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0:57

This is More Perfect. I'm Julia Longoria.

1:07

When More Perfect released its very first

1:09

episode, seven years ago, the

1:12

Supreme Court looked very different. Justice

1:15

Scalia had just died, so there

1:18

were only eight justices. It's

1:20

hard to imagine it now, but they were

1:23

evenly split across the political divide.

1:26

Four were appointed by Democratic Party

1:28

presidents and four from Republican

1:31

Party presidents. No side

1:33

was in a position to make broad, bold

1:35

decisions about a political issue. But

1:39

now, fast forward to 2023,

1:42

conservatives are in the majority. Six

1:44

to three. And the six seem

1:47

willing to dive into the political

1:49

fray, taking on cases about

1:51

subjects like abortion, affirmative action,

1:54

gun rights. And they've

1:56

been willing to overturn long-established

1:59

decisions.

1:59

I'm not perfect. Hey, more perfect people. Hi,

2:02

guys. I teach American history.

2:05

And I don't have to tell you this.

2:06

I'm gonna try to say this without

2:09

sounding like an idiot. Many

2:11

of you wrote in to ask about this change.

2:14

I can't stop thinking about how we frame the Supreme

2:16

Court in terms of liberal and conservative

2:18

justices. Different groups with different ideas hold

2:20

power at different times. And we can... Things

2:23

aren't

2:23

going our quote unquote our way. Things

2:25

aren't going the liberal way, I guess. Nationwide

2:28

polls show that approval levels for the current

2:30

court are at all time

2:33

lows. Only 25% say

2:36

they have a lot of confidence in the court. A

2:39

lot of the dissatisfaction that we heard from you kept

2:41

coming back to one question. Doesn't

2:44

it feel like the whole thing is just a giant partisan

2:46

exercise? There's a lot of conversation

2:49

about how politicized

2:51

the court is. Sometimes it's covered

2:53

as if it's unique.

2:54

Is

2:57

the court more political now than ever

2:59

before? I think the

3:01

Supreme Court has always been political

3:03

in some sense, right? Tara Grove,

3:06

one of our legal advisors for the season, says

3:09

probably not. She's

3:11

a professor at the University of Texas at Austin

3:14

School of Law, who we've turned to over the years.

3:17

They are nominated by the president and

3:19

confirmed by the Senate. So that's a political process

3:21

by which justices are chosen. Even

3:24

though they're not directly elected by citizens,

3:27

they are handpicked by politically elected

3:29

people. Tara says they've

3:31

never been immune from politics. I

3:34

think what is jarring about

3:36

the current court is not that it's any more

3:38

political than other courts. I think what's jarring

3:41

is that the Supreme Court is moving very quickly in a

3:43

really short period of time and

3:46

on issues that have massive political salience.

3:51

So it's not like the court was ever apolitical.

3:55

But there is something different happening

3:58

at the Supreme Court right now.

3:59

And it makes a lot of us wonder, when

4:02

did it start? How did we get

4:04

here? It's a question

4:06

we're tackling in a lot of episodes over

4:09

the course of this season, so stay tuned.

4:12

But it's made me think of one of the very first

4:14

episodes of More Perfect we ever made, when

4:17

the court was faced with a hot political

4:19

question and had to decide whether

4:21

to jump into the political fray or

4:24

throw up their hands and say, sorry,

4:27

there's nothing we can do here.

4:29

It's the story of one case. The

4:32

Baker versus Carr case. Baker

4:35

versus Carr. It's this case that

4:37

was so dramatic and so traumatic

4:40

that it apparently broke two

4:42

justices.

4:44

This week, we revisit that story.

4:47

One of my favorites.

4:50

Oh, yay, oh, yay,

4:52

oh, yay. All persons have missed

4:54

before the honor of honor of the Supreme Court of

4:56

the United States of America. The strong

4:59

man, the air-energy, or the court

5:01

has the power to discriminate and unsave the

5:03

United States of the God of the United States

5:05

and this honorable court. Oh,

5:08

yay, oh, yay. The

5:11

honor of the chief justice and the associate justice

5:14

is of the Supreme Court of the United States.

5:16

Oh, yay, oh, yay. More

5:28

perfect is supported by Earth

5:31

Justice.

5:37

Earth Justice knows how powerful the law

5:40

can be as a tool for change.

5:42

As a national legal nonprofit, Earth

5:44

Justice has more than 200 full-time

5:46

lawyers who fight for your right to a

5:48

healthy environment. They've taken on thousands

5:51

of cases to protect our planet, whether

5:53

it's saving wildlife from extinction, cleaning

5:55

up

5:55

our drinking water, or spurring the rise

5:58

of clean energy in red and blue skies.

5:59

states alike. Earthjustice has

6:02

even

6:02

argued in front of the Supreme Court and

6:04

won. But the amazing thing about Earthjustice

6:07

is they represent all their clients,

6:09

from large organizations to local community

6:12

groups, free of charge. Yes,

6:14

free of charge. Why?

6:16

Because protecting people and the environment

6:19

shouldn't require deep pockets, because

6:21

the Earth needs a good lawyer. Learn

6:23

how you can help at earthjustice.org

6:26

slash more perfect. If

6:28

you're interested in hearing more about Clarence Thomas

6:31

and the story of his past, check out the new season

6:33

of Slow Burn from Slate Podcasts. Host

6:36

Joel Anderson travels to Savannah to

6:38

trace Thomas'

6:38

path from college radical to

6:40

conservative icon. Joel spoke with

6:43

close family and friends, including Clarence

6:45

Thomas' mother, who still lives in Georgia.

6:48

You'll also hear what the American

6:49

people didn't hear during his explosive

6:51

confirmation hearings. Slow Burn, Becoming

6:54

Justice Thomas is out May

6:56

31st, wherever you listen.

7:04

From WNYC Studios, This

7:07

Is More Perfect, I'm Julia Longoria.

7:12

Today we're replaying one of the first ever episodes

7:14

of the show, so you'll hear a familiar

7:17

voice pop in every once in a while. I'm

7:19

Janet from Rod, This Is More Perfect. Okay, so

7:21

why But the story is told by our former executive

7:24

producer, my former boss, the

7:26

great Suzy Lechtenberg. And

7:28

it starts in the 1950s.

7:32

So I think to understand that moment

7:34

in this story, you have to get to know three characters.

7:37

And these aren't necessarily the three most important

7:40

justices of all time. Because at that time

7:42

you had Chief Justice Earl Warren and

7:45

William Brennan on the court. And these are kind of giants

7:47

of the Supreme Court. But for this

7:49

story, these three guys are key.

7:52

One of them is on the right, one of them is on the left,

7:55

and one of them is just stuck right in the

7:57

middle, tragically in the middle. conservative

8:00

side. Ryan, what difference does it make when it's

8:02

in the Constitution or in any other

8:04

expression or action by the state? You

8:07

had a guy named Felix Frankfurter. So Justice

8:09

Frankfurter was one of the most...

8:11

Wait, his name was really Frankfurter? Yes.

8:13

One of the most influential justices of

8:16

all time. That's Tara Grove. He

8:18

was a very influential scholar

8:20

at Harvard Law School before he became

8:22

a justice, was a close advisor to Franklin

8:24

Delano Roosevelt. He was extremely

8:27

smart. Towering figure. As

8:29

a person,

8:30

Justice Frankfurter,

8:35

he wasn't necessarily the nicest

8:37

person. I heard that from everyone I talked

8:39

to. I always call him a bantam rooster.

8:42

He was a difficult, crusty figure.

8:44

He was short. He had a little bit of

8:46

a pouch on him. He was one of the most condescending,

8:49

egotistical of justices. He

8:52

was a tough customer.

8:53

When a clerk would come to

8:55

the U.S. Supreme Court chambers to deliver

8:57

a message, when the person at the door tried

9:00

to hand Justice Frankfurter the paper,

9:02

Frankfurter would inevitably let it drop

9:04

to the ground so the person had to

9:06

bend down and pick it up to hand

9:09

it to him again.

9:10

Dude, that's a wiener move.

9:14

And by the way, the voices you heard besides Tara

9:16

Grove were professors Mike Seidman, Georgetown

9:18

University Law Center, Zama Zakarov, NYU

9:21

Law School, Craig Smith, California University

9:24

of Pennsylvania, and

9:25

ex-Supreme Court Clerk Alan Cohn,

9:27

Cohn, K.O.H. Chan. Okay, so Frankfurter

9:30

is on one side of the aisle, and his nemesis

9:33

is a gentleman on the other side of the aisle, a

9:36

liberal named William O. Douglas.

9:41

Here is Justice Douglas now in

9:44

the Supreme Court chambers. This

9:46

is a recording from a 1957 interview

9:48

with Justice Douglas. He looks very well

9:51

as faces tan, rugged,

9:53

his eyes sparkle. Douglas was this

9:56

mountain climbing environmentalist, big

9:58

on civil liberties. This

10:00

oncoming generation is more aware

10:02

of the importance of civil liberties than perhaps my

10:05

generation was. And like Justice Frankfurter,

10:08

Douglass was a prick. To

10:10

everybody around him. Everybody hated him.

10:13

All those same adjectives. Condescending.

10:15

Egotistical. Abrasive. Applied.

10:18

Here's how the New York Times described him. A habitual

10:21

womanizer, heavy drinker, and uncaring

10:23

parent, Douglass was married four times,

10:25

cheating on each of his

10:26

first three wives with her eventual successor.

10:29

Do you believe in kissing your bride, sir? Oh,

10:32

sure.

10:33

This is footage from his last

10:35

marriage to his wife Kathleen. He was 67,

10:37

she was 23.

10:39

Oh yes, we're totally clear.

10:42

So, yes, yes, that is

10:44

William Douglass. So you have these two guys,

10:46

Frankfurter the Bantam Rooster, Douglass the prick.

10:49

And as you can imagine, They hated each other.

10:52

They just despised each other. So

10:55

Frankfurter had this habit of monologuing, and

10:57

while he would go on and on, Douglass would just

11:00

pull out a book right in front of him and just start

11:02

reading.

11:02

You know, he was just open in

11:04

his disdain for Frankfurter. I actually

11:06

found a series of interviews that were done with Douglass

11:09

in the early 60s, where he basically calls Frankfurter

11:11

names. Got the evil,

11:15

utterly dishonest intellectually.

11:18

He was very, very devious. He

11:20

spent his

11:20

time growing up

11:22

and down the halls, putting poison in

11:24

everybody's spring. Wow,

11:28

why'd they hate each other so much? Well, according

11:30

to Mike Seidman... Some of that comes from

11:33

maybe their difference in background.

11:36

Frankfurter was a Jewish

11:38

immigrant from Austria. Douglass

11:41

was a Westerner. But according

11:44

to him, the core of their hatred

11:46

actually was ideological. It reflected

11:49

a really important split.

11:53

Over how powerful the court should be. So

11:55

for Frankfurter, courts just

11:58

ought not to intervene. He believed... that

12:00

many matters should be left up to the political process

12:03

and that courts should stay out of those issues.

12:05

Douglas, he thought

12:07

just the opposite. He thought that courts

12:10

ought to intervene to protect, for example,

12:12

minority groups, free speech rights,

12:15

things of that sort.

12:17

So you had this personal feud going. You had this ideological

12:20

war that was brewing in the court. And into the middle

12:22

of all this,

12:28

locks Charles Whitaker. You

12:31

might call him the swing vote. OK.

12:36

This is Alan Cone. I was a Supreme Court

12:38

clerk for Justice Whitaker from 1957

12:41

to 1958.

12:46

Whitaker grew up in a small town in Kansas

12:48

called Troy. The antithesis of flashy.

12:51

This is his granddaughter Kate. He attended kind of

12:53

a one-room schoolhouse. Preverbial

12:54

little red schoolhouse. Worked on the farm.

12:57

But he determined

13:01

that was not the life for him. Kate

13:03

says when he was around 16, he became obsessed

13:06

with the idea of becoming a lawyer. And she says he would

13:08

actually practice law to the animals.

13:11

Can you imagine pushing the plow

13:13

along in the fields and then lecturing and

13:15

arguing cases to the cows or to the horses

13:18

or whatever? Did you really hear that he was lecturing

13:20

during the war? Yes.

13:22

Oh, and on the side, he would hunt.

13:25

He would hunt squirrels. Possum.

13:27

Raccoons. Gunks. And he'd sell

13:29

the pelts for a few dollars. And he amassed,

13:32

I think, $700. With that money,

13:34

he put himself through law school. My understanding

13:36

is that he simultaneously went to law school

13:39

and high school. What? Which is just

13:41

mind boggling. Yeah, apparently he

13:43

went to the head of the law school in Kansas City. And he's

13:46

like, I don't have a high school diploma, but you need

13:48

to let me in. The dean just saw how ambitious

13:50

he was. And he was impressed. And he's like, all right, you're in.

13:52

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

13:55

Totally. Anyhow, to make a long story short. SUNY

13:57

became a top lawyer. says

14:00

that's because he would do better than all

14:02

of his opponents. He would outwork them, out-prepare

14:04

them. Great attention to detail, great

14:07

presence before a jury. And then

14:09

he becomes a judge, first a federal district

14:11

judge and then an appeals court judge.

14:14

Then in February of 1957, he gets the call. I

14:18

recall it was in the evening, and they asked if he

14:20

could be in Washington in the next

14:22

morning. This is Kent Whitaker, Charles

14:25

Whitaker's son. He said, certainly, but

14:27

my best blue suit is at the cleaners

14:29

tonight. What did he wear? As

14:32

a matter of fact, my mother or someone

14:35

else got the cleaners to open up at night.

14:38

In the first instance,

14:40

there must be allegations

14:43

tending to show that the corporation's

14:46

right of exercise of free

14:48

will have been destroyed.

14:49

This is one of the first times that Whitaker spoke on

14:51

the bench, and he interjects with a question

14:53

for the attorney, and he is a Midwestern

14:55

polite.

14:55

I hesitate if you've had so

14:58

many interruptions, but I have a question

15:00

or two I wonder if I might have

15:02

the privilege of asking you. I think it

15:04

may

15:05

last. The thing that's crazy to me is that he walked

15:07

into the highest court in the land, and he

15:09

didn't even go to college. I think it's important

15:11

to understand that

15:13

he had no formal education, really. In

15:16

other words, he never took history or

15:18

political science or social science.

15:21

But he loved the law. My father

15:23

was not an ideologue. He

15:26

expected the court to be an

15:29

arena in which there were lively

15:31

arguments on legal issues.

15:34

And that's what he enjoyed, what

15:36

he was really good at, what

15:39

he loved.

15:40

As Kent Whitaker puts it, his dad

15:42

was kind of the walking embodiment of that thing

15:44

that Chief Justice John Roberts said back in 2005 during

15:47

his confirmation hearing.

15:48

Mr. Chairman, I come before the committee with no

15:50

agenda. He was sort of a blank

15:53

slate. It's my job to call balls and strikes,

15:56

and not to pitch or bat.

15:59

in advancing a cause

16:02

or a theory, but it's really- Frankly,

16:04

that seems how a justice should be,

16:06

that you are approaching it without

16:08

a political agenda and that you're deciding it. I

16:11

think in

16:11

theory that's exactly right,

16:13

but in practice, so

16:17

many of their cases, there

16:20

is no law to

16:22

turn to to decide those cases.

16:25

Kent says that his dad quickly discovered

16:27

that law at the Supreme Court is never clean-cut.

16:29

Cases make it there precisely because the

16:31

law isn't clear.

16:32

Many of their cases are just without

16:35

precedent. And it's in those cases. At least

16:38

you have- must have your ideology

16:41

as a starting point.

16:44

And the fact that he didn't have an ideology, that

16:47

left him vulnerable. He was definitely getting lobbied

16:50

from both sides. Frankfurter on one side,

16:52

Douglas on the other.

16:53

He was the new kid on the block and was

16:56

being pulled by each one. He

16:58

didn't like the way

17:00

the judges bullied for votes.

17:03

Within his first three months, he found himself in the middle of a

17:05

death penalty case.

17:06

She was found in her bedroom by

17:08

a fireman, taken outside, and

17:11

soon thereafter pronounced dead.

17:13

A guy had been tried for arson and murder,

17:15

and Douglas and the liberals wanted to intervene to

17:17

help him. They felt like he'd been treated

17:19

unfairly by the lower courts. But Frankfurter

17:22

and the conservatives thought that the Supreme Court should be

17:24

cautious. They should honor precedent. Now according

17:26

to Justice Douglas, Justice

17:28

Whitaker was undecided all the time.

17:31

Douglas would tell him one thing, and say, oh, well, yeah, that

17:33

seems right. And then Justice Frankfurter would say something

17:36

else. And he would say, oh, gosh, that sounds right.

17:37

I think there was some thought that he

17:40

might side with the guy who

17:42

talked with him last, you know? He

17:45

ends up being so undecided on this death penalty

17:47

case that he forces the court to delay the

17:49

vote until the next term.

17:51

And there were a series of cases like this.

17:52

Albert L. Trope. Where

17:55

the law would be fuzzy, ideologies would harden,

17:57

and Whitaker, he would be right in the middle. physical

18:00

depictions of him in that first year

18:02

from people who saw him described

18:05

somebody who was

18:07

restless, terribly unhappy,

18:10

had lost a lot of weight, nervous,

18:13

was agitated most of the time.

18:15

It

18:15

was a lot of stress on him. A

18:20

massive business just squiddicker that in normal

18:23

course under California procedure the metaphor...

18:25

But over the next few years he bounces

18:27

back, he finds his feet. You say

18:29

that judgment of

18:31

probation... His production

18:34

increased substantially. In

18:36

his third year, his fourth year,

18:38

and part of his fifth year, he

18:41

wrote as many opinions as

18:43

any other judge.

18:45

He wrote as many dissenting opinions

18:47

as any other judge. He was one of

18:49

the nine, he was fully employed, and he

18:52

wrote some very important opinions during

18:54

that period of time.

18:56

And along came a bigger

18:58

versus car, and

19:00

it broke him.

19:06

That's coming up.

19:21

More perfect is supported by Earthjustice.

19:24

Earthjustice knows how powerful the law

19:26

can be as a tool for change.

19:28

As a national legal nonprofit, Earthjustice

19:31

has more than 200 full-time lawyers

19:33

who fight for your right to a healthy

19:35

environment. They've taken on thousands of

19:37

cases to protect our planet, whether it's

19:39

saving wildlife from extinction, cleaning

19:42

up

19:42

our drinking water, or spurring the rise

19:44

of clean energy in red and blue states

19:46

alike. Earthjustice has even

19:48

argued in front of the Supreme Court and

19:50

won. But the amazing thing about Earthjustice

19:53

is they represent all their clients,

19:56

from large organizations to local community

19:58

groups

19:59

free of charge. Yes, free

20:01

of charge. Why? Because protecting

20:03

people and the environment shouldn't require

20:06

deep pockets. Because the Earth needs

20:08

a good lawyer.

20:09

Learn how you can help at earthjustice.org

20:11

slash more perfect.

20:14

This

20:18

is More Perfect. I'm Julia Longoria. Let's

20:21

get back to the story from Suzy Lechtenberg

20:24

about a case that put the question of politics

20:27

and the Supreme Court front and center.

20:30

It also pushed Justice Charles Whitaker

20:32

to the limit. A

20:36

quick warning, there is a brief mention of

20:38

suicide in this part.

20:41

Number 103, Charles

20:44

W. Baker et al, appellants versus

20:46

Joe C. Carr et al.

20:49

Okay, so it's April 19th, 1961. Chief

20:53

Justice, may it please the court. The

20:55

Supreme Court is hearing Baker versus Carr.

20:59

This is an

20:59

individual voting rights case

21:02

brought by 11 qualified

21:06

voters in the state of Tennessee.

21:09

Now on the surface, Baker versus Carr was about districts

21:12

and how people are counted in this country. And

21:14

this is one of the most basic ways that political

21:16

power gets assigned in America. Yeah,

21:18

like, you know, as populations grow in size,

21:21

that growth should be reflected in the

21:23

number of Congress people that are representing

21:26

them.

21:26

But at that time in Tennessee. Tennessee

21:29

hadn't changed its legislative districts since 1901.

21:36

Which was 60 years earlier. Well

21:39

this created big problems for urban

21:42

areas. Like Memphis, because in those 60

21:44

years, people had moved to the cities

21:46

in droves. And rural areas were getting

21:49

smaller. But the Tennessee state legislature

21:51

had refused to update its count. And

21:54

it was still giving more representation to those rural

21:56

areas.

21:57

In Tennessee. The

22:00

figure was 23 to 1. NYU

22:02

Law professor Sam Izzacaro. For people

22:04

that don't understand it, how does it actually dilute your vote? Well,

22:07

and this is very simple. You have one district

22:09

that has one

22:11

person in it, and you have another district

22:13

that has 23 people in it. The

22:16

district that has one person gives all

22:18

the power to that one person. The district

22:20

that has 23 people spreads

22:23

it out over all 23. Wait,

22:26

what?

22:26

All right, think of it this way. At that

22:28

time, a person in the city in Tennessee

22:31

had 1 23rd as much of a voice

22:33

in the legislature as a person living in the countryside.

22:36

Oh. And here's

22:38

sort of the insidious underbelly of that. It

22:41

just so happened that the people living in the

22:43

countryside were mostly white.

22:45

And a large percentage of the people living in the city

22:47

were black. Underlying all of the reapportionment

22:50

litigation, at least in the South, was white

22:52

supremacy. That's

22:55

Doug Smith. Historian and the author of On

22:57

Democracy's Doorstep. This was deeply tied

23:00

to white supremacy in the maintenance of Jim Crow. It

23:02

was a method of making sure that rural white

23:04

legislators continue to control

23:07

the power structure.

23:08

So you had this situation, he says, where a

23:10

small minority was choking the majority.

23:12

Choking

23:13

the cities in the growing suburban

23:15

areas from any sorts of funds. The

23:17

cities couldn't get the money they needed for roads, education,

23:20

social services. So the question at the Supreme

23:23

Court was, and they would actually tackle this in two

23:25

separate hearings,

23:26

what should they do about this?

23:33

And here's where you get to the ideological smackdown.

23:35

Liberals on the court like Douglas basically

23:38

agreed with the plaintiff when they argued. Liberals

23:56

were like, yeah, this is

23:58

clear. Clearly an injustice.

24:00

People in the cities are getting screwed. Their

24:03

voting rights have been diluted

24:06

and debased to the point of nullification. But

24:08

the conservatives are like, yes, people

24:10

are getting hurt. But we're not going to do anything

24:13

about it. We can't. Frankfurter.

24:16

It may have been a rotten situation. It doesn't

24:18

mean a court should act. Most specifically said

24:20

we cannot get involved, that as bad as this is, it

24:23

was not an issue that the court should get involved in. Why

24:25

not? I do have to think

24:27

of the road that I'm going on, what kind

24:30

of road you're inviting me.

24:31

He was like, think of where this will lead. Considering

24:33

the fact that this isn't a unique Tennessee

24:36

situation. This isn't a unique Tennessee

24:38

situation.

24:39

If we end up doing this in Tennessee, pretty soon

24:41

we'll be intervening in California. Maryland.

24:44

South Carolina. Pretty soon we'll be rewriting

24:46

the entire U.S. legislative map. I have

24:48

to think of a lot of states and

24:50

not say this is just Tennessee. For

24:52

me, this is the United States, not Tennessee.

24:56

Yeah, so basically he felt

24:58

like this would force the courts to get involved in politics.

25:01

And he really believed that the courts should never,

25:03

ever get involved in politics. This

25:06

is an idea that goes way back to something

25:08

called...

25:08

The political question doctrine. Political

25:11

question doctrine. The political question doctrine

25:13

says no

25:15

federal court can decide this

25:17

issue at all.

25:18

The courts simply had no

25:20

business getting into what were considered

25:23

to be fundamentally political questions and what could

25:25

be more fundamentally political than the makeup of a legislature.

25:28

It's a philosophy rooted in the notion

25:30

that unelected lifetime

25:33

judges should not be substituting their

25:35

will for the will of the people's

25:38

elected representatives.

25:40

Frankfurter felt like even if you have a terrible political

25:42

situation, if the justices stepped

25:44

in and overruled the legislature, that would

25:46

be worse than doing nothing at all. Because it would

25:49

be fundamentally undemocratic. He

25:51

viewed the political question doctrine

25:54

as a crucial limitation

25:56

on the federal judicial power. And he wasn't

25:58

alone. The courts had fallen...

25:59

this guideline for about 150 years,

26:03

and even with the current case in Tennessee. The

26:05

federal court that first heard the case

26:07

recognized the situation and actually referred

26:10

to it as an evil. The evil is a serious

26:12

one which should be corrected without further

26:14

delay, end quote. But they

26:17

said that this is a political question, the

26:19

malapportionment is a political question, and only

26:21

the political branches can handle this. In court,

26:24

they have no power to do anything about

26:26

protecting and enforcing the voting

26:29

rights of these plaintiffs.

26:34

So

26:34

when the lawyer for Tennessee got up there, he

26:36

didn't try to defend how Tennessee

26:39

was counting

26:42

or not counting its people. He basically

26:44

said, yeah, what we're doing is bad, but

26:46

it's nobody's job but ours to fix.

26:48

Is it worse

26:50

for the legislature of Tennessee

26:54

not to reapportion? Or

26:57

is it worse for the federal

27:00

district courts to violate

27:03

the age-old doctrine of separation?

27:06

He basically said, if you step in,

27:08

you're going to screw up the balance of power in America.

27:11

The power in America comes from we the people,

27:14

not the courts. So this matter should be

27:16

left up to the people of Tennessee and their

27:18

elected representatives.

27:19

Wait a second. If the whole problem is that

27:21

you don't have a voice in the legislature, then

27:23

how can you suddenly just have a voice

27:26

in the legislature? I

27:27

mean, the only way to change it would be if the legislature

27:29

itself were to give up power, and why would they do that?

27:32

Because of course, once elected officials are in power,

27:35

they have a vested interest in keeping

27:37

their districts exactly as they are, because

27:40

those were the districts that elected them.

27:42

And fundamentally, electoral

27:44

representatives knew that if they redrew

27:47

the lines, that they would be voting

27:51

themselves out of political power. That's

27:53

Guy Charles, professor at Duke Law School. So they

27:56

had an incentive not to

27:58

do anything about this. So for the

28:00

liberals on the court, they felt like this was a fundamental

28:02

flaw in our democracy that needed to be fixed. And

28:05

nobody was going to fix it if they didn't fix it. But

28:07

for Frankfurter, he's like, if you fix this one, you're going

28:09

to have to fix that one, and that one, and that one, and

28:11

that one. And where's it going to stop?

28:13

If you do this, there

28:15

is no way out.

28:18

The court's going to get stuck in what he called...

28:20

The political thicket. The political

28:23

thicket. You know, the court must not enter the political thicket.

28:25

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

28:28

The imagery of the thicket is that,

28:31

you know, the deer very proudly with

28:33

his new horns goes into

28:35

the thicket, gets entangled,

28:38

and can never get out. Frankfurter's

28:41

claim was, once the courts are

28:44

in, there will be nothing beyond it. And someday,

28:46

the courts will be forced

28:49

to declare winners

28:50

and losers of very high-profile elections.

28:57

OK, so after the oral arguments are over in

28:59

Baker versus Carr, the justices head into conference.

29:02

That's a meeting with just the nine.

29:03

And when they went into conference, basically

29:05

the court was divided. Right down

29:07

the middle. And Charles

29:09

Whitaker, he was a potential swing vote.

29:12

Whitaker was deeply torn. He'd

29:16

been leaning Frankfurter's way. If

29:18

there is a clear

29:20

constitutional right that's

29:23

being violated. During that first

29:25

argument, he asked a number of questions that suggested

29:28

a great deal of sympathy with the plaintiffs. Then is

29:30

there not

29:31

both power

29:34

and duty in the

29:36

courts to enforce that constitutional

29:39

right? There was a lot of thought that he might actually come

29:41

down on the side of the plaintiffs in that case.

29:44

And I think it's where Frankfurter really, really began

29:46

to rip into him.

29:47

This is Frankfurter right after the first

29:49

oral argument during the conference. He

29:51

gave a 90-minute speech. So

29:54

talked for 90-plus straight

29:56

minutes, darting around the room, pulling

29:58

books off the shelves.

29:59

Pulling books off the shelf, reading

30:02

from prior cases, gesticulating

30:04

wildly to make his point, and

30:07

the whole time looking directly at Whitaker.

30:11

There was one account that I heard where

30:13

Frankfurter went on for four hours.

30:16

For hours. Really lecturing

30:18

Whitaker, really, really belittling him.

30:20

This guy. Yes,

30:22

it was horribly intimidating.

30:26

At one point, one of the justices on the

30:28

liberal side, Justice Hugo Black.

30:31

He took Whitaker aside.

30:32

Black was trying to make him feel better,

30:34

and Black said to Charles Whitaker,

30:37

just remember, we're all boys

30:39

grown tall.

30:41

We're not the gods who sit on high and dispense

30:43

justice. But

30:46

it's very difficult not to see yourself

30:48

in that role. Particularly

30:51

if your vote might be the vote

30:53

that decides everything. This started

30:55

to weigh heavily on Whitaker's mind.

31:00

He was disturbed by having

31:03

the weight of the Supreme Court on his shoulders. According

31:07

to his family, Kate and Kent. My

31:09

mother tells me that he, at that

31:12

time, was under a lot of stress, and

31:15

spoke as though he were dictating,

31:18

spoke his punctuation. Hello,

31:21

Judith, comma. It's very nice to

31:23

meet you here. Clearly thinking about

31:25

everything that he might

31:28

say being recorded. I remember

31:30

his stating that he felt

31:32

like all the words

31:34

that he uttered were being chiseled in

31:36

stone as a result of which he said, you

31:38

don't talk much.

31:47

So after they heard the case the first

31:49

time, Whitaker couldn't make up his mind. And

31:52

actually, incidentally, there was another justice.

31:55

Justice Stewart, who was the other

31:57

swing vote in the case. Who also

31:59

couldn't make up his mind.

31:59

mind. The court

32:02

decided to hear the case again in the fall,

32:04

just because they needed more time. And

32:09

over the summer... Interesting enough, Whitaker said he remained

32:11

deeply divided, that he'd actually written

32:14

memos on both sides of the issue. Doug

32:16

Smith says Whitaker wrote both an opinion for

32:18

intervening in Baker versus Carr and

32:20

a dissent against intervening

32:22

in Baker versus Carr

32:24

at the same time.

32:27

Meanwhile, as he's doing this... Justice Frank Fritters

32:29

circulates a 60-page memo

32:32

explaining how this was a political question

32:35

that should not be decided by the courts.

32:36

He's got, you know, a fire in

32:38

his belly. He's not gonna let this one

32:41

go. Monday,

32:46

October 9, 1961. It's 10

32:50

a.m. and the court is back in session. The

32:54

lawyer arguing the case against the Tennessee legislature

32:56

begins to talk. Frank

33:00

Fritters sits quietly for about five minutes

33:03

listening. And

33:05

then... He

33:09

starts in. Frank

33:28

Fritters hammers the attorneys with questions.

33:33

During

33:38

the course of oral arguments, he speaks

33:40

approximately 170 times. Damn.

33:45

Charles Whitaker. The

33:46

Tennessee have some system

33:49

for the allocation of its legislators

33:52

to district's accounts. 17 times.

33:57

After nearly four hours of oral arguments...

34:02

The justices recess and go into

34:04

conference.

34:04

Frankfurter needed desperately.

34:08

He had to get Whitaker. And

34:10

he kept after him like

34:13

a dog after a bone,

34:16

trying to persuade him. And that

34:18

harassing he got, I have to make a point

34:21

here.

34:23

It was a nightmare. And

34:25

I saw the nightmare. How

34:29

so? Describe it to me. Well,

34:32

he was

34:37

a nervous wreck and like a cat on

34:39

a hot tin roof. I found out,

34:41

I don't know if he told me or his wife told me, he

34:43

was on tranquilizers. To try to overcome

34:46

what he thought was just work-related

34:49

stress, well clearly something

34:51

was taking hold of him. He

34:53

had trouble concentrating. Highly

34:56

fraught. I would characterize his

34:59

eventual breakdown as something

35:01

of a slow descent.

35:04

By the early spring, after

35:07

the court had returned from its winter recess,

35:11

Whitaker was absent from the court.

35:16

You mean like he just didn't show up for work one

35:18

day? Apparently so. His clerks didn't

35:20

know where he was. The

35:23

other justices didn't know

35:25

his whereabouts. He just disappeared.

35:28

Really in the middle of

35:30

what's going to become one of the monumental

35:34

decisions of the 20th century,

35:37

he disappears. He

35:39

had to escape. Where'd

35:41

he go? Well, he

35:44

went to really what would be a cabin

35:46

in the woods in the middle of Wisconsin.

35:50

And he called up one of his former law

35:52

associates in Kansas City to come up and join

35:55

him.

35:55

be,

36:01

they would just sit there, on

36:04

the bank of the lake, in

36:07

silence. They

36:19

would sit for hours on end, not talking

36:22

to each other,

36:29

just waiting for the justice to

36:32

speak. You

36:45

know, we have no way of knowing what

36:47

he was thinking at that moment, but I

36:50

imagine he was just sitting there and

36:52

he was thinking about these two realities that could unfold.

36:54

Like, on the one hand, if the court

36:56

stepped into politics, they could protect

36:58

people.

36:59

But

37:01

on the other hand, what kind of precedent

37:03

would this set?

37:11

Would

37:18

it make the court too powerful? In

37:22

which case, who would protect the people

37:24

from the court? I

37:28

imagine his mind went back and forth and back and

37:30

forth. And

37:33

when Whitaker decided he really had

37:35

to get back to work, then this protege

37:37

would say to him,

37:41

no, just relax. Just

37:43

take it easy and get

37:46

yourself together before you decide

37:48

to go back.

37:52

After three weeks, Justice Whitaker returns

37:54

to D.C. back to Washington for

37:58

a few days. Hentigan, his

38:00

son. We found my

38:02

father to be really

38:05

in extremis and

38:08

debate and I think borderline

38:10

suicidal.

38:12

When you said he was suicidal, what

38:14

do you mean? There

38:16

was an instance in which my

38:20

brother found my father going upstairs to

38:22

get a shotgun. Yeah.

38:31

A few days later, Charles Whitaker

38:33

checks himself into a hospital. There

38:35

is some evidence that it was

38:38

really Justice Douglas who convinced

38:40

Whitaker to go to the hospital.

38:42

I do recall that Whitaker had

38:46

had a nervous breakdown. That's

38:49

Justice William Douglas again. He

38:53

was at Wal A

39:25

few weeks later.

39:36

I would like to make

39:40

a announcement that I announced

39:42

the retirement of Associate Justice of the Supreme

39:45

Court, Charles Evans Whitaker,

39:47

effective April 1st. Justice

39:50

Whitaker, a member of the Supreme Court for

39:52

nearly five years and of the

39:54

federal judiciary for nearly eight years,

39:57

is retiring at the direction of his position.

39:59

For reasons of disability. I

40:02

know that the bench in the bar of

40:05

the entire nation Join me

40:07

in commending. Mr. Justice Whitaker for

40:09

his devoted service to his country during

40:12

a critical period in its history Next

40:16

I want to take this opportunity to stress again

40:18

the importance of the tax bill now before the House of Representatives

40:22

Wow And whatever happened with

40:24

the case with Baker v. Carr. Well Whitaker

40:26

didn't vote on Baker versus Carr. So

40:29

you could say that this case that essentially

40:31

broke him his vote didn't count Wow

40:35

Around the time that he was in the hospital There was sort of this

40:37

liberal coup at the court where Frankfurter

40:39

lost a couple of other votes So in

40:42

the end the decision actually wasn't very

40:44

close at all. What was it? It was 6-2. Oh Frankie

40:48

yeah and Brennan wrote the majority opinion

40:50

and he says that this whole kind of cluster

40:53

that we've been fighting over of how states

40:55

And Tennessee count their voters that this

40:57

is something the courts can and should look

40:59

at

41:00

So in other words, they decided to lower

41:02

their horns and go into the thicket. Oh, yeah, they

41:05

did And

41:07

just one or two final questions, um, what happened

41:09

to Justice Frankfurter? Well,

41:10

the the thing that I find perhaps

41:13

most extraordinary Is it less than two

41:15

weeks after the decision in Baker versus

41:17

Carr came down?

41:18

Felix Frankfurter was working

41:20

at his desk at the Supreme Court and Frankfurter

41:24

secretary found him sprawled

41:26

on the floor of his office From

41:28

a stroke

41:29

he suffered a massive stroke and

41:31

then never returned to service And

41:34

while he was in the hospital Solicitor General

41:36

Archibald Cox visited Frankfurter

41:39

and Frankfurter he he

41:41

was in a wheelchair and could barely speak but

41:44

he apparently conveyed to Archibald

41:46

Cox That the

41:48

decision in Baker versus Carr had

41:51

essentially caused his stroke

41:57

He felt so passionately that

41:59

the court should stay out of the case, that

42:02

he physically, physically deteriorated

42:05

after the court had gone the other way.

42:22

After Baker vs. Carr, President Kennedy

42:25

essentially had two Supreme Court vacancies

42:27

to fill. Now Whitaker's seat, he

42:29

filled with a guy who turned out to be a moderate. Frankfurter's

42:32

vacancy, that second vacancy?

42:34

It's that vacancy that

42:37

will lead to the appointment of

42:39

a man named Arthur Goldberg.

42:42

That is the fifth vote

42:45

that the four liberals,

42:48

what are regarded as the four liberals, that becomes

42:50

the fifth vote that they need really

42:52

to create what has come to be regarded

42:55

as the Warren Court revolution.

43:02

This is when the Supreme Court basically became

43:04

an agent for social change. That revolution

43:06

that begins with the 1962 term,

43:09

that's the revolution that is going

43:12

to change. The way we draw

43:14

our political boundaries, the way we think of criminal

43:16

justice, the way

43:21

we think of criminal justice,

43:26

the way we treat First Amendment,

43:30

religious and obscenity issues, that's

43:33

the Warren Court that people remember.

43:35

And

43:37

that's the court that came into existence when

43:40

Felix Frankfurter left.

43:44

You can kind of draw a line from

43:46

this moment in Baker vs. Carr

43:49

all the way to December 9th, 2000.

43:59

is too close to

44:02

call. I think Phil Trinkford would have said,

44:04

see, that's

44:07

what I told you, that's what would happen, is

44:10

that eventually you will be deciding

44:12

a partisan question, which

44:15

presidential candidate essentially

44:17

received the most vote. For

44:20

those who felt themselves on the losing

44:22

side of Bush-Rigore, this

44:24

was Justice Frankfurter's revenge.

44:30

This was the moment that

44:32

Baker v. Carr had opened up. And

44:36

when I teach this to students, and

44:38

particularly in the decade after

44:41

Bush-Rigore, when the

44:45

sentiments about this were still quite raw, I

44:48

would say to them, well, is

44:50

this was Frankfurter right? And

44:52

I remember a student in the mid-2000s

44:55

who said in class, I

44:58

never thought I would say this, but

45:00

because I hated the outcome in Bush-Rigore,

45:03

I was so angry when the court interceded.

45:06

But if Bush-Rigore is the

45:08

price we have to pay for the

45:10

courts making the overall political system

45:13

work somewhat more tolerably

45:15

properly,

45:16

it's a price I'm willing to pay.

45:23

Before we totally sign off, what happened to Douglas?

45:25

We sort of lost track of him. So after

45:27

Baker v. Carr was decided, he went

45:30

on to be a Supreme Court Justice for 13 more years.

45:32

And to this day, he actually holds the record

45:35

for being the longest-serving Justice of all

45:37

time, 36 years. And

45:39

Frankfurter? So Baker v. Carr was

45:41

the last case that he ever

45:43

heard, and he died a few

45:46

years afterwards.

45:48

And Charles Whitaker, did he ever recover? Well,

45:51

after Whitaker retired from the court, he moved back

45:53

to Kansas City with his family. And his

45:55

son said that it took him about two

45:57

years to get better from his nervous breakdown.

46:00

But he did get better and eventually he got a job

46:02

as counsel to General Motors, but he never

46:05

returned to the bench. He never was a judge again.

46:16

That was Susie Lichtenberg. Just

46:19

want to note that since this originally aired in 2016, Guy

46:22

Charles is now a professor at Harvard Law School

46:24

and Craig Smith's university is now called Pennsylvania

46:27

Western University,

46:30

Pennsylvania. If you or someone you care about

46:32

is struggling with depression or thoughts

46:34

of self-harm, please

46:37

get help. You can reach the Suicide and

46:39

Crisis Lifeline at 988.

46:48

More Perfect is a production of WNYC

46:51

Studios. This episode

46:53

was produced by Jad Abumrad, Susie

46:55

Lichtenberg, Tobin Lowe, and Kelsey Padgett

46:57

along with Whitney Jones and me, Emily

47:00

Siner. It was fact-checked by Michelle Harris

47:02

and Tasha A.F. Lemley. Special

47:04

thanks to Guillain Riley and Sam Moyne.

47:07

The More Perfect team also includes Julia Longoria,

47:10

Emily Botin, Alyssa Eades, Gabrielle

47:12

Berbe, Salman Ahad Khan, David

47:14

Herman, Joe Plourd, Mike Kutchman,

47:17

and Jenny Lawton. Our theme is by

47:19

Alex Overington and the episode art is

47:21

by Candice Evers. Archival interviews

47:23

with Justice William O. Douglas came from

47:25

the Department of Rare Books and

47:27

Special Collections at Princeton University Library.

47:30

And Supreme Court audio is from Oye,

47:32

a free law project by Justia and

47:34

the Legal Information Institute of Cornell Law

47:37

School. Support for More Perfect

47:39

is provided in part by the Smart Family

47:41

Fund and by listeners like you.

47:44

And if you have any questions about the Supreme Court,

47:46

we really want to hear from you. Send

47:49

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47:57

Thanks

47:57

for listening.