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tv   Supreme Court Landmark Case Baker v. Carr  CSPAN  August 11, 2017 5:14pm-6:48pm EDT

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we look at the great defenses of the civil war, including gettysburg, antietam, and the siege of vicksburg. tuesday we focus on civil war leadership at the longwood university civil war seminar with talks on generals robert e. lee, ulysses s. grant, and confederate colonel john mosby. wednesday through friday, we're at the gettysburg college civil war institute conference. wednesday features lincoln scholar harold holzer. on thursday, speakers include historian john marsalack and on friday we conclude the conference with author t.j. stiles. american history tv's civil war special, all next week beginning at 8:00 p.m. eastern on c-span3. all persons having business before the honorable the supreme court of the united states are admonished to draw near and give their attention. >> "landmark cases," c-span's special history series produced
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in cooperation with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> number 759, earnest miranda, petitioner, versus arizona. >> we'll hear arguments in number 18, roe against wade. >> quite often in many of our most famous decisions are ones that the court took the quite unpopular -- >> 5-4, 4-5, these decisions change our lives! >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who had helped stick together because they believe in a rule of law. >> good evening, and welcome to c-span's history series "landmark cases." tonight is number 10 in our 12-part series, and you'll hear
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about the 1962 tennessee reapportionment case. it was one that chief justice earl warren called the most important of his tenure. and remember, this is the court that wrote brown versus board of education. we'll learn why during the next 90 minutes. this case began a reapportionment revolution that changed the way seats are allocated on state legislatures, and ultimately, the congress, and of course, that's all about power. we'll learn more from our two guests, and let me introduce them to you. theodore olson, ted olson, former u.s. solicitor general 2001 to 2004, has already argued 60-plus cases before the supreme court, including the 2000 bush v. gore. ted olson, thank you for being with us tonight. >> thank you. >> douglas smith is a nonfiction author. he is the executive director of the los angeles service academy, and he's written a book on this case called "on democracy's doorstep: the inside story of how the supreme court brought one person one vote to the united states." thanks for being here. >> thank you. >> well, we're going to begin tonight by listening to chief justice earl warren in his own
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words talking about the importance of this case to the country and to the court. >> this court held that the question of whether a person was having equal protection of the laws was a judicial question, and we have the right to decide it, and we have, the legislators must give equal representation to everyone. that was where the expression one man, one vote came into being. in that sense, i think that that case, from which all of the other reapportionment cases followed, is perhaps the most important case that we've had since i've been on the court. >> so, ted olson, why would the chief justice think of this as the most important case? >> the decision in this case opened the door for a change in the way we govern ourselves.
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states had apportioned power in their state legislatures according to various different methods that in many cases wound up with much more power in rural communities than in urban communities. and as population grew in the cities, the rural communities gained more and more strength so that the power in state legislatures was confined to a smaller and smaller number of people in terms of their representation. so, changing how that was done changed how we are governed in this country in a dramatic way. we can only imagine how in a state like california today would look like if the rural counties, which are very sparsely populated in the north and the eastern parts of the state were governing what's happening in sacramento, as opposed to the people in los angeles or san francisco having
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an equivalent vote. they didn't then. and so, this changed all of that. our country would be so different today. >> doug smith, the chief justice made reference to the famous phrase, one man, one vote, and it is often associated with this case, but it really isn't associated with this case. explain what this case really did. >> well, this case very simply, although very importantly, said that the federal courts could consider challenges to state reapportionment. it did not set a standard. they did not say that the legislatures ought to be apportioned according to any particular principle. they stopped short of anything else, other than saying that federal courts have jurisdiction to hear these disputes. as ted points out, with all the demographic change in the 20th century, there was extensive change. and so you had, you know, he used the example of california. 6 million people in los angeles had the same amount of representation in the state senate as 14,000 people in a
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rural part, so it was quite dramatic. >> it seems obvious, but would you have put in on a landmark case list if you were drawing it up? >> absolutely. there's nothing in the constitution that says that state legislatures have to be apportioned according to population. in fact, united states congress in the senate is not apportioned that way, so it's embedded in our constitution that, well, the congressional districts as it turns out, would be apportioned that way. nevada has two senators and california has two senators, so that disproportionate relationship between population and vote is embedded in the constitution in some respects. so, the justices had to decide, as doug points out, they first of all had to decide, as they did in this case, we can
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actually hear the case, because prior to that, the court had rendered decisions suggesting it's none of our business. we can't find in the constitution a principle that we're going to apply here. where is it? and so, once they decided in baker versus carr that we could actually look at this under the 14th amendment, that opened the door to the subsequent decisions, but it wasn't by any means self-evident, although a lot of people were starting to agitate for proportionate representation in the state legislatures. it wasn't by any means clear that this was going to be the outcome of that case. >> to echo that, i think the situation becomes so severe by really 1940s, 1950s, and really all across the country, that you had organizations -- it wasn't just municipal officials. you had organizations like the league of women voters was all over this issue, and in minnesota and tennessee, where baker comes from, the league is doing all sorts of work at the local level, then it goes up to the state level, then it goes before the legislature time and time again, say you've got to do
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something about this. in cities like nashville or memphis or minneapolis simply were not getting the money that they needed from the state legislature for roads, for education, for social services, and were quite starved of funds in a way that it became really quite a serious problem. >> and when you think of it, if you don't mind my saying so, that the minorities were concentrated in our urban areas. they weren't the farmers. so, to the extent that african-american voters or immigrants and poor people were concentrated in the cities with industrial jobs and so forth, their power was getting more and more diminished at the expense of the people in less populated communities who are mostly white were having more and more power. so it was becoming more and more untenable, it seems to me. >> we'll get back to that. once the supreme court opened
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the door to hearing cases about reapportionment, they have heard many more in the decades since. in fact, tonight we have a live camera at the supreme court, and you'll be seeing pictures from throughout our program, because tomorrow the court is scheduled to hear another apportionment case, well versus abbott, a texas case that could further determine the definition of one person, one vote. what's it all about? >> well, it's very interesting, everybody thinks one person, one vote, but what is one person? what do you count when you divide up the state or congressional district or a legislative district? are you counting the actual number of people? are you including infants? are you including illegal immigrants? are you including all people, or are you including people of voting age? so, the supreme court is going to hear argument tomorrow in this case in which the argument is being made that we can divide up and meet the constitutional requirements by counting just people of voting-age population,
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as opposed to all people. now, that makes a big difference because some people don't vote. people that are immigrants don't vote. people that are children don't vote. and in some areas, in this case in texas, some counties in texas, or some districts in texas, have a larger percentage of people who are signed up to vote or voting age than in other areas, so there's going to be a disproportionate count. and this case, this issue has not come before the court before. what is it when you say one person? who are the persons that are in the denominator? >> and just to make clear, the key issue tomorrow is that the petitioners from texas are asking the court to require that states apportion based on the number of voters, not allowing it to be an option, but to require it, which is without precedent, and that would be quite staggering. >> no cameras in the supreme court. i always have to make that pitch, mr. olson, but there is audio recordings. and at this point in our history
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series, we've begun to work them in, and you'll hear some of the arguments and the justices in their own words because of that. and tomorrow's case we will have the audio available on friday when the court releases it. >> it wasn't until relatively recently that the audio became available immediately after the argument. i think that's what it is probably tomorrow. it's not contemporaneously, it's immediately after the argument, am i right? >> we're going to keep pushing it. >> i think the bush versus gore cases -- >> was the first. >> -- were the first times that the actual audio became available the instant that the argument was over, so -- >> that is true. >> -- that's only 15 years ago. >> that's right. we along with others in news media petitioned to justice rehnquist at that point to open the case up. >> and you won. >> we did. but we don't want to get too much ahead of ourselves, because let's set the stage in a little more detail about the baker versus carr case. so, we talked about the rising urban populations after world
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war ii and the fact that there was growing tension between this, but here's a separation of powers question. the people that would, if it was left to the state legislatures, the people that had the power would have to make the decision to give it up, and that doesn't often happen in congress. so, how could the societies or courts expect state legislatures to address this? >> you're exactly right, and that was the problem, that you're essentially asking legislators who have seats to give up their own seats to somebody else and state courts would consistently hear cases and say, yes, there's a big problem, but no, we can't do anything about it. only the legislature can fix itself, basically, and that was essentially the way things worked, especially after 1946, when the supreme court in the case of colegrove versus green, essentially said the federal courts cannot get involved. and that was the case that really kept the federal courts out of reapportionment politics until the 1960s. and simply wouldn't go near it.
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>> and in tennessee, the legislative districts had not been redrawn since? >> 1901. >> 1901, and this was 1962. >> despite -- tennessee's state constitution very clearly said that you have to reapportion every ten years after the census, but they had not done it for 60 years. >> but one of the questions was, what are federal courts telling the state of tennessee? you have to do something about enforcing your own constitutional provisions. federal courts don't normally do that. they say, you know, if this is an issue of the state of tennessee not having complied with its own constitution by not having reapportioned every ten years, what business is it of the federal court's? >> to make the point, as we've been learning throughout the series, it's a gradual application of the 14th amendment to areas in the states, and this is another case where that began to happen,
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correct? >> well, not so much the 14th amendment that tennessee -- correct me if i'm wrong, because you wrote the book -- that tennessee had to comply with its own constitution, but tennessee had to comply with the 14th amendment with respect to whether one person's vote was equal or not equal to another person's vote. >> and i don't want to get too far ahead of the story, but it was essentially the state of tennessee's defense in this case, was yes, malapportionment is as bad as you say it is, but it was only tennessee's to fix it. >> that's a nice introduction, because next, we'll hear our first bit of audio so you can get a flavor for the arguments in the supreme court. and these are the two attorneys arguing the case. one is baker's attorney. his name is charles rhyne. then you'll hear from the assistant attorney general of tennessee, jack wilson. let's listen to a little of their arguments in this case. >> i say there is nothing in the constitution of the united states of america -- and nothing in the constitution of tennessee that ordains that state government is and must remain an agricultural commodity, and
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there is nothing in either one of those constitutions that said it takes 20 city residents to equal 1 farmer. >> is it worse for the legislature of tennessee not to reapportion, or is it worse for the federal district courts to violate the age-old doctrine of separation of powers? >> so, there you hear the arguments. the court that has no jurisdiction over this versus the changing population. we have a map that was used to make the argument. i want to show it to the audience at home so they can really see what was happening with the legislative districts in tennessee and how two-thirds geographically of the state versus the concentration of power was presented to the court and how the population had really shifted and the power shifting along with it. so, how were documents used in this case? >> well, it's an interesting question. the case was originally filed in 1959.
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by the time it gets to the supreme court, there's actually a lot of new evidence from the 1960 census that bolsters when he's talking before the supreme court, especially in the second argument we'll get to in a minute. they used an enormous amount of data from the census, although it wasn't actually until later on in the process that the city of nashville came into the case and provided a lot of financial resources that the attorneys were able to actually employ a lot of that data. in the early stages, they didn't do a whole lot. there were some basic maps that showed, you know, which certain counties that had 20,000 people with one representative and another county with 200,000, that sort of thing, but it was fairly basic at the initial level. >> so, if you've been watching along the way, you know that one of the things we like most about this program is your participation, and there are several ways you can do that. first of all, you can call us. and the lines are divided geographically, 202-748-8900 and
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202-748-8901 if you live in the mountain or pacific time zones. you can tweet us at #landmarkcases so we can get into the queue here and we'll mix it in. and finally, we have a conversation on our facebook page. go to facebook, c-span's area, and you'll see that there's a conversation already under way. you can join that and we'll mix some facebook comments in as well. but you're welcome to get your phone calls in queue here and we'll work them in with our two special guests. so, i want to tell the audience that this has been a story, a people story as much as a legal story. and in this case, baker and carr are somewhat lost to history. they're really not the main cases. what we're going to hear about this, and this is really the drama at the supreme court itself. and in fact, you tell us later on that there were two justices whose health was imperiled they were so impassioned about this. so, we're going to first learn about baker and carr, and then we'll learn about the makeup of the supreme court and why it
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became so important in this case. so, who's baker, who's carr? >> well, it's interesting, this is a case where neither baker nor carr had very much to do with this case at all, in the sense where they were not active, whereas groups like the league of women voters in tennessee were actively involved, members of the republican party, the chairman of the republican party, other officials were named. there were 12 or 13 plaintiffs. baker, his name happened to come first alphabetically. baker himself had a local appointment at the local officeholder in the memphis area, but he really had absolutely nothing to do with the case other than the fact that he agreed to, you know, be signed up as one of the plaintiffs. >> and he really didn't go down in the history books. i'll tell you what, we were trying to do some research. it was hard to find. and you probably have the same writing the book about it. >> and i never actually even spent much time trying to look for him because it was pretty clear early on that he had very little to do it. and carr was the secretary of state of tennessee, so in that capacity was the head of the election machinery, so he was sued in that capacity, but again, didn't have anything to do with -- >> he's sort of the nominal
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defendant. >> exactly. >> if you're going to bring the case against the state, you had to have somebody to sue. >> exactly. >> explain the process, mr. olson. we heard that the u.s. district court in tennessee had dismissed the case on two grounds in 1959. the court lacked jurisdiction, which is what we're talking about, because it was a political question and the complaint failed to state a claim on which relief could be granted. with that finding, how does a case make it to supreme court? >> well, this was an appeal, if i remember correctly, from the three-judge district court. >> correct. >> and they appealed to the united states supreme court. now today, most of the cases that wind up in the supreme court are petitions for review. they call it petition for surratara. they don't have to take a case presented to it. the court gets something like 9,000 petitions a year and winds up taking 75 cases. this was in a different era, when the court had less discretion with respect to
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whether or not to take the case. and so, it was an appeal within the court's jurisdiction, and the court had to decide whether it had jurisdiction to the case or not, but it did decide that it did have jurisdiction, notwithstanding the earlier case that doug mentioned where the court had said we've got nothing to say about stuff like this. >> right. >> so, doug smith, also between 1959 and 1961 there was a presidential election and a change in power with president kennedy coming into office. was the kennedy administration interested in this case? >> they were, very much so. and then as a candidate, even as early as 1959, john kennedy had actually spoken a lot about urban underrepresentation, had authored, or one of his staff members authored a piece in "the new york times" magazine called "the shame of the states," which really talked about how much cities were being short-changed. so, the kennedy administration was deeply interested in this, but i think it's crucial with baker to recognize that the outgoing eisenhower administration was just as interested in it. in fact, when the case comes to
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the supreme court, it's filed i think in may of 1960. and no one knew at the time, but we know now, the court decided to hold it until it had a decision in lightfoot, the case from tuskegee. as soon as they handed down that decision in november of 1960, a week later they cited jurisdiction in baker v. carr. before the eisenhower administration left, lee rankin, who was the solicitor general at the time, had decided to go ahead and join the case as amicus. now, that decision was not binding on the kennedy administration, but they were quite happy to do so as well. but i thought this was a really important point about the case and one that apparently, later actually, had a big impact on potter stewart, who winds up being the swing vote. when he found out that the eisenhower administration was supporting this as well, that made a difference to him. >> so, we have four warren court cases in our 12-part series, and one of the things we've learned about this case is the factions on this court and how important they are to the ultimate outcome, as they always are in courts, i know. but particularly, we wanted to
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talk about the relationship between earl warren and william brennan, who writes the opinion in this case. we have a reflection on that from a gentleman who served as one of justice brennan's clerks. he himself became a federal judge, abraham sofaer. we're going to listen to him talking about chief justice earl warren and justice brennan and their personal and professional relationship. >> chief justice warren and justice brennan were not only friends, they were allies. they both had the same approach to issues. they both had a sense of the court's role that was quite generous, but yet, somewhat constrained and principled. they got along, not only with each other, but with everybody.
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no matter what political views a particular justice might have, if earl warren or bill brennan walked in to their office, they would light up. people were just glad to see these men. they were generous spirits, intelligent beings, and warm, genuinely warm. so, however much you might disagree with them about a given thing, it never got bitter, it never got angry in any nasty way, or virtually never. and the two of them realized they had these overlapping values and methods and personalities, so they just got along famously. >> well, it never got bitter, except the story that you tell is that this was a very, very
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passionately argued case in the conference stage. so, how did that relationship between the chief and justice brennan play out in the ultimate outcome? >> well, i think it was actually crucial, and you really see it both in the baker decision, where as you mentioned a minute ago, warren actually assigns the case to brennan. and also looking ahead a couple years to the rest of the reapportionment cases, when earl warren is simultaneously chairing the warren commission on president kennedy's assassination, he actually leans very heavily on bill brennan in those years. to circle back to baker, yes, the court was -- there was deep divisions, none more so than between william o. douglas and felix frankfurter, who both were appointed to the court within months of each other, and i think in 1939. you know, they had both been on the court for more than 20 years. they were ideological opposites in terms of their judicial philosophies. they were both very difficult characters personally. the stories are sounds like neither one of them was a
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particularly nice man that you would want to spend a whole lot of time with. and i think after 20 years on the court of butting heads, it really came to a head in the deliberations over baker v. carr. >> now, felix frankfurter in the sense of this being his last dissent, he argues this case passionately amongst -- in fact, we'll learn even spent a summer lobbying between the first and second hearings of the arguments. what can you tell us about felix frankfurter? >> well, he was an appointee of franklin roosevelt. but he was -- and he was very much a liberal. he had been involved in the naacp and he had been involved in the aclu. he was a professor at harvard, one of the most distinguished academics and legal thinkers in the united states, but he was a passionate believer in judicial restraint on the role of judges and concerned that if judges pushed the envelope too far, that would be bad for the court and bad for the judiciary and inconsistent with the
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constitution. it's interesting going back for a moment to the warren/brennan thing, earl warren was appointed by president eisenhower. william brennan was appointed by president eisenhower. william brennan was appointed by president eisenhower. president eisenhower was later to say something about some of the greatest mistakes he made were these two justices that turned out to be quite liberal. and here was justice frankfurter, appointed by a democrat, who turned out in those cases and this case and these line of cases to be quite conservative. he was very, very passionate about the issue. and i suppose we'll talk about that a little bit more, but that was among the debates. the first time the court heard the case, i think it was argued in april. >> right. >> and the court -- i think your viewers probably know this -- the court starts hearing arguments on the first monday in
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october, and hears arguments every month october through april and usually finishes its arguments in april and then renders its decisions by the end of june. well, if you have a very hard case like this that's argued at the end of the term, it sometimes produces bad law because they don't have much time to decide the case. and in this case -- and maybe we'll get into why -- but they decided, well, we're not going to decide it in that term. we're going to put it over. put it over here and decide it one more time. >> time for questions from our viewers. we're going to begin with jenn who is in california. you're on the air. >> thank you very much. mr. olson, you mentioned sparsely populated areas of california.
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that's where i live. 1,500 people in 400 square miles. my question is in the subsequent years since we've had the rural areas being essentially becoming really marginal, the cities were certainly over taxed and underpaid in the earlier times, but i think rural areas today may be getting sort of the same treatment the other way around. i wonder if there's been studies or anybody's looked into this over the years. thank you very much. >> doug might have a better answer than me on that, but i think that's a very important point and an important question. it isn't self-evident from a constitution that states can't decide where rural communities where there are issues of especially in california of water that we want one branch of our government, for example possibly, like the united states senate, to have a representation of geography as opposed to
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simply people. since the federal government is structured that way, and it hasn't been evident, then it has to be exclusively on the basis of population. i'm asking this rhetorically, why shouldn't a state be able to decide, well, yes, we want to give great weight to people in the cities but we also want to give great weight to the people like in an agricultural state to produce the revenue that provides the income or the livelihood for the state. why can't we balance that out? so your questioner raises that point and it has now become very much dominated by the urban areas. that's where the power is. >> and, jim, i just had two things. one of the great ironies of the story is that as governor earl warren actually took the
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position that you articulated. california had this system that did balance representation between the senate and house and thought it worked pretty well for the reasons ted just outlined. it's also interesting, not too get too ahead of the story, because of demographic change in baker. and subsequent cases that came down, it's suburban voters that gained the most. >> because people were moving? >> alan is in brooklyn. you're on. >> thanks very much. i'm hearing discussion of it based on geography versus population. i have a question whether in 2015 we can continue to call ourselves a democracy when we have such unequal voting rights in the senate. the voting population of major urban areas has become substantially minority in many of the most populus areas of the united states have a larger minority population than many of
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the less populous states. when we examine the fact the voting rights act was passed in 1965, three years after baker versus carr, would they have ever really ruled that this was such a close question if baker versus carr were passed -- were examined after the voting rights act? when the whole question of equal representation by minority status was before us, i think the dilution of minority voting in the country is as much of a scandal as police abuse of power and over incarceration. and i think we really have to examine whether we can continue to call ourselves democracy when wyoming has few white people with far more voting power than any of the black people in los angeles, chicago or new york city. >> thank you. >> the main issue is the composition of the u.s. senate. that is written specifically into the constitution unlike some of these other issues.
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even when opponents have done something differently. that was never an issue because it is specifically written into the u.s. constitution, that's the great compromise. that would require a constitutional amendment. >> people might say, well, we don't call ourselves a democracy, we call ourselves a republic. that version in the constitution is there. the other thing about the senate, and it's really exacerbated by the filibuster rules, because the more you give power to a small number of people in the senate, you are taking powers away from a larger number of people. it's not just the way the senate is constructed but the senate's rules that give power to a minority of members of the senate so that really exacerbates or magnifies the point your caller put his finger on. >> next up is jesus in st. louis.
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you're on. >> caller: good evening. thank you for taking my question. it's quite an honor to have mr. olson on the line. he was one of my inspirations to go to law school and subsequently pursue a career in appellate litigation. my question being involving on tomorrow on equal protection rounds what effect will that litigation have on the one person, one vote principle? thank you very much. >> why don't you take this because you've spent some time with it. >> i have to actually confess, there was another case out of arizona last year. >> the redistricting commission. >> right. i've been so focused. on the texas case, i haven't looked very closely. >> the one last year, and i knew more about that one, too, i wrote a brief in that case. it was a very interesting case. the state of arizona -- california's done this, too --
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take the redistricting and issue out of the legislature into an independent commission that we use more neutral principles arguably to redistrict. and the question in that case was whether or not the state had the power to take it away from the legislature because of the way the constitution has been written. i have been focusing on the earlier case too. so i haven't spent too much time on this, but this is something that's very -- not just -- it's, it's these kind of cases, the redistricting commission type cases and the voting rights cases where the question comes back again and again as to the extent to which you can pack minorities in particular districts and so forth. so these redistricting and voting are so inextricably linked, there're cases that are coming back again and again to the court. these questions from your viewers have been very, very,
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very good questions. >> josh is up next in algona, iowa. hi, josh. >> caller: hi, thanks for taking my call. justice frankfurter said we in his dissent we should seek legislative decision. if we had relied on justice restraint, would we have ever gotten reapportionment. one person one vote, we would never have had brown versus board of education. >> well, i think the second point, first. that is -- that is a trickier one for folks who believe in judicial restrain. the first part is great. i think we're going to talk about the actual deliberations. especially tom clark, he had a position in this case particularly you're discussing. >> one of the questions -- i
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guess maybe i'm getting ahead of it, too, was what resource does anybody have in tennessee? they briefed it and talked about they briefed it and talked about it and the answer was that, well, you can petition the legislature. they're not going to do anything. >> right. >> we'll take one more call and then we'll get to the story, the first of two rural arguments in baker versus carr. let's hear from chip. >> caller: thank you so much for taking my call. i actually grew up in east tennessee, so i had never heard about this case so it was a bit of a surprise to me that it was tennessee involved. the question is how could the court compel the tennessee legislature to reapportion. they could say, you should reapportion and saying we appreciate your advice and no. >> that's a great question and
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that was at the heart of -- part of frankfurter's rationale was that we can't compel them to do this. you thought the reaction to brown versus board was bad, what happens when you tell the legislatures to do this. what ended up happening, we leave it to the district courts. to enforce reapportionment when the legislature doesn't voluntarily do it, and actually, it worked. the federal district courts made it happen. once we get through the decisions, it actually happens fairly easily. >> so here are the questions before the court in baker versus carr. there are two. first, it's a jurisdictional one. the second, what is the test for resolving a political question. the first oral argument was heard over two days, april 19th
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and 20th, 1961. indicates the importance of all this two days of oral argument. the first of the argument was done by tennessee's attorneys. we're going to hear some now, again, from the oral argument. attorney for charles baker, charles ryne was an interesting character. can you tell us a little bit more about him? >> sure. charles rhyne at the time, he lived here in washington, d.c. he had been a former head of the american bar association. he had build a pretty supreme court and appellate argument. he was brought on for the supreme court etiquette. tom osbourne along with walter chandler and hobart. the three tennessee lawyers bought the case, sort of behind the scenes drama. some of the local attorneys were not exactly happy about that.
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but rhyne had a reputation, he had connections with the eisenhower administration, it was seen as a good move to bring him big supreme court lawyer on for this case. >> a few other points because i found it so interesting. he went on to be the head of the american bar association and helped change the constitution to eliminate the word white from it. and also during the nixon/watergate years he served as rosemary wood's attorney for the notorious 18 minutes of missing audio. quite an interesting life. he died at the age over91 in washington, d.c. we have heard from one attorney, what do we know about them? >> they were both assistant attorney generals. they represented the state in the case. as we heard earlier, their arguments pretty straightforward. yes, malapportionment is pretty
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bad but nothing they can do about it. >> let's listen in. >> the real question here is whether or not you're going to have two classes of citizenship, in tennessee, half slave or half free or at least one-third free and two-thirds slave because there is no way that you can get out of this illegal straightjacket without some federal assistance. >> now let's get down to bedrock on this thing. if that is discrimination under the 14th amendment, will it pass examination? well, going to have discrimination, you're going to have to treat one class different from another class, i take it. now it's recognized in sound law that, of course, there may be reasonable classification in state law. is there discrimination between classes where there is unequal
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representation? in a state legislature. and this case may turn on that. this case may turn on that very point. we say not. we say that can't be discrimination in the usual sense. >> a few of the points met by the attorneys in baker versus carr in 1961. we have a number of people tweeting in about the role of u.s. archibald cox. what was archibald cobs's role in this? >> as solicitor general. he represented the position of the united states before the court. what's interesting is we heard a clip from charles rhyne, lawyer hired by the tennessee plaintiffs. and his argument was actually heavily criticized. he essentially argued that tennessee violated its own state
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constitution and therefore the federal government needs to step in to help. even an assistant to the solicitor general, one of archibald cob's critic wrote a memo there's no foundation and urged the united states to take a different position to basically say there is some line across which one cannot step without violating the equal protection clause is. we don't know what that law is, but there's some level of discrimination clearly so out of line that it would have to violate the 14th amendment. that's essentially the argument that cox made before the supreme court. simply to say this cleared discrimination, lacks irrational basis, there's no other alternative but for the courts to at least hear the case. >> there's a couple points about
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that. first place it was a case between people representing tennesseeans and the state of tennessee. the united states is not having a party to enter into a case with the permission on the supreme court to express the views of the united states. so archibald was doing that. he was advocating on behalf of the united states citizens saying, this is wrong. the second point i thought i'd make is that we've been talking about the 14th amendment without emphasizing the point that what the 14th amendment provides is that citizens shall not be denied equal protection of the laws. the argument here ultimately was treating people's votes differently depending where they lived was a violation of equal protection of the laws.
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the third point was that -- to doug points. archibald cox was making an incremental step. i think he felt -- well, he did feel, that if we asked the court to go all the way to say we can handle this case, we can take this case and decide whether the constitutional principle was involved and then also decide what the constitutional principle was was pushing it a little bit too far in terms of getting the necessary five votes to win the case. but if you took it incrementally and that was what the assistant that doug was talking about, the assistant to the solicitor general was saying let's take it one step at a time. let's say that -- let's argue that the court can at least consider -- the courts can at least consider the issue and they can then decide and then will decide in a later case what the 14th amendment principle is. but the first principle was can the federal courts entertain this issue? i think there was a genius involved in that. that was it got the votes necessary without pushing it too far. when you argue in the united
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states supreme court, you want to make it easy for the justices to decide in your favor as you possibly can. if you ask for too much, you might get nothing. >> right. >> so the next stage in the process as you know or have learned as a lawyer you know it goes to conference. the rumor they meet is a clustered one. no staff are allowed in that room. we're going to show you what the room looks like. c-span is one of the few organizations that's ever been allowed to have their cameras in that room. and it looks very much like it did back in 1962 when the warren court was debating baker versus carr. as we're looking at it, tell us what happened after that first oral argument. >> the friday after the argument is over they go into conference. the initial -- the justices discuss the cases in order of seniority. the chief justices have been reversed. >> no.
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no. >> no? >> no. still goes first and then goes down. >> there weren't any real surprises for the first seven basically. douglas brennan. all side with the tennessee plaintiffs here. they had disintegrated back in the '40s. they believed back as far as 1946, there is an issue that should be joined for a suggestion that the federal government shouldn't get involved. he was joined by two former attorney generals. wasn't any great surprise there. 4-3 when we get to the last two members of the court. the next in line would have been charles whittaker and unlike most of his peers had been united states senators and governors and pretty high profile people, whittaker was very much a regional attorney he had been put on the district court then the appeals court and
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supreme court very rapidly. and he was someone who from the beginning really struggled to keep up with the pace. and i think had a lot of self-doubt about his own ability to contribute. and he was really torn. whittaker had an argument, during the argument had asked some questions that suggested he had great deal of sympathy for the tennessee petitioners and given hope to folks filing the case. as he expressed this in conference, he suggested that he thought there was so much discrimination that this court should step in but said this is a big case i don't want to be
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the fifth vote, i'm not sure i can do that. this apparently set felix frankfurter off. >> can you imagine frankfurter for 90 minutes. you see there's two copied and reading and lecturing whit taker, whit taker ultimately decided -- tentatively catch it. stewart was really on the fence. he had serious doubts that if the court allowed the district courts to hear cases he didn't think on the merits the petitioners could win. he recognized there was a problem but he wasn't willing to make up his mind. they waited a week, he said, i don't know what to do on this. can we reargue in the fall? that's actually why the case was
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reargued in october because it was a 4-4 split and potter stewart asked for it to be put over until the next term. >> it might be worth mentioning that they do not have that kind of conference anymore. there's no three-hour arranging that goes on. they're relatively short. they do the votes. they explain what their decisions are to their colleagues. now, none of us know because none of us have been in that room, only the nine justices are in the room. most junior justice sits by the door. if anybody has a message or wants a book or something from the outs, the junior justice has to answer the knock on the door. but they don't have these long
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harangues anymore. >> yeah, but you saw extensive notes. so people -- the justices were keeping notes about what was going on there. they gave you a real chance to tell the story of what was happening. >> every justice decides, a, every justice takes whatever notes he wants. ted and i were talking about that earlier, hugo black had all of his conferences burned upon his retirement. oren white destroyed his notes. the justices were keeping notes of what was going on there. they gave you a real chance to tell the story of what was happening. >> every justice decides what to do with those. and hugo black famously had his burned upon retirement because he felt what went on in the conference room should not be shared. others are available in various libraries around the country. >> the second argument was scheduled for october 9, 1961. and our guest douglas smith tells the story in his book that he spent the summer preparing for this. and we'll learn what happens next.
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i want to take a few calls before we get to that. let's hear next from ron who's in oxford, new hampshire. go ahead, please. >> i had a quick question about the gerrymandering districts. i want to correct something that was said earlier on about the senate representation in congress. that's an entrenched clause in the constitution. you can't change that with an amendment. so we're going to have that forever. on gerrymandering, are there any principles between this case and gerrymandering cases and just generally discuss the similarities and differences between those two issues. >> sure. the "new york times" wrote once in an article to the twin evils and of course today we talk about gerrymandering all the time because i think once in part malapportionment's been addressed, gerrymandering has been around for a long time, but it became necessary. once you require equal populations, it becomes necessity draw increasingly funny lines. the justices in the later portion of the cases were very much aware they were not tackling the issue of gerrymandering. >> and the most recent political as opposed to racial -- the most recent, the justices were not able to come to a conclusion. they basically said we're not going to get into that because there aren't standards, some of the same arguments as you were saying, doug, what is the standard pursuant to which we would decide a political party rearrange things so that they would have the advantage in the
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drawing of these districts. the justices were saying, well, it is a political process. and so politics getting involved in it is not too surprising. they have declined, unlike this area, they've declined to get into the thicket so to speak. >> gary in georgia. hi, gary. >> thank you for taking my call. my call is specific to the previous caller. baker v. carr responded to another decision of one man, one vote. specifically gray v. sanders in state of georgia with the county unit system, could you speak to some of the cases that were spawned as related to baker v. carr, specifically of the elimination of the county system
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in the state of georgia? >> we will. and i'm going to entice you to stay with us for another 15 minutes because our final segment will be the legacy of this decision including the immediate spate of cases the court took up. so thanks for asking that question. let me get to judith in alaska. and then we'll get to oral argument. thank you, judith, you're on. >> thank you very much. my question is this. i understand that the court still allows significant variation in districts by like up to 10%. so i live in a state, in a district that has been consistently over populated
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while other districts in my state have been consistently over populated. so over the course of the 40 years i've lived here, you can see how pretty effectively been deprived of a vote. why does it allow such a huge variation? >> i don't know the specifics in alaska, but this is certain exact can you draw districts. and the courts certainly made it clear they should be as equal as possible. i think 10% has evolved to be sort of the maximum deviation allowed. back in the early '60s, they were 50%, sometimes 100%. the 10% would actually be considered pretty small. again, i don't know the specifics of the situation you're talking about. >> one of the things the justices are concerned about is allowing geographic integrity,
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like a particular city or community, political boundaries. so all the people in that particular area might have something in common, so it doesn't have to be exact by the number. and between consensus, populations change a lot in certain districts. so if you start in 1950 and get to 1960, there's going to be a change. just by virtue of changes in population. >> let me get to argument number two. one of the historical things you mentioned it was argued the second time, set for 10:00 a.m., and the first time in court's history they heard a case before noon. and it's now standard. >> it's now standard. in fact, very seldom are they in the afternoon. by the way, you mentioned before the first one went three and a half hours over two days. it would not happen today. i mean, in the '20s and earlier the arguments would go on a lot longer. but it's now with very few exceptions one hour per case half an hour per side. now, once in a while they change that. the obamacare case was a number of hours over a couple days.
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but this was very unusual and they ought to start at 10:00 in the morning at least for the first of the day. >> justice frankfurter who was passionate about this, was well prepared for second argument, and he dominated, correct? >> he unexpectedly was not very active in the first argument. the second time around -- cox had actually been a student of frankfurt at harvard, so he seemed to have particular ire. so, yes, the frankfurter had spent the entire summer working on a memo which essentially becomes his dissenting opinion. he had already written it before the case was heard with the exception of a few pages he added later on. >> we're going to the hear two back-to-back clips. the first one is justice frankfurter as he spars with the
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attorney we heard about earlier charles rhyne who was representing baker in the case. let's listen. >> my point of view if you were right, i see no difference between writing into a constitution equal representation and not writing as far as the 14th amendment is considered. where, where, where is the dissension, where the state power which is ultimately lodged in the highest power of the state says there's no legal right? >> well, justice frankfurter -- >> i have to think about maryland, which i'm told is -- for me, this is the united states not tennessee. >> well, i would say justice frankfurter the main thing we have to think about here is voting rights and the degrading and delusion of these rights all over the united states of america. i grant you this is a rotten situation that exists in most of the states. and it's destroying the integrity of the state government.
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but the only way to restore that integrity is to carry out voting rights. and that is the very point we're making here. >> a bit of the argument in 1961. we're going to move onto justice william brennan as he has an exchange with tennessee's jack wilson. >> based on more having a voting population of 2,340, i think these are 1950 figures, and about 600 more, 2,904. it appears that moore has a total representation at senate than the lower house and two 600 larger of 0.63. in other words moore apparently has about three times the
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representation as apache although it's a smaller county. >> may be. >> now, how can that be justified? what can be the factors perhaps you might justify the disparity rural city. but how do you do it among -- >> we have stayed clean of sovereign immunity here and -- >> the same premise that this is a -- >> well, may it please the court, even sew the appellees here are not authorized to speak for the state of tennessee or to explain or to justify why the legislator has not done this. >> what are you hearing? >> it's a lot like what happens today. when you go back that far, the justices did not interrupt as often as they do today. if you listen, some of the recordings of arguments from the '50s and '60s, there's long
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periods of time when the advocate is just allowed to make their arguments. when i was listening to this, i thought this is very much like it is today when eight of justices for hours participate in an argument and they can interrupt one another and certainly interrupt the advocate. i've been interrupted 50 or 60 times in the course of 30 minutes. and the justices they don't do it so much conference but in oral argument. they're arguing with their colleagues. they're trying to make their points using their lawyer as a foil. this is tough going. you saw also that justice brennan although he was persistent, had a quite softer
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tone. he was quite a gentleman. justice frankfurter was an aggressive guy. i thought it was very interesting to listen to that. >> one interesting note is that in the entire three and a half hour argument, he only asked one question. it was at the very beginning and specifically intended to needle felix frankfurter about this case. here the two clips really highlight quite well two things that are important. first one is frankfurter is taking apart rhyne's case, one the solicitor general had identified as the weakness of rhyne's case. so what if the situation is bad, the federal government doesn't have the right to step in. brennan is identifying an issue -- when he's saying is it's not just a matter of giving rural areas more reputation is that even within the rural areas there's no rhyme or reason to it. one rural district has this many and this district has this many despite having less population. >> so how many hours of oral
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argument the second time? >> another three hours. and when we get to the state reapportionment cases, there are six of them. the courts spent close to 30 hours on reapportionment in a 30-year period. >> on to conference. this one comes out finally at 6-2. tell us the story. only eight now. you're going to have to tell us why there are only eight votes. >> the conference starts out initially a lot less dramatic than the previous conference because people made up their mind. potter stewart comes down on the side of brennan, black, douglas and warren. again, he actually thinks the courts should hear the cases. so it's very tentatively 5-4. with that in mind, warren has to decide who writes the opinion. for that, he doesn't pick
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douglas. douglas has been arguing for equal population since the '40s. they all decide brennan would be the right choice. you point out brennan's tone there at the end it's more gentle, moderate. and they know that stewart's vote is tenuous, they have to hold onto him. which we said earlier, really gets the issue of jurisdiction -- >> we haven't said it yet, but when the vote takes place, if the chief justices in the majority, he or she would assign the opinion writing to himself, herself or whoever they want to do. if the chief justice is not in the majority, then the senior most justices does the assignment. there's a lot of politics involved in that. justice brennan was one of the
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younger members of the court -- least experienced members of the court. but part of that was as doug was saying, chief justice warren wanted the opinion to be written very carefully, very narrowly so he could hold the majority. >> now at the 30 minutes mark, so we have to move through. why were there only eight votes? >> there are only eight votes because charles whittaker the first time around continued to have difficulty with the case. he actually said at conference he written two diametrically opposed opinions arguing both sides of the case. ultimately decided to vote with frankfurter. so the case was 5-4. douglas was eager to get the decision down in february. but the chief justice brennan and clark went off to a conference for ten days. so while they were away frankfurter asked tom clark to write a dissenting opinion on
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the issues relevant to tennessee. tom clark sits down to write that, and one of the most amazing documents is clark's very plight letter. i've come to the conclusion there is no alternative for the petitioners in tennessee, they've tried everything. the federal court's offered the only possibility, therefore i regret to ask you to permit me to withdraw from your dissent. so clark switches votes. whittaker, meanwhile, we now know suffered from pretty severe anxiety and depression and was having a really difficult time. i don't think we should go so far to say that baker drove him to a breakdown, but clearly it was a major factor. after joining frankfurter's opinion, he actually checked himself into walter reed hospital and ten days later it became quite clear he was severely disabled. the chief justice arranged for
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him to retire with full benefits. so he actually in the last days of the decision making process leading up to baker was no longer part of the court, so his name was removed from the dissenting opinions. whittaker dropped off the courts. all of a sudden it was a 6-2 decision. >> and you tell the story his son thought his father was even suicidal from the stress and depression. so the court made it 6-2 decision and here are some of the words from this. here's justice brennan. he wrote, the mere fact that the suit seeks protection of a political right does not mean it presents a political question. the complaints allegation of a denial of equal protection present a justifiable constitutional action. upon which appellates are entitled to a trial and decision. the right asserted is within the reach of the judicial protection under the 14th amendment.
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and let me also read to you from justice frankfurter's dissent. the court's authority of possessed neither the purse nor the sword ultimately rests on sustained public confidence in his its moral sanction. such feeling must be nourished by the court's complete detachment and from political entanglements and injecting itself into the clash of political forces and sentiments. we're going to go to the political congress and hear some notes from that conference. and it will tell us more about justice frankfurter's view of the case. let's watch. >> justice felix frankfurter had a general belief in judicial restraint. which meant he didn't believe the courts should be intervening in political questions. so something like political reapportionment would be for congress, not the judiciary. so those would be for congress or the state legislator. today we'll be looking at papers from our supreme court justice questions related to the felix justice's thoughts. what we'll start with are conference notes written by
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william douglas documenting. the first two opinions you can see are chief justice warren and the third is felix frankfurter who is dissenting from their opinions. and here he says the tennessee constitution has nothing to do with the case. this must be be a violation of the federal constitution. and on the other side, he says all these factors are not capable of being determined by courts. not one state is free of gerrymandering, how can courts determine what is fair in this area? subject matter is not proper for judicial inquiry. our second document is in 1962, roughly a year after the court conference. what you have here is an example of frankfurter crystallizing and refining his thoughts. and what we have here is an excerpt he has inserted into his dissent. and this this is from the
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william j. brennan papers. though it is frankfurter's thoughts. he says here in effect today's decision empowers the courts of the country to devise of what could compromise the legislature. if states should find themselves unable to discharge this task, the duty of doing so is put on this court. frankfurter was concerned that this was something the court was not equipped to do, had no mechanism, no plan, and down the line would lead to bigger problems the court was not really made to decide or to intervene on and this was congress's responsibility and not the court. >> and doug smith you tell the story in your book just one week after the decision justice frankfurter had a stroke and never returned to the court. and wrote claimed its second
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victim. >> again, we cannot be sure exactly what role baker played, but it was just a week after the decision was handed down that frankfurter suffered a stroke and never recovered sufficiently to be able to return to the court. >> we've had a lot of questions on twitter and a caller wanting to know about the subsequent cases. i'm going to put them all on the screen and talk about the importance of it. this case was the first of many and altogether eight cases they heard. the first was gray v. sanders. argued in january of '63. wesberry v. sanders, both of those were georgia cases. and we had a georgia caller. gray v. sanders where the one person, one vote concept came
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through. some language from that, there conception of political equality to lincoln's gettysburg address to the 15th, 17th and 19th amendments can mean only one thing, one person, one vote. and later on a whole series of cases from new york, alabama, maryland, virginia, colorado all decided on the same day, june 15, 1964. so what do people need to know about these cases and what they did? >> since you mentioned the caller asked about gray v. sanders, which rather than in state wide-elections the winner being determined by the overall popular vote, whoever won that particular counties vote won the units. the problem was georgia had so many counties that the rural counties it didn't matter how many people the candidate won -- how many votes the candidate got in the urban areas, the rural
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areas would always dominate. and this was a key component in white supremacy in jim crow. so in gray v. sanders the court strikes down the county unit system with the language you just said. that's william o. douglas' opinion. he was the first person to use the phrase one person, one vote. i think it's really interesting given the case we're going to hear tomorrow in the supreme court that a law clerk suggested douglas change it. and he declined. and said we're sticking with one person, one vote. it's also interesting people refer to this as one man, one vote. but douglas wrote one person, one vote. and then moving on, the cases you recommend, these are all the state reapportionment cases. each of those cases represents a different set of facts. the court hears all different arguments in the 1963 term, four them in november. and soon thereafter decisions handed down in june where they declare that all legislative chambers, so both branches of the state legislature must be a portion of the principle. you can't one branch based on the population and other factors, which is what a lot of people thought would happen. >> i can't explain it better than doug just did. it caused a revolution in government, in our country. the court easily could have come up with other solutions that weren't exactly organized according to population and one
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person, one vote and that sort of thing. there are lots of things that states could reasonably decide were factors in how to allocate one house or both houses of the legislator. but all that was blown away. and it's hard to imagine what this country would be like or what political crises we may have had because of this system and the continued exacerbation of that system of smaller numbers of people having greater concentrations of power. >> for example, ep west virginia
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law writes if it was not equal protection issue, what would stop the states? >> one point i want to add to that is we talked about whittaker and frankfurter having to step off the court. they were replaced respectively by byron white and arthur goldberg. without those two changes there's no way the court at that particular time would have embraced one particular vote. there were votes sweeping of the standard. >> this was by no means universally hailed. in fact, members of congress who were opposed to it immediately sought legislative actions. what happened? >> this is to me one of the most interesting parts of the story and one i knew absolutely nothing about prior to this. but beginning that day there were a whole series of bills and resolutions in the house and senate to try to overturn the decision one way or another to strip the supreme court of all jurisdiction and anything having
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to do with reapportionment. there were efforts to write a constitution amendment, pass a constitutional amendment which eventually all these districts came together and tried to make this happen, the senate republican leader from illinois, proposed amendment sort of three years in a row which essentially would have allowed legislatures to adopt the plan, because that was really at the end of the day that was the issue that i think people had the most difficult time coming to terms with. alabama which hadn't reapportioned in 60 years, people thought fine. but colorado, people thought what's wrong with that? voters of colorado chose this system. so dirksen tried three times to get through the senate, got 58 votes more or less every time, never got the two-thirds necessary.
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so then they took the campaign to the states and tried to get enough state legislatures to petition for a constitutional convention, which is allowed under article 4, but never happened. >> they came close, didn't they? >> they came close. >> we have a map. he made it to 33 states of the 34 necessary. >> 33 of the 34 necessary. now, should add by the time they got to 32, 33 there was a lot of dispute about maybe some of those petitions were valid because the legislatures had not first reapportioned. it was potentially an enormous mess. and the other issue is, well, constitutional convention, who says we can only limit it to this one issue? is the entire constitution up for grabs now? so it was a potentially disastrous or like i said depending on point of view history making event.
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>> just shows you how great the passions were about this. down state illinois power being ceded to chicago. >> absolutely. and the two of them, they epitomize the issue of reapportionment. douglas from chicago, dirksen from down state, very same interests at heart. they led the two forces on either side of the issue. for five years this played out until 1969 when wisconsin declined to become the 34th state and dirksen died unexpectedly and that took the wind out of the sail. and by then most states had actually reapportioned. >> it shows you how time has gone by, it couldn't happen now. you wouldn't have 30 states signing up to amend the constitution to do this. it's somewhat like brown v. board of education. you can't go back. even as close as it is or as it was and it's contention, the public accepts it and we go on. >> i have a video from you earl warren, the chief justice talking about this case. i'm going to have one more video for you from justice warren and then we'll spend the last few minutes or so talking about your questions and putting a bow
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around this discussion. let's listen to chief justice earl warren. >> i think the reapportionment not only of state legislatures but representative government in this country is perhaps the most important issue we have had before the supreme court. if everyone in this country has an opportunity to participate in this government on equal terms with everyone else and can share in electing representatives who will be truly representative of the entire community and not some special interest, that most of these problems we're now confronted with would be solved through the political process rather than through the courts. >> and as you mentioned shortly thereafter voting rights legislation in the congress. so there was really a revolution in this country about the way people were electing their representatives.
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so let's talk a little bit with our viewers what they want to hear about. we're going to begin with barry in alabama. you are on the air barry. go ahead, please. >> caller: yes. i would like to commentators to discuss justice harlan's dissent in reynolds v. simms where he establishes conclusively that the history of the 14th amendment, that those people all were clear that the federal government would not get involved in the electoral processes of the state. and you might be interested to know that archibald cox later said the reapportionment cases are a drastic example of reading into the generalities of the due process and equal protection clauses notions of wise and fundamental policy which are not
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event faintly suggested by the words of the constitution and which back substantial -- which lack substantial support and other conventional sources of law. so how do you -- how do you get rid of the legislative history of the 14th amendment, which i believe harlan was right, conclusive, and reach this decision in reynolds v. simms? >> all right. thank you. >> that's a good question. and you're right harlan was the only member of the warren court to dissent from the reapportionment cases, even in the alabama case. and he was the one true sort of person like-minded after frankfurter left the court. and you're right, he did root his argument in sort of reading
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the history of the ratification of the 14th amendment. i think the answer was there were eight other members of the court who saw it differently and thought that was not the stumbling block to harlan to stumbling into this issue they thought had become so unimaginable. >> this will frame into it. this is an ap government teacher. wants you to answer a question for his students. is it an example of judicial restraint or judicial activism? >> people use those terms to identify the cases they like or don't like. if it's judicial activism, if you don't like the outcome of the case, it's judicial restraint if you do. it does tie into this. what does the 14th amendment mean? the supreme court in various different times with various different backgrounds of the justices have construed the 14th amendment according to what they perceive its principles to be,
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as opposed to exclusive legislative history, which had to do with slavery. the 14th amendment now stands for proposition including all kinds of different rights. and if you go back to what the framers of the 14th amendment were actually thinking about, you can't get to a lot of these decisions. but that's not the way the court has determined to construe the 14th amendment. >> larry in engelwood, colorado. >> thank you for another great episode. i want to know about the timing and nature of the case and the civil rights movement and also the passage of the civil rights bill, if it really isn't kind of representing the cleaning up of failed post-civil war reconstruction bit of business. and wondered how much time is wasted between then and these cases that occurred. thank you. >> well, that's a great question. i think certainly we continue to grapple with these issues today. tomorrow the court will be hearing more cases. they constantly listen to voting rights cases. it's a continuing process we
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have to keep working at to figure out to make our democracy real. >> it's not just the democracy but the principles and the declaration of independence and gettysburg address and 14th amendment. the concept of equality. we have never been a perfect country with respect to living up to those ideals. but i think a lot of it is the justices are struggling in the context of today or yesterday's today of what that really means and what it really means to our citizens. it comes up with in the context of who can serve on juries and who can be excluded from juries. it comes up in all kinds of different ways. the justices i think it's consist, you see a court attempting to live up to the ideals of america not just in a particular statute or particular constitutional provision. >> so here's a question from courtney on twitter who says if
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gray v. sanders one person, one vote in states why does the electoral college still apply? >> because it's written into the constitution. when you were talking about the unit system in georgia, i mean, in a sense that's what the electoral college system does. now, of course the states can divide up their electoral college votes. there doesn't have to be one winner takes all. but the electoral college is going to stay in the constitution. and you might think about what a close election might be like if we had to recount the entire nation as opposed to the single state, which is what the electoral college allows you to get away with doing. >> jack is in wilmington, north carolina. hi, jack. >> hi. i would like to hear some commentary on the practical
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problem we've run into wherein state legislatures are slicing and dicing counties. because virtually everybody knows what state they live in and what county they live in, and after that it all becomes a blur. so we're changing the lines every ten years, having elections, changing the people in office. and the average person doesn't have any idea of which senate state district they're in. >> i think you're absolutely right. and this goes back to the comment ted made earlier you're either stacking districts to get a result or cracking districts to get a result. the court said you can't do that for racial reasons but as for now you can for political reasons. zblen until the supreme court changes its mind and determines that, we're going to continue to battle with that. >> and asked on twitter could
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baker also decide based on the guarantee clause? >> well, the fact of arguments at the time whether or not the guarantee of its article 4, section 4 of the constitution guarantees a republic form of government. and there were arguments then that's the provision that ought to be the basis for the subsequent cases as opposed to the equal protection clause. complications and i think probably most of the people then and most people now would agree that probably if we're going to have this outcome, you've got to use the 14th amendment rather than the guarantee clause. >> robert in springfield, new jersey, you're on. >> caller: yes. i do agree with if ruling in baker versus carr, but related to earlier speaker's question about reynolds versus similars, i am wondering how do your guests view the fact that section 2 of the 14th amendment is a part of the same amendment as the equal protection clause.
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and it does say if states congressional delegation shall be reduced proportionately to the percentage of citizens in that state whose right to vote has been denied or abridged. that does not seem to fully fit together with the concept of the personal rights representation. so what are you views please? >> well, i think -- i mean what you refer to was obviously intended to make sure that the southern states did in fact enfranchise african-americans. and there were many debates into the 20th century that perhaps some of the southern states should lose a number of their members of congress. so i think at its root that clause is still trying to guarantee the rights of all americans were or at least all men at that time to vote. i'm not sure i see the real conflict with that and the real
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heart and soul of baker and reynolds, the desire to make sure that everybody's vote counts equally. >> i don't see the inconsistency. >> randy in pennsylvania, our last caller. randy, are you there? all right. we lost randy. so as we close out here, we talk about this ef loogs in our country since the time this case was first decided. what context do you want to put this in as we close. what's the important thing for people to take away from the first of the several cases that the court heard. >> i think the question you asked at the opening, why is baker v. carr a land mark case. why does justice warren consider it to be important. i think at its heart what warren is getting at is that this case is really about whether or not we're going to live with so system of minority rule. it's something we don't think about in the united states. we think of majority rules,
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minorities have rights. but what happened is a system of majority rule in most states. what baker v. carr did was to correct that. we made enormous strides towards the realization of real democracy. >> what would say chief justice warren's legacy is in this area? >> if it wasn't for chief justice warren, i don't think we would have ever had this outcome. it's very interesting that the present supreme court consists of eight former federal appeals court judges and a deen of the harvard law school. that court, i don't think if there was any federal appeals court judges on it. there might have been one. but earl warren was a former governor. doug has had been a chairman of the securities and exchange commission. black had been a former senate. there were a lot of pom ticks in the back ground of the justices in those days.
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i wonder if you had that same composition of the court then that you have today, whether the outcome might have been different. earl warren placed a huge stamp, and i think part of it was because he was a politician. he's one of three chief justices that had run for rtpresident, b the way. >> we have just two more cases left in our 12-part series, we have the miranda case, and it's part of the overhaul of the criminal defense system. and then our final one is roe v. wade in two weeks from now. if you've hissed amissed any of cases, we have a book available, just $8.95 available on your website, written by a veteran supreme court reporter, some highlights of the decision and what the impact or legacy of each case has been. and that's easily available to you as a way to catch up and
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then all of these cases are posted on our website. as we close out here tonight, i really want to say thank you to doug smith for giving us the his store kpal background of this case, ted olson for your legal expertise and for some insight of what it's like to be in the court. really appreciate that extra color. thanks for your time tonight. ♪ ♪ ♪ ♪
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american history tv in primetime on c-span 3 continues tonight with our original series, landmark cases. at 8:00 eastern, miranda versus arizona, the 1966 supreme court decision requiring police to inform criminal suspects of their rights before being questioned. next week at 8:00 p.m. eastern on c-span3, a civil war special featuring american history tv highlights. on monday, we're at the emerging civil war blog symposium where we look at the great defenses of the civil war, including
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gettysburg and the siege of vicksburg. tuesday we focus on civil war leadership at the longwood university civil war seminar with talks on generals robert e. lee, ulysses s. grant and john mosby. wednesday through friday we're at the gettysburg college civil war institute conference. wednesday feature as lincoln scholar. on thursday speakers including a historian an on friday we conclude the conference with author t.j. stiles. american history tv civil war special all next week beginning at 8:00 p.m. eastern on c-span3. . the 1967 supreme court rule in the case loving versus virginia struck down laws prohibiting interracial marriage. at the time 16 southern states had laws banning interracial

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