tax bill, now, before the house of representatives.

 

Jad Abumrad:

Wow. And what ever happened with the case with Baker v Carr?

 

Suzie Lechtenberg:

Well, Whittaker didn't vote on Baker versus Carr. So, you could say that this case, that essentially broke him, his vote didn't count.

 

Jad Abumrad:

Wow.

 

Suzie Lechtenberg:

Around the time that he was in the hospital, there was sort of this liberal coo at the court, where Frankfurter lost a couple of other votes. So, in the end, the decision actually wasn't very close at all.

 

Jad Abumrad:

What was it?

 

Suzie Lechtenberg:

It was 6-2.

 

Jad Abumrad:

Oh. Frankie.

 

Suzie Lechtenberg:

Yeah. And Brennan wrote the majority opinion. And he says that this whole kind of cluster [inaudible 00:36:35] that we've been fighting over, of how states in Tennessee count their voters, that this is something the courts can, and should, look at.

 

Jad Abumrad:

So, in other words, they decided to lower their horns and go into the thicket?

 

Suzie Lechtenberg:

Oyez, they did.

 

Speaker 4:

Oyez.

 

Suzie Lechtenberg:

And just one, or two, final questions. What happened to justice Frankfurter?

 

Tara grove:

Well, the thing that I find, perhaps most extraordinary, is that less than two weeks after the decision in Baker versus Carr came down.

 

Craig Smith:

Felix Frankfurter was working at his desk at the Supreme Court.

 

Tara grove:

And Frankfurter's secretary found him sprawled on the floor of his office, from a stroke.

 

Craig Smith:

He suffered a massive stroke. And then, never returned to service.

 

Tara grove:

And while he was in the hospital, Solicitor General Archibald Cox, visited Frankfurter. And Frankfurter, he was in a wheelchair, and could barely speak. But, he apparently conveyed to Archibald Cox, that the decision in Baker versus Carr had essentially caused his stroke. He felt so passionately that the court should stay out of the case, that he physically, physically deteriorated, after the court had gone the other way.

 

Suzie Lechtenberg:

After Baker versus Carr, President Kennedy, essentially, had two Supreme Court vacancies to fill. Now, Whittaker see, he filled with a guy who turned out to be a moderate. Frankfurters vacancy, that second vacancy.

 

Craig Smith:

It's that vacancy. That will lead to the appointment of a man named Arthur Goldberg. That is the fifth vote that the four liberals, what are regarded as the four liberals. That becomes the fifth vote that they need, really to create what has come to be regarded as the Warren Court revolution.

 

Suzie Lechtenberg:

This is when the Supreme Court basically became an agent for social change.

 

Craig Smith:

That revolution that begins with the 1962 term. That's the revolution that is going to change.

 

Chief Justice Earl Warren:

[inaudible 00:38:55] starts out with the idea of one man, one vote [crosstalk 00:38:57].

 

Craig Smith:

The way we draw our political boundaries.

 

Speaker 33:

When the prosecutor withheld a confession.

 

Craig Smith:

The way we think of criminal justice.

 

Speaker 34:

[inaudible 00:39:06] small, black, [inaudible 00:39:08].

 

Craig Smith:

The way we treat first amendment,[crosstalk 00:39:11] religious, and obscenity issues. That's the Warren Court that people remember. And that's the court that came into existence, when Felix Frankfurter left.

 

Suzie Lechtenberg:

And so, just thinking about that question that that woman asked, all the way at the beginning of the story.

 

audience woman:

Yes. Could you address what I see as the increasing politicization of the court? The apotheosis of which, I guess, was, voting, or electing Bush to be our president.

 

Suzie Lechtenberg:

You can kind of draw a line, from this moment in Baker versus Carr, all the way to December 9th 2000.

 

news broadcatse:

Seven o'clock here in the East. The polls in six new states have just closed. And the lead story at this hour, is the state of Florida is too close to call.

 

Guy charles:

I think Felix Frankfurt would have said, "See, that's what I told you. That's what would happen. Is that eventually you will be deciding a partisan question, which presidential candidate, essentially received the most votes.

 

Doug smith:

For those who felt themselves on the losing side of Bush v Gore, this was justice Frankfurters revenge. This was the moment Baker v Carr had opened up. And when I teach this to students, and particularly in the decade after Bush v. Gore, when the sentiments about this were still quite raw. I would say to them, "Well, was Frankfurter right?" And I remember a student in the mid-2000s, who said in class, "I never thought I would say this. But... because I hated the outcome and Bush v. Gore. I was so angry when the court interceded. But, if Bush v Gore is the price we have to pay, for the courts making the overall political system work, somewhat more tolerably, properly. It's a price I'm willing to pay."

 

Jad Abumrad:

Before we totally sign off, what happened to Douglas? We sort of lost track of him.

 

Suzie Lechtenberg:

So, after Baker versus Carr was decided, he went on to be a Supreme Court justice for 13 more years. And to this day, he actually holds the record for being the longest serving justice of all time 36 years.

 

Jad Abumrad:

And Frankfurter?

 

Suzie Lechtenberg:

So, Baker versus Carr was the last case that he ever heard. And he died a few years afterwards.

 

Jad Abumrad:

Yeah. And Charles Whittaker, did he ever recover?

 

Suzie Lechtenberg:

Well, after Whittaker retired from the court, he moved back to Kansas City with his family. And his son said, that it took them about two years to get better from his nervous breakdown. But, he did get better. And eventually he got a job as counsel to General Motors. But, he never returned to the bench. He never was a judge again.

 

Jad Abumrad:

Okay. More Perfect is produced by me Jad Abumrad, with Suzie Lechtenberg, Tobin Low, and Kelsey Padgett. Go Kelsey.

 

Kelsey:

With Soren Wheeler, Elie Mystal, David Herman, Alex Overington, Karen Duffin, Sean Rameswaram, Katherine Wells, Bari Finkel, Andy Mills, and Michelle Harris. Special thanks to Gyan Riley. Archival interviews with Justice William O. Douglas come from the Department of Rare Books and Special Collections at Princeton University Library. Supreme Court audio is from Oyez.

 

Speaker 4:

Oyez! Oyez!

 

Suzie Lechtenberg:

Well, I think we should start the story on June 25th, 1969.

 

Jad Abumrad:

Well, first, you should say who you are.

 

Suzie Lechtenberg:

I'm Suzie Lechtenberg.

 

Jad Abumrad:

I'm Jad Abumrad. This is More Perfect. Okay, so why June 20... When was it?

 

Suzie Lechtenberg:

June 25th, 1969.

 

Jad Abumrad:

Why then?

 

Suzie Lechtenberg:

Supreme Court Chief Justice Earl Warren is retiring. Earl Warren of the Warren Court.

 

Jad Abumrad:

Is that a big court?

 

Suzie Lechtenberg:

Yeah. That's really big.

 

Jad Abumrad:

No. Come on, humor me.

 

Suzie Lechtenberg:

I think, if you think of legendary Supreme Court justices, he's probably in, I don't know, top five.

 

Jad Abumrad:

So, he was one of the Mount olympians?

 

Suzie Lechtenberg:

He's a big deal.

 

Chief Justice Earl Warren:

Constitutional rights.

 

Jad Abumrad:

All right. So, he's retiring.

 

Suzie Lechtenberg:

So, he's retiring, he's been on the court for 16 years. And he's in an interview. And he's asked...

 

Interviewer:

What would you list, Mr. Chief Justice, as the Supreme Court's most important decision, in your 16 years here?

 

Suzie Lechtenberg:

And he says something that is kind of astounding.

 

Chief Justice Earl Warren:

I think the reinforcement, not only of state legislatures. But-

 

Suzie Lechtenberg:

Wait. Before you hear the answer.

 

Jad Abumrad:

Yeah.

 

Suzie Lechtenberg:

I think that you need to know, that he could have said all kinds of cases. He was the Chief Justice during [crosstalk 00:01:11] I don't know, Miranda.

 

Chief Justice Earl Warren:

... during the interrogation. To be advised either of his rights to remain silent.

 

Suzie Lechtenberg:

That's you have the right to remain silent.

 

Jad Abumrad:

Oh.

 

Chief Justice Earl Warren:

Clarence Earl Gideon, petitioner.

 

Suzie Lechtenberg:

Or Gideon versus Wainwright.

 

Chief Justice Earl Warren:

It is the duty of the state...

 

Suzie Lechtenberg:

Which is, you have the right to an attorney.

 

Chief Justice Earl Warren:

To appoint counsel.

 

Jad Abumrad:

Yeah. That seems big.

 

Suzie Lechtenberg:

Or...

 

Chief Justice Earl Warren:

Segregation has no place in our democracy.

 

Suzie Lechtenberg:

Brown versus Board of Education.

 

Jad Abumrad:

Okay.

 

Chief Justice Earl Warren:

That there was no better place to [crosstalk 00:01:33].

 

Jad Abumrad:

That one I know. That one I know.

 

Suzie Lechtenberg:

Desegregating the schools. That's big.

 

Jad Abumrad:

Yeah. What could be bigger than that?

 

Suzie Lechtenberg:

He doesn't say any of those.

 

Jad Abumrad:

What does he say?

 

Suzie Lechtenberg:

He says this little case called...

 

Chief Justice Earl Warren:

The Baker versus Carr case.

 

Suzie Lechtenberg:

Baker versus Carr.

 

Chief Justice Earl Warren:

I think that that case, is perhaps the most important case that we've had, since I've been on the court.

 

Jad Abumrad:

He thought that case, whatever it is, is more important than the case to desegregate the schools?

 

Suzie Lechtenberg:

He did.

 

Jad Abumrad:

Wow. So, what the hell is it?

 

Suzie Lechtenberg:

Exactly.

 

Jad Abumrad:

No, really. What is it?

 

Suzie Lechtenberg:

It's this case that was so dramatic, and so traumatic, that it apparently broke two justices.

 

Kent Whittaker:

There was an instance, in which my brother, found my father going upstairs, to get a shotgun.

 

Jad Abumrad:

Wow.

 

Speaker 4:

The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention. Oyez! Oyez! For the court is now sitting. Oyez! God save the United States and this Honorable Court. Oyez! [inaudible 00:02:53] Oyez!

 

Jad Abumrad:

Okay. So, this is More Perfect, a miniseries about the Supreme Court. Just to frame the story we're about to hear for a second. As we were putting the show together, we hosted a panel discussion, and a couple of us were on stage. And a woman in the audience asked the following question.

 

audience woman:

Yes. Could you address what I see as the increasing politicization of the court? The apotheosis of which, I guess, was voting, or electing Bush to be our president. Has the court always been this way? Is this just my perception that it's becoming more politicized?

 

Jad Abumrad:

So, this turns out to be a really interesting question. It turns out, I didn't know this until Suzie started looking into it, that there was a moment, when the Pandora's box just got ripped open.

 

Suzie Lechtenberg:

So, I think to understand that moment in this story, you have to get to know three characters. And these aren't necessarily the three most important justices of all time. Because at that time you had Chief Justice Earl Warren, and William Brennan on the court. And these were kind of giants of the Supreme Court.

 

Jad Abumrad:

Gotcha.

 

Suzie Lechtenberg:

But, for this story, these three guys are key. One of them is on the right. One of them is on the left. And one of them is just stuck right in the middle. Tragically in the middle.

 

Jad Abumrad:

Ooh.

 

Suzie Lechtenberg:

So, on the conservative side.

 

Felix frankfurter:

[inaudible 00:04:23] What difference does it make, whether its in the constitution, or in any other expression, or action, by the state?

 

Suzie Lechtenberg:

You had a guy named Felix Frankfurter.

 

Tara grove:

So, justice Frankfurter was one of the most...

 

Jad Abumrad:

Wait, his name was really Frankfurter?

 

Suzie Lechtenberg:

Yes.

 

Tara grove:

One of the most influential Justices of all time.

 

Suzie Lechtenberg:

That's Tara Grove, she teaches constitutional law at William and Mary Law School.

 

Tara grove:

He was a very influential scholar at Harvard Law School, before he became a justice. Was a close advisor to Franklin Delano Roosevelt. He was extremely smart.

 

Suzie Lechtenberg:

Towering figure.

 

Tara grove:

But, as a person, justice Frankfurter. He wasn't necessarily the nicest person.

 

Suzie Lechtenberg:

I heard that from everyone I talked to.

 

Mike Seidman:

I always call him a Bantam rooster.

 

Sam Issacharoff:

He was a difficult, crusty figure.

 

Mike Seidman:

He was short, and he had little bit of a pouch on him.

 

Craig Smith:

He was one of the most.

 

Mike Seidman:

Condescending.

 

Craig Smith:

Egotistical of justices.

 

Alan Kohn:

He was a tough customer.

 

Tara grove:

When a clerk would come to the US Supreme Court chambers, to deliver a message, and the person at the door, tried to hand justice Frankfurter the paper. Frankfurter would inevitably let it drop to the ground. So, the person had to bend down, and pick it up, to hand it to him again.

 

Jad Abumrad:

Dude, that's a wiener move.

 

Suzie Lechtenberg:

And by the way, the voices you heard, besides Tara Grove, are professors Mike Seidman.

 

Mike Seidman:

George Town University Law Center.

 

Suzie Lechtenberg:

Sam Issacharoff.

 

Sam Issacharoff:

NYU Law School. [inaudible 00:05:47]

 

Suzie Lechtenberg:

Craig Smith.

 

Craig Smith:

California University of Pennsylvania.

 

Suzie Lechtenberg:

And ex-Supreme Court clerk, Alan Kohn.

 

Alan Kohn:

Kohn. K-O-H-N.

 

Suzie Lechtenberg:

Okay. So, Frankfurter is on one side of the aisle. And his nemesis, is a gentleman on the other side of the aisle, a liberal named William O. Douglas.

 

Speaker 4:

Here is justice Douglas now, in the Supreme Court chambers.

 

Suzie Lechtenberg:

This is a recording from a 1957 interview with justice Douglas.

 

Speaker 4:

He looks very well. His face his tan, rugged, his eyes sparkle.

 

Suzie Lechtenberg:

Douglas was this mountain climbing environmentalist. Big on civil liberties.

 

Justice William O Douglas:

I think that this oncoming generation, is more aware of the importance of civil liberties than perhaps my generation was.

 

Suzie Lechtenberg:

And like justice Frankfurter.

 

Sam Issacharoff:

Douglas was a prick to everybody around him. Everybody hated him.

 

Suzie Lechtenberg:

All those same adjectives.

 

Mike Seidman:

Condescending.

 

Craig Smith:

Egotistical.

 

Tara grove:

Abrasive.

 

Suzie Lechtenberg:

Applied. Here's how the New York Times described him.

 

New York Times:

A habitual womanizer, heavy drinker and uncaring parent. Douglas was married four times. Cheating on each of his first three wives with her eventual successor.

 

Wedding interviewer:

Do you believe in kissing your bride, sir?

 

Justice William O Douglas:

Oh, sure.

 

Suzie Lechtenberg:

This is footage from his last marriage, to his wife Kathleen. He was 67. She was 23.

 

Justice William O Douglas:

Oh yes.

 

Sam Issacharoff:

So, yes, yes. That is William Douglas.

 

Suzie Lechtenberg:

So, you have these two guys. Frankfurter, the Bantam rooster. Douglas the prick.

 

Mike Seidman:

And...

 

Suzie Lechtenberg:

As you can imagine.

 

Mike Seidman:

They hated each other. They just despised each other.

 

Suzie Lechtenberg:

So, Frankfurter had this habit of monologue-ing. And while he would go on, and on, Douglas would just pull out a book right in front of him, and just start reading.

 

Mike Seidman:

He was just open in his disdain for Frankfurter.

 

Suzie Lechtenberg:

I actually found a series of interviews that were done with Douglas in the early '60s, where he basically calls Frankfurter names.

 

Justice William O Douglas:

Bossy, evil, utterly dishonest. Intellectually, he was very, very devious. He spent his time going up and down the halls, putting poison in everybody's spring.

 

Jad Abumrad:

Wow. Why'd they hate each other so much?

 

Suzie Lechtenberg:

Well, according to Mike Seidman.

 

Mike Seidman:

Some of that comes from maybe their difference in background. Frankfurter was a Jewish immigrant from Austria. Douglas was a Westerner.

 

Suzie Lechtenberg:

But, according to him, the core of their hatred, actually was ideological.

 

Mike Seidman:

They had reflected a really important split.

 

Suzie Lechtenberg:

Over how powerful the court should be though.

 

Mike Seidman:

Though, for Frankfurter, courts just ought not to intervene.

 

Tara grove:

He believed that many matters should be left up to the political process. And that courts should stay out of those issues.

 

Mike Seidman:

Douglas, he thought just the opposite. He thought that courts ought to intervene, to protect, for example, minority groups, free speech rights. Things of that sort.

 

Suzie Lechtenberg:

So, you had this personal feud going. You had this ideological war that was brewing in the court. And into the middle of all this, walks Charles Whittaker. You might call him the swing vote.

 

Alan Kohn:

Okay...

 

Suzie Lechtenberg:

This is Alan Kohn.

 

Alan Kohn:

I was a supreme court clerk for Justice Whittaker, from 1957 to 1958.

 

Suzie Lechtenberg:

Whittaker grew up in a small town in Kansas, called Troy.

 

Kate:

The antithesis of flashy.

 

Suzie Lechtenberg:

This is his granddaughter Kate.

 

Kate:

He attended kind of a one room schoolhouse.

 

Alan Kohn:

Proverbial little red schoolhouse.

 

Suzie Lechtenberg:

Worked on the farm.

 

Kate:

But, he determined that was not the life for him.

 

Suzie Lechtenberg:

Kate says, when he was around 16, he became obsessed with the idea of becoming a lawyer. And she says, he would actually practice law to the animals.

 

Kate:

Can you imagine? Pushing the plow along in the fields. And then, lecturing and arguing cases to the cows, or to the horses, or whatever.

 

Suzie Lechtenberg:

And did you really hear that he was lecturing [inaudible 00:09:45]?

 

Kate:

Yes.

 

Alan Kohn:

Oh, and on the side he would hunt. He would hunt squirrels.

 

Suzie Lechtenberg:

Possum.

 

Alan Kohn:

Raccoons.

 

Suzie Lechtenberg:

Skunks. And he'd sell the pelts for a few dollars.

 

Alan Kohn:

And he amassed, I think, $700.

 

Suzie Lechtenberg:

With that money he put himself through law school.

 

Kate:

My understanding is that he simultaneously went to law school and high school.

 

Jad Abumrad:

What?

 

Kate:

Which is just mind boggling. But...

 

Suzie Lechtenberg:

Yeah. Apparently he went to the head of the law school in Kansas City, and he's like, "I don't have a high school diploma. But, you need to let me in." The Dean just saw how ambitious he was, and he was impressed. And he was like, "All right. You're in."

 

Jad Abumrad:

I love this guy. He's like Mr Bootstraps.

 

Suzie Lechtenberg:

Totally. Anyhow, to make a long story short.

 

Alan Kohn:

Soon he became a top lawyer.

 

Suzie Lechtenberg:

And Alan Kohn says, that's because he would do better than all of his opponents. He would outwork them, out prepare them.

 

Alan Kohn:

Great attention to detail. Great presence before a jury.

 

Suzie Lechtenberg:

And then, he becomes a judge. First, a federal district judge, and then an appeals court judge. Then, in February of 1957, he gets the call.

 

Kent Whittaker:

As I recall, it was in the evening. And they asked if he could be in Washington in the next morning, and [crosstalk 00:10:48].

 

Suzie Lechtenberg:

This is Kent Whittaker, Charles Whittaker's son.

 

Kent Whittaker:

He said certainly. But, my best blue suit is at the cleaners tonight.

 

Suzie Lechtenberg:

What did he wear?

 

Kent Whittaker:

As a matter of fact, my mother, or someone else, got the cleaners to open up at night.

 

Justice Charles Whittaker:

In the first instance, there must be allegations, tending to show that the corporation's right of exercise of free will have been destroyed.

 

Suzie Lechtenberg:

This is one of the first times that Whittaker spoke on the bench. And he interjects with a question for the attorney. And he is Midwestern polite.

 

Justice Charles Whittaker:

[inaudible 00:11:21] I hesitate. You had so many interruptions. But, I have a question or two. I wonder if I might have the privilege of asking you.

 

Tennessee lawyer:

Sure.

 

Justice Charles Whittaker:

I think it may last [crosstalk 00:11:29].

 

Suzie Lechtenberg:

The thing that's crazy to me, is that he walked into the highest court in the land, and he didn't even go to college.

 

Alan Kohn:

I think it's important to understand, that he had no formal education really. In other words, he never took history, or political science, or social science.

 

Suzie Lechtenberg:

But, he loved the law.

 

Kent Whittaker:

My father was not an ideologue. He expected the court to be an arena, in which there were lively arguments on legal issues. And that's what he enjoyed. What he was really good at. What he loved.

 

Suzie Lechtenberg:

As Kent Whittaker puts it, his dad was kind of the walking embodiment, of that thing, that Chief Justice John Roberts said, back in 2005, during his confirmation hearing.

 

John Roberts:

Mr Chairman, I come before the committee with no agenda.

 

Suzie Lechtenberg:

He was sort of a blank slate.

 

John Roberts:

It's my job to call balls and strikes. And not to pitch, or bat.

 

Kent Whittaker:

My father was not interested in advancing a cause, or a theory. But, is really...

 

Suzie Lechtenberg:

Frankly, that seems how a justice should be. That you are approaching it without a political agenda, and that you're deciding it.

 

Kent Whittaker:

I think, in theory, that's exactly right. But in practice, so many of their cases, there is no law to turn to, to decide those cases.

 

Suzie Lechtenberg:

Kent says, that his dad quickly discovered, that law at the Supreme Court is never clean cut. Cases make it there, precisely because the law isn't clear.

 

Kent Whittaker:

Many of their cases are just without precedent.

 

Suzie Lechtenberg:

And it's in those cases.

 

Kent Whittaker:

At least you must have your ideology, as a starting point.

 

Suzie Lechtenberg:

And the fact that he didn't have an ideology, that left him vulnerable.

 

Tara grove:

He was definitely getting lobbied from both sides.

 

Suzie Lechtenberg:

Frankfurter on one side, Douglas on the other.

 

Kent Whittaker:

He was the new kid on the block and was being pulled by each one.

 

Kate:

He didn't like the way the judges bullied for votes.

 

Suzie Lechtenberg:

Within his first three months, he found himself in the middle of a death penalty case.

 

Justice Charles Whittaker:

She was found in her bedroom by a fireman, and taken outside. And soon thereafter, pronounced dead.

 

Suzie Lechtenberg:

A guy had been tried for arson and murder. And Douglas and the liberals wanted to intervene to help him. They felt like he'd been treated unfairly by the lower courts. But, Frankfurter and the conservatives, thought that the Supreme Court should be cautious. They should honor precedent.

 

Tara grove:

Now according to justice Douglas, justice Whittaker was undecided all the time.

 

Suzie Lechtenberg:

Douglas would tell him one thing.

 

Tara grove:

He'd say, "Oh well. Yeah. That seems right." And then, justice Frankfurter would say something else. And he would say, "Oh, gosh. That sounds right."

 

Kent Whittaker:

I think there were some thought, that he might side with the guy who talked with him last.

 

Suzie Lechtenberg:

He ends up being so undecided on this death penalty case, that he forces the court to delay the vote, until the next term. And there were a series of cases like this.

 

Justice Charles Whittaker:

Albert hill [inaudible 00:14:18].

 

Suzie Lechtenberg:

[crosstalk 00:14:18] Where the law would be fuzzy, ideologies would harden. And Whittaker, he would be right in the middle.

 

Craig Smith:

The physical depictions of him in that first year, from people who saw him, describe somebody who was restless.

 

Kent Whittaker:

Terribly unhappy.

 

Craig Smith:

Had lost a lot of weight.

 

Kent Whittaker:

Nervous.

 

Craig Smith:

Was agitated most of the time.

 

Kate:

It was a lot of stress on him.

 

Chief Justice Earl Warren:

[inaudible 00:14:41] Justice Whittaker, that in normal course, under California procedure the [inaudible 00:14:49] probation [crosstalk 00:14:50].

 

Kate:

But, over the next few years, he bounces back. He finds his feet.

 

Justice Charles Whittaker:

You say that judgments on probation.

 

Kent Whittaker:

His production increased substantially.

 

Mike Seidman:

In his third year, his fourth year, and part of his fifth year. He wrote, as many opinions as any other judge. He wrote as many dissenting opinions as any other judge. He was one of the nine, he was fully implored. And he wrote some very important opinions during that period of time. And along came of Baker versus Carr, and it broke him.

 

Jad Abumrad:

That's coming up.

 

Speaker 19:

I feel like I am looking at a future that is just dark.

 

Anna Sale:

There's so much that feels scary right now, including our finances. I'm Anna Sale, host of the podcast, Death, Sex, and Money, from WNYC studios.

 

Amanda Clayman:

And I am financial therapist Amanda Clayman. Yes, financial therapy is a thing, because money is always something that's more emotional than people realize.

 

Anna Sale:

Listen to Death, Sex and Money's new financial therapy series, wherever you get your podcasts.

 

Jad Abumrad:

Hey, this is More Perfect. I'm Jad Abumrad. Let's get back to our story from Suzie Lechtenberg, about the case that broke two justices.

 

Chief Justice Earl Warren:

Number 103, Charles W. Baker et al, Appellants versus Joe C. Carr et al.

 

Suzie Lechtenberg:

Okay. So, it's April 19th, 1961.

 

Justice Charles Whittaker:

Chief Justice, may it please the court.

 

Suzie Lechtenberg:

The Supreme Court is hearing Baker versus Carr.

 

Justice Charles Whittaker:

This is an individual voting rights case, brought by 11 qualified voters in the state of Tennessee.

 

Suzie Lechtenberg:

Now, on the surface, Baker versus Carr was about districts, and how people are counted in this country. And this is one of the most basic ways that political power gets assigned in America.

 

Jad Abumrad:

Yeah. Like as populations grow in size, that growth should be reflected, in the number of congress people that are representing them.

 

Suzie Lechtenberg:

But, at that time in Tennessee.

 

Tara grove:

Tennessee hadn't changed it's legislative districts.

 

Justice Charles Whittaker:

It's last reapportionment was in 1901.

 

Tara grove:

Since 1901.

 

Suzie Lechtenberg:

Which was...

 

Justice Charles Whittaker:

60 years.

 

Suzie Lechtenberg:

60 years earlier.

 

Tara grove:

Well, this created big problems for urban areas.

 

Suzie Lechtenberg:

Like Memphis. Because in those 60 years, people had moved to the cities in droves.

 

Tara grove:

And rural areas were getting smaller.

 

Suzie Lechtenberg:

But, the Tennessee State legislature, had refused to update its count. And it was still giving more representation to those rural areas.

 

Sam Issacharoff:

In Tennessee. The figure was 23 to one.

 

Suzie Lechtenberg:

NYU law professor Sam Issacharoff. For people that don't understand it, how does it actually dilute your vote?

 

Sam Issacharoff:

Well, this is very simple. You have one district that has one person in it, and you have another district that has 23 people in it. The district that has one person, gives all the power to that one person. The district that has 23 people, spreads it out over all 23.

 

Jad Abumrad:

Wait, what?

 

Suzie Lechtenberg:

All right. Think of it this way. At that time, a person in the city in Tennessee, had 123rd as much of a voice in the legislature, as a person living in the countryside.

 

Jad Abumrad:

Oh.

 

Suzie Lechtenberg:

And here's sort of the insidious underbelly of that. It just so happened that the people living in the countryside, were mostly white. And a large percentage of the people living in the city, were black.

 

Doug smith:

Underlying all of the reapportionment litigation, at least in the south, was white supremacy.

 

Suzie Lechtenberg:

That's Doug Smith.

 

Doug smith:

Historian and the author of On Democracy's Doorstep. This was deeply tied to white supremacy, and the maintenance of Jim Crow, was a method of making sure that rural white legislators, continue to control the power structure.

 

Suzie Lechtenberg:

So, you had this situation, he says, where a small minority was choking the majority.

 

Doug smith:

Choking the cities, and the growing suburban areas, from any sorts of funds.

 

Suzie Lechtenberg:

The cities couldn't get the money they needed, for roads, education, social services. So, the question at the Supreme Court was, and they would actually tackled this in two separate hearings. What should they do about this?

 

Justice William O Douglas:

Here you have geographical [inaudible 00:19:13][crosstalk 00:19:15].

 

Jad Abumrad:

And here's where you get to the ideological smack down. Liberals in the court, like Douglas, basically agreed with the plaintiff, when they argued.

 

Justice William O Douglas:

I say there's nothing in the Constitution of the United States of America, that ordains, and nothing in the Constitution of Tennessee that ordains, that state government is, and must remain, an agricultural commodity. And there's nothing in either one of those constitutions that said, it takes 20 city residents to equal one farm.

 

Suzie Lechtenberg:

Liberals were like, "Yeah. This is clearly an injustice. People in the cities are getting screwed."

 

Justice William O Douglas:

Their voting rights have been diluted and debased to the point of nullification.

 

Suzie Lechtenberg:

But, the conservatives are like, "Yes, people are getting hurt."

 

Doug smith:

But, we're not going to do anything about it.

 

Suzie Lechtenberg:

We can't.

 

Doug smith:

Frankfurter.

 

Felix frankfurter:

[inaudible 00:19:59] a rotten situation doesn't need a court today.

 

Doug smith:

Most vociferously said we cannot get involved. That as bad as this is, it was not an issue that the court should get involved in.

 

Jad Abumrad:

Why not?

 

Suzie Lechtenberg:

Well...

 

Felix frankfurter:

I do have to think of the road as I'm going on, what kind of road you're inviting me.

 

Suzie Lechtenberg:

He was like, "Think of where this will lead."

 

Felix frankfurter:

Considering the fact that this isn't a unique Tennessee situation. This isn't a unique Tennessee situation.

 

Suzie Lechtenberg:

If we end up doing this in Tennessee, pretty soon we'll be intervening in California.

 

Felix frankfurter:

Maryland.

 

Suzie Lechtenberg:

South Carolina. Pretty soon we'll be rewriting the entire U.S. legislative map.

 

Felix frankfurter:

I have to think of a lot of states. And not say this is just Tennessee. For me, this is the United States, not Tennessee.

 

Suzie Lechtenberg:

Yeah. So, basically, he felt like this would force the courts to get involved in politics. And he really believed that the court should never, ever get involved in politics. This is an idea that goes way back to something called.

 

Sam Issacharoff:

The political question doctrine.

 

Doug smith:

Political question doctrine.

 

Tara grove:

The political question doctrine says, no federal court can decide this issue at all.

 

Doug smith:

The courts simply had no business, getting into what were considered to be fundamentally political questions. And what could be more fundamental, and political, than the makeup of a legislature.

 

Craig Smith:

It's a philosophy rooted in the notion, that unelected lifetime judges, should not be substituting their will, for the will of the people's elected representatives.

 

Suzie Lechtenberg:

Frankfurter felt like, even if you have a terrible political situation. If the justice's stepped in, and overruled the legislature, that would be worse than doing nothing at all. Because it would be fundamentally undemocratic.

 

Tara grove:

He viewed the political question doctrine, as a crucial limitation, on the federal judicial power.

 

Suzie Lechtenberg:

And he wasn't alone, the courts have followed this guideline for about 150 years. And even with the current case in Tennessee.

 

Doug smith:

The federal court that first heard the case recognized the situation and actually referred to it as an evil.

 

Speaker 4:

The evil is a serious one, which should be corrected without further delay. End quote.

 

Doug smith:

But, this is a political question. The malapportionment was a political question, and only the political branches can handle this.

 

Speaker 4:

Supreme Court. They have no power to do anything about protecting and enforcing the voting rights of these claims.

 

Suzie Lechtenberg:

So...

 

Speaker 4:

[inaudible 00:22:15] submit in this court [crosstalk 00:22:17].

 

Suzie Lechtenberg:

When the lawyer for Tennessee got up there.

 

Tennessee lawyer:

I am not here defending the legislature of Tennessee.

 

Suzie Lechtenberg:

He didn't try to defend her Tennessee was counting, or not counting its people. He basically said, "Yeah, what we're doing is bad. But, it's nobody's job but ours to fix."

 

Tennessee lawyer:

Is it worse for the legislature of Tennessee not to reapportion? Or is it worse for the Federal District Courts to violate the age old doctrine? Separation of powers.

 

Suzie Lechtenberg:

He basically said, "If you step in, you're going to screw up the balance of power in America. The power in America comes from we the people, not the courts. So, this matter should be left up to the people of Tennessee, and their elected representatives.

 

Jad Abumrad:

Wait a second. If the whole problem is that you don't have a voice in the legislature, then how can you suddenly just have a voice in the legislature? I mean, the only way to change it, would be if the legislature itself, were to give up power. And why would they do that?

 

Suzie Lechtenberg:

Because of course, once elected officials are in power, they have a vested interest in keeping their districts exactly as they are. Because those were the districts that elected them.

 

Guy charles:

And fundamentally, electoral representatives knew that if they redrew the lines, that they would be voting themselves out of political power.

 

Suzie Lechtenberg:

That's Guy Charles. Professor, Duke Law School.

 

Guy charles:

So, they had an incentive, not to do anything about this.

 

Suzie Lechtenberg:

So, for the liberals in the court, they felt like this was a fundamental flaw in our democracy that needed to be fixed. And nobody was going to fix it, if they didn't fix it. But, for Frankfurter, he's like, "If you fix this one, you're going to have to fix that one. And that one, and that one, and that one. And where's it going to stop?"

 

Guy charles:

If you do this, there is no way out.

 

Suzie Lechtenberg:

The courts going to get stuck in what he called...

 

Guy charles:

The political thicket.

 

Alan Kohn:

The political thicket.

 

Doug smith:

The court must not enter the political thicket.

 

Alan Kohn:

That sounds like Frankfurter. He must have written those words.

 

Doug smith:

And the imagery of the thicket, is that the deer very proudly with his new horns, goes into the thicket, gets entangled, and can never get out. Frankfurters plane was, once the courts are in, there will be nothing beyond it. And someday, the courts will be forced to declare winners, and losers, of very high profile elections.

 

Suzie Lechtenberg:

Okay. So, after the oral arguments are over, in Baker versus Carr. The justices head into conference. That's a meeting with just the nine.

 

Doug smith:

And when they went into the conference, basically the court was divided.

 

Suzie Lechtenberg:

Right down the middle. And Charles Whittaker, he was a potential swing vote.

 

Doug smith:

Whittaker was deeply torn.

 

Suzie Lechtenberg:

He'd been leaning Frankfurters way.

 

Doug smith:

But...

 

Justice Charles Whittaker:

If there is a clear, constitutional right that's being violated.

 

Doug smith:

During that first argument, he asked a number of questions that suggested a great deal of sympathy with the plaintiffs.

 

Justice Charles Whittaker:

Then, is there not both power, and duty, in the courts, to enforce that constitutional right?

 

Doug smith:

There was a lot of thought, that he might actually come down on the side of the plaintiffs, in that case. I think that's where Frankfurter really, really, began to rip into him.

 

Tara grove:

Justice Frankfurter, right after the first oral argument, during the conference. He gave a 90 minute speech. So, talked for 90 plus, straight minutes. Darting around the room, pulling books, off the shelves.

 

Craig Smith:

Pulling books off the shelf, reading from prior cases.

 

Tara grove:

Gesticulating wildly, to make his point.

 

Craig Smith:

And the whole time, looking directly at Whittaker. There was one account that I heard, where Frankfurter went on for four hours. For hours.

 

Mike Seidman:

[inaudible 00:26:00] really lecturing Whittaker. Really, really belittling him.

 

Suzie Lechtenberg:

This guy.

 

Craig Smith:

Yes, it was horribly intimidating.

 

Suzie Lechtenberg:

At one point, one of the justices on the liberal side, Justice Hugo Black. He took Whittaker aside.

 

Craig Smith:

Black was trying to make him feel better. And Black said to Charles Whittaker, "Just remember, we're all boys grown tall. We're not the gods who sit on high, and dispense justice." But, it's very difficult not to see yourself in that role.

 

Suzie Lechtenberg:

Particularly, if your vote might be the vote that decides everything.

 

Tara grove:

This started to weigh heavily on Whittaker's mind. He was disturbed by having the weight of the Supreme Court on his shoulders.

 

Suzie Lechtenberg:

According to his family, Kate and Ken.

 

Kate:

My mother tells me, that he, at that time, was under a lot of stress. And spoke as though he were dictating, spoke his punctuation. "Hello Judith. Comma. It's very nice to meet you. Period." Clearly, thinking about everything that he might say, being recorded.

 

Kent Whittaker:

I remember his stating, that he felt like all the words that he uttered, were being chiseled in stone. As a result, of which, he said, "You don't talk much."

 

Suzie Lechtenberg:

So, after they heard the case the first time, Whittaker couldn't make up his mind. And actually, incidentally, there was another justice.

 

Tara grove:

Justice Stewart, who was the other swing vote in the case.

 

Suzie Lechtenberg:

Who also couldn't make up his mind. The court decided to hear the case again in the fall, just because they needed more time. And over the summer.

 

Doug smith:

Interestingly enough, Whittaker said he remained deeply divided. That he'd actually written memos on both sides of the issue.

 

Suzie Lechtenberg:

Doug Smith says Whittaker wrote both an opinion for intervening in Baker versus Carr, and a dissent against intervening in Baker versus Carr, at the same time. Meanwhile, as he's doing this.

 

Tara grove:

Justice Frankfurter circulates a 60 page memo explaining how this was a political question, that should not be decided by the courts.

 

Craig Smith:

He's got a fire in his belly. He's not going to let this one go.

 

Chief Justice Earl Warren:

Number six. Charles W. Baker et al, Appellants, versus Joe. C. Carr et al.

 

Suzie Lechtenberg:

Monday [crosstalk 00:28:29] October 9th, 1961. It's 10 AM, and the court is back in session.

 

Tennessee lawyer:

Chief Justice, may it please the court.

 

Suzie Lechtenberg:

The lawyer arguing the case against the Tennessee legislature, begins to talk.

 

Tennessee lawyer:

Tennessee voters seek federal court protection [crosstalk 00:28:43].

 

Suzie Lechtenberg:

Frankfurter sits quietly for about five minutes listening.

 

Tennessee lawyer:

[crosstalk 00:28:46] corrected without delay.

 

Suzie Lechtenberg:

And then.

 

Felix frankfurter:

You don't mean to imply that [inaudible 00:28:50] are wrong, under the state constitution had no right to [inaudible 00:28:54].

 

Tennessee lawyer:

I certainly did not Mr. Justice Frankfurter.

 

Felix frankfurter:

The ratio you gave a minute ago. [inaudible 00:28:59] determination of a state [inaudible 00:29:01][crosstalk 00:29:01] and I wanted to know. And the totality doesn't include. Is there any state in the uniquely different for [inaudible 00:29:08]. Well, it's passed on it by denying a right under it. If that isn't passing on it, I don't know what is passing on it.

 

Tennessee lawyer:

Of course not Mr. Justice Frankfurter. [crosstalk 00:29:17].

 

Suzie Lechtenberg:

Frankfurter hammers the attorneys with questions. During the course of oral arguments, he speaks approximately, 170 times.

 

Jad Abumrad:

170.

 

Suzie Lechtenberg:

170.

 

Jad Abumrad:

Damn.

 

Suzie Lechtenberg:

Charles Whittaker.

 

Justice Charles Whittaker:

Tennessee have some system for the allocation of its legislators to districts accounts.

 

Suzie Lechtenberg:

17 times.

 

Tennessee lawyer:

Well, since they have.

 

Suzie Lechtenberg:

After nearly four hours of oral arguments.

 

Chief Justice Earl Warren:

We'll recess now.

 

Suzie Lechtenberg:

The justices recess, and go into conference.

 

Alan Kohn:

Frankfurter needed desperately. He had to get Whittaker. And he would, kept after him, like a dog after a bone. Trying to persuade them. And that harassing he got, I have to make a point here. It was a nightmare. And I saw the nightmare.

 

Suzie Lechtenberg:

How so? Describe it to me.

 

Guy charles:

Well, he was a nervous wreck, and like a cat on a hot tin roof.

 

Suzie Lechtenberg:

I found out I don't know if he told me, or his wife told me, he was on tranquilizers.

 

Craig Smith:

To try to overcome what he thought, was just work related stress. Well clearly, something was taking hold of him.

 

Alan Kohn:

He had trouble concentrating.

 

Guy charles:

Highly fraught.

 

Craig Smith:

I would characterize his eventual breakdown as something of a slow descent. By the early spring, after the court had returned from its winter recess. Whittaker was absent from the court.

 

Jad Abumrad:

You mean like he didn't show for work one day?

 

Suzie Lechtenberg:

Apparently so.

 

Craig Smith:

His clerks didn't know where he was. The other justices didn't know his whereabouts. He just disappeared. Really, in the middle, of what's going to become one of the monumental decisions of the 20th century. He disappears. He had to escape.

 

Jad Abumrad:

Where'd he go?

 

Craig Smith:

Well, he went to, really, what would be a cabin in the woods. In the middle of Wisconsin. And he called up one of his former law associates in Kansas City, to come up and join him.

 

Jad Abumrad:

And according to Craig Smith. He and this guy, whose name was Sam Moby. They would just sit there, on the bank of the lake, in silence.

 

Craig Smith:

They would sit for hours on end, not talking to each other. Just waiting for the justice to speak.

 

Justice Charles Whittaker:

There is no cause for pride in what has happened [inaudible 00:32:27].

 

Suzie Lechtenberg:

We have no way of knowing what he was thinking at that moment. But, I imagine he was just sitting there, and he was thinking about these two realities that could unfold. On the one hand, if the court stepped into politics. They could protect people.

 

Speaker 30:

Sonoma Alabama became a signing [inaudible 00:32:45].

 

Speaker 31:

You are to disperse. You are all to disperse.

 

Suzie Lechtenberg:

But, on the other hand, what kind of precedent would this set?

 

Speaker 32:

It's a sad day in America, Mr President, when we can't...

 

Suzie Lechtenberg:

Would it make the court too powerful?

 

Chief Justice Earl Warren:

George W. Bush and Richard Cheney versus Albert Gore.

 

Suzie Lechtenberg:

In which case...

 

Speaker 32:

George W. Bush of the state of Texas has received as President of the United States, two hundred and [crosstalk 00:33:10].

 

Suzie Lechtenberg:

Who would protect the people from the court? I imagine his mind went back and forth, and back and forth.

 

Chief Justice Earl Warren:

[inaudible 00:33:15] will not [inaudible 00:33:15].

 

Craig Smith:

And when Whittaker decided that he really had to get back to work, then his protege would say to him, "No. Just relax. Just take it easy, and get yourself together, before you decide to go back."

 

Suzie Lechtenberg:

After three weeks, justice Whittaker returns to D.C.

 

Kent Whittaker:

Back to Washington for a few days.

 

Suzie Lechtenberg:

That's Kent again, his son.

 

Kent Whittaker:

We found my father to be really an extremist. [inaudible 00:33:51] and I think borderline suicidal.

 

Suzie Lechtenberg:

When you said he was suicidal, what do you mean?

 

Kent Whittaker:

There was an instance, in which my brother, found my father going upstairs, to get a shotgun.

 

Suzie Lechtenberg:

Oh.

 

Kent Whittaker:

Yeah.

 

Suzie Lechtenberg:

A few days later, Charles Whittaker checks himself into a hospital.

 

Craig Smith:

There is some evidence, that it was really justice Douglas, who convinced Whittaker, to go to the hospital.

 

Justice William O Douglas:

I do recall justice Whittaker had had a nervous breakdown.

 

Craig Smith:

That's justice William Douglas again.

 

Justice William O Douglas:

He was at Walter Reed Hospital. And I'd been up to see him, and the chief had been up to see him. And he was in very poor physical condition. Very worried, and very depressed. He asked me what I thought he should do. I told him, I didn't think he'd be in a position to decide what he should do, until he'd get well.

 

Suzie Lechtenberg:

A few weeks later.

 

Speaker 4:

March 29th, 1962. The presidential press conference, from the new state department auditorium, Washington D.C.

 

Justice William O Douglas:

Several announcements to make. It is with extreme regret, that I announce the retirement of Associate Justice of the Supreme Court, Charles Evans Whittaker, effective April 1st. Justice Whittaker, a member of the Supreme Court for nearly five years, and of the federal judiciary, for nearly eight years, is retiring at the direction of his physician, for reasons of disability. I know that the bench and the bar of the entire nation, join me in commending Mr justice Whittaker, for his devoted service to his country, during a critical period in its history. Next, I want to take this opportunity to stress again the importance of the tax bill, now, before the house of representatives.

 

Jad Abumrad:

Wow. And what ever happened with the case with Baker v Carr?

 

Suzie Lechtenberg:

Well, Whittaker didn't vote on Baker versus Carr. So, you could say that this case, that essentially broke him, his vote didn't count.

 

Jad Abumrad:

Wow.

 

Suzie Lechtenberg:

Around the time that he was in the hospital, there was sort of this liberal coo at the court, where Frankfurter lost a couple of other votes. So, in the end, the decision actually wasn't very close at all.

 

Jad Abumrad:

What was it?

 

Suzie Lechtenberg:

It was 6-2.

 

Jad Abumrad:

Oh. Frankie.

 

Suzie Lechtenberg:

Yeah. And Brennan wrote the majority opinion. And he says that this whole kind of cluster [inaudible 00:36:35] that we've been fighting over, of how states in Tennessee count their voters, that this is something the courts can, and should, look at.

 

Jad Abumrad:

So, in other words, they decided to lower their horns and go into the thicket?

 

Suzie Lechtenberg:

Oyez, they did.

 

Speaker 4:

Oyez.

 

Suzie Lechtenberg:

And just one, or two, final questions. What happened to justice Frankfurter?

 

Tara grove:

Well, the thing that I find, perhaps most extraordinary, is that less than two weeks after the decision in Baker versus Carr came down.

 

Craig Smith:

Felix Frankfurter was working at his desk at the Supreme Court.

 

Tara grove:

And Frankfurter's secretary found him sprawled on the floor of his office, from a stroke.

 

Craig Smith:

He suffered a massive stroke. And then, never returned to service.

 

Tara grove:

And while he was in the hospital, Solicitor General Archibald Cox, visited Frankfurter. And Frankfurter, he was in a wheelchair, and could barely speak. But, he apparently conveyed to Archibald Cox, that the decision in Baker versus Carr had essentially caused his stroke. He felt so passionately that the court should stay out of the case, that he physically, physically deteriorated, after the court had gone the other way.

 

Suzie Lechtenberg:

After Baker versus Carr, President Kennedy, essentially, had two Supreme Court vacancies to fill. Now, Whittaker see, he filled with a guy who turned out to be a moderate. Frankfurters vacancy, that second vacancy.

 

Craig Smith:

It's that vacancy. That will lead to the appointment of a man named Arthur Goldberg. That is the fifth vote that the four liberals, what are regarded as the four liberals. That becomes the fifth vote that they need, really to create what has come to be regarded as the Warren Court revolution.

 

Suzie Lechtenberg:

This is when the Supreme Court basically became an agent for social change.

 

Craig Smith:

That revolution that begins with the 1962 term. That's the revolution that is going to change.

 

Chief Justice Earl Warren:

[inaudible 00:38:55] starts out with the idea of one man, one vote [crosstalk 00:38:57].

 

Craig Smith:

The way we draw our political boundaries.

 

Speaker 33:

When the prosecutor withheld a confession.

 

Craig Smith:

The way we think of criminal justice.

 

Speaker 34:

[inaudible 00:39:06] small, black, [inaudible 00:39:08].

 

Craig Smith:

The way we treat first amendment,[crosstalk 00:39:11] religious, and obscenity issues. That's the Warren Court that people remember. And that's the court that came into existence, when Felix Frankfurter left.

 

Suzie Lechtenberg:

And so, just thinking about that question that that woman asked, all the way at the beginning of the story.

 

audience woman:

Yes. Could you address what I see as the increasing politicization of the court? The apotheosis of which, I guess, was, voting, or electing Bush to be our president.

 

Suzie Lechtenberg:

You can kind of draw a line, from this moment in Baker versus Carr, all the way to December 9th 2000.

 

news broadcatse:

Seven o'clock here in the East. The polls in six new states have just closed. And the lead story at this hour, is the state of Florida is too close to call.

 

Guy charles:

I think Felix Frankfurt would have said, "See, that's what I told you. That's what would happen. Is that eventually you will be deciding a partisan question, which presidential candidate, essentially received the most votes.

 

Doug smith:

For those who felt themselves on the losing side of Bush v Gore, this was justice Frankfurters revenge. This was the moment Baker v Carr had opened up. And when I teach this to students, and particularly in the decade after Bush v. Gore, when the sentiments about this were still quite raw. I would say to them, "Well, was Frankfurter right?" And I remember a student in the mid-2000s, who said in class, "I never thought I would say this. But... because I hated the outcome and Bush v. Gore. I was so angry when the court interceded. But, if Bush v Gore is the price we have to pay, for the courts making the overall political system work, somewhat more tolerably, properly. It's a price I'm willing to pay."

 

Jad Abumrad:

Before we totally sign off, what happened to Douglas? We sort of lost track of him.

 

Suzie Lechtenberg:

So, after Baker versus Carr was decided, he went on to be a Supreme Court justice for 13 more years. And to this day, he actually holds the record for being the longest serving justice of all time 36 years.

 

Jad Abumrad:

And Frankfurter?

 

Suzie Lechtenberg:

So, Baker versus Carr was the last case that he ever heard. And he died a few years afterwards.

 

Jad Abumrad:

Yeah. And Charles Whittaker, did he ever recover?

 

Suzie Lechtenberg:

Well, after Whittaker retired from the court, he moved back to Kansas City with his family. And his son said, that it took them about two years to get better from his nervous breakdown. But, he did get better. And eventually he got a job as counsel to General Motors. But, he never returned to the bench. He never was a judge again.

 

Jad Abumrad:

Okay. More Perfect is produced by me Jad Abumrad, with Suzie Lechtenberg, Tobin Low, and Kelsey Padgett. Go Kelsey.

 

Kelsey:

With Soren Wheeler, Elie Mystal, David Herman, Alex Overington, Karen Duffin, Sean Rameswaram, Katherine Wells, Bari Finkel, Andy Mills, and Michelle Harris. Special thanks to Gyan Riley. Archival interviews with Justice William O. Douglas come from the Department of Rare Books and Special Collections at Princeton University Library. Supreme Court audio is from Oyez.

 

Speaker 4:

Oyez! Oyez!

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