Radiolab Presents: More Perfect - The Political Thicket

Summary

---

Radiolab Presents: More Perfect – The Political Thicket

Episode Date: June 10, 2016
Hosts: Jad Abumrad, Susie Lechtenberg
Podcast: Radiolab / WNYC Studios

---

Overview

This episode of Radiolab Presents: More Perfect dives into the landmark Supreme Court case Baker v. Carr (1962), exploring how it thrust the Court into the heart of American politics—what Justice Felix Frankfurter called "the political thicket". The episode uses vivid storytelling, interviews, and archival audio to recount the case’s dramatic impact, focusing on the personal and ideological struggles among the justices, and tracing the decision’s reverberations through later American political history.

---

Key Discussion Points & Insights

1. Setting the Stage: The Importance of Baker v. Carr

• Retirement of Chief Justice Earl Warren:

  • Susie Lechtenberg sets the scene in 1969 with Chief Justice Warren’s retirement.
  • When asked for the most important decision of his tenure (03:29), Warren astoundingly points to Baker v. Carr—over even Brown v. Board of Education or Miranda.
  • “I think that that case is perhaps the most important case that we've had since I've been on the court.” – Earl Warren [04:28]

• Why was Baker v. Carr so important?

  • The case dealt not with headline-grabbing issues like desegregation, but with the reapportionment of legislative districts, fundamentally altering who had political power in America.

2. Ideological Lines: The Justices and Their Clashes

• The Dramatis Personae:

  • The episode introduces three key justices:
    • Felix Frankfurter (the conservative) – described as condescending, egotistical, intellectually devious, and fiercely committed to judicial restraint.
    • William O. Douglas (the liberal) – a mountain-climbing, womanizing champion of civil liberties… and equally abrasive.
    • Charles Whittaker (the swing vote) – a non-ideological, self-made, Midwestern justice caught in the crossfire.

• Notable Justice Dynamics:

  • Frankfurter and Douglas despised each other, both personally and ideologically.

    • “I always call him a bantam rooster.” – Alan Kohn (Frankfurter’s clerk), [07:44]
    • On Douglas: “A habitual womanizer, heavy drinker, and uncaring parent...” – NYT description, quoted at [09:25]

  • The feud stemmed largely from deep disagreements:

    • Frankfurter believed courts should not intervene in political matters.
    • Douglas argued courts must protect rights when the political process fails.

3. The Plight of Charles Whittaker: The Court’s Human Cost

• Whittaker’s Background:

  • Grew up poor, put himself through school by selling animal pelts, simultaneously attended high school and law school ([12:43]).
  • Became a hardworking, polite, and non-ideological justice.

• The Pressures of the Job:

  • Lacking a strong ideology, Whittaker became the focal point for lobbying from both sides.
  • He struggled intensely with the indecisiveness required by messy Supreme Court cases, a struggle that would soon break him.

4. What Was Baker v. Carr? Why Did It Matter?

• The Issue:

  • Tennessee hadn’t reapportioned its legislative districts since 1901—leading to vast disparities in representational power between urban, minority-heavy cities and rural, white areas ([23:39]).
  • "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." – Susie Lechtenberg [24:31]

• Underlying White Supremacy:

  • This “choked” growing urban (and Black) populations out of political power ([24:53]).
  • “Underlying all of the reapportionment litigation, at least in the south, was white supremacy.” – Doug Smith [24:53]

• Legal Stalemate:

  • Liberals: This dilution of urban votes was an injustice requiring Supreme Court intervention.

  • Conservatives (Frankfurter): This was a “political question” and the court should not intervene, for fear of entering the “political thicket” ([27:00]).

  • “The political question doctrine says no federal court can decide this issue at all... What could be more fundamentally political than the makeup of a legislature?” – Historian/Commentator [27:17]

5. The Political Thicket Metaphor

• Frankfurter warned that, if the Court involved itself, "pretty soon we'll be rewriting the entire US Legislative map." ([26:44])
• “The court's gonna get stuck in what he called the political thicket.” – Susie Lechtenberg [30:20]
• “And the imagery of the thicket is that the deer… goes into the thicket, gets entangled, and can never get out. ... Someday the courts will be forced to declare winners and losers of very high profile elections.” – Historian/Commentator [30:32]

6. The Drama Inside the Court

• Whittaker Torn:

  • Caught between the sides, Whittaker was lobbied mercilessly, especially by the overbearing Frankfurter ([32:05]), who gave a legendary 90-minute harangue aiming directly at him. Other accounts say Frankfurter harangued him “for hours.”
  • Hugo Black: “We're all boys grown tall. We're not the gods who sit on high and dispense justice.”, urging Whittaker not to feel too pressured ([32:37]).

• Whittaker’s Breakdown:

  • Whittaker wrote both an opinion in favor and against intervention ([34:20]).
  • Under immense pressure, he suffered a nervous breakdown, disappearing from the court and retreating to the woods for weeks ([37:23]).
  • His family recalls him becoming borderline suicidal—“there was an instance in which my brother found my father going upstairs to get a shotgun.” – Kent Whitaker [40:21]

• Outcome:

  • Whittaker resigns from the court for medical reasons before Baker v. Carr is decided ([41:02]).
  • The final vote was 6-2 in favor of intervention ([42:49]).

7. Aftermath and Legacy

• The Court Intervenes:

  • The decision establishes the idea that reapportionment (and by extension, voting rights) is something the courts can and should rule on ([43:05]), opening the judicial “thicket.”

• Two Justices Broken:

  • Whittaker never recovers to return to the bench ([48:16]).
  • Felix Frankfurter suffers a massive stroke less than two weeks after the ruling—his secretary finds him “sprawled on the floor of his office” ([43:27]), and he firmly believed the ruling caused his decline.

• Warren Court Revolution:

  • The departures of Whittaker and Frankfurter allow President Kennedy to appoint more liberal justices, enabling the Warren Court to shape civil rights, criminal justice, and First Amendment law ([44:40]).

• Baker v. Carr’s Shadow:

  • The episode draws a direct line from this case to modern politicization—culminating in the Supreme Court’s pivotal 2000 Bush v. Gore decision ([46:10]).
  • “I think Phil Frankfurter would have said, ‘see… eventually you will be deciding a partisan question. Which presidential candidate essentially received the most votes?’” – Historian/Commentator [46:30]

---

Notable Quotes & Memorable Moments

• On the importance of Baker v. Carr:

  • “He thought that case, whatever it is, is more important than the case that desegregated the schools.” – Jad Abumrad [04:35]

• Depictions of the Justices:

  • “One of the most condescending, egotistical of justices.” – Historian/Commentator on Frankfurter [07:51]
  • “A habitual womanizer, heavy drinker, and uncaring parent… cheating on each of his first three wives.” – On Douglas [09:25]
  • “He was just open in his disdain for Frankfurter.” – Historian/Commentator, on Douglas’s antagonism [10:07]

• Frankfurter’s warning:

  • “The court must not enter the political thicket.” – Historian/Commentator [30:28]

• On urban vote dilution:

  • “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.” – Susie Lechtenberg [24:31]

• On Whittaker’s torment:

  • “I think there was some thought that he might side with the guy who talked with him last.” – Interviewee/Expert [16:42]
  • “He was a nervous Wreck. And like a cat on a hot tin roof…” – Interviewee/Expert [36:36]

• On Baker’s legacy:

  • “Eventually you will be deciding a partisan question.” – Historian/Commentator [46:30]
  • “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.” – Quoted student reflecting on Baker v. Carr’s legacy [47:40]

---

Chronological Highlights & Timestamps

• [02:48] – Susie Lechtenberg opens the story: June 25, 1969; Chief Justice Earl Warren’s surprising Baker v. Carr statement.
• [06:00] – Audience question at panel: “Has the court always been this political?”
• [07:10-10:14] – Introduction and sketches of Frankfurter and Douglas.
• [11:42] – Charles Whittaker enters as the ideological swing justice.
• [23:00] – Baker v. Carr is argued at the Supreme Court.
• [24:53] – The hidden connection to white supremacy and Jim Crow.
• [27:17] – The “political question doctrine” explained.
• [30:20] – “Political thicket” metaphor and its dangers.
• [31:08] – Justices in conference, Whittaker is the potential swing.
• [32:05-32:25] – Frankfurter’s legendary, overbearing speeches to win Whittaker.
• [34:20] – Whittaker writes memos on both sides, showing deep division.
• [36:36] – Whittaker’s nerves unravel, stress leads to breakdown.
• [37:23] – Whittaker disappears from the Court, retreats to a cabin.
• [40:21] – Family describes Whittaker’s suicidal crisis.
• [41:02] – Whitaker retires for health reasons, having never cast a vote in Baker v Carr.
• [42:49] – Decision: 6-2, the Court enters the political thicket.
• [43:27] – Frankfurter suffers a stroke, blaming Baker v. Carr.
• [44:40] – Kennedy’s new appointments set up Warren Court revolution.
• [46:10-46:45] – Direct line to Bush v. Gore.
• [48:12-48:42] – Personal coda: Douglas, Frankfurter, and Whittaker’s later years.

---

Conclusion & Impact

The Political Thicket details a turning point where the Supreme Court assumed a decisive role in American democracy, with immense personal cost to some justices. Through Baker v. Carr, the Court established its duty to protect voting rights—even at the cost of plunging into fraught political questions. The episode traces the line from this 1962 case, through civil rights revolutions, all the way to Bush v. Gore, showing how the “political thicket” now entangles the Supreme Court as a central force in American political life.

---

For listeners seeking a nuanced, human, and historical perspective on the Supreme Court’s relationship to American democracy and politics, this is essential listening.

---

Transcript

[Narrator/Host]

When it comes to gifting, everyone on your list deserves something special. Luckily, Marshall's buyers travel far and wide, hustling for great deals on amazing gifts so you don't have to. That means your mom gets that cashmere sweater, your best friend that Italian leather bag, your co workers unwrap their favorite beauty brands, and your nephews the coolest new toys. Go ahead.

[Interviewee/Expert]

At prices this good, you can grab.

[Narrator/Host]

Something for yourself too. Marshalls, we get the deals. You, you get the good stuff. Shop [e-mail] or find a store near you.

[Historian/Commentator]

The holidays mean more travel, more shopping.

[Interviewee/Expert]

More time online and more personal info.

[Jad Abumrad]

In more places that could expose you.

[Historian/Commentator]

More to identity theft.

[Jad Abumrad]

But Lifelock monitors millions of data points per second. If your identity is stolen, our US based restoration specialists will fix it, guaranteed your money back. Don't face drained accounts, fraudulent loans or financial losses alone. Get more holiday fun and less holiday worry with Lifelok. Save up to 40% your first year. Visit lifelock.com Specialoffer terms apply.

[Historian/Commentator]

It's never too early for Lowe's Black Friday deals.

[Susie Lechtenberg]

Snag some of our biggest savings of.

[Historian/Commentator]

The season right now, like 25% off.

[Jad Abumrad]

Select pre lit artificial Christmas trees and get yourself free.

[Interviewee/Expert]

Select Dewalt cobalt or Craftsman tools when.

[Susie Lechtenberg]

You buy a select battery or combo.

[Interviewee/Expert]

Kit before the Black Friday rush.

[Historian/Commentator]

Because everyone loves free stuff, right?

[Jad Abumrad]

Lowe's we help you save valid through.

[Historian/Commentator]

123 while supplies last selection varies by location.

[Jad Abumrad]

Hey, this is Jad. So a couple of us here have been working really hard for the past few months on a on a new spin off Radiolabs first spinoff called More Perfect. It is a mini series about the Supreme Court. We've been working on it for months and months. We just released our first episode last week. We're super proud of it. And I'm talking to you now because I want you to subscribe to this podcast. I think you will really like this podcast. If you like Radiolab, you will like this podcast. So I'm actually gonna do one better. We're actually gonna feature a couple of episodes of More Perfect on this podcast on Radiolab because you know, we really think you'll like it and that we hope you'll go to itunes or Google or wherever it is you get your podcast and you'll subscribe and you'll spread the word because if people listen to this thing, maybe we'll keep doing it. All right, so what you're about to hear is episode two of More Perfect, our new spin off on the Supreme Court. Episode One is already out. The voice you're going to hear is Susie Lechtenberg, who is my main collaborator on the project. She was a longtime executive producer of Freakonomics, and she and I are basically cooking up this project together. So here it is, episode two. Hope you like it.

[Susie Lechtenberg]

Um, well, I think we should start the story on June 25, 1969.

[Jad Abumrad]

Well, first you should say who you are.

[Susie Lechtenberg]

I'm Susie Lechtenberg.

[Jad Abumrad]

I'm Jan Abumrad. This is more perfect. Okay, so why. Why June 20? When was it?

[Susie Lechtenberg]

June 25, 1969.

[Jad Abumrad]

Why then?

[Susie Lechtenberg]

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

[Jad Abumrad]

Is that a big court?

[Susie Lechtenberg]

Yeah, that's really big.

[Jad Abumrad]

No, come on, humor me.

[Susie Lechtenberg]

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

[Jad Abumrad]

So he was one of the Mount Olympians.

[Susie Lechtenberg]

He's a big deal.

[Interviewee/Expert]

Constitutional rights.

[Jad Abumrad]

All right, so he's retiring.

[Susie Lechtenberg]

So he's retiring. He's been on the court for 16 years, and he's in an interview and he's asked, how would you list Mr.

[Interviewee/Expert]

Chief justice as the Supreme Court's most important decision in your 16 years here?

[Susie Lechtenberg]

And he says something that is kind of astounding.

[Interviewee/Expert]

I think the reapportionment not only of.

[Susie Lechtenberg]

State legislatures, but before you hear the answer.

[Jad Abumrad]

Yeah.

[Susie Lechtenberg]

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.

[Interviewee/Expert]

He advised either of his rights to remain silent.

[Narrator/Host]

That's.

[Susie Lechtenberg]

You have the right to remain silent. Oh, Clarence Earl Gideon, petitioner, or Gideon vs. Wainwright.

[Interviewee/Expert]

It is the duty of the state.

[Susie Lechtenberg]

Which is you have the right to.

[Interviewee/Expert]

An attorney to appoint counsel.

[Jad Abumrad]

That seems big.

[Narrator/Host]

Or.

[Interviewee/Expert]

Segregation has no place in our democracy.

[Susie Lechtenberg]

Brown versus Board of Education.

[Jad Abumrad]

Okay, that one.

[Interviewee/Expert]

I know that one.

[Jad Abumrad]

I know.

[Susie Lechtenberg]

Desegregating the schools, that's big.

[Jad Abumrad]

Yeah. What could be bigger than that?

[Susie Lechtenberg]

He doesn't say any of those.

[Jad Abumrad]

What does he say?

[Susie Lechtenberg]

He says this little case called the.

[Interviewee/Expert]

Baker versus Carr case.

[Susie Lechtenberg]

Baker versus Carr, huh?

[Interviewee/Expert]

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

[Jad Abumrad]

He thought that case, whatever it is, is more important than the case that desegregated the schools.

[Susie Lechtenberg]

He did.

[Historian/Commentator]

Wow.

[Jad Abumrad]

So what the hell is it?

[Susie Lechtenberg]

Exactly.

[Jad Abumrad]

No, really, what is it?

[Susie Lechtenberg]

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

[Interviewee/Expert]

There was an instance in which my brother found my father going upstairs to get a shotgun wow. The honorable, the Chief justice and the Associate Justices of the Supreme Court of the United States. Oyea. Oye. Oh yea. All persons having business before the honorable the Supreme Court of the United States are admonished to draw near and give their attention. Well, the court is now sitting. Oyea. God save the United States. In this honorable court.

[Jad Abumrad]

Okay, so this is more of perfect a miniseries about the Supreme Court. And just to frame the story we're about to hear for a second, as we were putting the show together, we hosted a panel discussion. A couple of us were on stage, and a woman in the audience asked the following question. Yes.

[Interviewee/Expert]

Could you address what I see as the increasing politicization of the Court, the.

[Jad Abumrad]

Apotheosis of which I guess was, you.

[Interviewee/Expert]

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 politic?

[Jad Abumrad]

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

[Susie Lechtenberg]

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

[Jad Abumrad]

Gotcha.

[Susie Lechtenberg]

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

[Jad Abumrad]

Ooh.

[Susie Lechtenberg]

So on the conservative side, Mr. Ryan.

[Interviewee/Expert]

What difference does it make whether it's in the Constitution or in any other expression or action by the state?

[Susie Lechtenberg]

You had a guy named Felix Frankfurter.

[Narrator/Host]

So Justice Frankfurter was one of the most.

[Jad Abumrad]

Wait, his name was really Frankfurter?

[Susie Lechtenberg]

Yes.

[Narrator/Host]

One of the most influential justices of all time.

[Susie Lechtenberg]

That's Tara Grove. She teaches constitutional law at William Mary Law School.

[Narrator/Host]

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.

[Susie Lechtenberg]

I heard that from everyone I talked to.

[Interviewee/Expert]

I always call him a bantam rooster.

[Historian/Commentator]

He was a difficult, crusty figure.

[Interviewee/Expert]

He was short. He had a little bit of a.

[Historian/Commentator]

Pouch on him, was one of the most condescending, egotistical of justices.

[Interviewee/Expert]

He was a tough customer.

[Narrator/Host]

When a clerk would come to the U.S. 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 Abumrad]

Dude, that's a wiener move.

[Susie Lechtenberg]

And by the way, the voices you heard besides Tara Grove were professors Mike Seidman, Georgetown University Law Center, Sam Ezekaroff.

[Historian/Commentator]

NYU Law School, Craig Smith, California University.

[Susie Lechtenberg]

Of Pennsylvania, and ex Supreme Court Clerk Alan Kohn.

[Interviewee/Expert]

Kohn K O H N okay, so.

[Susie Lechtenberg]

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. Dougl.

[Interviewee/Expert]

Here is Justice Douglas now in the Supreme Court chambers.

[Susie Lechtenberg]

He said, this is a recording from a 1957 interview with Justice Douglas.

[Interviewee/Expert]

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

[Susie Lechtenberg]

Douglass was this mountain climbing environmentalist, big on civil liberties.

[Interviewee/Expert]

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

[Susie Lechtenberg]

And like Justice Frankfurter, Douglas was a.

[Historian/Commentator]

Prick to everybody around him. Everybody hated him.

[Susie Lechtenberg]

All those same adjectives, condescending, egotistical, abrasive applied. Here's how the New York Times described him.

[Interviewee/Expert]

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

[Susie Lechtenberg]

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

[Historian/Commentator]

So yes, yes, that is William Douglas.

[Susie Lechtenberg]

So you have these two guys, Frankfurter the bantam rooster, Douglas the prick. And as you can imagine, they hated each other.

[Historian/Commentator]

They just despised each other.

[Susie Lechtenberg]

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.

[Interviewee/Expert]

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

[Susie Lechtenberg]

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

[Interviewee/Expert]

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

[Jad Abumrad]

Wow, why'd they hate each other so much?

[Susie Lechtenberg]

Well, according to Mike Seidman, some of that comes from maybe their difference in background.

[Interviewee/Expert]

Frankfurter was a Jewish immigrant from Austria.

[Susie Lechtenberg]

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

[Interviewee/Expert]

It reflected a really important split over.

[Susie Lechtenberg]

How powerful the court should be.

[Interviewee/Expert]

So for Frankfurter, courts just ought not to intervene.

[Narrator/Host]

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

[Susie Lechtenberg]

Douglas.

[Interviewee/Expert]

He thought just the opposite.

[Historian/Commentator]

He thought that courts ought to intervene to protect, for example, minority groups, free speech rights, things of that sort of.

[Susie Lechtenberg]

So you had this personal feud going, you had this ideological war that was brewing in the court. And into the middle of all this. Walks Charles Whitaker. You might call him the swing vote. Okay, this is Alan Cohn.

[Interviewee/Expert]

I was a Supreme Court clerk for Justice Whitaker from 1950. From 1957 to 1958.

[Susie Lechtenberg]

Whitaker grew up in a small town in Kansas called Troy, the antithesis of flashy. This is his granddaughter Kate. He attended kind of a one room.

[Interviewee/Expert]

Schoolhouse, proverbial little red schoolhouse, worked on the farm.

[Susie Lechtenberg]

But he, he, he determined that was not the life for him. Kate says when he was around 16, he became obsessed with the idea of becoming a lawyer. And she says he would actually prefer practice law to the animals.

[Narrator/Host]

Can you imagine, you know, pushing the.

[Historian/Commentator]

Plow along in the fields and then.

[Susie Lechtenberg]

Lecturing and arguing cases to the cows or to the horses or whatever. Did you really hear that he was lecturing, doing.

[Narrator/Host]

Yes.

[Interviewee/Expert]

Oh, and on the side he was. He would hunt. He would hunt squirrels, possum, raccoons, skunks.

[Susie Lechtenberg]

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

[Interviewee/Expert]

And he amassed, I think, $700 with that money.

[Susie Lechtenberg]

He put himself through law school.

[Historian/Commentator]

My understanding is that he simultaneously went.

[Susie Lechtenberg]

To law school and high school.

[Jad Abumrad]

What?

[Susie Lechtenberg]

Which is just mind boggling, but 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's like, all right, you're in.

[Jad Abumrad]

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

[Susie Lechtenberg]

Totally. Anyhow, to make a long story short.

[Interviewee/Expert]

Soon he became a top lawyer.

[Susie Lechtenberg]

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

[Interviewee/Expert]

Great attention to detail, great presence before a jury.

[Susie Lechtenberg]

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

[Interviewee/Expert]

As I recall, it was in the evening, and they asked if he could be in Washington the next morning.

[Susie Lechtenberg]

This is Kent Whitaker, Charles Whitaker's son.

[Interviewee/Expert]

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

[Susie Lechtenberg]

What did he wear?

[Interviewee/Expert]

As a matter of fact, my mother or someone else got the cleaners to open up at night. In the first instance, there must be allegations tending to show that the corporation's right of exercise of free will have been destroyed.

[Susie Lechtenberg]

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.

[Interviewee/Expert]

I hesitate. You've had so many interruptions. But I have a question or two. I wonder if I might have the privilege of asking you.

[Susie Lechtenberg]

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

[Interviewee/Expert]

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.

[Susie Lechtenberg]

He loved the law.

[Interviewee/Expert]

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.

[Susie Lechtenberg]

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.

[Interviewee/Expert]

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

[Susie Lechtenberg]

He was sort of a blank slate.

[Historian/Commentator]

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

[Interviewee/Expert]

My father was not interested in advancing a cause or a theory.

[Susie Lechtenberg]

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

[Interviewee/Expert]

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.

[Susie Lechtenberg]

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

[Interviewee/Expert]

Many of their cases are just without precedent.

[Susie Lechtenberg]

And it's in those cases at least.

[Interviewee/Expert]

You have must have your ideology as a. As a starting point.

[Susie Lechtenberg]

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

[Narrator/Host]

He was definitely getting lobbied from both sides.

[Susie Lechtenberg]

Frankfurter on one side, Douglas on the other.

[Interviewee/Expert]

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

[Jad Abumrad]

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

[Susie Lechtenberg]

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

[Interviewee/Expert]

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

[Susie Lechtenberg]

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

[Narrator/Host]

Now, according to Justice Douglas, Justice Whitaker was undecided all the time.

[Susie Lechtenberg]

Douglas would tell him one thing.

[Narrator/Host]

Oh, well, yeah, that seems right. And then Justice Frankfurter would say something else, and he'd say, oh, gosh, that sounds right.

[Interviewee/Expert]

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

[Susie Lechtenberg]

You know, 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.

[Interviewee/Expert]

Like this Albert L. Trope, Arthur, where.

[Susie Lechtenberg]

The law would be fuzzy, ideologies would harden, and Whitaker, he would be right in the middle.

[Historian/Commentator]

The physical depictions of him in that first year from people who saw him described somebody who was restless, terribly unhappy, had lost a lot of weight, nervous, was agitated most of the time.

[Susie Lechtenberg]

It was a lot of stress on him.

[Interviewee/Expert]

A massive. Mr. Justice Whitaker, that in normal course, under California procedure, the metaphor.

[Susie Lechtenberg]

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

[Interviewee/Expert]

You say that judgment or probation? 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. 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 them.

[Jad Abumrad]

That's coming up.

[Narrator/Host]

Hi, this is Shereen from Sunrise, Florida. Radiolab is supported by, in part by the Alfred P. Sloan foundation, enhancing public understanding of science and technology in the modern world. More information about [e-mail].

[Jad Abumrad]

Radiolab is supported by BILT.

[Susie Lechtenberg]

Nobody wants to pay rent, but if.

[Narrator/Host]

You have to, BILT works to make it more worthwhile. By paying rent through bilt, you can earn flexible points that can be redeemed toward hundreds of hotels and airlines, a.

[Jad Abumrad]

Future rent payment, your next Lyft ride, and more.

[Narrator/Host]

But it doesn't stop there. You.

[Jad Abumrad]

You can dine out at your favorite.

[Narrator/Host]

Local restaurants and earn additional points, get VIP treatment at certain fitness studios, and enjoy exclusive experiences just for BILT members every month. Earn points on rent and around your neighborhood, wherever you call home, by going to joinbuilt.com Radiolab. That's J-O-I-N-B-I-L-T.com Radiolab.

[Jad Abumrad]

Radiolab is supported by rippling finance. Teams often spend weeks chasing receipts, reconciling spreadsheets, and fixing errors across disconnected spend tools. This can be frustrating. And that's not software as a service. That's sad software as a disservice. If you've been thinking about replacing stitched together tech stacks with one platform for all departments, Rippling can help. Rippling is a unified platform for global hr, payroll, IT and finance, helping people replace their mess of cobbled together tools with one system. Designed to help give leaders clarity, speed and control. By uniting employees, teams and departments in one system, Rippling works to remove the bottlenecks, busywork and silos in business software. With Rippling, you can choose to run hr, IT and finance operations as one, or pick and choose the products that best fill the gaps. Right now you can get 6 months free when you go to rippling.com Radiolab learn more at r-ip p l-I n g.com Radiolab terms and conditions apply.

[Narrator/Host]

Hey, I'm Molly Webster and this is an ad by BetterHelp. So it happens every year. The seasons are changing, the days are getting shorter, and basically once it becomes dark outside of my window, I feel like the rest of the world disappears and I'm just alone and there's nothing left to do but watch television. This November, Better Help is asking everyone to reach out to our people. That could be your family, your friends, your neighbors, and to resist this call of the cocoon. And yeah, reaching out can take some courage. I've got text messages from January I haven't responded to and you know what? I'm gonna write them back right now. Hi, sorry I've been missing. How are you? Why don't we all do this sooner? Therapy is the same way. BetterHelp makes it easier to take that first step. You just fill out a short questionnaire and they find a licensed therapist who they think you'll like. Our listeners get 10% off their first [e-mail] Radiolab that's better. H E L P.

[Jad Abumrad]

Radiolab is supported by Planet Visionaries, the podcast created in partnership with the Rolex Perpetual Planet Initiative. The show is hosted by Alex Honnold, who you may recognize from Free Solo, where he climbed El Capitan without ropes. Now he's turning his focus to the biggest challenge of protecting the only planet we've got. Every episode brings you stories that prove climate optimism isn't naive, it's a strategy. The episodes span the globe, from Arctic scientists and Amazon forest guardians to entrepreneurs reimagining fashion and food systems. You'll hear from explorers, scientists, activists and storytellers who are working to reshape the future in practical human ways. In one episode, Alex sits down with wildlife photographer Bertie Gregory to discuss how animals can teach humans resiliency and empathy and hope in partnership with the Rolex Perpetual Planet Initiative. Check out Planet Visionaries Listen or watch on Apple, Spotify, YouTube, or wherever you get your podcasts. Hey, this is more perfect. I'm Jad Abumrad. Let's get back to our story from Susie Lechtenberg about the case that broke.

[Interviewee/Expert]

Two justices, number 103, Charles W. Baker and Al Patella, appellants versus Joe C. Carr and Allen.

[Susie Lechtenberg]

Okay, so it's April 19, 1961.

[Interviewee/Expert]

Chief justice, may it please the court.

[Susie Lechtenberg]

The Supreme Court is hearing Baker versus Carr.

[Interviewee/Expert]

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

[Susie Lechtenberg]

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

[Jad Abumrad]

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

[Susie Lechtenberg]

But at that time in Tennessee, Tennessee.

[Narrator/Host]

Hadn'T changed its legislative district.

[Interviewee/Expert]

Its last reapportionment was in 1901.

[Narrator/Host]

Since 1901, which was 60 years.

[Susie Lechtenberg]

60.

[Narrator/Host]

Well, this created big problems for urban.

[Susie Lechtenberg]

Areas like Memphis because in those 60 years, people had moved to the cities.

[Narrator/Host]

In droves and rural areas were getting smaller.

[Susie Lechtenberg]

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

[Historian/Commentator]

In Tennessee, the figure was 23 to 1.

[Susie Lechtenberg]

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

[Historian/Commentator]

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 Abumrad]

Wait, what?

[Susie Lechtenberg]

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. 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.

[Historian/Commentator]

Underlying all of the reapportionment litigation, at least in the south, was white supremacy. That's 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 legislatures continued control of the power structure.

[Susie Lechtenberg]

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

[Historian/Commentator]

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

[Susie Lechtenberg]

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

[Interviewee/Expert]

Here you have geographical.

[Susie Lechtenberg]

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

[Interviewee/Expert]

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.

[Susie Lechtenberg]

Liberals were like, yeah, this is clearly an injustice. People in the cities are getting screwed.

[Interviewee/Expert]

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

[Susie Lechtenberg]

But the conservatives are like, yes, people are getting hurt, but we're not going.

[Historian/Commentator]

To do anything about it.

[Susie Lechtenberg]

We can't.

[Historian/Commentator]

Frankfurter.

[Interviewee/Expert]

The mere fact that there's a rotten situation doesn't mean a court should act.

[Historian/Commentator]

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.

[Jad Abumrad]

Why not?

[Interviewee/Expert]

Well, I do have to think of the road that I'm going on. What of kind kind of road. You're inviting me.

[Susie Lechtenberg]

He was like, think of where this will lead.

[Interviewee/Expert]

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

[Susie Lechtenberg]

If we end up doing this in Tennessee, pretty soon we'll be intervening in California, Maryland, South Carolina. Pretty soon we'll be rewriting the entire US Legislative map.

[Interviewee/Expert]

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.

[Susie Lechtenberg]

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.

[Historian/Commentator]

Political question doctrine.

[Narrator/Host]

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

[Historian/Commentator]

The court 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? 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.

[Susie Lechtenberg]

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.

[Narrator/Host]

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

[Susie Lechtenberg]

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

[Historian/Commentator]

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

[Interviewee/Expert]

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

[Historian/Commentator]

But they said that this is a. This is a political question. Malapportionment is a political question, and only the political branches can handle this supreme court.

[Interviewee/Expert]

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

[Susie Lechtenberg]

So when the lawyer for Tennessee got.

[Interviewee/Expert]

Up there, I am not here defending the legislature.

[Susie Lechtenberg]

He didn't try to defend how Tennessee was counted 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.

[Interviewee/Expert]

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?

[Susie Lechtenberg]

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

[Jad Abumrad]

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

[Narrator/Host]

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.

[Interviewee/Expert]

And fundamentally, electoral representatives knew that if they redrew the lines, that they would.

[Historian/Commentator]

Be voting themselves out of political power.

[Susie Lechtenberg]

That's Guy Charles Professor, Duke Law School.

[Interviewee/Expert]

So they had an incentive not to.

[Susie Lechtenberg]

Do anything about this. So for the liberals on the court, they felt like this was a fundamental flaw in our democracy that needed to be fixed. And. 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 if you do this?

[Historian/Commentator]

There is no way out.

[Susie Lechtenberg]

The court's gonna get stuck in what.

[Historian/Commentator]

He called the political thicket.

[Interviewee/Expert]

The political thicket.

[Historian/Commentator]

The court must not enter the political thicket.

[Interviewee/Expert]

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

[Historian/Commentator]

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.

[Susie Lechtenberg]

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

[Historian/Commentator]

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

[Susie Lechtenberg]

And Charles Whitaker, he was a potential swing vote.

[Historian/Commentator]

Whitaker was deeply torn.

[Susie Lechtenberg]

He'd been leaning Frankfurter's way.

[Interviewee/Expert]

But if there is a clear Constitution, right, that's being violated.

[Historian/Commentator]

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

[Interviewee/Expert]

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

[Historian/Commentator]

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

[Narrator/Host]

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

[Historian/Commentator]

Off the shelf, reading from prior cases.

[Narrator/Host]

Gesticulating wildly to make his point, and.

[Historian/Commentator]

The whole time looking directly at Whitaker. There was one account that I heard where Frankfurt went on for four hours, for hours, really lecturing Whitaker, really, really belittling him.

[Susie Lechtenberg]

Ah, this guy.

[Historian/Commentator]

Yes. It was horribly intimidating.

[Susie Lechtenberg]

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

[Historian/Commentator]

Black was trying to make him feel better. And Black said to Charles Whitaker, 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.

[Susie Lechtenberg]

Vote might be the vote that decides everything.

[Narrator/Host]

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

[Susie Lechtenberg]

According to his family, Kate and Kent. My mother tells me that, you know, he, at that time was under a lot of stress and spoke as though.

[Interviewee/Expert]

He were dictating, spoke his punctuation.

[Susie Lechtenberg]

Hello, Judith, comma, it's very nice to meet you. Clearly thinking about everything that he might say being recorded.

[Interviewee/Expert]

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.

[Susie Lechtenberg]

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

[Narrator/Host]

Justice Stewart who was the other swing vote in the case of who also.

[Susie Lechtenberg]

Couldn'T make up his mind. The court decided to hear the case again in the fall just because they needed more time.

[Historian/Commentator]

And over the summer, interesting enough, Whitaker said he remained deeply divided that he'd actually written memos on both sides of the issue.

[Susie Lechtenberg]

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

[Narrator/Host]

Circulates a 60 page memo explaining how this was a political question that should not be decided by the courts.

[Historian/Commentator]

He's got, you know, a fire in his belly. He's not gonna let this one go.

[Interviewee/Expert]

Number six Charles W. Baker et al appellants.

[Susie Lechtenberg]

Monday, October 9, 1961 it's 10:00am and the court is back in session. The lawyer arguing the case against the Tennessee legislature begins to talk.

[Interviewee/Expert]

Tennessee voters seek federal court protection.

[Susie Lechtenberg]

Frankfurter sits quietly for about five minutes listening and then.

[Interviewee/Expert]

You don't need to imply because it referred to wrong.

[Susie Lechtenberg]

He starts in under the state constitution.

[Interviewee/Expert]

It had no rights under the state constitution. I certainly did not Mr. Justice. The ratio you gave a minute ago as against determination of the state report. I wasn't trying to deal with that problem. I wanted to know and the totality doesn't include is there any state in the US 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. Of course not Mr. Justice Frankfurter.

[Susie Lechtenberg]

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

[Jad Abumrad]

170.

[Susie Lechtenberg]

170.

[Jad Abumrad]

Damn.

[Interviewee/Expert]

Charles Whitaker have some system for the allocation of its legislators to districts account 17 times.

[Susie Lechtenberg]

Well since they after nearly four hours of oral arguments the justices recess and go into conference.

[Interviewee/Expert]

Frankfurter needed desperately he had to get Whitaker 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.

[Susie Lechtenberg]

How so? Describe it to me.

[Interviewee/Expert]

Well, he was. A nervous Wreck. And like a cat on a hot tin roof, I found out. I don't know if he told me or his wife told me, he was.

[Historian/Commentator]

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

[Interviewee/Expert]

Had trouble concentrating. Highly fraught.

[Historian/Commentator]

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

[Jad Abumrad]

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

[Susie Lechtenberg]

Apparently.

[Historian/Commentator]

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

[Jad Abumrad]

Where'd he go?

[Historian/Commentator]

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

[Susie Lechtenberg]

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

[Historian/Commentator]

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

[Interviewee/Expert]

Cause for pride in what has happened himself.

[Susie Lechtenberg]

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.

[Interviewee/Expert]

Alabama became a shining moment. You are the dispersed, your hardest at dispersed.

[Susie Lechtenberg]

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

[Historian/Commentator]

It's a sad day in America, Mr. President.

[Susie Lechtenberg]

Would it make the court too powerful? In which case, who would protect the people from the court? I imagine his mind went back and forth and back and forth.

[Historian/Commentator]

And when Whitaker decided he really had to get back to work, then this protege would say to him, no, just relax, just take it easy and get yourself together before you decide to go back.

[Susie Lechtenberg]

After three weeks, Justice Whitaker returns to.

[Interviewee/Expert]

D.C. back to Washington for a few days.

[Susie Lechtenberg]

That's Kentigan, his son.

[Interviewee/Expert]

We found my father to be really in extremis and debate and I think borderline suicidal.

[Susie Lechtenberg]

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

[Interviewee/Expert]

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

[Susie Lechtenberg]

Hmm.

[Historian/Commentator]

Yeah.

[Susie Lechtenberg]

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

[Historian/Commentator]

There is some evidence that it was really Justice Douglas who convinced Whitaker to go to the hospital.

[Interviewee/Expert]

I do recall that Whitaker had had a nervous breakdown.

[Susie Lechtenberg]

That's Justice William Douglas again.

[Interviewee/Expert]

He was at Waller Reed Hospital, and I'd 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. I told him I. I didn't think that he was. Would be in a position to decide what he should do until he get well. A few weeks later, March 29, 1962. The presidential press conference from the new State Department Auditorium, Washington, D.C. several announcements to make. It is with extreme regret that I announce the retirement of Associate justice of the Supreme Court, Charles Evans Whitaker, effective April 1. 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 physician for reasons of disability. I know that the bench in 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. Wow.

[Jad Abumrad]

And whatever happened with the case with Baker v. Carr?

[Susie Lechtenberg]

Well, Whitaker didn't vote on Baker vs Carr, so you could say that this case that essentially broke him, his vote didn't count.

[Jad Abumrad]

Wow.

[Susie Lechtenberg]

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

[Jad Abumrad]

What was it?

[Susie Lechtenberg]

It was six, two.

[Jad Abumrad]

Oh, Frankie.

[Susie Lechtenberg]

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 Abumrad]

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

[Susie Lechtenberg]

Oh, yay. They did.

[Interviewee/Expert]

Oh, yay.

[Susie Lechtenberg]

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

[Narrator/Host]

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

[Historian/Commentator]

Carr came down, Felix Frankfurter was working at his desk at the Supreme Court.

[Narrator/Host]

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

[Historian/Commentator]

He suffered a massive stroke and then never returned to service.

[Narrator/Host]

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 vs. 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.

[Susie Lechtenberg]

After Baker vs. Carr, President Kennedy essentially had two Supreme Court vacancies to fill. Now Whitaker's seat, he filled with a guy who turned out to be a moderate. Frankfurter's vacancy, that second vacancy, it's that.

[Historian/Commentator]

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.

[Susie Lechtenberg]

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

[Historian/Commentator]

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

[Interviewee/Expert]

It starts out with the idea of one man, one vote.

[Historian/Commentator]

The way we draw our political boundaries.

[Interviewee/Expert]

When the prosecutor withheld a confession, the.

[Historian/Commentator]

Way we think of criminal justice.

[Jad Abumrad]

The.

[Historian/Commentator]

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.

[Susie Lechtenberg]

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

[Interviewee/Expert]

Yes. Could you address what I see as the increasing politicization of the court, the.

[Jad Abumrad]

Apotheosis of which I guess was, you.

[Interviewee/Expert]

Know, voting or electing Bush to be our president.

[Susie Lechtenberg]

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

[Interviewee/Expert]

7:00 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. I think Phil Trinketer would have said.

[Historian/Commentator]

See.

[Interviewee/Expert]

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?

[Historian/Commentator]

For those who felt themselves on the losing side of Bush rigor. 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 Frankfurt a 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.

[Jad Abumrad]

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

[Susie Lechtenberg]

So after Baker vs. 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 in Frankfurter. So Baker versus Carr was the last case that he ever heard, and he died a few years afterwards.

[Jad Abumrad]

Man. And Charles Whitaker, did he ever recover?

[Susie Lechtenberg]

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. But he did get better, and eventually he got a job as counsel to General Motors. But he never returned to the bench. He never was a judge again.

[Jad Abumrad]

Okay, more perfect is produced by me jad abumrad with susie lechtenberg, tobin lowe and kelsey padgett. Go kelsey.

[Susie Lechtenberg]

With soren wheeler, ellie mistahl, david herrmann, alex overington, karen duffin, sean ramaswaram, katherine wells, bari finkel, andy mills, and michelle harris.

[Jad Abumrad]

Special thanks to guillaume reilly.

[Susie Lechtenberg]

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 oyer o yay.

[Interviewee/Expert]

O yay.

[Susie Lechtenberg]

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 found.