Julia Longoria: This is More Perfect, I’m Julia Longoria.
When More Perfect released its very first episode seven years ago, the Supreme Court looked very different.
Justice Scalia had just died, so there were only eight justices. It’s hard to imagine it now, but they were evenly split across the political divide. Four were appointed by Democratic Party presidents and four from Republican Party presidents. No side was in a position to make broad, bold decisions about a political issue.
But now, fast forward to 2023, conservatives are in the majority — 6-3. And the six seem willing to dive into the political fray, taking on cases about subjects like abortion, affirmative action and gun rights. And they’ve been willing to overturn long-established decisions.
Listener: Hi more Perfect …
Listener: Hey More Perfect peeps …
Listener: Hi guys, I teach American History.
Julia Longoria: And I don’t have to tell you this…
Listener: I’m going to try to say this without sounding like an idiot.
Julia Longoria: Many of you wrote in to ask about this change.
Listener: I can’t stop thinking about how we frame the Supreme Court in terms of liberal and conservative justices.
Listener: Different groups with different ideas hold power at different times, and we can look back …
Listener : Things aren’t going our way — quote unquote “our way” — things aren’t going the liberal way, I guess?
Julia Longoria: Nationwide polls show that approval levels for the current Court are at all-time lows. Only 25 percent say they have a lot of confidence in the court. A lot of this dissatisfaction that we heard from you kept coming back to one question ...
Listener: Doesn’t it feel like the whole thing is just some giant partisan exercise?
Listener : There’s a lot of conversation about how politicized the Court is. Sometimes it’s covered as if it’s unique.
Julia Longoria: … is the Court more political now than ever before?
Tara Grove: I think the Supreme Court has always been political in some sense, right?
Julia Longoria: Tara Grove, one of our legal advisors for the season, says probably not. She’s a professor at the University of Texas at Austin School of Law, who we’ve turned to over the years.
Tara Grove: They are nominated by the president and confirmed by the Senate. So that's a political process by which justices are chosen.
Julia Longoria: Even though they’re not directly elected by citizens, they are handpicked by politically elected people. Tara says they’ve never been immune from politics.
Tara Grove: I think what is jarring about the current Court is not that it's any more political than other courts. I think what's jarring is that the Supreme Court is moving very quickly in a really short period of time, and on issues that have massive political salience.
Julia Longoria: So it’s not like the Court was ever apolitical, but there is something different happening at the Supreme Court right now. And it makes a lot of us wonder when did it start? How did we get here? It’s a question we’re tackling in a lot of episodes over the course of this season, so stay tuned. But it’s made me think of one of the very first episodes of More Perfect we ever made. When the Court was faced with a hot political question and had to decide whether to jump into the political fray or throw up their hands and say, sorry, there’s nothing we can do here. It's the story of one case...
[Archive Clip, Chief Justice Earl Warren]: The Baker versus Carr case.
Julia Longoria: Baker versus Carr.
Suzie Lechtenberg: It's this case that was so dramatic, and so traumatic, that it apparently broke two justices.
Julia Longoria: This week, we revisit that story — one of my favorites.
[OYEZ THEME: 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, for the Court is now sitting. God save the United States and this Honorable Court.
Oyez. Oyez. Oyez. The Honorable, the Chief Justice and the associate justices of the Supreme Court of the United States. Oyez. Oyez. Oyez.]
Julia Longoria: From WNYC Studios, this is More Perfect. I’m Julia Longeria. Today we’re re-playing one of the first-ever episodes of the show. So you’ll hear a familiar voice pop in every once in a while
Jad Abumrad: I am Jad Abumrad, this is More Perfect …
Julia Longoria: But the story is told by our former executive producer, my former boss, the great Suzie Lechtenberg. And it starts in the 1950s.
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.
[Archive Clip, Justice Felix Frankfurter]: What difference does it make, whether it's 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.
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 U.S. 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: Georgetown University Law Center.
Suzie Lechtenberg: Sam Issacharoff.
Sam Issacharoff: NYU Law School.
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.
[Archive Clip]: Here is Justice Douglas now, in the Supreme Court chambers.
Suzie Lechtenberg: This is a recording from a 1957 interview with Justice Douglas.
[Archive Clip]: He looks very well. His face is tan, rugged, his eyes sparkle.
Suzie Lechtenberg: Douglas was this mountain climbing environmentalist. Big on civil liberties.
[Archive Clip, 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.
[Archive Reading, The 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.
[Archive Clip]: Do you believe in kissing your bride, sir?
[Archive Clip, 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.
[Archive Clip, 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.
[Archive Clip, 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.
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 Whittaker: The antithesis of flashy.
Suzie Lechtenberg: This is his granddaughter Kate.
Kate Whittaker: He attended kind of a one room schoolhouse.
Alan Kohn: Proverbial little red schoolhouse.
Suzie Lechtenberg: Worked on the farm.
Kate Whittaker: 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 Whittaker: 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?
Kate Whittaker: 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 Whittaker: My understanding is that he simultaneously went to law school and high school.
Jad Abumrad: What?
Kate Whittaker: 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 the next morning.
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.
[Archive Clip, 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.
[Archive Clip, Justice Charles Whittaker]: 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?
[Archive Clip, Tennessee lawyer]: Sure.
[Archive Clip, Justice Charles Whittaker]: I think it may last …
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.
[Archive Clip, Justice John Roberts]: Mr. Chairman, I come before the committee with no agenda.
Suzie Lechtenberg: He was sort of a blank slate.
[Archive Clip, Justice 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 Whittaker: 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.
[Archive Clip, 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.
[Archive Clip, Justice Charles Whittaker]: Albert Hill …
Suzie Lechtenberg: 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 Whittaker: It was a lot of stress on him.
[Archive Clip, Chief Justice Earl Warren]: Justice Whittaker, that in normal course under California procedure the …
Kate Whittaker: But over the next few years he bounces back. He finds his feet.
[Archive Clip, 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.
Julia Longoria: This is More Perfect. I’m Julia Longoria. Let’s get back to the story from Suzie Lechtenburg about a case that put the question of politics and the Supreme Court front and center. It also pushed Justice Charles Whittaker to the limit.
A quick warning: there’s a brief mention of suicide in this part.
[Archive Clip, 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.
[Archive Clip, Justice Charles Whittaker]: Chief Justice, may it please the Court.
Suzie Lechtenberg: The Supreme Court is hearing Baker versus Carr.
[Archive Clip, 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 its legislative districts.
[Archive Clip, Justice Charles Whittaker]: Its last reapportionment was in 1901.
Tara Grove: Since 1901.
Suzie Lechtenberg: Which was ...
[Archive Clip, 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 continued 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 tackle this in two separate hearings — what should they do about this?
[Archive Clip, Justice William O. Douglas]: Here you have geographical …
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.
[Archive Clip, 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 farmer.
Suzie Lechtenberg: Liberals were like, "Yeah. This is clearly an injustice. People in the cities are getting screwed."
[Archive Clip, 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.
[Archive Clip, Justice Felix Frankfurter]: 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 ...
[Archive Clip, Justice 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."
[Archive Clip, Justice 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.
[Archive Clip, Justice Felix Frankfurter]: Maryland.
Suzie Lechtenberg: South Carolina. Pretty soon we'll be rewriting the entire U.S. legislative map.
[Archive Clip, Justice 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 had 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.
[Archive Clip]: 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.
[Archive Clip]: Supreme Court. They have no power to do anything about protecting and enforcing the voting rights of these claims.
Suzie Lechtenberg: So...
[Archive Clip, Tennessee lawyer]: Submit in this court …
Suzie Lechtenberg: When the lawyer for Tennessee got up there.
[Archive Clip, Tennessee lawyer]: I am not here defending the legislature of Tennessee.
Suzie Lechtenberg: He didn't try to defend whether 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."
[Archive Clip, 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 of 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?
Tara Grove: 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 on 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 Court’s 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. Frankfurter's claim 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 Frankfurter's way.
Doug Smith: But ...
[Archive Clip, 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.
[Archive Clip, 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: 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 Kent.
Kate Whittaker: 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.
[Archive Clip, Chief Justice Earl Warren]: Number six. Charles W. Baker et al, Appellants, versus Joe. C. Carr et al.
Suzie Lechtenberg: Monday, October 9th, 1961. It's 10 a.m., and the Court is back in session.
[Archive Clip, Tennessee lawyer]: Chief Justice, may it please the court.
Suzie Lechtenberg: The lawyer arguing the case against the Tennessee legislature begins to talk.
[Archive Clip, Tennessee lawyer]: Tennessee voters seek federal court protection.
Suzie Lechtenberg: Frankfurter sits quietly for about five minutes listening.
[Archive Clip, Tennessee lawyer]: … corrected without delay.
Suzie Lechtenberg: And then.
[Archive Clip, Justice Felix Frankfurter]: You don't mean to imply that … are wrong, under the state constitution had no right to …
Suzie Lechtenberg: He starts in.
[Archive Clip, Tennessee lawyer]: I certainly did not Mr. Justice Frankfurter.
[Archive Clip, Justice Felix Frankfurter]: The ratio you gave a minute ago …determination of a state … and I wanted to know. And the totality doesn't include. Is there any state in the uniquely different for … 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.
[Archive Clip, Tennessee lawyer]: Of course not, Mr. Justice Frankfurter.
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.
[Archive Clip, Justice Charles Whittaker]: Tennessee have some system for the allocation of its legislators to districts accounts.
Suzie Lechtenberg: 17 times.
[Archive Clip, Tennessee lawyer]: Well, since they have.
Suzie Lechtenberg: After nearly four hours of oral arguments.
[Archive Clip, 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 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.
Alan Kohn: 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.
Suzie Lechtenberg: 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.
[Archive Clip, Justice Charles Whittaker]: There is no cause or pride in what has happened.
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.
[Archive Clip, Martin Luther King Jr.]: Selma, Alabama became a shining moment.
[Archive Clip]: You are to disperse. You are ordered to disperse.
Suzie Lechtenberg: But on the other hand, what kind of precedent would this set?
[Archive Clip]: It's a sad day in America, Mr. President, when we can't...
Suzie Lechtenberg: Would it make the Court too powerful?
[Archive Clip, Chief Justice Earl Warren]: George W. Bush and Richard Cheney versus Albert Gore.
Suzie Lechtenberg: In which case ...
[Archive Clip]: George W. Bush of the state of Texas has received as president of the United States, 200 …
Suzie Lechtenberg: Who would protect the people from the Court? I imagine his mind went back and forth, and back and forth.
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 in extremis 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.
[Archive Clip, Justice William O. Douglas]: I do recall Justice Whittaker had had a nervous breakdown.
Craig Smith: That's justice William Douglas again.
[Archive Clip, 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.
[Archive Clip]: March 29th, 1962. The presidential press conference from the new state department auditorium Washington, D.C.
[Archive Clip, 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 coup 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: O, Frankie.
Suzie Lechtenberg: Yeah. And Brennan wrote the majority opinion. And he says that this whole kind of cluster [expletive bleeped] 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.
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. Frankfurter’s 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.
[Archive Clip, Chief Justice Earl Warren]: Starts out with the idea of one man, one vote …
Craig Smith: The way we draw our political boundaries.
[Archive Clip]: When the prosecutor withheld a confession.
Craig Smith: The way we think of criminal justice.
[Archive Clip]: Small, black armbands …
Craig Smith: The way we treat the First Amendment, 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: You can kind of draw a line, from this moment in Baker versus Carr, all the way to December 9th, 2000.
[Archive News Clip]: 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.
Julia Longoria: That was Suzie Lechtenberg.
Just want to note that since this originally aired in 2016, Guy Charles is now a professor at Harvard Law School, and Craig Smith's university is now called Pennsylvania Western University, California.
If you or someone you care about is struggling with depression or thoughts of self-harm, please get help. You can reach the Suicide and Crisis Lifeline at 988.
Emily Siner: More Perfect is a production of WNYC Studios.
This episode was produced by Jad Abumrad, Suzie Lechtenberg, Tobin Low and Kelsey Padget, along with Whitney Jones and me, Emily Siner. It was fact-checked by Michelle Harris and Tasha A. F. Lemley.
Special thanks to Gyan Riley and Sam Moyn.
The More Perfect team also includes Julia Longoria, Emily Botein, Alyssa Edes, Gabrielle Berbey, Salman Ahad Khan, David Herman, Joe Plourde, Mike Kutchman and Jenny Lawton.
Our theme is by Alex Overington, and the episode art is by Candice Evers.
Archival interviews with Justice William O. Douglas came from the Department of Rare Books and Special Collections at Princeton University Library.
And Supreme Court audio is from Oyez — a free law project by Justia and the Legal Information Institute of Cornell Law School.
Support for More Perfect is provided in part by The Smart Family Fund. And by listeners like you.
And if you have any questions about the Supreme Court, we really want to hear from you. Send us a note or a voice memo at email@example.com. Or go to our website — moreperfectpodcast.org.
Thanks for listening.
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