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tv   Supreme Court Landmark Case Baker v. Carr  CSPAN  April 7, 2016 9:56pm-11:29pm EDT

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subjects. >> book tv weekends. they bring you author after author after author. they spotlight the work of fascinating people. >> i love book tv and i mean c-span fan. all persons having business before the supreme court of the united states, give their attention. >> landmark cases, c-span's special history series produced in cooperation with the national constitution center, exploring the stories and dramas behind 12 historic supreme court decisions. >> number 759. >> we will hear arguments from number 18. >> quite often, many of the most famous decisions are ones that the court took that were quite unpopular.
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>> 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 stick together because they believe in a rule of law. susan: good evening and welcome to c-span's history series, landmark cases. tonight is number 10. you will hear about the 1962 tennessee reapportionment case. it was one that chief justice earl warren called the most important of his tenure. this is the court that wrote brown versus board of education we will learn why during the next 90 minutes. it began a reapportionment revolution that change the way that allocation was for the state legislature and congress, which is all about power. we will learn more from our two guests. let me introduce them. theodore olson, former u.s. solicitor general from 2001 to 2004.
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he has already argued 60 cases before the supreme court including the 2000 bush versus gore case. douglas smith is a nonfiction author and is the executive director of the los angeles service academy and he has written a book on this case called "on democracy's doorstep." thank you for being here. we will begin tonight by listening to chief justice earl warren in his own words talking about the importance of this case to the country and to the court. justice warren: this court found that the question of whether a person is having equal protection of the laws was a judicial question and we have the right to decide, and the legislature must give equal representation to everyone. that is where the expression "one man, one vote," came into
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being. in that sense, i think that that case, and the others that followed, is perhaps the most important case that we have had since i've been on the court. susan: so, ted olson, why was the chief justice thinking of this as the most important case? ted: the decision in this case opened the door for the change in the way we govern ourselves. 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. 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
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changed how we are governed in this country in a dramatic way. we can only imagine how 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 happened in sacramento as opposed to the people in los angeles or san francisco having an equivalent vote. they didn't then. this changed all of that. our country would be so different today. susan: the chief justice made reference to the famous phrase "one man, one vote" and it is often associated with this case, but it is not associated with this case. explain what this case really did. douglas: this case very simply, and very importantly, said that federal courts could not consider challenges to state reapportionment. it did not set a standard.
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they did not say that the legislature ought to be apportioned according to any particular principle. it merely stopped short of saying that federal courts had jurisdiction to hear these. we saw the demographic change in the 20th century and it was extensive change. you have the example of california. there are 6 million people in los angeles who had the same amount of representation in the 14,000 people in rural parts. it was quite dramatic. susan: it seems obvious, but would you have put this on a landmark cases list? susan: absolutely. there's nothing in the constitution that says that state legislatures have to be apportioned according to population. in fact, the u.s. congress and the senate is not apportioned that way, so it is embedded in our constitution that while the congressional districts, as it turned out, would be apportioned that way.
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nevada has two senators and california has two senators. that disproportionate relationship between population and vote is embedded in the constitution. the justices had to decide, as doug points out, in this case, whether they can actually hear the case. prior to that, they had actually rendered decisions as saying that it is none of our business. we cannot find in the constitution a principle that we are going to apply here. where is it? 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 was not self-evident. a lot of people were starting to agitate for proportionate representation in the state
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legislatures. it was not by any means clear that this is going to be the outcome of that case. douglas: this situation had become so severe by the late 1940's and 1950's and all across the country, it was not just municipal officials, you had organizations that were all over this issue in states in minnesota and tennessee. the league is doing alternative work at the local level and up to the state level. it goes before the legislature time and time again. they were saying that they must do something about this. cities like nashville and memphis and minneapolis were not getting the money that they needed from the state legislature for roads or education, social services, and they were quite starved for funds. it became a serious problem. ted: the minorities were concentrated in our urban areas. they were not the farmers. to the extent that african-american voters or
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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 the less populated communities who are mostly white. they were having more and more power. it was becoming more and more untenable, it seems to me. susan: once the supreme court opens the door to hearing cases about reapportionment, they heard many more in the decades since. tonight, we have a live camera at the supreme court and you will be seeing pictures from throughout our program because tomorrow the court is scheduled to hear another apportionment case. this is a texas case that could further determine the definition of one person, one vote. what is it all about? ted: it is very interesting, everybody thinks one person, one vote. but what is one person? what do you think when you
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divide up the state or the legislative district? are you counting the actual number of people? are you including infants? are you including illegal immigrants? are you including people of voting age? the supreme court is going to hear an argument tomorrow in this case in which the argument is being made that we can divide up and meet the constitutional requirements by accounting just people of voting age population as opposed to all people. that makes a big difference, because some people don't vote. people that are immigrants do not vote. people that are children don't vote. in some areas, and this case in texas, some counties in texas or in some districts in texas, have a larger percentage of people who are signed up to vote or of voting age and in other areas. there can be a disproportionate count. this issue has not come before
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the court before. what is it when you say one person? who are the persons that are in the denominator? douglas: to make it 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. that would be quite staggering. susan: no cameras in the supreme court. but, there is audio recordings. at this point in our series, we have begun to work them in. you will hear some of them and the justices in their own words. tomorrow's case, we'll have the audio available when the court releases it. ted: it was not until relatively recently that the audio became available immediately after the argument. i think that's what it is probably tomorrow. it is not contemporaneously, am i right? i think the bush versus gore cases were the first time that the actual audio became
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available in instant that the argument was over. that was 15 years ago. susan: we, along with other people in the media petitioned to justice rehnquist to open the case up. we do not want to get too much ahead of ourselves, we want to set the stage in a little more detail about the baker versus carr case. so, we talked about the rising urban populations after world war ii and the fact that there were tensions between them. here's the separations of power question. it was left to the state legislatures, the people that had the power would have to make the decision to give it up. that does not often happen in congress. how could society or the court
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system force legislatures to address this? douglas: you are exactly right. that was the problem. you are essentially asking legislators who have seats to give up their seats to somebody else. state courts would consistently hear cases and say no, yes it is a big problem, but no, we cannot do anything about it. only the legislature can fix itself. that was essentially the way things worked, especially after 1946 when the supreme court and the case of colegrove versus green said that the federal courts cannot get involved. that was the case i really kept the federal courts out of reapportionment politics until the 1960's. they simply were not go near it. susan: in tennessee, the legislative district had not been redrawn since 1901. douglas: the tennessee state institutions said very clearly that you have to reapportion every 10 years, but they had not done it for 60 years. ted: the question is what are federal courts telling the state of tennessee? you have to do something about enforcing your constitutional provisions. federal courts do not normally do that. they say, if this is an issue of
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the state of tennessee not having complied with its own constitution by not having reapportioned every 10 years, what business is it of the federal courts? susan: to make the point as we have been learning throughout the series, there is a gradual application of the 14th amendment to more and more areas in the state and this is another case where that began to happen. correct? ted: not so much of the 14th amendment that tennessee had to comply with its 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. douglas: that was essentially the state of tennessee's defense. yes, malapportionment in tennessee is bad, but it is nobody's business but tennessee's to fix it. susan: you have given a nice introduction. here's the first bit of audio. this is just to get a flavor for the argument here it these are
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the two attorneys arguing the case. one is baker's attorney. you'll hear from the state of tennessee's attorney who was the assistant attorney general, jack wilson. let's listen to a little of their argument in this case. >> i say there is nothing in the constitution of the u.s. that ordains and nothing in the constitution of tennessee that ordains that state government is and must remain an agricultural commodity and there is nothing in either one of those constitutions that says it takes 20 city residents to equal one farmer. >> is it for the legislature of tennessee not to reapportion, or is it worse for the federal district court to violate the age-old doctrine of separation of powers? susan: you hear the arguments. the court has no jurisdiction over this changing of powers.
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we have a map that was used to make the argument. i want to show it to the audience at home so they can see what is happening with the legislative districts in tennessee and how 2/3 geographically of the state versus the concentration of power was presented to the court and have the population had really shifted on the power shifted with it. how were documents used in this case? douglas: it was originally filed in 1959. by the time it gets to the supreme court, actually, there was a whole lot of new evidence in the 1960's census. they actually used an enormous amount of data from the census, although it was not actually until later on in the process when a city of nashville came into the case and provided a lot of financial resources that the attorneys were able to employ a lot of that data. in the early stages, they did not do a whole lot.
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there were basic maps that show which counties had 20,000 people with one representative and another county was 200,000 people. it was fairly basic at the initial level. susan: as you have been watching along the way, you know that one of the things we like most about this program is your participation. there are several ways that you can do it. you can call us and the lines are divided geographically, 202-748-8900 and 202-748-8901. you can also tweet us. we also have a conversation on the facebook page. you can see there is already a conversation going on. we'll mix comments in as well. you're welcome to get your phone calls in and we will work them and with our special guests. i want to tell the audience that this has been a story about a people story as much as a legal
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story. in this case, baker and carr are somewhat lost to history. they are not the main case. what we will hear about, and this is really the drama at the supreme court itself, and in fact, you tell us later on that there were two justices who were imperiled because they were so impassioned about this. we are going to first learn about baker and carr. then we will learn about the makeup of the supreme court and why became so important. who is baker and who is carr? douglas: they did not have much to do with this at all. they were not active with groups in tennessee. the chairman of the republican party and other officials were named. there were about 12 or 13 plaintiffs. baker happened to come first alphabetically. he had a local appointment in the memphis area.
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he had absolutely nothing to do with the case other than the fact that he agreed to be signed up as one of the plaintiffs. susan: really, he did not go down in history books. we were trying to do research and it was hard to find. you probably have the same issue. douglas: i never spent much time trying to look for him, because it was pretty clear early on that he had very little to do with it. carr was the secretary of state of the tennessee. he did not have anything really to do with it. ted: he was a nominal defendant. he brought a case against the state. you have to have somebody to sue. susan: explain the process, mr. olson, we heard the u.s. district of tennessee dismiss the case on two grounds since 1959. the court lacked jurisdiction. this is what we were talking about, because it was a political question, and complaint failed to state a claim on which relief could be granted. with that finding, how does the case make it to the supreme court? ted: this is an appeal if i'm
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remembering correctly. it's from the three-judge district court. they appealed to the united states supreme court. today, most of the cases that wind up in the supreme court are petitions for review. they call it a petition for search. the court cannot take the case, and in many cases, does not take a case that has been presented to it. the court got something like 9000 petitions a year and winds up taking 75 cases. this is in a different era when the court had less discretion with respect to whether or not to take a case. so, it was an appeal within the court's jurisdiction and the court had to decide whether it had jurisdiction of the case or not. it did decide that it did have jurisdiction, notwithstanding the earlier case that doug mentioned where the court had said we have nothing to say about stuff like this. susan: also between 1959-1951, there was a presidential election and a change in power with president kennedy coming into office. was the kennedy administration interested in this case? douglas: they were, very much so.
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as a candidate, as early as 1959, john kennedy spoke a lot about urban underrepresentation. one of his staff members offered a piece which really talked about how much cities were being shortchanged. the kennedy administration was deeply interested, but it is crucial with this case to acknowledge that the eisenhower administration was just as interested. when the case comes to the supreme court, it is filed in may of 1960, knowing at the time we know now, that the court decided to hold it until they made a decision in the racial gerrymandering case from tuskegee. when they hand that decision down in november of 1960, a week later, they cite jurisdiction in baker versus carr. before the eisenhower demonstration left, lee rankin had decided to join the case as amicus.
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that decision was not binding on the kennedy administration, but they were quite happy to do so. this is really an important point. it had a big impact on potter versus stewart. they found out that the eisenhower administration had been ready to support this as well. susan: we have forewarned court cases and are 12 part series and one of the things that we have learned about this case is that actions on this court and how important they are to the ultimate outcome as they always are. particularly, we want to 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 became a federal judge. we listen to them talking about chief justice earl warren and justice brennan and their personal and professional relationship. >> the chief justice warren and justice brennan were not only friends, they were allies. they both had the same approach
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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. no matter what political views a particular justice might have, if earl warren or william brennan walked in to their office, they would light up. people were just glad to see these men. they were generous spirits. intelligent beings. warm, genuinely warm. however much you might disagree
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with them about a given thing, it never got bitter. it never got angry in any nasty way, or virtually never. the two of them realized that they had these overlapping values and methods and personalities, so they just got along famously. susan: it never got bitter, except for the story that you tell that this was a very passionately argued case. how did that relationship between the chief and justice brennan play out in the ultimate outcome? douglas: i think it was crucial. you really see it, both in the baker decision where you mentioned earl warren assigned the case to william brennan and also looking at a couple years for other rapprochement cases, one earl warren is working on the warren commission, where he leans heavily on william brennan in those years. to circle back to baker, yes,
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there was deep divisions in the court, none more so than between william douglas and felix frankfurter who had both been appointed to the court within months of each other i think in 1939, and they'd been on the court for more than 20 years. they were ideological opposites in terms of their judicial philosophies and they were both very difficult characters, personally. it sounds like another with a particularly nice man he would want to spend a lot of time with. after 20 years on the court, it really came to a head in the deliberations over baker versus carr. susan: felix frankfurter, this is his last dissent. he argues this case passionately. we will learn that he spent the summer lobbying between the first and second hearings of the argument. what you tell us about him? ted: he was an appointee of franklin roosevelt. he was very much a liberal. he had been involved in the naacp and had been involved in
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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 he was 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 constitution. it is 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. president eisenhower was later to say something about some of the greatest mistakes he made
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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 in this case, to be quite conservative. he was very, very passionate about the issue. i suppose we will talk about that a little bit more. that was among the debates. the first time the court heard the case, it was in april. i think your viewers probably know this, the court starts hearing arguments on the first monday in october and hears arguments every month october through april and usually finishes the arguments in april and renders decisions in june. when you have a very hard case like this, it is argued at the end of the term, and that sometimes produces bad law, because they do not have very much time to decide the case. in this case, and maybe we will get into why, but they decided that they are not going to decide it. and that term, they will put it over here. it will hear arguments again and
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they decided that they will do next term when they have more time. susan: time for questions from our viewers. we begin with a caller from california. >> thank you very much. mr. olson, you mentioned sparsely populated parts of california which is where i live. 1500 people in 400 square miles. my question is, in the subsequent years since we have had the rural areas being essentially becoming really marginal, the cities were certainly overtaxed and underpaid in the earlier times, but i think rural areas today may be getting served the same treatment the other way around, and i wonder if there have been studies or if anybody has looked into this over the years? ted: doug might have a better answer than me for that. but i think it is a very important point and question.
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it is not so evident from the constitution that states cannot decide that rural communities, where there might be agriculture and there might be issues involving 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 simply people. and since the federal government is structured that way, it is not evidence and it has not been evident to some of the justices on this whole issue that it has to be exclusively on the basis of population. why shouldn't a state be able to decide, i'm asking rhetorically, why shouldn't a state be able to decide, yes, we want to give great weight to the people in the cities, but we also want to give great weight to the people and agricultural state that produce the revenue that
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provides the income or the livelihood for the state. why can't we balance that out? the person with the question raises that very good point. it has now become very much dominated by the urban areas. that is where the power is. douglas: two things. one of the great ironies of the story is that as governor, earl warren actually took the position that you articulated. california has the system that did balance representation between the senate and house and he thought it worked pretty well for the reasons that ted just outlined. it is interesting also, because of demographic change by the time the decision in baker and subsequent cases come down, it is actually suburban voters who gain the most as opposed to urban voters. susan: allen is in brooklyn. >> i am hearing a discussion about the propriety of representation based on
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geography instead of population. i have a question about whether we have to re-examine in 2015, whether we can continue to call ourselves a democracy when we have such unequal voting rights in the senate. since the constitution was established, the voting population of major urban areas has become substantially minority. in many of the most populous states in the united states, they have a larger minority population than many of the less populous states. when we examine the fact that 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 was examined after the voting rights act? and, when the whole question of equal representation by minority status was before us, i think that the dilution of minority voting in the country is as much
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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 a democracy when wyoming has a few white people with far more voting power than any of the black people in los angeles or chicago or new york city. susan: thank you. douglas: the major issue there is the composition of the u.s. senate, and of course, that is written specifically into the constitution. it was always very clear even when opponents of reapportionment would say, in thing you know the supreme court will try to reapportion the u.s. senate, but it was never an issue because it is specifically written into the u.s. constitution. it would require a constitutional convention or amendment. ted: people might say that we don't call yourself a democracy, we call ourselves a republic. that vision in the constitution is there. the other thing about the senate, and it is really exacerbated by the filibuster
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rules, because the more that you give power to a small number of people in the senate, you are taking power away from larger numbers of people. and so, it is not just the way that the senate is constructed, but the senate's rules that give power to a minority of members of the senate. that really exacerbates or magnifies the point that your caller put his finger on. susan: next up is jesus from st. louis. you're on. >> thank you for taking my question. it is an honor to have mr. olson on the line right now, he was one of my inspirations to go to law school and subsequently pursue a career. my question involves the argument being heard tomorrow in harris versus arizona on equal protection grounds. what effect will that litigation have on the one person one vote principle? ted: why don't you take this?
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douglas: i have to actually confess that there is another case out of arizona last year that i immersed myself in. ted: redistricting? douglas: this one, i have not focused on so much. i actually don't know. ted: the one last year, i knew more about that one, too. i wrote a brief in that case, it was a very interesting case, the state of arizona, and california has done this, to take redistricting in order to deal with the political gerrymandering issue out of the legislature and put it into the independent commission that will use more neutral principles, arguably, to redistrict. 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 is written. i have been focusing on the earlier case, too, so i have not spent too much time on this.
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these kinds of cases, the redistricting commission-type cases, and the voting rights cases where a question comes back again and again as to the extent to which you can pack minorities in particular districts. these redistricting and voting are so inextricably linked, they are cases that are coming back again and again to the courts. these questions from your viewers have been very good questions. susan: josh is up next from iowa. hi, josh. caller: hi, thanks for taking my call. justice frankfurter said in his dissent that they should seek relief in the legislative system, not the courts. they call this decision an example of the liberal activist war in court, but if we had realized on judicial restraint like justice frankfurter wanted, we would never have gotten reapportionment, one person, one vote.
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we also would not have had brown versus board of education. douglas: the second point first, that is a trickier one for people who truly believe in judicial restraint. the first point of your question is a great one. i think we will talk about the actual deliberations within the court, because especially tom clark, one of the members of the court, he, in particular, had a change of mind in this case along the point that you were just discussing. caller ted: one of the question- maybe i'm getting ahead, too, was what resort does anybody have in tennessee? they briefed it and talked about it, and the answer was that you can petition the legislature, but they will not do anything. susan: we take one more call and then we will get to the story of the first of the two oral arguments in baker versus carr. let's hear from st. paul. caller: thank you for taking my call.
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i actually grew up in east tennessee. i have never heard about this case, so that was a bit of a surprise to me, that tennessee was involved. my question is, how could they compel the tennessee legislature to reapportion? i think they could say, tennessee legislature, you should reapportion, and the legislature could say, we appreciate your advice, and no. douglas: that is a great question, and that was at the heart of part of frankfurter's rationale for his position. we can't compel them to do this. it even comes up later. you thought the reaction to brown versus board of education was bad in the south, get ready to see throughout the nation what happens when you tell the legislatures to do this. what happens is they leave it up to district courts to enforce reapportionment when the legislature does not voluntarily do it. and actually, it worked. the federal district courts made it happen. once we get through the decisions, it actually happens very easily. susan: here are the questions before the court in baker versus
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carr. there are two. first, a jurisdictional one. can federal courts hear a constitutional challenge to legislative apportionment? and the second, what if the test for resolving whether a case presents a political question? the first oral argument was heard over the course of two and 20, 1961. that indicates the importance of the two days of oral argument. the first oral argument was done by charles baker's attorneys. the tennessee attorneys responded on the second day. we are going to hear some audio from the oral arguments. the attorneys for charles baker and tennessee voters, charles ryan, is first. charles ryan is an interesting character. can you tell us about him? douglas: at the time, he was in washington, d.c. he had been a former head of the american bar association, and he had built a pretty lucrative supreme court and appellate practice. he was brought onto the case for the supreme court argument.
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he was not from tennessee and he was not part of the original team. tom osborne as well as others, were the three tennessee lawyers who really brought the case. there is actually quite a bit of behind the scenes drama when charles was brought on because some of the local attorneys were not exactly happy about that. he had a reputation and connections with the eisenhower administration, and he was seen as a good move to bring him, a big supreme court lawyer, on for this case. susan: a few other points about his biography. he went later on to be head of the american bar association and helped integrate the aba by changing the constitution to eliminate the word "white" from it. also, during the nixon watergate years, he served as an attorney for the 18 minutes of missing audio. he died at the age of 91 and
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in washington, d.c. the attorney from tennessee, we have heard from one of them, jack wilson. the other was james glasgow. what else do we know about them? douglas: they were both assistant attorney generals, part of a large attorney general staff who took the case and represented the state in the case. as we heard earlier, their arguments are pretty straightforward, and yes, mel apportionment is pretty bad in tennessee, but there's nothing the court can do about it. susan: let's listen into to a little bit from the first oral argument. >> the real question here is whether or not you are going to have two classes of citizenship in tennessee, half slave and 2/3 free, or at least and 1/3/. there is no way that you can get out of this a legal straitjacket without some federal assistance. >> now, let's get down to bedrock on this thing. if there is discrimination under the 14th amendment, will it bear examination?
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well, you're going to have discrimination. you're going to treat one class different from another class. now it is recognized in sound law that there could be reasonable classification it state law. is that discrimination between classes where there is unequal representation? this case may turn on that. this case may turn on that very point. we say not. we say that there cannot be discrimination in the usual sense. susan: a few of the points made by the competing attorneys. the first oral argument in april of 1961. we have a number of people who in aboutn tweeting the role of archibald cox, the first u.s. attorney general. he insisted that scotus must decide if the bill should be
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dismissed due to inequitable discussion. what was his role in this? douglas: as solicitor general, mr. olson would know more about that than i do, he represented the position of the united states, quote unquote. what is interesting is we heard a clip from charles rhein, who is the layer by the tennessee plaintiff. his argument was actually heavily criticized. he essentially argued that tennessee had violated the state constitution, and therefore the federal government needs to step in to help. even as an assistant to the solicitor general, one of archibald cox's assistants who was in the eisenhower eisenhower administration, wrote a memo criticizing his argument, saying that there is no foundation for it. he urged archibald cox and the u.s. to take a different position, which is to say that there is some line across which one cannot step without violating equal protection clause. we do not know what that line is, we are not suggesting what the standard is, but there is some level of discrimination
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that is clearly so out of line that they would have to violate the 14th amendment. that is essentially the argument cox made before the supreme court. he simply said that there is discrimination here. it lacks a rational basis. there is no other alternative but for the courts to hear the case. ted: there are a couple of points about that. in the first place, it was a case between people representing tennesseeans against the state of tennessee. the united states government was not a party. in those days, it was relatively less frequent than it is today for the united states to enter into a case with the permission of the supreme court to express the views of the united states. so, archibald cox was doing that. he was advocating on behalf of the united states citizens, saying this is wrong. the second point i thought i would make is that we have been talking about the 14th amendment without emphasizing the point that the 14th amendment provides that citizen s shall not be denied equal
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protection of the laws. the argument here, ultimately, was treating people's votes differently depending upon where they lived was a violation of equal protection of the laws. the third point was that, to doug's point, archibald cox is making an incremental step. i think he felt 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 the court can at least consider the issue and
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then they can decide, and we will decide in a later case what the 14th amendment principle is. but the first principle was, can the federal courts entertain this issue? and, i think there was a genius involved in that. that was that it got the votes necessary without pushing it too far. when you argue in the united states supreme court, you want to make it as easy for the justices to decide in your favor as you possibly can. if you ask for too much, you might get nothing. susan: the next stage in the process is, you have learned, or you know as a lawyer, it goes to conference. the room where the justices meet is a cloistered one. no staff are allowed in that room. all the justices are debating the case. i'm going to show you what that room looks like. c-span is one of the few organizations that has ever been allowed to have their cameras inside of that room. it looks very much like it did in 1962 when the war in court r.s debating baker versus car
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as we are looking at it, tell us what happened after the first oral argument. douglas: the friday after the argument is over, they going to -- go into conference. the justices discuss the case in order of seniority. at the time, the chief justice went first, down to the most junior. i think that has been reversed. is that right? ted: no. it still goes first and it goes down -- douglas: all right, so, there were not any real surprises for the first seven. chief justice warren, justice brennan, justice hugo black, justice hugo douglas cited with the dissent. they believed there was a 14th amendment issue that the courts needed to consider. william brennan and earl warren joins to an extent. they suggested the federal courts should get involved. felix frankfurter most passionately dissented and was joined by john marshall harlan and tom clark, who was a truman
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appointee hannah had been a former -- appointee and had been a former attorney general of the united states. there was no great surprise there. it was 4-3 when the drama really began. the next in line was charles whittaker, who had been appointed in 1957 by eisenhower. unlike most of his peers who had been united states senators, then governors, and pretty high profile people, whittaker had been a prominent figure in kansas city but was very much a regional attorney. he had been put on the district court and the appeals court and the supreme court rapidly. he was someone who from the beginning really struggled to keep up with the pace and had a lot of self-doubt about his own ability to contribute. whittaker was really torn. during the argument, he had expressed that he had a great deal of sympathy for the tennessee petitioners and gave a lot of hope to the people on the case.
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he expressed the conference that he thought this really was, there was so much discrimination here and that this is such a big case, i do not want to be the fifth vote. i'm not sure i can do that. this set felix frankfurter off. according to justice black, who later said frankfurter spent four hours. susan: can you imagine that? douglas: your viewers see the courtroom and they see the copies of the supreme court reports. apparently franklin was going through those volumes and really delivering whittaker. whittaker tentatively casts his vote with frankfurter. that left potter stewart. he was the newest member of the court, another eisenhower appointee. stewart was really on the fence. he had serious doubts that even if the court allowed the district courts to hear cases, he did not think that on the merits that the petitioners could win. he recognized that there was a problem, but he was not willing to make up his mind. they waited another week. he went back to the conference and said, i really don't know
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what to do on this, can we read it -- redo the argument in the fall? that is why it is re-argued in october. it was a 4-4 split. ted: it's worth mentioning that they do not have that kind of conference anymore. there is no three-hour haranguing that goes on. they are relatively short. they do the votes and 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. the most junior justice sits by the door. if anybody has a message or wants to get a book or something from the outside, the junior justice has to answer the knock on the door, but they do not have these long harangues anymore. susan: but they do have extensive notes. the justices were keeping notes about what was going on. they gave you a real chance to tell a story about what is happenin douglas: every justice takes whatever notes he wants, and
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also every justice decides what to do with them. hugo black's famously had all of his burned in retirement because he felt the conference room was sacrosanct. another also destroyed his notes. others are available in libraries around the country. susan: it is good for historians like you. the second argument was scheduled for october 9, 1961. guest, doug smith, tells the story in his book that felix frankfurter spe the summer preparing for this. you will learn what happens next. let's take a few calls. let's hear from ron in oxford, new hampshire. go ahead, please. caller: i had a quick question about gerrymandered districts. i wanted to correct something that was said earlier on about the senate representation in congress. that is an entrenched clause in the constitution. you can't change that with an amendment, so we will have that
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forever, as long as the constitution is in effect. on gerrymandering, are there any principles between this case and gerrymandering cases? just generally discuss the similarities and differences between those two issues. douglas: there is an absolute connection. in fact, at the height of this, the "new york times" wrote an editorial referring to the twin evils of malapportionment and gerrymandering. we talk about gerrymandering all the time, because once the -- once malapportionment is addressed, gerrymandering has been around for a long time, but became more necessary. once you acquire more people and populations, it becomes necessary to start drawing increasingly funny lines. there is definitely a connection. the justices in the later reapportionment cases were aware that they were not tackling the issue of gerrymandering and that it would continue to be an issue, but they felt that malapportionment was by far the more serious issue at the time. ted: the most recent political gerrymandering cases, as opposed
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to racial, the most recent case to involve that, the justices were not able to come to a conclusion. they basically said, we're not going to get into that. because there are not standards. some of the same arguments as you are saying, doug, what is the standard pursuant to which we would decide that some political party rearrange things so that they would have the advantage in the drawing of these districts. the justices were saying, well, it is a political process, so politics getting involved in it is not too surprising. they have declined, unlike this area, they have declined to get into the thicket, so to speak. susan: gary is in macon, georgia. hi, gary. caller: thank you for taking my call. my call is very similar to the previous color. carr spawned other
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decisions in relation to one man, one vote, specifically gray versus sanders, with the state of georgia with the county unit system. could you speak to some of the cases that were spawned related arr, specifically the elimination of this effect in the state of georgia? susan: we will, but i will entice you to stay with us for the final segment, which will be the legacy of this decision. thanks for asking that question. let me get to judith in anchorage, alaska, and in we will get to or larger unit number two. hi, judith. you are on. caller: thank you very much. my question is this. i understand that the court still allows significant variations in districts by up to 10%. so, i live in a district that has been consistently overpopulated. other districts in my state have
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been consistently overpopulated. over the course of the 40 years that i have lived here, you can and seee up together how effective we have been in being deprived of a vote. why does that allow such a huge variation? douglas: i don't know the specifics in alaska. but this is certainly the heart of the issue. how exact can you draw districts? the courts made it very clear that they should be as equal as possible. i think 10% has sort of evolved to be the maximum deviation that would be allowed. back in the early 1960's, the deviations were 50% or 100% or sometimes several hundred percent. 10% would actually be very small. i do not know the specifics of the situation you are talking about. ted: one of the things that the istices are concerned about to allow geographic integrity,
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like a particular city or community, political boundaries, so all the people in that particular area may have something in common so that it does not have to be exact by the number. and, between censuses, the populations change a lot in certain districts. if you start in 1950 and get to 1960, there will be a change in the population of a particular district, just by virtue of changes in population. susan: let me get to oral argument number two. one of the little small historical things you mentioned was argued for the second time at 10:00 a.m., and it is the first time in the court's history that they heard an argument before noon. it is now standard, 10:00 a.m. ted: it is now standard. very seldom are they in the afternoon. you mentioned before, the first one went over three hours over two days. that would not happen today. in the 1920's and earlier, the arguments would go a lot longer.
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but, it is now, with very few exceptions, one hour per case, half an hour per side. once in a while, they change that, the obamacare case was a number of hours. but this was very unusual. they always start at 10:00 a.m., at least for the first argument of the day. susan: as we said, justice felix frankfurter was passionate about this and well prepared for the second oral argument and he documented it, correct? douglas: ironically, he was not very active in the first argument. it was later joked that frankfurter spent the entire summer waiting for him. a man actually been a student of frankfurter at harvard, and he had particular ire directed at the solicitor general. so yes, 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 that he
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added later on. susan: we will hear two back-to-back clips, the first one is felix frankfurter as he spars with the attorney, charles rhein. let's listen. my point of view is you are right. i see no difference between writing into a constitution equal representation and not writing in it because of the 14th amendment. where, where, where is the dissension? where is the state power? it is ultimately lodged in the highest court of the state, destroying a constitutional provision. >> mr. justice frankfurter -- >> i have to think about maryland, which i am told, i have to think of a lot of states.
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and you say this is just tennessee. for me, this is the united states, not just tennessee. >> the main thing we have to think about here is voting rights, and disparagement and degrading and delusion of those rights all over the u.s. i grant you that this is a rocky situation that exists in most of the states, and it is destroying the integrity of the state government. but the only way to restore that integrity is to carry out voting rights, and that is the very point that we are making here. susan: a bit of the argument. in the second hearing of this case in october of 1961. we will move on to justice william brennan, as he has an exchange with tennessee's assistant attorney general, jack wilson. >> if my arithmetic is any good, based on a voting population of 2340, i think these are 1950 figures. and 600 more. ore has as that mor
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total representation in the two, and thef other, 600 larger. apparently, three times the representation as the other location, although it is the smaller of the two counties. how can that be justified if they are both rural? what would be the factors which, perhaps you might justify a disparity between rural cities, but how do you do it among -- >> we have imposed a plea of sovereign immunity here. >> no. this is not the same premise, the same premise that mr. justice black put forward. >> even so, the appellees here are not authorized to speak for the
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state of tennessee or to explain or to justify why the legislature has not done this. susan: what are you hearing there, mr. olson? ted: 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. in fact, if you listen to some of the recordings of the arguments from the 1950's and 1960's, there are long periods of time when the advocate is allowed to just make their arguments. so, when i was listening to this, i was thinking this is very much like it is today, when eight of the justices, at least, almost hours participate in an argument, and they can be very aggressive and interrupt one another and certainly interrupt the advocate. i have been interrupted 50 to 60 times in the course of 30 minutes. the justices do not do it so much in conference, but they do it in oral arguments.
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there are doing with their colleagues. they are trying to make their points using the lawyer as a foil. so, this was tough going. you saw also that justice brennan, although he was very persistent, with a much softer town, because he was quite a gentleman. justice frankfurter was a very aggressive guy. i thought it was very interesting to listen to that. douglas: a couple of things. one interesting note is that in the entire argument, he only asked one question and it was intentionally to needle frankfurter about this case. i think this highlights quite -- two things that are quite important. frankfurter is really taking apart brian's case. so what if tennessee's situation is bad and the federal government does not have the right to step in? brennan, by contrast, is
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identifying an issue. when brennan is saying is that it is not just a matter of giving rural areas more representation because maybe they have other interests, but even within the rural areas, there is no rhyme or reason to it. susan: how many hours of oral arguments? douglas: another three hours. and when we get to the state reapportionment cases, there are six of them in one term, and they all had three or four hours. the court spent 30 hours on reapportionment in this two-year period. susan: on to conference. the vote is taken, and this one comes out finally at 6-2. so tell us the story. only eight now. douglas: the conference, initially, i think was less dramatic than the previous conference, because most people had made up their mind. it comes down on the side of brennan, black, douglas, and
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warren. he still doesn't think there is a trial and the merits will go anywhere, but he does think the lower courts should hear the cases. it was tentatively 5-4. with that in mind, warren has to decide who to write the opinion. for that reason, he doesn't pick douglas. douglas has been arguing for equal population since the 1940's. considers black and brennan. he actually consulted with them, and they decided it and be the right choice. you pointed out that brennan's tone there the end, much more gentle, moderate. they know that stewart's vote is tenuous. they have to hold onto him. brennan writes this very narrow , as we saidhich earlier, really only gets the issue of jurisdiction. ted: we haven't second yet, but when the vote takes place, if the chief justice is in the majority, he or she would assign the opinion writing to himself,
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herself, or whoever they want to do. if the chief justice is not in the majority, then the seniormost justice does the assignment. there is a lot of politics involved. justice brennan was one of the younger 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 that he could hold the majority. the only 30e at minutes mark, so we will have to go through a lot of big things here, but why were there only eight votes? douglas: charles whitaker, who had had difficulty the first time around, continues to have difficulty. he actually said at conference that he had written two directly opposed opinions. he also decided to start -- decided to vote with frankfurter. the case was 5-4.
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to get the willing decision down in february, but the chief justice and justice brennan went off to a conference for 10 days. while they were away, frankfurter asks tom clark to write a dissenting opinion on the issue. tom clark, after the gets back from the judicial conference, sits down to write that, and one of the most amazing documents is clark's later -- letter to frank for her saying, -- frankfurter saying, felix, i have set out to right to dissent that you suggested, but i have come to the decision that there is no alternative. the federal courts offer no possibility. i ask you to permit me to draw from your dissent. so clark switches votes. whitaker, meanwhile, we now know, suffered from pretty severe anxiety and depression, and was having a difficult time. i don't think we can go as far as to say baker drove him to a breakdown, but it was a major factor. after joining frankfurter's
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opinion on march the sixth, i think he ended up checking himself in to walter reed hospital. 10 days later, it became clear that he was really quite severely disabled. the chief justice arranged for him to retire with full benefits. he actually, in the last days of the decision-making process leading up to baker, was not part of the court. his name was removed from the defending opinion. clark switched to make it six and whitaker dropped off the court, so all of a sudden it was a six-to decision. 6-2 decision. susan: his father was even suicidal from the stress and depression. the court made a 6-2 decision and here are some of the words. here is justice brennan's opinion. he wrote, the mere fact that the suit seeks protection does not mean that it presents a political question. the complaints allegations of denial of equal protection presents a constitutional cause of action upon which a pellets are entitled to a trial and a decision.
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asserted is within the judicial protection of the 14th amendment. let me also read to you from justice frankfurter's dissent. the court's authority possesses neither the person or the sword. rests on sustained public confidence in its moral sanction. such feeling must be noris -- must be nervous from political politicaled from entanglements. we are going to go to the library of congress. notes from that conference. it will tell us more about justice frank for's view of the case. let's watch. >> justice frankfurter had a belief in judicial restraint, which means he didn't believe the courts should be intervening in political questions. something like apportionments
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would be for congress or the legislature and not for the judiciary. ouring at papers from collections relating to baker's thoughts on the case. we will start with our conference notes written by william o douglas, documenting one of the first conference meetings the justice had after the first argument. the first two are chief justice warren and hugo black, who are in favor of reapportionment, and the third is felix frankfurter, who is dissenting. here he says the tennessee constitution has nothing to do with the case. this must 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? our second document is from february 1962, roughly a year after the court conference.
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when you have here is an example of frankfurter crystallizing and refining his thoughts, coming up with a dissent. what we have here is an excerpt that he has inserted into his dissent. this is from the william j brennan papers, though it is frankfurter's thoughts. he says, "in effect, today's decision empowers the courts of the country to devise what should constitute the proper composition of the legislature of the 50 states. if state courts should for one reason or another find themselves unable to discharge this task, the duty of doing so is on the federal courts on this court in state decisions do not satisfy this court's notion of what is proper districting." frankfurter was concerned that this was something the court was not equipped to do, it had no mechanism, no plan for reapportionment, and down the line it would lead to bigger problems that the court was not
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really made to decide or intervene on, and this was congress's responsibility. susan: doug smith, you tell the story in your book that just one week after the decision, justice frankfurter had a major stroke and never returned to the court. and you wrote, baker v. carr claimed its second victim. douglas: again, we cannot exactly be sure what role baker plays, but it was just a week after the decision was handed down. he never recovered to return to the court. susan: we have had a lot of susan: we have had a lot of questions on twitter, and we had a caller wanted to know about the subsequent cases. i will put them all on the screen, and we will talk about the importance of it. this case was the first of many, altogether eight cases, that they heard. the first two of those were gray versus sanders, argued in 1963, decided in march. wesberry v. sanders. both of those were georgia cases.
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we had a georgia color saying it was the gray versus sanders that the one person one vote language came through. and then later on, a whole series of cases from new york, alabama, maryland, virginia, delaware, and colorado all decided on june 15, 1964. what do people need to know about this whole series of cases and what they did? douglas: since the caller asked about gray v sanders, which was technically not a reapportionment case. in statewide elections such as governor, georgia would assign a certain number of units to each county. the problem was that georgia had so many counties that the rural counties, it didn't matter how many people the candidate won
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and how many votes the candidate got, the rural areas would always dominate. this is a key component in white supremacy and jim crow. in gray versus sanders, the court strikes down with the county-unit system with the language that you just said. i think it is interesting that a law clerk suggested that he change that to one vote, one vote. douglas to client and said, no, we are sticking with one person, one vote. it is also interesting that people usually refer to this as one man, one vote, when douglas wrote one person, one vote. moving on, the cases you recommend comedies are all the -- e they all have different facts and histories, but they'll last the same question, what is the standard for reapportionment under the equal protection clause? they all come together, the court hears all six of the arguments in the 1963 term, and
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those are the decisions that are handed down in june, where they -- you can't have a federal system where one branch is based on population and the other on other factors, which is what a lot of people thought would happen. ted: i can't explain it better than doug just did. it caused a revolution in government in our country. the court could have easily come up with other solutions that weren't exactly organized according to population. there are lots of things that were factors in how to allocate one house or both houses of the legislature. but all of that was blown away.
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and it is hard to imagine what this country would be like, or what political crises we may have had because of the continued exasperation of that system of smaller numbers of people having greater concentrations of power. susan: for example, ep west virginia law rights, if it was not an equal protection issue, what would stop a state from creating a district of only 10 voters? douglas: examples like that were proposed. 1.i wanted to add to that, we talked about whitaker and frankfurter happy -- having to step off the court. they were replaced by byron white and arthur goldberg. without those two changes, there is no way the court would have embraced one person, one vote in both branches of the legislature. they are two of the six votes for that standard. susan: but this was by no means universally held.
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in fact, members of congress who were opposed to it immediately sought legislative solutions. what happened? douglas: this to me as one of the most interesting parts of the story. yes, beginning the day, there were a whole series of bills and resolutions introduced in the house and the senate to strip the supreme court of any jurisdiction in anything having to do with reapportionment. there were efforts to write and pass a constitutional amendment, which eventually, all these forces came together and try to work together under the leadership of the senate republican minority leader, who proposed amendments for three years in a row which essentially would have allowed legislatures to adopt a federal plan. population in one branch, other factors in another. at the end of the day, that was the issue that i think people had the most difficult time coming to terms with.
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alabama had not reapportioned in 60 years, people thought, fine, but colorado was only reapportioned two years earlier. people thought, what's wrong with that? the voters in colorado chose this system. they tried three times to get a constitutional amendment to the senate. they got 58 votes, more or less, every time, and never got the 2/3 necessary. then, they took the campaign to the states and tried to get enough state legislatures to call for a constitutional convention, which is allowed but never actually happened. susan: they came close, didn't they? i have a map. he made it to 33 states of the 34 necessary. douglas: i should add that by the time they got to 32, 33, there was a lot of dispute as to whether some of those petitions were invalid because some of the legislators had not first reapportioned. it was potentially enormous mass. -- mess. also, a constitutional
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convention, who says we can limit it to this one issue? is the entire constitutional -- constitution up for grabs now? it could have been a disastrous or, depending on your point of view, a history making event. susan: someone with downstate illinois power in chicago. douglas: absolutely, and illinois two senators, the two of them epitomized the issue of reapportionment. one was from chicago, the other downstate. they had very different interests even though they both represented the entire state. they actually let 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. most states had actually reapportioned. ted: it shows you, how time has gone by, it couldn't happen now. you would not have 30 states signing up to amend the constitution to do this. it is sort of like brown versus board of education. you can't go back.
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even as close as it is or was, or as contentious, once it happens, the public accepts it, and we go on. susan: i am going to have one more video from the chief justice talking about this case, and then we will have some of your questions as we close out. let's listen to chief justice earl warren. justice warren: i think the reapportionment, not only of state legislatures but of 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
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truly representative of the entire community, and not some special interest, that most of these problems that we are now confronted with would be solved through the political process rather than through the courts. susan: as you mentioned, shortly thereafter, voting rights legislation in the congress. there was certainly a revolution in the country about the way people were electing their representatives. let's talk a little bit with our viewers about what they want to hear about. we are going to begin with barry and alabama. you are on the air. go ahead. caller: yes, i would like the commentators to discuss justice harlan's dissent in reynolds v. sims, where he establishes conclusively that the history of the 14th amendment, that those people all were clear that the federal government would not get
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involved in the electoral processes of the state. you might be interested to know that archibald cox, who was amicus, later said that the reapportionment cases are a drastic example of reading into the generalities of the due process and equal protection clauses. fundamental policy which are not even faintly suggested by the words of the constitution, in which lacks substantial support and other conventional sources of law. so how do you get rid of the legislative history of the 14th amendment, which i believe is conclusive, and reach this decision in reynolds v. sims? douglas: a good question. harlan was the only member of
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the warren court to dissent from all of the reapportionment cases. even the alabama case, which came down 8-1. harlan was very much in the frankfurter mold in that sense. he was the person most like-minded after frankfurter left the court. and you are right, he brooded his argument in reading the history of the ratification, i think the answer is that there were eight other members of the court who saw a little bit differently and thought that was not the stumbling block that harlan did. susan: this is an ap government teacher who wants you to answer this question for his students. is the baker v. carr case a n example of judicial restraint or judicial activism? ted: people use those terms if to identify the cases they like or don't like. if you like -- if you don't like the outcome, it is judicial
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activism, if you do, it is restraint. the point, what does the 14th amendment mean? the supreme court, in various different times have construed the 14th amendment according to what they perceive its principles to be as opposed to its exclusive legislative history, which had to do with slavery. the 14th amendment now stands for proposition, including all kinds of different rights. 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 is not the way the court has determined to construe the 14th amendment. susan cole and larry in inglewood, colorado. larry in inglewood, colorado. caller: thank you for another important episode. i wonder if the timing and the nature of tonight's case and others related to it, if it really isn't kind of representing the cleaning up of
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the failed post-civil war reconstruction business. i'm wondering how much time was wasted between then and these cases that occurred. thank you. that is a great question. i think certainly we continue to grapple with these issues today. the court is constantly listening to voting rights cases. certainly, it is a never-ending process, one we have to continue to keep working at to figure out how to make our democracy real. ted: it is not just our democracy, but the principles of the declaration of independence, the gettysburg address, the 14th amendment, the concept of equality. we have never been a very perfect country with respect to living up to those ideals, and i think a lot of it is that the justices are struggling in the context of today, or yesterday's today, of what that really means to our citizens.
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it comes up 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. justices, i think there is anything consistent, you see a thread of the court attempting to live up to the ideals of america not just in a particular statute or constitutional provision. susan: here's a question from courtney on twitter. it states one person, one vote in states, why does the electoral college still apply for presidents? ted: because it is written into the constitution. when you are talking about the unit system in georgia, in a sense, that is what the electoral college system does. now, the states can divide up their electoral college votes. it does not have to be winner-take-all, but the
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electoral college is going to stay in the constitution. you might think about what a close election would be like if we had to recount the entire nation as opposed to a single state, which is what the electoral college allows you to get away with. susan: jack is in wilmington, north carolina. caller: hi. i would like to hear some commentary on the practical problem we have run into wherein state legislatures, when redistricting, are slicing and dicing counties. in terms of political efficacy, virtually everybody knows what state they live in and what county they live in. after that, it all becomes a blur. we are changing the lines every 10 years, we are having elections changing the people in office, and the average person doesn't have any idea what state senate district they are in. douglas: i think you are absolutely right, and this goes back to the comment ted made
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earlier, you are either stacking voters in one district to get a result or stacking them in different districts. the court said you can't do that for racial reasons, but as of now, you could do that for political reasons. until the court changes its mind, we will continue to battle with that. susan: from twitter, could baker also have been decided aced on the guaranty clause? ted: the arguments at the time, whether or not the guarantee, article four, section four of the constitution guarantees a republic form of government. the arguments then, if that is the provision, it ought to be to be the basis for the subsequent decisions. that carries its own complications. i think most people then and most people now would agree that if we are going to have this outcome, you've got to sort of
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use the 14th amendment rather than the guaranty clause. susan: robert in springfield, new jersey. caller: i do agree with the ruling in baker v. carr, but to the earlier speaker question about reynolds v. sims, i wonder how do our guests view the fact that section ii of the 14th amendment is a part of the same amendment as the equal protection clause, and it says that a state's congressional delegation set -- shelby proportionately to the 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 right to representation. what are your views? douglas: what you referred to was intended to make sure that the states did in fact in
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enfranchise african-americans. jim crow disenfranchised many of those same folks. i think at its root, that clause is still trying to guarantee the rights of all americans to vote. i guess i'm not quite sure i see the real conflict with that and the heart and soul of baker and reynolds and the desire to make sure everyone's vote counts equally. ted: i don't see the inconsistency. susan: randy in pennsylvania, our last caller. we lost randy. as we close out, we talk about how this has been an evolution in our country over the time this case was first decided. what context do you want to put this in as we close? what is the important thing to take away from this first of the several cases the warren court
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heard? douglas: i think, going back to the question you asked that the opening, why is baker involved carr a landmark case, why does earl warren considered to be the most vital of the cases he decided at the time? i think at its heart, what warren is getting at, is that this case is about whether or not we're going to continue to live with a system of minority rule. that's not something we think about. we think about majority rules, minorities have rights. but really, what had developed was essentially a system of minority rule in most states. i think what baker v. carr did was to correct that. it doesn't mean the system was perfect as a result, but certainly we made enormous strides toward the realization of real democracy. susan: what would you say just ice warren's legacy was in this area? ted: it wasn't for chief justice warren, i don't think he would have ever had this outcome. it is interesting that the present supreme court consists of eight former federal appeals
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court judges and the dean of the harvard law school. that court, i don't think, if there were any federal appeals court judges on it, there might have been one. but earl warren was a former governor. douglas had been the chairman of the securities and exchange commission. black had been a former senator. there were a lot of politics in the background of the justices in those days. i wonder, if you had the same composition of the court then that you have today, whether the outcome might have been different. world war and placed a huge warren placed a huge stamp, and i think part of it was because he was a politician. earl warren was one of three chief justices that had run for president, by the way. susan: we had just two more cases left in our 12 part series. we have the miranda case, another early warren decision, and a part of the overhaul of the criminal justice system. our final one is is roe v. wade
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in two weeks. if you have missed any of our cases, we do have a book available that is a companion guide to the series, just $8.95, available on our website. written by a veteran supreme court reporter. it has summaries of each of the cases, some highlights of the decision, and what the impact or legacy of what each case has been. that is easily available to you as a way to catch up. and then all these cases are posted on our website. as we close out, i really want to say thank you for doug smith for giving a background to this case, and ted for your legal expectations -- your legal expertise. i really appreciate that extra color. ask for your time tonight. -- thanks for your time tonight. ♪
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[captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] announcer: we will have more landmark cases tomorrow night, when we look at miranda versus arizona, which gave rise to the police practice of informing criminal suspects of their
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constitutional rights. that is at 10 a quarter p.m. eastern on c-span. and catch up on any landmark cases you have missed by watching them online at landmark cases. the book tells the story. manuscript isthis not what we thought, while also trying to chronologically think about what madison was encountering at the time. keeping those two narratives straight was quite tricky for a while. announcer: sunday night on "q&a," mary sarah builder "madison'ser book hand," which takes a critical look at thnotes james madison and before the constitutional convention of 1787. >>


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