Justice for All (79 page)

As chief justice—and, moreover, as a chief justice who by 1960 was all too familiar with the use of legislative power to thwart minority interests—he understood the question of voting power differently. The Tennessee case,
Baker v. Carr,
first came to the Court in 1960, and at their initial conference to discuss it, the justices moved to their now familiar positions. “Justice Frankfurter unleashed a brilliant tour de force,” Brennan's clerks recorded, “speaking at considerable length, pulling down Reports and reading from them, and powerfully arguing” that the Court should steer clear of what he framed as essentially a political conflict.
³³
In Frankfurter's view, the Court already had foreclosed the area of legislative districting with its decision in
Colegrove,
a 1946 opinion that turned down a challenge by Illinois voters who complained that congressional districts in that state were unfairly distributed. In his opinion for a shorthanded Court (Black, Douglas, and Murphy dissented; Jackson, who was off in Nuremberg during the consideration of the case, did not participate; and Rutledge concurred, though on grounds that suggested he might have ruled otherwise if faced with somewhat different facts), Frankfurter acknowledged that the disparities between districts were real and objectionable but concluded that the Court should not resolve them. “To sustain this action would cut very deep into the very being of Congress,” he wrote, and then he invoked the metaphor that appeared so often in his writing: “Courts ought not to enter this political thicket.”
³⁴
That was hardly a departure at the time of its writing. Through the late nineteenth and early twentieth centuries, the Court declined time and again to assert authority over certain aspects of American life, even when the rules governing those areas were a part of the Constitution. As a result,
Colegrove
was amply justified by the precedents that Frankfurter cited in it. “It is,” Frankfurter wrote, “hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law.”
³⁵

But while that held a Court in 1946, much had changed since then. In the interim, for instance, the Court had considered and decided
Gomillion,
a lawsuit brought by black voters of Tuskegee, Alabama, who sued after the state legislature there redrew the boundaries of their city, including white neighborhoods but dropping black ones. When they were done, all but four or five of its four hundred Negro voters lived outside Tuskegee and thus were not allowed to vote in its elections. The Court in that case concluded that the Fifteenth Amendment, granting blacks the right to vote, was offended by a scheme deliberately intended to dilute the power of that vote. Frankfurter also was the author of that ruling, which, unlike
Colegrove,
spoke for a united Court, save a strange concurrence by Whittaker, who joined in the result while inexplicably concluding that the Fourteenth Amendment, not the Fifteenth, protected the right of Negroes to vote.
³⁶

So now the question before the Court was whether the complaint of Tennessee's voters more closely approximated the facts of
Colegrove
or those of
Gomillion
—and whether the Court was willing to wade into the “thicket.” The aging Frankfurter unleashed his “tour de force” in defense of restraint. Harlan was with him. So was Clark. Warren, Black, Douglas, and Brennan were not persuaded and unlikely to be. Indeed, by 1960 Warren had become convinced not only that restraint had allowed political inequities to fester but that it had in fact encouraged them.

“Because of timidity,” he wrote, “it made change hopeless.”
³⁷
In Warren's view, restraint as a defect had gone beyond reticence; it had become cowardice. And since Frankfurter was its chief proponent, there can be no question about how far that relationship had sunk.

That left Stewart and Whittaker in the crucible, and with their votes wavering, the case was put over from 1960 into the following term. When it came back, Douglas summarized the view of the liberal justices in one characteristically pithy sentence: “Governed by
Gomillion
.”
³⁸
When Stewart spoke, his ambivalence showed through, as he at length expressed sympathy with the problem presented by Harlan and Frankfurter—the danger of the Court immersing itself in the intricacies of legislative boundary-drawing. In the end, however, he could not stomach the inequities of districts that so blatantly reduced the power of one voter over another. He tentatively sided with the Warren camp, giving it a fifth vote, but his ambivalence made it clear that his vote was not assured. Moreover, Stewart's desire for a narrow opinion so conflicted with Douglas's interest in a ringing one that the burden now shifted to Warren: To whom would he assign the opinion, and how would he keep both his most aggressive colleague and his most cautious on the same opinion?

Warren's work over the ensuing several weeks represented his most important and effective coalition management of the Court since
Brown
in 1954. He initially contemplated writing himself or assigning the decision to Stewart—one common tactic to assure a wavering justice's vote is to have him write, thus sealing his position. But Warren worried that Stewart might write in such a way that either Douglas or Black would break from the majority, and he also saw that Frankfurter was burrowing in for an extended opinion intended to break up the majority. After consulting with Black, Warren chose Brennan, Warren's doctrinalist.
³⁹
Brennan's mission was to write an opinion that could hold its own against that of his former professor; Warren's was to hold their fragile coalition intact.

Harlan saw an opportunity to peel off votes from the majority, and made a direct appeal to Whittaker and Stewart, urging them to consider not just the merits of the case but the place of the Court in society and history:

 

Harlan sent a copy of his note to Frankfurter, who commended him for having “rendered a service to the Court, whatever the outcome.”
⁴¹

While they attempted to add to the conservative ranks, Brennan went to work for the liberals, digging deep into the historical and judicial record. Through the winter of 1961 and early 1962, he selectively circulated drafts, mollifying first Stewart, then Douglas. On January 31, 1962, the full Court received his opinion, and Frankfurter was incensed, complaining to Clark that the majority had done just as he had expected all along. Frankfurter then promptly circulated his dissent, and the Court nearly fell apart. Clark and Harlan appeared to join with Frankfurter, Douglas threatened to bolt from the majority, and then Stewart indicated that he too was abandoning the coalition. Into the turmoil stepped the calming Warren. The chief justice, a Brennan memo would recall later, “was Gilbraltorlike [
sic
] in his support for Justice Brennan. . . . With our ‘two wings' flying off and no saying where matters might come to rest,” Warren helped restore order .
⁴²
Over the next twenty days, Warren sounded out his colleagues, seeking to solidify Stewart, calm Douglas, and talk with Clark. Brennan continued to hope that Stewart would return and that he and Douglas, once his irritation had passed, would provide the fourth and fifth votes needed to assure a majority. Then, in late March, Clark emerged from his study of the matter to declare that he had decided to leave the Frankfurter camp and join the majority. He informed Warren, who called Brennan at home with the news. The phone call, “never to be forgotten,” began with Warren spending the first minutes laughing happily in Brennan's ear.
⁴³

On March 26, Brennan announced the opinion of the Court for a majority that, in the end, included all but Harlan and Frankfurter. There were an array of concurrences and dissents, and the majority opinion by Brennan was encumbered by its exhaustive recitation of the legal history. But it had secured the votes needed to assert that federal courts did in fact have the authority to review and overturn state legislative districts. The Supreme Court did not overturn Tennessee's lines in
Baker,
but it sent the matter back to the district court to do so, explicitly authorizing that court to undertake what many had assumed to be a matter purely for legislatures. Warren was delighted, and passed a note to Brennan as the two sat together on the bench that day. “It's a great day for the Irish,” Warren wrote. Thinking again, he crossed out “Irish,” and wrote, “It's a great day for the country.”
⁴⁴

It was, however, a trauma for the Court. Both sides had ridden their positions hard, and while Warren prevailed, Frankfurter scorched the earth in defeat. In particular, he thrashed the wavering Whittaker, and Whittaker broke under the strain. With the two sides mounting their final offensives that March, Whittaker considered joining the majority, but Frankfurter relentlessly lobbied him to stay. On March 6, Whittaker, who suffered from depression exacerbated by extreme stress, visited Walter Reed Medical Center for a physical examination, and his doctors warned him that his health was perilous.
⁴⁵
Whittaker confided his condition to Warren, who, partly out of compassion and no doubt partly knowing that Whittaker's removal might clear the way to strengthen his own hold over the Court, assured him that he could leave anytime, that his clerks and staff would be cared for.
⁴⁶
When
Baker
came down on March 26, Whittaker did not participate. His retirement from the Court was effective April 1.

For Frankfurter,
Baker
was a clear and final defeat. He would never again write a major decision of the Court.

Whittaker's departure gave Kennedy his first opportunity to alter the composition and tone of the Court. Kennedy initially had his eye on William Hastie, an appeals court judge who would have become the first black man to sit on the Supreme Court. But Kennedy asked his brother Bobby to sound out Warren on Hastie, and Warren “was violently opposed.” According to Robert Kennedy, Warren warned that Hastie was “not a liberal, and he'd be opposed to all the measures that we're interested in, and he would just be completely unsatisfactory.”
⁴⁷
Douglas also advised against it on the grounds that Hastie was too conservative.
⁴⁸
Kennedy heeded that warning and turned instead to an able deputy from his campaign. Byron White was an extraordinarily diverse and accomplished man, the only member of the National Football League Hall of Fame ever to sit on the Supreme Court and the first Court clerk ever to make it to the bench. Ideologically, the switch of Whittaker to White did not change the Court's balance, but it brought smoother workings and faster dispatch of cases, as White was far more at ease with the workload and responsibility than Whittaker had been. White joined the Court in April, less than a month after
Baker
had been handed down.
⁴⁹

The real change came later that year, when Frankfurter, badly weakened by a stroke he suffered just weeks after concluding his work on the
Baker
case, informed the president that he could not return to his work. He resigned with trademark formality, the old dignity shining through the more recent defeats. “To retain my seat on the basis of a diminished work schedule would not comport with my own philosophy or with the demands of the business of the Court,” he wrote. “I am thus left with no choice but to regard my period of active service on the Court as having run its course. I need hardly tell you, Mr. President, of the reluctance with which I leave the institution whose concerns have been the absorbing interest of my life.”
⁵⁰

And with that one-page note, the defining twentieth-century feud within the United States Supreme Court was over. For more than a decade, Black and Douglas had squabbled and debated with their resolute rival. After his settling in, Warren had joined them in their activism, and then Brennan, Frankfurter's onetime student, had come aboard and defied his former teacher. As the ranks of that wing of the Court thus grew, the other side dwindled away, its demise postponed mainly by the force of Frankfurter's personality and intellect. Jackson long ago had gone, as had Reed and Minton and the other holdovers of the New Deal period when restraint was a liberal judicial value. Clark retained a residue of it, and Harlan embodied a different, more patrician conservatism, but neither was a dominating figure in the mold of Frankfurter. Stewart had come to the Court during those years, but he now moved from camp to camp, never destined to be a standard-bearer in that long battle. When Frankfurter gave up the work in 1962, his speech slurred, his hands shaky, and his body weakened, “the Axis” was the only remaining solid bloc of justices left standing at the Court. And yet even then, Warren, Black, Douglas, and Brennan were one vote short of a consistent majority. Kennedy's next appointment would determine whether that group would emerge as a majority or whether it would, as in
Baker,
find itself in regular search of a fifth and deciding vote.