[RADIOLAB INTRO]

LATIF NASSER: Hey, I'm Latif Nasser.

LULU MILLER: I'm Lulu Miller.

LATIF: This is Radiolab.

LULU: And we are gonna play an all-time great episode for you today that touches quite poignantly on the current state of the Supreme Court, and why it is perhaps more permeable to politics than you would wish—or hope, or expect.

LATIF: Yeah.

LULU: This episode draws a direct line back to one lesser-known Supreme Court case decided over 50 years ago, and shows how it really changed the fates for our country. But I think what I love most about this episode is how it allows you to crawl inside the mind of a Supreme Court Justice, and get a pretty intimate view of what was going on in there during this decision.

LATIF: Right.

LULU: In a way that you almost never do in these stories. And the reporter who was able to pull off this feat is a person near and dear to our hearts at Radiolab, and she's someone whose work you likely listening love—even if you don't know that you do.

LATIF: Not only is she the executive producer on this show, she also was the executive producer on The Other Latif series as well as ...

LULU: Terrestrials, More Perfect.

LATIF: Sort of everything we've made here in the last, I don't know how many years. Suzie Lechtenberg has molded it.

LULU: Yeah.

LATIF: You know, so many of these stars in the—in the podcast constellations kind of got there because of Suzie Lechtenberg. She is famously a great mentor, and someone who's great at finding talent and really allowing that talent to blossom.

LULU: And her time with us is about to be over.

LATIF: She's going on to another fancy job, but yeah, we are so lucky to have had her for as long as we did.

LULU: Yeah.

LATIF: As a tribute, we wanted to play this episode for you.

LULU: It's a More Perfect episode, which by the way, were you around when she was working?

LATIF: Yeah, More Perfect? Yes, she had been working for a long time at the show Freakonomics, and then she came over sort of down the hall a little bit.

LULU: But, like, when she was working on Whittaker? Did you ...?

LATIF: Oh yeah. Oh yeah. No, the funny thing—I mean, even still to this day there's one line, it's like a phrase that Suzie still uses all the time which is "Bantam rooster." She'll be like, "Oh, yeah. That guy's a bantam rooster."

LULU: Huh.

LATIF: Just keep an ear out for it.

LULU: So to Suzie, we love you. We thank you. We're gonna miss you. We're so happy for you.

LATIF: And thank you for protecting us from all the bantam roosters out there.

LULU: Yeah, for serious. So without further ado, More Perfect's The Political Thicket. Please enjoy!

SUZIE LECHTENBERG: Well, I think we should start the story on June 25, 1969.

JAD ABUMRAD: Well, first you should say who you are.

SUZIE: I'm Suzie Lechtenberg.

JAD: I'm Jad Abumrad. This is More Perfect. Okay, so why—why June 20—when was it?

SUZIE: June 25, 1969.

JAD: Why then?

SUZIE: Supreme Court Chief Justice Earl Warren is retiring. Earl Warren of the Warren court.

JAD: Is that a big court?

SUZIE: Yeah, that's really big. [laughs]

JAD: No, come on. Humor me.

SUZIE: I think if you think of legendary Supreme Court Justices, he's probably in, I don't know, top five?

JAD: So he was one of the Mount Olympians.

SUZIE: He's a big deal.

[ARCHIVE CLIP, Earl Warren: ... constitutional rights.]

JAD: All right, so he's retiring.

SUZIE: So he's retiring. He's been on the court for 16 years. And he's in an interview and he's asked ...

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

SUZIE: And he says something that is kind of astounding.

[ARCHIVE CLIP, Earl Warren: I think the reapportionment, not only of state legislatures, but ...]

SUZIE: Wait, before you hear the answer?

JAD: Yeah.

SUZIE: I think that you need to know that he could have said all kinds of cases. He was the chief justice during—I don't know, Miranda?

[ARCHIVE CLIP, Earl Warren: ... was he advised either of his rights to remain silent?]

SUZIE: That's the you have the right to remain silent.

JAD: Oh.

[ARCHIVE CLIP, Earl Warren: Clarence Earl Gideon, petitioner ...]

SUZIE: Or Gideon versus Wainwright.

[ARCHIVE CLIP, Earl Warren: It is the duty of the state ...]

SUZIE: Which is you have the right to an attorney.

[ARCHIVE CLIP, Earl Warren: To appoint counsel.]

JAD: Oh, that seems big.

SUZIE: Or ...

[ARCHIVE CLIP, Earl Warren: Segregation has no place in our democracy.]

SUZIE: ... Brown versus Board of Education.

JAD: Okay. That one I know. That one I know.

SUZIE: Desegregating the schools.

JAD: Yeah. What could be bigger than that?

SUZIE: He doesn't say any of those.

JAD: What does he say?

SUZIE: He says this little case called ...

[ARCHIVE CLIP, Earl Warren: The Baker versus Carr case.]

SUZIE: ... Baker versus Carr.

JAD: Huh.

[ARCHIVE CLIP, Earl Warren: I think that—that that case is perhaps the most important case that we've had since I've been on the court.]

JAD: He thought that case, whatever it is, is more important than the case that desegregated the schools?

SUZIE: He did.

JAD: Wow! So what the hell is it?

SUZIE: Exactly!

JAD: No, really. What is it?

SUZIE: 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: Whoa!

[MORE PERFECT INTRO]

JAD: Okay, so this is More Perfect, a miniseries about the Supreme Court. And just to frame the story we're about to here 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.

[ARCHIVE CLIP, woman: Yes. Could you address what I see as the increasing politicization of the Court? The apotheosis of which I guess was, you know, 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: 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: So I think to understand that moment and this story, you have to get to know three characters.

JAD: Okay.

SUZIE: And these aren't necessarily the three most important justices of all time.

JAD: Okay.

SUZIE: Because at that time you had Chief Justice Earl Warren.

JAD: Yeah.

SUZIE: And William Brennan on the court. And these are kind of giants of the Supreme Court.

JAD: Gotcha.

SUZIE: 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: Ooh!

SUZIE: So on the conservative side ...

[ARCHIVE CLIP, Felix Frankfurter: Mr. Ryan, what difference does it make whether it's in the Constitution or in any other expression or action by the state?]

SUZIE: You had a guy named Felix Frankfurter.

TARA GROVE: So Justice Frankfurter was one of the most ...

JAD: Wait, his really—his name was really Frankfurter?

TARA GROVE: Yes. One of the most influential justices of all time.

SUZIE: 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, towering figure. But as a person, Justice Frankfurter, he wasn't necessarily the nicest person.

SUZIE: 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, he had a 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—when a clerk would come to the US Supreme Court chambers to deliver a message, when 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: Dude, that's a wiener move. [laughs]

SUZIE: [laughs] And by the way, the voices you heard besides Tara Grove were professors Mike Seidman ...

MIKE SEIDMAN: Georgetown University Law Center.

SUZIE: ... Sam Issacharoff ...

SAM ISSACHAROFF: NYU Law School.

SUZIE: ... Craig Smith ...

CRAIG SMITH: California University of Pennsylvania.

SUZIE: ... and ex-Supreme Court Clerk Alan Kohn.

ALAN KOHN: Kohn. K-O-H-N.

SUZIE: 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, interviewer: Here is Justice Douglas now in the Supreme Court chambers.]

SUZIE: This is a recording from a 1957 interview with Justice Douglas.

[ARCHIVE CLIP, interviewer: He looks very well. His face is tan. Rugged. His eyes sparkle.]

SUZIE: Douglas was this mountain-climbing environmentalist. Big on civil liberties.

[ARCHIVE CLIP, William O. Douglas: I think that this oncoming generation is more aware of the importance of civil liberties than perhaps my generation was.]

SUZIE: And like Justice Frankfurter ...

SAM ISSACHAROFF: Douglas was a prick to everybody around him. Everybody hated him.

SUZIE: All those same adjectives ...

ALAN KOHN: Condescending.

CRAIG SMITH: Egotistical.

TARA GROVE: Abrasive.

SUZIE: ... applied. Here's how the New York Times described him.

[NEWS CLIP: 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, interviewer: Do you believe in kissing your bride, sir?]

[ARCHIVE CLIP, William O. Douglas: What? Oh sure.]

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

[ARCHIVE CLIP, William O. Douglas: Oh yes.]

CRAIG SMITH: So yes. Yes, that is William Douglas.

SUZIE: So you have these two guys: Frankfurter, the bantam rooster, Douglas the prick.

ALAN KOHN: And ...

SUZIE: As you can imagine ...

ALAN KOHN: ... they hated each other. They just despised each other.

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

ALAN KOHN: You know, he was just open in his disdain for Frankfurter.

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

[ARCHIVE CLIP, 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: Wow! Why did they hate each other so much?

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

MIKE SEIDMAN: It reflected a really important split.

SUZIE: Over how powerful the court should be.

MIKE SEIDMAN: So for Frankfurter, courts just ought not to intervene.

TARA GROVE: He believed that many matter 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: 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: This is Alan Kohn.

ALAN KOHN: I was a Supreme Court clerk for Justice Whittaker from 1957 to 1958.

SUZIE: Whittaker grew up in a small town in Kansas called Troy.

KATE WHITTAKER: The antithesis of flashy.

SUZIE: This is his granddaughter Kate.

KATE WHITTAKER: He attended kind of a one-room schoolhouse.

ALAN KOHN: Proverbial little red schoolhouse.

SUZIE: Worked on the farm.

KATE WHITTAKER: But he—he determined that was not the life for him.

SUZIE: 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? You know, pushing the plow along in the fields, and then lecturing and arguing cases to the cows or to the horses or whatever?

SUZIE: 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: Possum.

ALAN KOHN: Raccoons.

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

ALAN KOHN: And he amassed, I think, $700.

SUZIE: 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: What?

KATE WHITTAKER: Which is just mind boggling. But ...

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

SUZIE: Totally. Anyhow, to make a long story short ...

ALAN KOHN: Soon he became a top lawyer.

SUZIE: 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: 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 ...

SUZIE: This is Kent Whittaker, Charles Whittaker's son.

KENT WHITTAKER: He said, "Certainly. But my best blue suit is at the cleaners tonight."

SUZIE: What did he wear?

KENT WHITTAKER: [laughs] As a matter of fact, my mother or someone else got the cleaners to open up at night.

[ARCHIVE CLIP, Charles Whittaker: In the first instance, there must be allegations tending to show that the corporation's right of exercise of free will has been destroyed.]

SUZIE: 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, 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, lawyer: Sure.]

[ARCHIVE CLIP, Charles Whittaker: I think it may last ...]

SUZIE: 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: 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: 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, John Roberts: Mr. Chairman, I come before the committee with no agenda.]

SUZIE: He was sort of a blank slate.

[ARCHIVE CLIP, 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: 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: 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: And it's in those cases ...

KENT WHITTAKER: At least you have—must have your ideology as a starting point.

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

[ARCHIVE CLIP, Charles Whittaker: She was found in her bedroom by a fireman, and taken outside. And soon thereafter pronounced dead.]

SUZIE: 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: 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 was some thought that he might side with the guy who talked with him last, you know?

SUZIE: 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, Charles Whittaker: Albert Hill ...]

SUZIE: ... 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, Earl Warren: And may I say this, Justice Whittaker, that in normal course under California procedure, the ...]

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

[ARCHIVE CLIP, Charles Whittaker: You say that judgment 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 Baker versus Carr and it broke him.

JAD: That's coming up.

***

JAD: 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.

[ARCHIVE CLIP, Earl Warren: Number 103, Charles W. Baker et al appellants versus Joe C. Carr et al.]

SUZIE: Okay. So it's April 19, 1961.

[ARCHIVE CLIP, Charles Whittaker: Chief Justice, may it please the court.]

SUZIE: The Supreme Court is hearing Baker versus Carr.

[ARCHIVE CLIP, Charles Whittaker: This is an individual voting rights case brought by 11 qualified voters in the state of Tennessee.]

SUZIE: Now on the surface, Baker versus Carr was about districts, and how people are counted in this country.

JAD: Hmm.

SUZIE: And this is one of the most basic ways that political power gets assigned in America.

JAD: Yeah. Like, you know, as populations grow in size, that growth should be reflected in the number of congresspeople that are representing them.

SUZIE: But at that time in Tennessee ...

TARA GROVE: Tennessee hadn't changed its legislative districts ...

[ARCHIVE CLIP, Charles Whittaker: It's last reapportionment was in 1901.]

TARA GROVE: ... since 1901.

SUZIE: Which was ...

[ARCHIVE CLIP, Charles Whittaker: 60 years.]

SUZIE: 60 years earlier.

TARA GROVE: Well, this created big problems for urban areas.

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

TARA GROVE: And rural areas were getting smaller.

SUZIE: 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 1.

SUZIE: NYU law professor Sam Issacharoff.

SUZIE: For people that don't understand it, how does it actually dilute your vote?

SAM ISSACHAROFF: Well—and 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: Wait, what?

SUZIE: All right. Think of it this way. At that time, a person in the city in Tennessee, had 1/23rd as much of a voice in the legislature as a person living in the countryside.

JAD: Oh!

SUZIE: 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: 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. It was a method of making sure that rural white legislators continue to control the power structure.

SUZIE: 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: 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, William O. Douglas: Here you have the geographical ...]

SUZIE: And here's where you get to the ideological smackdown: liberals on the court like Douglas basically agreed with the plaintiff when they argued.

[ARCHIVE CLIP, William O. Douglas: And 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: The liberals were like, "Yeah. This is clearly an injustice. People in the cities are getting screwed."

[ARCHIVE CLIP, William O. Douglas: Their voting rights have been diluted and debased to the point of nullification.]

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

DOUG SMITH: But, we're not gonna do anything about it.

SUZIE: We can't.

DOUG SMITH: Frankfurter ...

[ARCHIVE CLIP, Felix Frankfurter: The mere fact that there's 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: Why not?

SUZIE: Well ...

[ARCHIVE CLIP, Felix Frankfurter: I do have to think of the road that I'm going on, what kind of road you're inviting me.]

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

[ARCHIVE CLIP, Felix Frankfurter: Considering the fact that this isn't a unique Tennessee situation. This isn't a unique Tennessee situation.]

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

[ARCHIVE CLIP, Felix Frankfurter: ... Maryland ...]

SUZIE: ... South Carolina. Pretty soon we'll be rewriting the entire US legislative map.

[ARCHIVE CLIP, 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: 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 fundamentally 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: Frankfurter felt like even if you have a terrible political situation, if the justices 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—he viewed the political question doctrine as a crucial limitation on the federal judicial power.

SUZIE: 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."

[ARCHIVE CLIP: The evil is a serious one, which should be corrected without further delay. End quote.]

DOUG SMITH: But, he said that this is a political question. The malapportionment was a political question, and only the political branches can handle this.

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

SUZIE: So ...

[ARCHIVE CLIP, lawyer: Fairly submit in this court ...]

SUZIE: ... when the lawyer for Tennessee got up there ...

[ARCHIVE CLIP, lawyer: I am not here defending the legislature of Tennessee.]

SUZIE: He didn't try to defend how 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, 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: He basically said, "If you step in, you're gonna 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: 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: 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: That's Guy Charles, professor, Duke Law School.

GUY CHARLES: So they had an incentive not to do anything about this.

SUZIE: 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 gonna fix it if they didn't fix it. But for Frankfurter, he's like, "If you fix this one, you're gonna have to fix that one and that one and that one and that one. And where's it gonna stop?"

GUY CHARLES: If you do this, there is no way out.

SUZIE: The court's gonna get stuck in what he called ...

GUY CHARLES: The political thicket.

ALAN KOHN: The political thicket.

DOUG SMITH: Now 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: 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: Right down the middle. And Charles Whittaker? He was a potential swing vote.

DOUG SMITH: Whittaker was deeply torn.

SUZIE: He'd been leaning Frankfurter's way.

DOUG SMITH: But ...

[ARCHIVE CLIP, 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, 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. And 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 he 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. Four hours.

MIKE SEIDMAN: Really lecturing Whittaker. Really, really belittling him.

SUZIE: This guy!

CRAIG SMITH: Yes, it was horribly intimidating.

SUZIE: 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: 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: According to his family, Kate and Ken ...

KATE WHITTAKER: My mother tells me that, you know, 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: 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: 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: 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, you know, a fire in his belly. He's not gonna let this one go.

[ARCHIVE CLIP, Earl Warren: Number six. Charles W. Baker et al appellants, versus Joe. C. Carr et al.]

SUZIE: Monday October 9, 1961. It's 10:00 am, and the court is back in session.

[ARCHIVE CLIP, lawyer: Chief Justice, and may it please the court ...]

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

[ARCHIVE CLIP, lawyer: Tennessee voters seek federal court protection.]

SUZIE: Frankfurter sits quietly for about five minutes listening.

[ARCHIVE CLIP, lawyer: ... should be corrected without delay.]

SUZIE: And then ...

[ARCHIVE CLIP, Felix Frankfurter: You don't mean to imply that in order to reverse a wrong under the state constitution it had no right to ...]

[ARCHIVE CLIP, lawyer: I certainly do not Mr. Justice Frankfurter.]

[ARCHIVE CLIP, Felix Frankfurter: The ratio you gave a minute ago ...]

[ARCHIVE CLIP, Felix Frankfurter: ...determination of the state ...]

[ARCHIVE CLIP, Felix Frankfurter: ... I wasn't trying to deal with that problem. I wanted to know ...]

[ARCHIVE CLIP, Felix Frankfurter: And the totality doesn't include ...]

[ARCHIVE CLIP, Felix Frankfurter: Is there any state in the ...]

[ARCHIVE CLIP, Felix Frankfurter: 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, lawyer: Of course not, Mr. Justice Frankfurter.]

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

JAD: 170?

SUZIE: 170!

JAD: Damn!

SUZIE: Charles Whittaker?

[ARCHIVE CLIP, Charles Whittaker: ... Tennessee have some system for the allocation of its legislators to districts' accounts.]

SUZIE: 17 times.

[ARCHIVE CLIP, lawyer: Well, since they have ...]

SUZIE: After nearly four hours of oral arguments ...

[ARCHIVE CLIP, Earl Warren: We'll recess now.]

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

SUZIE: 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: 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: 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, Lyndon B. Johnson: There is no cause for pride in what has happened in Selma.]

SUZIE: You know, 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. Like, on the one hand, if the court stepped into politics, they could protect people.

[ARCHIVE CLIP, Martin Luther King: Yes, Selma, Alabama became a shining moment!]

[ARCHIVE CLIP, police officer: You have to disperse, you are ordered to disperse.]

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

[ARCHIVE CLIP, Jesse Jackson, Jr.: It's a sad day in America, Mr. President, when we can't ...]

SUZIE: Would it make the court too powerful?

[ARCHIVE CLIP: George W. Bush and Richard Cheney versus Albert Gore.]

SUZIE: In which case ...

[ARCHIVE CLIP: George W. Bush of the State of Texas has received as President of the United States, 200 and ...]

SUZIE: ... 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: After three weeks, Justice Whittaker returns to DC.

KENT WHITTAKER: Back to Washington for a few days.

SUZIE: That's Kent again, his son.

KENT WHITTAKER: We found my father to be really in extremis. And debate—and I think borderline suicidal.

SUZIE: 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: Oh.

KENT WHITTAKER: Yeah.

SUZIE: 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, William O. Douglas: I do recall justice that Whittaker had had a nervous breakdown.]

SUZIE: That's Justice William Douglas again.

[ARCHIVE CLIP, William O. Douglas: And 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 that he was—would be in a position to decide what he should do until he got well.]

SUZIE: A few weeks later ...

[NEWS CLIP: March 29, 1962. The presidential press conference from the new State Department auditorium, Washington DC.]

[ARCHIVE CLIP, John F. Kennedy: 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 1. 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: Wow. And what ever happened with the case? With Baker v. Carr?

SUZIE: 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: Wow.

SUZIE: 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: What was it?

SUZIE: It was 6-2.

JAD: Oh, Frankie!

SUZIE: Yeah. And Brennan wrote the majority opinion, and he says that this whole kind of cluster**** 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: So in other words, they decided to lower their horns and go into the thicket?

SUZIE: Oyez, they did.

[ARCHIVE CLIP: Oyez.]

SUZIE: 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: After Baker versus Carr, President Kennedy essentially had two Supreme Court vacancies to fill. Now Whittaker's seat, 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: 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, 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. The way we treat 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: And so just thinking about that question that that woman asked all the way at the beginning of the story?

[ARCHIVE CLIP, woman: Yes. Could you address what I see as the increasing politicization of the Court? The apotheosis of which I guess was, you know, voting or electing Bush to be our president.]

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

[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 Frankfurter's revenge. This was the moment that 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: Before we totally sign off, what happened to Douglas? We sort of lost track of him.

SUZIE: 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: Huh. And Frankfurter?

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

JAD: Yeah. And Charles Whittaker, did he ever recover?

SUZIE: Well, after Whittaker retired from the court, he moved back to Kansas City with his family. And his son said that it took him 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: Okay. More Perfect is produced by me, Jad Abumrad, with Suzie Lechtenberg, Tobin Low and Kelsey Padgett. Go Kelsey!

KELSEY PADGETT: 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—a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part by the William and Flora Hewlett Foundation, the Charles Evans Hughes Memorial Foundation and the Joyce Foundation.

[LISTENER: Radiolab was created by Jad Abumrad, and is edited by Soren Wheeler. Lulu Miller and Latif Nasser are our co-hosts. Suzie Lechtenberg is our executive producer. Dylan Keefe is our director of sound design. Our staff includes: Simon Adler, Jeremy Bloom, Becca Bressler, Rachael Cusick, Akedi Foster-Keys, W. Harry Fortuna, David Gebel, Maria Paz Gutiérrez, Sindhu Gnanasambandan, Matt Kielty, Annie McEwen, Alex Neason, Sarah Qari, Anna Rascouët-Paz, Sarah Sandbach, Arianne Wack, Pat Walters and Molly Webster. With help from Andrew Viñales. Our fact-checkers are Diane Kelly, Emily Krieger and Natalie Middleton.]

[LISTENER: Hi, this is Sven calling from Storrs, Connecticut. Leadership support for Radiolab's science programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, a Simons Foundation initiative and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.]

 

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