More Perfect: The Political Thicket

SPEAKER_10: Radiolab is supported by Apple Card. Apple Card has a cash-back rewards program unlike other credit cards. You earn unlimited daily cash on every purchase, receive it daily, and can grow it at 4.15% annual percentage yield when you open a savings account. Apply for Apple Card in the Wallet app on iPhone. Apple Card subject to credit approval. Savings is available to Apple Card owners subject to eligibility requirements. Savings accounts provided by Goldman Sachs Bank USA. Member FDIC terms apply. SPEAKER_23: Listener supported. WNYC Studios. SPEAKER_37: Crack cocaine plagued the United States for more than a decade. This week on Notes from America, author Donovan Ramsey explains how the myths of crack prolonged a disastrous era and shaped millions of lives. Listen now wherever you get your podcasts. SPEAKER_15: Hey, I'm Latif Nasser. I'm Lulu Miller. This is Radiolab. And we are going to play an all-time SPEAKER_10: 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. 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. 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. SPEAKER_02: Not only is she the executive producer on this show, she also was the executive producer on the other Lutthuf series as well as... Terrestrials, more perfect. SPEAKER_02: Sort of everything we've made here in the last, I don't know how many years, Susie Lechtenberg has molded it. Yeah. You know, so many of the stars in the podcast constellations kind of got there because of Susie Lechtenberg. She is famously a great mentor and someone who's great at finding talent and really allowing that talent to blossom. SPEAKER_10: And her time with us is about to be over. She's going on to another fancy job, but yeah, SPEAKER_02: we are so lucky to have had her for as long as we did as a tribute. We wanted to play this episode for you. It's a more perfect episode, which by the way, were you around SPEAKER_10: when she was working? Yeah, more perfect. Yeah. She had been working SPEAKER_02: for a long time at the show Freakonomics and then she came over sort of down the hall a little bit. But like when she was working on Whitaker? Oh yeah. Oh yeah. No, the funny thing, I mean, SPEAKER_02: even still to this day, there's one line, it's like a phrase that Susie still uses all the time, which is a bantam rooster. She'll be like, oh yeah, that guy's a bantam rooster. Just keep an ear out for it. So to Susie, we love you. We thank you. We're SPEAKER_10: going to miss you. We're so happy for you. And thank you for protecting us from all the SPEAKER_02: bantam roosters out there. Yeah, for serious. So without further ado, SPEAKER_10: more perfects, the political thicket. Please enjoy. SPEAKER_13: Well, I think we should start the story on June 25th, 1969. Well, first you should say who you are. I'm Susie Lechtenberg. SPEAKER_28: I'm Jana Abumrad. This is more perfect. Okay. So why, when was it? SPEAKER_13: June 25th, 1969. Why then? Supreme court chief justice Earl Warren is retiring. Earl Warren of the Warren court. Is that a big court? Yeah, that's really big. SPEAKER_28: No, come on humor me. I think if you think of legendary Supreme SPEAKER_13: court justices, he's probably in, I don't know, top five. SPEAKER_28: So he was one of the Mount Olympians. He's a big deal. SPEAKER_13: All right, so he's retiring. So he's retiring. He's been on the court for 16 years and he's in an interview and he's asked, what would you list Mr. Chief justice as the Supreme SPEAKER_00: court's most important decision in your 16 years here? SPEAKER_13: And he says something that is kind of astounding. I think the, uh, reapportionment not only SPEAKER_21: of state legislatures, but before you hear the answer, I think that you need to know SPEAKER_13: that, um, he could have said all kinds of cases. He was the chief justice during, I don't know, Miranda. He advised either of his rights to remain silent. SPEAKER_13: Clarence Earl Gideon petitioner. SPEAKER_27: Or Gideon versus Wainwright. SPEAKER_13: It is the duty of the state. SPEAKER_27: Which is you have the right to an attorney. SPEAKER_13: To appoint counsel. SPEAKER_28: That seems big. Or Segregation has no place in our democracy. SPEAKER_19: Brown versus board of education. SPEAKER_13: Okay. There is no better place to... SPEAKER_19: That one I know. That one I know. SPEAKER_28: Desegregating the schools. That's big. SPEAKER_13: Yeah, what could be bigger than that? SPEAKER_28: He doesn't say any of those. SPEAKER_28: What does he say? SPEAKER_13: He says this little case called The Baker versus Carr case. SPEAKER_21: Baker versus Carr. SPEAKER_13: Huh. SPEAKER_21: I think that, uh, that that case is perhaps the most important case that we've had since I've been on the court. SPEAKER_28: He thought that case, whatever it is, is more important than the case that desegregated the schools. He did. Wow. So what the hell is it? Exactly. SPEAKER_13: No, really, what is it? SPEAKER_28: It's this case that was so dramatic and so dramatic that it apparently broke to justice. SPEAKER_13: There was an instance in which my brother found my father going upstairs to get a shotgun. SPEAKER_17: Wow. More purple. The honor of all the chief justice and the associate justices of the Supreme Court of SPEAKER_27: the United States. Oh, yay, oh, yay, oh, yay. All persons having business before the honor of all the Supreme Court of the United States SPEAKER_28: should manage to draw near and give their attention. Oh, yay, oh, yay, oh, yay. For the court is now sitting. Oh, yay. For God's sake, the United States and this honorable court. Oh, yay, oh, yay, oh, yay, oh, yay. Okay, so this is more of perfect, a miniseries about the Supreme Court. Just to frame the story we're about to hear for a second, as we were putting this 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. Yes. SPEAKER_04: 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? So this turns out to be a really interesting question. SPEAKER_28: It turns out, I didn't know this until Suzy started looking into it, that there was a moment when the Pandora's box just got ripped open. So I think to understand that moment and this story, you have to get to know three SPEAKER_13: 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. Gotcha. 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. Ooh. So on the conservative side. Mr. Ryan, what difference does it make whether it's in the Constitution or in any other SPEAKER_28: SPEAKER_24: expression or action by the state? SPEAKER_13: You had a guy named Felix Frankfurter. So Justice Frankfurter was one of the most- SPEAKER_11: Wait, his name was really Frankfurter? SPEAKER_28: Yes. SPEAKER_11: One of the most influential justices of all time. That's Tara Grove. SPEAKER_13: She teaches constitutional law at William and Mary Law School. SPEAKER_11: 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. I heard that from everyone I talked to. I always call him a bantam rooster. SPEAKER_14: He was a difficult, crusty figure. SPEAKER_08: He was short, had a little bit of a pouch on him. SPEAKER_14: He was one of the most- SPEAKER_09: Condescending- SPEAKER_07: Egotistical of justices. SPEAKER_09: He was a tough customer. SPEAKER_14: When a clerk would come to the U.S. Supreme Court chambers to deliver a message, SPEAKER_11: 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. SPEAKER_28: Dude, that's a wiener move. SPEAKER_13: And by the way, the voices you heard besides Tara Grove were Professors Mike Seidman, Georgetown University Law Center, SPEAKER_07: Sam Azakaroff, SPEAKER_13: NYU Law School, SPEAKER_09: Craig Smith, SPEAKER_09: California University of Pennsylvania, and ex-Supreme Court Clerk Alan Cohen. SPEAKER_13: Cohen, K-O-H-N. SPEAKER_14: Okay, so Frankfurter is on one side of the aisle, SPEAKER_13: and his nemesis is a gentleman on the other side of the aisle, a liberal named William O. Douglas. Here is Justice Douglas now in the Supreme Court chambers. SPEAKER_05: This is a recording from a 1957 interview with Justice Douglas. SPEAKER_13: He looks very well, his face is tan, rugged, his eyes sparkle. SPEAKER_13: Douglas was this mountain climbing environmentalist, big on civil liberties. I think that this oncoming generation is more aware of the importance of civil liberties than perhaps my generation was. SPEAKER_13: And like Justice Frankfurter, SPEAKER_08: Douglas was a prick to everybody around him. Everybody hated him. SPEAKER_13: All those same adjectives, condescending, egotistical, abrasive, applied. SPEAKER_13: Here's how the New York Times described him. A habitual womanizer, heavy drinker, and uncaring parent, SPEAKER_23: Douglas was married four times, cheating on each of his first three wives with her eventual successor. Do you believe in kissing your bride, sir? SPEAKER_21: Oh, sure. SPEAKER_13: This is footage from his last marriage to his wife Kathleen. He was 67, she was 23. Oh, yes, we got her later. SPEAKER_09: So, yes, yes, that is William Douglas. So you have these two guys, Frankfurter the Bantam Rooster, Douglas the prick. SPEAKER_13: And as you can imagine, they hated each other. SPEAKER_07: They just despised each other. So Frankfurter had this habit of monologuing and while he would go on and on, SPEAKER_13: Douglas would just pull out a book right in front of him and just start reading. You know, he was just open in his disdain for Frankfurter. SPEAKER_07: I actually found a series of interviews that were done with Douglas in the early 60s where he basically calls Frankfurter names. SPEAKER_20: He got the 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. Wow, why did they hate each other so much? SPEAKER_13: Well, according to Mike Seidman... SPEAKER_07: Some of that comes from maybe their difference in background. Frankfurter was a Jewish immigrant from Austria. Douglas was a Westerner. SPEAKER_13: But according to him, the core of their hatred actually was ideological. It reflected a really important split. SPEAKER_13: Over how powerful the courts should be. So for Frankfurter, courts just ought not to intervene. SPEAKER_07: He believed that many matters should be left up to the political process and that courts should stay out of those issues. SPEAKER_11: Douglas, he thought just the opposite. SPEAKER_07: He thought that courts ought to intervene to protect, for example, minority groups, free speech rights, things of that sort. SPEAKER_13: 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 Whitaker. You might call him the swing vote. SPEAKER_14: Okay, uh... This is Alan Cohen. I was a Supreme Court clerk for Justice Whitaker from 1957 to 1958. Whitaker grew up in a small town in Kansas called Troy. SPEAKER_13: The antithesis of flashy. SPEAKER_16: This is his granddaughter Kate. He attended kind of a one-room schoolhouse. Proverbial little red schoolhouse. SPEAKER_14: Worked on the farm. SPEAKER_13: But he... SPEAKER_16: He determined that was not the life for him. SPEAKER_13: 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. SPEAKER_16: 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? Did you really hear that he was lecturing? SPEAKER_13: Yes! SPEAKER_14: Oh, and on the side he would hunt. He would hunt squirrels, possums, raccoons, gunks. SPEAKER_13: And he'd sell the pelts for a few dollars. And he amassed, I think, $700. SPEAKER_14: With that money, he put himself through law school. SPEAKER_13: My understanding is that he simultaneously went to law school and high school. SPEAKER_16: What? Which is just mind-boggling. Yeah, apparently he went to the head of the law school in Kansas City and he's like, SPEAKER_13: 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. He's like, alright, you're in. I love this guy. He's like Mr. Bootstraps. SPEAKER_28: Totally. SPEAKER_13: Anyhow, to make a long story short... Soon he became a top lawyer. And Alan Cohen says that's because he would do better than all of his opponents. He would outwork them, out-prepare them. SPEAKER_14: Great attention to detail, great presence before a jury. SPEAKER_13: 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. SPEAKER_17: As I recall, it was in the evening and they asked if he could be in Washington the next morning. SPEAKER_13: This is Kent Whitaker, Charles Whitaker's son. SPEAKER_17: He said, certainly, but my best blue suit is at the cleaners tonight. What did he wear? SPEAKER_13: As a matter of fact, my mother or someone else got the cleaners to open up at night. SPEAKER_26: In the first instance, there must be allegations tending to show that the corporation's right of exercise of free will have been destroyed. This is one of the first times that Whitaker spoke on the bench and he interjects with a question for the attorney and he is Midwestern polite. SPEAKER_13: I hesitate, you've had so many interruptions, but I have a question or two. SPEAKER_26: I wonder if I might have the privilege of asking you. 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. SPEAKER_14: 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. But he loved the law. SPEAKER_17: 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. As Kent Whitaker 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. SPEAKER_33: Mr. Chairman, I come before the committee with no agenda. SPEAKER_13: He was sort of a blank slate. It's my job to call balls and strikes and not to pitch or bat. SPEAKER_17: My father was not interested in advancing a cause or a theory, but... Frankly, that seems how a justice should be, that you are approaching it without a political agenda and that you're deciding it. SPEAKER_13: I think in theory that's exactly right. SPEAKER_17: But in practice, so many of their cases... there is no law to turn to to decide those cases. Kent says that his dad quickly discovered that law at the Supreme Court is never clean cut. SPEAKER_13: Cases make it there precisely because the law isn't clear. Many of their cases are just without precedent. SPEAKER_17: And it's in those cases. At least you must have your ideology as a starting point. And the fact that he didn't have an ideology, that left him vulnerable. SPEAKER_11: He was definitely getting lobbied from both sides. SPEAKER_13: Frankfurter on one side, Douglas on the other. He was the new kid on the block and was being pulled by each one. SPEAKER_17: He didn't like the way the judges bullied for votes. SPEAKER_16: Within his first three months he found himself in the middle of a death penalty case. SPEAKER_01: She was found in her bedroom by a fireman, taken outside, and soon thereafter pronounced dead. SPEAKER_13: 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. Now according to Justice Douglas, Justice Whitaker was undecided all the time. SPEAKER_11: Douglas would tell him one thing. He'd say, oh, well, that seems right. And then Justice Frankfurter would say something else. And you'd say, oh, gosh, that sounds right. I think there was some thought that he might side with the guy who talked with him last, you know? SPEAKER_13: 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. Albert L. Trope. Where the law would be fuzzy, ideologies would harden, and Whitaker, he would be right in the middle. SPEAKER_09: The physical depictions of him in that first year from people who saw him described somebody who was restless. Terribly unhappy. SPEAKER_17: Had lost a lot of weight. SPEAKER_09: Nervous. Was agitated most of the time. It was a lot of stress on him. SPEAKER_27: May I say this, Justice Whitaker, that in normal course under California procedure, the men are... But over the next few years, he bounces back. SPEAKER_13: He finds his feet. SPEAKER_26: You say that judgment of probation... SPEAKER_17: His production increased substantially. In his third year, his fourth year, and part of his fifth year, he wrote as many opinions as any other judge. SPEAKER_14: He wrote as many dissenting opinions as any other judge. He was one of the nine. He was fully employed. And he wrote some very important opinions during that period of time. And along came Baker versus Carr. And it broke him. SPEAKER_28: That's coming up. SPEAKER_10: Lulu here. If you ever heard the classic Radiolab episode, Sometimes Behaves So Strangely, you know that speech can suddenly leap into music and really how strange and magic sound itself can be. We at Radiolab take sound seriously and use it to make our journalism as impactful as it can be. And we need your help to keep doing it. The best way to support us is to join our membership program, The Lab. This month, all new members will get a t-shirt that says, Sometimes Behaves So Strangely. To check out the t-shirt and support the show, go to radiolab.org slash join. Radiolab is supported by Capital One. With no fees or minimums, banking with Capital One is the easiest decision in the history of decisions. Even easier than deciding to listen to another episode of your favorite podcast. And with no overdraft fees, is it even a decision? That's banking reimagined. What's in your wallet? Terms apply. See capitalone.com slash bank. Capital One N.A. Member FDIC. Radiolab is supported by Apple Card. Apple Card has a cashback rewards program unlike other credit cards. You earn unlimited daily cash on every purchase, receive it daily, and can grow it at 4.15 annual percentage yield when you open a savings account. Apply for Apple Card in the Wallet app on iPhone. Apple Card subject to credit approval. Savings is available to Apple Card owners subject to eligibility requirements. Savings accounts provided by Goldman Sachs Bank USA. Member FDIC. Terms apply. SPEAKER_06: After but her emails became shorthand in 2016 for the media's deep focus on Hillary Clinton's server hygiene at the expense of policy issues, is history repeating itself? You can almost see an equation, again I would say led by the times, SPEAKER_12: in Biden being old with Donald Trump being under dozens of felony indictments. Listen to On the Media from WNYC. SPEAKER_06: Find On the Media wherever you get your podcasts. SPEAKER_28: Hey this is More Perfect, I'm Chad Applemerod. Let's get back to our story from Susie Lechtenberg about the case that broke two justices. SPEAKER_21: Number 103, Charles W. Baker et al. Appellants versus Joe C. Carr et al. Okay, so it's April 19th, 1961. SPEAKER_13: Chief Justice, may it please the court. The Supreme Court is hearing Baker versus Carr. SPEAKER_22: This is an individual voting rights case brought by 11 qualified voters in the state of Tennessee. SPEAKER_13: 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. Yeah, like you know as populations grow in size, that growth should be reflected in the number of Congress people that are representing them. SPEAKER_28: But at that time in Tennessee... SPEAKER_13: Tennessee hadn't changed its legislative districts since 1901. SPEAKER_11: Which was 60 years earlier. Well this created big problems for urban areas. SPEAKER_13: Like Memphis, because in those 60 years people had moved to the cities in droves. And rural areas were getting smaller. SPEAKER_11: But the Tennessee state legislature had refused to update its count and it was still giving more representation to those rural areas. SPEAKER_08: In Tennessee, the figure was 23 to 1. NYU law professor Sam Azekoroff. SPEAKER_13: For people that don't understand, how does it actually dilute your vote? 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. SPEAKER_08: 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. Wait, what? Alright, think of it this way. SPEAKER_13: At that time, a person in the city in Tennessee had one twenty-third as much of a voice in the legislature as a person living in the countryside. Oh. 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. Underlying all of the reapportionment litigation, at least in the South, was white supremacy. SPEAKER_13: That's Doug Smith. Historian and the author of On Democracy's Doorstep. SPEAKER_15: This was deeply tied to white supremacy and the maintenance of Jim Crow. It was a method of making sure that rural white legislatures continued to control the power structure. So you had this situation, he says, where a small minority was choking the majority. SPEAKER_13: Choking the cities and the growing suburban areas from any sorts of funds. SPEAKER_15: The cities couldn't get the money they needed for roads, education, social services. SPEAKER_13: So the question at the Supreme Court was, and they would actually tackle this in two separate hearings, what should they do about this? SPEAKER_13: And here's where you get to the ideological smackdown. Liberals on the court, like Douglas, basically agreed with the plaintiff when they argued. 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. SPEAKER_22: And there's nothing in either one of those constitutions that says it takes 20 city residents to equal one farmer. SPEAKER_13: Liberals were like, yeah, this is clearly an injustice. People in the cities are getting screwed. Their voting rights have been diluted and debased to the point of nullification. SPEAKER_13: But the conservatives are like, yes, people are getting hurt. But we're not going to do anything about it. SPEAKER_07: We can't. Frankfurter, the mere fact that there's a rotten situation doesn't mean a court should act. SPEAKER_24: Most vociferously said we cannot get involved, that as bad as this is, that was not an issue that the court should get involved in. SPEAKER_15: Why not? Well, I do have to think of the roads that I'm going on, what kind of road you're inviting me. SPEAKER_24: He was like, think of where this will lead. SPEAKER_13: Considering the fact that this isn't a unique Tennessee situation, this isn't a unique Tennessee situation. SPEAKER_24: If we end up doing this in Tennessee, pretty soon we'll be intervening in California, South Carolina. SPEAKER_13: Pretty soon we'll be rewriting the entire U.S. legislative map. I have to think of a lot of states and not say this is just Tennessee. SPEAKER_24: For me, this is the United States, not Tennessee. SPEAKER_13: Yeah, so basically he felt like this would force the courts to get involved in politics. And he really believed that the courts should never, ever get involved in politics. This is an idea that goes way back to something called the political question doctrine. SPEAKER_07: Political question doctrine. The political question doctrine says no federal court can decide this issue at all. SPEAKER_11: The courts simply had no business getting into what were considered to be fundamentally political questions SPEAKER_15: and what could be more fundamentally political than the makeup of a legislature. 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. SPEAKER_09: 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. SPEAKER_13: Because it would be fundamentally undemocratic. SPEAKER_11: He viewed the political question doctrine as a crucial limitation on the federal judicial power. And he wasn't alone. The courts had followed this guideline for about 150 years. SPEAKER_13: And even with the current case in Tennessee. The federal court that first heard the case recognized the situation and actually referred to it as an evil. SPEAKER_15: The evil is a serious one which should be corrected without further delay, end quote. But, this is a political question. Malapportionment is a political question and only the political branches can handle this. SPEAKER_13: So, when the lawyer for Tennessee got up there, 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. SPEAKER_25: SPEAKER_13: 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. 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? SPEAKER_28: 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? Because, of course, once elected officials are in power, they have a vested interest in keeping their districts exactly as they are. SPEAKER_11: Because those were the districts that elected them. And fundamentally, electoral representatives knew that if they redrew the lines, that they would be voting themselves out of political power. SPEAKER_36: That's Guy Charles, professor, Duke Law School. SPEAKER_13: So they had an incentive not to do anything about this. SPEAKER_36: So for the liberals on the court, they felt like this was a fundamental flaw in our democracy that needed to be fixed. SPEAKER_13: 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 gonna have to fix that one and that one and that one and that one. And where's it gonna stop? SPEAKER_08: If you do this, there is no way out. The court's gonna get stuck in what he called? SPEAKER_13: The political thicket. SPEAKER_08: The political thicket. The court must not enter the political thicket. SPEAKER_15: That sounds like Frankfurter. He must have written those words. SPEAKER_14: 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. SPEAKER_08: 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. SPEAKER_13: OK, so after the oral arguments are over in Baker v. Carr, the justices head into conference. That's a meeting with just the nine. SPEAKER_15: And when they went into conference, basically the court was divided. Right down the middle. SPEAKER_13: And Charles Whittaker? He was a potential swing vote. Whittaker was deeply torn. SPEAKER_13: He'd been leaning Frankfurter's way. But... SPEAKER_26: If there is a clear constitutional right that's being violated... During that first argument, he asked a number of questions that suggested a great deal of sympathy with the plaintiffs. SPEAKER_15: Then is there not both power and duty in the courts to enforce that constitutional right? SPEAKER_26: There was a lot of thought that he might actually come down on the side of the plaintiffs in that case. SPEAKER_15: And I think that's where Frankfurter really began to rip into him. SPEAKER_11: 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... Pulling books off the shelf, reading from prior cases... SPEAKER_09: Justiculating wildly to make his point... SPEAKER_11: And the whole time looking directly at Whittaker. SPEAKER_09: There was one account that I heard where Frankfurter went on for four hours. For hours? Really lecturing Whittaker, really, really belittling him. SPEAKER_09: This guy! Yes, it was horribly intimidating. SPEAKER_13: At one point, one of the justices on the liberal side, Justice Hugo Black, he took Whittaker aside. Black was trying to make him feel better. SPEAKER_09: 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. Particularly if your vote might be the vote that decides everything. SPEAKER_13: This started to weigh heavily on Whittaker's mind. SPEAKER_11: He was disturbed by having the weight of the Supreme Court on his shoulders. According to his family, Kate and Kent... SPEAKER_13: My mother tells me that he, at that time, was under a lot of stress. SPEAKER_16: And spoke as though he were dictating, spoke his punctuation. Hello Judith, comma, it's very nice to meet you. Clearly thinking about everything that he did. About everything that he might say being recorded. I remember his stating that he felt like all the words that he uttered were being chiseled in stone. SPEAKER_17: As a result of which he said, you don't talk much. SPEAKER_13: So after they heard the case the first time, Whittaker couldn't make up his mind. And actually, incidentally, there was another justice. Justice Stewart, who was the other swing vote in the case. SPEAKER_11: Who also couldn't make up his mind. SPEAKER_13: The court decided to hear the case again in the fall. Just because they needed more time. And over the summer... Interesting enough, Whittaker said he remained deeply divided. SPEAKER_15: That he'd actually written memos on both sides of the issue. Doug Smith says Whittaker wrote both an opinion for intervening in Baker vs Carr, SPEAKER_13: and a dissent against intervening in Baker vs Carr. At the same time. Meanwhile, as he's doing this, Justice Frankfurter circulates a 60-page memo SPEAKER_11: explaining how this was a political question that should not be decided by the courts. He's got, you know, a fire in his belly. SPEAKER_09: He's not going to let this one go. SPEAKER_13: Monday, October 9, 1961. It's 10 a.m. and the court is back in session. The lawyer arguing the case against the Tennessee legislature begins to talk. Frankfurter sits quietly for about five minutes listening. And then... SPEAKER_24: He starts in. — The reality doesn't include... SPEAKER_13: — Frankfurter hammers the attorneys with questions. During the course of oral arguments, he speaks approximately 170 times. — 170? — 170. — Damn. — Charles Whittaker? SPEAKER_13: — 17 times. After nearly four hours of oral arguments, the justices recess and go into conference. — Frankfurter needed desperately. SPEAKER_14: He had to get Whittaker. And he kept after him like a dog after a bone, trying to persuade him. And that harassing he got... I have to make a point here. It was a nightmare. And I saw the nightmare. SPEAKER_13: — How so? Describe it to me. SPEAKER_17: — Well, he was... a nervous wreck and like a cat on a hot tin roof. SPEAKER_14: — I found out. I don't know if he told me or his wife told me. He was on tranquilizers. — To try to overcome what he thought was just work-related stress. SPEAKER_09: — Well, clearly, something was taking hold of him. SPEAKER_14: — He had trouble concentrating. SPEAKER_09: — Highly fraught. — 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. SPEAKER_28: — You mean like he just didn't show up for work one day? — Apparently so. — His clerks didn't know where he was. SPEAKER_09: 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. SPEAKER_28: — Where did he go? — Well, he went to, really, what would be a cabin in the woods in the middle of Wisconsin. SPEAKER_09: And he called up one of his former law associates in Kansas City to come up and join him. — And according to Craig Smith, he and this guy, whose name was Sam Mulby, SPEAKER_13: they would just sit there on the bank of the lake in silence. SPEAKER_09: They would sit for hours on end not talking to each other, just waiting for the justice to speak. SPEAKER_21: — There is no cause for pride in what has happened in Selma. — You know, we have no way of knowing what he was thinking at that moment, SPEAKER_13: 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. SPEAKER_24: — Selma, Alabama, the chamber's shining forward. — You're dispersed. You're ordered to disperse. SPEAKER_13: — But on the other hand, what kind of precedent would this set? SPEAKER_33: — It's a sad day in America, Mr. President. — Would it make the court too powerful? SPEAKER_13: In which case, who would protect the people from the court? SPEAKER_31: — I imagine his mind went back and forth and back and forth. SPEAKER_09: — And when Whitaker decided he really had to get back to work, then this protégé would say to him, no, just relax. Just take it easy and get yourself together before you decide to go back. SPEAKER_13: — After three weeks, Justice Whitaker returns to D.C. SPEAKER_17: — Back to Washington for a few days. SPEAKER_13: — That's Kentigan, his son. SPEAKER_17: — We found my father to be really in extremis, and I think borderline suicidal. — When you said he was suicidal, what do you mean? SPEAKER_17: — There was an instance in which my brother found my father going upstairs to get a shotgun. SPEAKER_00: — Hmm. SPEAKER_33: — Yeah. SPEAKER_10: — Overdraft fees? Is it even a decision? That's banking reimagined. What's in your wallet? Terms apply. See CapitalOne.com slash bank. CapitalOne N.A. Member FDIC. — A few days later, Charles Whitaker checks himself into a hospital. SPEAKER_13: — There is some evidence that it was really Justice Douglas who convinced Whitaker to go to the hospital. SPEAKER_20: — I do recall that Whitaker had had a nervous breakdown. SPEAKER_13: — That's Justice William Douglas again. SPEAKER_20: — And he was at Walnut Creek Hospital, and I've been up to see him, 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, and I told him I didn't think that he would be in a position to decide what he should do until I get well. SPEAKER_13: — A few weeks later? — March 29, 1962. The presidential press conference from the new State Department auditorium, Washington, D.C. SPEAKER_18: — Several announcements to make. SPEAKER_19: It is with extreme regret that I announce the retirement of Associate Justice of the Supreme Court, Charles Evans Whitaker, effective April 1st. Justice Whitaker, 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 position for reasons of disability. I know that the bench and the bar of the entire nation join me in commending Mr. Justice Whitaker 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. SPEAKER_28: — Wow. And what ever happened with the case with Baker v. Carr? SPEAKER_13: — Well, Whitaker didn't vote on Baker v. Carr. So you could say that this case that essentially broke him, his vote didn't count. SPEAKER_28: 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. SPEAKER_13: So in the end, the decision actually wasn't very close at all. — What was it? — It was 6-2. SPEAKER_13: — Oh, Frankie. — Yeah. And Brennan wrote the majority opinion and he says that this whole kind of clusterf*** 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. — So in other words, they decided to lower their horns and go into the thicket. SPEAKER_28: — Oh yay, they did. SPEAKER_13: — Oh yay! — And just one or two final questions. What happened to Justice Frankfurter? — Well, the thing that I find perhaps most extraordinary is that less than two weeks after the decision in Baker v. Carr came down... SPEAKER_09: — Felix Frankfurter was working at his desk at the Supreme Court. — And Frankfurter's secretary found him sprawled on the floor of his office from a stroke. SPEAKER_09: — He suffered a massive stroke and then never returned to service. SPEAKER_11: — 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 v. 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. — After Baker v. Carr, President Kennedy essentially had two Supreme Court vacancies to fill. SPEAKER_13: Now, in Whitaker's seat, he filled with a guy who turned out to be a moderate. Frankfurter's vacancy? That second vacancy? — It's that vacancy that will lead to the appointment of a man named Arthur Goldberg. SPEAKER_09: 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. — This is when the Supreme Court basically became an agent for social change. SPEAKER_13: — That revolution that begins with the 1962 term, that's the revolution that is going to change. SPEAKER_09: — The way we draw our political boundaries. SPEAKER_09: — When the prosecutor withheld a confession. SPEAKER_22: — The way we think of criminal justice. SPEAKER_09: — The picture of the state require a prime, small black armband. SPEAKER_22: — The way we treat First Amendment religious and obscenity issues. SPEAKER_09: That's the Warren Court that people remember. And that's the court that came into existence when Felix Frankfurter left. SPEAKER_13: — And so just thinking about that question that that woman asked all the way at the beginning of the story. — 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? SPEAKER_04: — You can kind of draw a line from this moment in Baker v. Carr all the way to December 9, 2000. SPEAKER_13: — 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. SPEAKER_36: — I think Felix Frankfurter 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. SPEAKER_08: — 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, is this—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 in 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. SPEAKER_28: — Before we totally sign off, what happened to Douglas? We sort of lost track of him. — So after Baker v. Carr was decided, he went on to be a Supreme Court justice for 13 more years. SPEAKER_13: And to this day, he actually holds the record for being the longest-serving justice of all time, 36 years. — Huh. And Frankfurter? SPEAKER_28: — So Baker v. Carr was the last case that he ever heard, and he died a few years afterwards. SPEAKER_13: — Man. And Charles Whitaker, did he ever recover? SPEAKER_28: — Well, after Whitaker 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. SPEAKER_13: 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. SPEAKER_35: — And Michelle Harris. Special thanks to Gian 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 OYE, 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. SPEAKER_30: — Radio Lab was created by Jad Abumrad and is edited by Soren Wheeler. Lulu Miller and Latif Nasser are our co-hosts. Suzy Lechtenberg is our executive producer. Dylan Keefe is our director of sound design. Our staff includes Simon Adler, Jeremy Blum, Becca Bressler, Rachel Cusick, Aketi Foster-Keys, W. Harry Fortuna, David Gabel, María Pascu-Tieres, Sindhu Nenasanbandhan, Matt Kioti, Annie McEwen, Alex Neeson, Sarah Khari, Ana Rascuette-Paz, Sarah Sandback, Ariane Wack, Pat Walters, and Molly Webster, with help from Andrew Vinales. Our fact checkers are Diane Kelly, Emily Krieger, and Natalie Middleton. SPEAKER_34: Hi, this is Finn calling from Storrs, Connecticut. Leadership support for Radio Lab 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 Radio Lab was provided by the Alfred P. Sloan Foundation. SPEAKER_03: WNYC Studios is supported by On Being with Christa Tippett. I'm Christa Tippett of On Being, where we take up the big questions of meaning for this world now. In our new podcast season, we're going to have a different human conversation about AI and also the intelligence of our bodies, grief and joy, social creativity and poetry, and so much more. A conversation to live by every Thursday.