Landmark cases. Cspans special history series produced in cooperation with the National Constitution center. Exploring the human stories and constitutional dram as behind 12 Historic Supreme Court decisions. As behind 12 Historic Supreme Court decisions. Number 759, earnest miranda Petitioner Versus arizona. We hear arguments from number 18, roe against wade. Quite often in many of our most famous decisions are ones that the court took that were quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 Million People who helped stick together because they believe in a rule of law. Good evening and welcome to cspans history series landmark cases. Tonight is number 10 in our 12part series and you will hear about the 1962 tennessee reapportionment case and it was one that earl warren called the most important of his tenure and remember this is the court that wrote brown versus the board of education and well learn why during the next 90 minutes. This began a reapportionment revolution that changed the way seats are allocated on state legislatures and the congress and thats all about power. Well learn more from our two guests and let me introduce them to you. Theodore olson has argued 60 cases plus before the Supreme Court including the 2000 bush v. Gore. Thank you for being with us. Douglas smith is a Nonfiction Author and executive director of the Service Academy and wrote the inside story of how the Supreme Court brought one person and one vote to the United States. Thanks for being here. Thank you 37. Well begin by listening to chief Justice Earl Warren in his own words talking about his importance to the country and the court. This court held that the question of whether a person had equal protection of the laws was a judicial question and we had the right to decide it and we held that the legislatures must give equal representation to everyone and 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 weve had since ive 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 of 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 urban communities and as population grew in the cities the urban communities gave 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 and governing what happened in sacramento as opposed to the people in los angeles or San Francisco having an equivalent vote. They didnt then, and so this changed all of that our country would be so different today. Chief justice made reference to the phrase one man, one vote and it is often 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 reapportionments. 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 the courts the federal court his jurisdiction to hear these disputes as ted points out with the demographic change in the 20th century, was there extensive change and so you had the example of california and 6 Million People in los angeles had the same as 14,000 people in the rural part and it was quite dramatic. It seems obvious, but would you have put this on the landmark case list if you were drawing it up . Absolutely. Theres nothing in the constitution that says that state legislatures have to be apportioned according to population. In fact, the United States 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, 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 actually hear the case because prior to that the court had rendered decisions and suggested its none of our business. We cant find in the constitution, a principle that were going to apply here. Where is it . 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 and it wasnt by any means selfevident. Although people were starting to agitate for a proportion of representation in the state legislatures. It wasnt by any means clear that this would be the outcome of that case. To echo, that i think the situation becomes so severe by the 1940s and 50s that organizations like the league of women voters was all over the issue and states like minnesota and tennessee where baker comes from. The league is doing all sorts of work at the local level and it goes before the Legislature Time and time again to say you have on do Something Like this, in cities like nashville, and, and they were quite deserved to find in a way that it became a serious problem. If you dont mind my saying so that the minorities were concentrated in our urban areas. They werent the farmers. So to the extent that africanamerican voters or immigrants and people, 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 of the people in less populated communities were mostly white were having more and more power. It was becoming more and more n untenable, it seems to me. Once the Supreme Court was hearing case bez reapportionment and they heard many more in the decades since. Today we have a live camera at the Supreme Court. Tomorrow the court is scheduled to hear another apportionment case. This is well versus abbott. Its a texas case that could further determine one person, one vote. It is interesting. What is one person . What do you count, and the cause or the congressional district. Are you counting actual number of people . Are you including infants . Are you including Illegal Immigrants . 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 and we can divide up and meet the constitutional requirements by counting people of voting age population as opposed to all people and that makes a big difference because some people dont vote. People that are immigrants dont vote. People that are children dont vote. Some counties in texas or some districts in texas have a larger percentage of people who are signed up to vote or voting age and in other areas so there could be a disproportionate account and 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 . Just to make clear, the key issue tomorrow is that the plaintiffs or the petitioners from texas are asking the court to require that state apportion based on the number of voters and wanot allowing it to be an option and precedent. That would be quite staggering. No cameras in the Supreme Court. I always have to make that pitch, mr. Olson. There is audio recordings and at this point in our history series weve begun to work them in and youll hear the arguments and the justices in their own words and tomorrows case, we will have the audio available on friday when the court releasees it. It wasnt until relatively recently that the audio became available immediately after the argument. I think thats what it is probably tomorrow. Its not contemporaneously. Its immediately after the argument well keep pushing it. I think the bush versus gore cases and they were the first times that the actual audio became available the instant that the argument was over and that was only 15 years ago. We along with other people in the media petitioned chief Justice Rehnquist to open the case up. We dont want to get too much ahead of ourselves because lets set the stage in a little more detail about the baker versus car case. We talked about the rise of urban populations after world war ii and the fact that there was growing tension. Heres the separation of powers question. 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 doesnt often happen in congress. So how could society or the courts expect state legislatures to address this . Well, theyre exactly right. Thats the problem youre asking legislators to give up their own seats to somebody else, and state courts would consistently hear cases and say no. Yes, there is a problem, but no, we cant do anything about it and only the legislature can fix itself, basically and that was essentially the way things worked especially after 1946 with the case of core versus green said the courts cannot be involved and that kept the federal courts out of reapportioned politics out of the 1960s and they wouldnt go near it. In tennessee the legislative districts would not be withdrawn since 1901. And this is 1962. The Tennessee State constitution said very clearly you have to reapportion every years. One of the questions is what are federal courts telling the state of tennessee, you have to do something about enforcing your own constitutional provisions, federal courts dont 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 courts . Well, to make the point as weve been learning throughout the series, its a gradual application of the 14th amendment to the areas in the states and this is another case where that began to happen, correct . Well, not so much the 14th amendment that tennessee, correct me if im wrong. 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 a vote in one persons vote was equal or not equal to another persons vote. I dont want to get too far ahead of the story, but that was the state of tennessees defense in this case was, yes, malapportionment is bad, but its no ones business, but tennessee to fix it . Well hear our first bit of audio just so you can get the flavor of the arguments in the Supreme Court and these are two attorneys arguing the case. One is bakers attorney, charles rhine, and you will hear from the state of tennessee, jack wilson. Lets listen to a little of their arguments in this case. I say theres nothing in the constitution of the United States of america that ordains and nothing in the constitution of tennessee that ordains that State Government is and must remain an Agricultural Commodity and nothing in either one of those constitutions that says it takes 20 City Residents to equal one farmer. Is it worse for the legislature of tennessee not to reapportion or is it worse for the Federal District courts to violate the ageold doctrine of separation of powers . So there you hear the arguments. The court 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 twothirds geographically of this 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 . Thats an interesting question. So the case was originally filed in 1959. By the time it was to the Supreme Court and it bolsters where is speaking before the Supreme Court especially in the second argument which i know well get to in a minute. They used an enormous amount of data from the sense crecensus at wasnt until later in the process when the city of nashville came in and provided Financial Resources that the attorneys were able to actually employ a lot of that data. In the early stages, they didnt do a lot. There were basic maps that show showed certain counties that d 2,000 and in a different 20,000. If youve been watching, you know it one of the things we like most about this program is your participation, and there is several ways. You can call us, the 2024888900 and 202 751 in you live in the monopoly or pacific time convenience. If you tweet, use the hash tag landma landmarkcases. We have a conversation on our facebook page, go to facebook, cspans area and youll see the conversation underway. Well mix Facebook Comments in, as well. Youre welcome to get your phone calls in and well work them in with our two special guests. This has been a story about a people story as much as a legal story. In this case, baker and carr are somewhat lost to history. Theyre really not the main cases. What were going to hear about and this is really the drama at the Supreme Court itself. You tell us there were two justices whose health was imperilled they were so concerned about this. Well learn about baker and carr and learn about the makeup of the Supreme Court and why it became so important. Whos baker, whos carr . This is one of those cases where neitherer baker nor carr had much to do with this case in the sense they were not active. Groups in tennessee like the league of women voters were actively involved, members of the republican party, the chairman of the republican party, other officials were named, there were 12 or 13 plaintiffs. Becamers name came first alphabetically. Baker had a local appointment, he was a local officeholder in the memphis area. He had nothing to do with the case other than he agreed to be signed up as one of the plaintiffs. And he really didnt go down in the history books. When we were trying to do research, it was hard to find. You probably had the same writing the book about it. I never actually even spent much time trying to look for him because it was clear early on that he had little to do with it. Carr was the secretary of state of tennessee. In that capacity was the head of the whole election machinery. He was sued in that capacity but didnt have anything to do with a nominal defendant. Exactly. They were going to bring the case against the state. Had to have somebody to sue. Exactly. Explain the process, mr. Olson, we heard the u. S. District court in tennessee had dismissed the case on two grounds in 1959. The court lacked jurisdiction, what were talking about because it was a political question, and the complaint failed to state a claim on which relief could be granted. How did with that finding, how does the case make it to the Supreme Court . This was an appeal, if i remember correctly. From the threejudge district court. 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 the court cannot take the case and in many cases does not take a case thats 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 there were less discretion with respect to whether or not to take a case. And so it was an appeal within the courts jurisdiction. 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 weve got nothing to say about stuff like that. So doug smith, also between 1959 and 1961, there was a president ial election and change in power with president kennedy coming into office. Was the Kennedy Administration interested in this case . They were very much so. And as a candidate, even as early as 1959, john kennedy had spoken about urban underrepresentation, one of his Staff Members offered a piece in the New York Times called the shame of the states which talked about how much cities were being shortchanged. The Kennedy Administration was deeply interested in this, but its i think crucial with baker to recognize that the outgoing Eisenhower Administration was just as interested in it. In fact, when the case comes to the Supreme Court, its filed i think in may of 1960. Knowing what we know now that the court decided to hold it until they made a decision in gamillion versus lightfoot. In november of 1960, a week later they said there was jurisdiction with carr. Before the Eisenhower Administration left, the solicitor general at the time decided to join the case as amecus. That was not binding on the Kennedy Administration, but they were happy to do so. I thought this was an important point with the case and one that later had a big impact on Potter Stewart who is the swing vote. When he found out that the Eisenhower Administration had been ready to support this, as well, that made a difference to him. We have four cases in our 12part series. One of the things weve learned is the factions and how important they are to the outcome. Particularly we wanted to talk about the relationship between earl warren and brennan who writes the opinion, we have a reflection on that from a gentleman who served as one of Justice Brennans clerks. He himself became a federal judge, abraham sofair. Well listen to him 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 to issues. They both had a sense of the courts 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 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 about a given thing, it never got bitter, it never got angry in any 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 passionately argued case in the conference stage. How did that relationship between the chief and Justice Brennan play out in the ultimate outcome . I think it was actually crucial. You see it both in the baker decision where as youve mentioned a minute ago warren assigns the indicates to brennan. And also looking ahead a couple of years to the rest of the reapportionment cases when earl warren is simultaneously chairing the Warren Commission on president kennedys asas nation, he leans heavily on bill brennan in those years. To circle back to baker, there was deep divisions, none more so than between William Odouglas and Felix Frankfurter, both appointed within months of each other. In 1939 they had been on the court for more than 20 years. They were ideological opposites in terms of their judicial philosophies. I that were both very difficult character personally. The stories are sounds like neither one was particularly nice to spend time with. I think after 20 years of butting head its really came to a head in the deliberations over baker v. Carr. And Felix Frankfurter, this is his last dissent. He argues passionately. Well 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 he was very much a liberal. Hed been involved in the naacp. Hed been involved in aclu. He was a professor at harvard, one of the most distinguished academics and legal thinkers in the United States. But he was a a passionate believer in judicial restraint on the role of judges. And dharn if judges pushed the envelope too far that would be bad for the court and bad for the judiciary and inconsistent with the constitution. Its interesting going back for a moment warrenbrennan thing, earl warren was appointed by president eisenhower. Brennan, 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, in these line of cases, to be quite conservative. He was very, very passionate about the issue. And i suppose well talk about that a little bit more. That was among the debates. The first time the court heard the case, i think it was argued in april. Right. The court i think your viewers probably know this, that the court starts hearing arguments on the first monday in october. And hearings arguments every month october through april and usually finishes its arguments in april, and then renders its decisions by the end of june. If you have a very hard case like this thats argued at the end of the term, its sometimes produces bad law because they dont have very much time to decide the case. In this case, maybe well get into why, but they decided, well, were not going to decide it in that term. Were going to put it over here, hear arguments again, and decide next term when we have more time. Time for questions from our viewers. Were going to begin with jim who is in caliente, california. Youre on the air. Caller thank you very much. And mr. Olson, you mentioned sparsely parts of california sparsely populated parts of california, thats where i live. About 1,500 people and almost 400 square miles. And my question is in the subsequent years since weve had the rural areas being essentially becoming really marginal, the cities were certainly overtaxed and underpaid in the earlier times. I think rural areas today may be getting sort of the same treatment the other way around. And im wondering as i say if there have been studies or indianas looked into this over the years. Thank you very much. Doug might have a better answer than me. But thats an important point and important question. It isnt selfevident from the constitution that states cant decide that Rural Communities where there might be agriculture or there might be issues involving especially in california 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, its not evident and it hasnt been evident to some of the justices in this whole issue that it has to be exclusively on the basis of population. And why shouldnt a state be able to decide im asking this rhetorically why shouldnt a state be able to decide, well, yes, we want to give great weight to the people in the cities, but we also want to give great weight to the people like in an agricultural state that produced the revenue, that provides the income for the the livelihood for the state, why cant we balance that out . And so your questioner raises that very, very good point. And it has now become very much dominated by the urban areas. Thats where the power is. And i will just add two things. One of the ironies is as governor earl warren actually took the position almost just that you articulated, that california had the system that did balance the representation between the senate and the house. He thought it worked well for the reasons that ted outlined. Its also interesting that again, not to get too ahead of the story, but because of demographic change, by the time the decisions in baker and subsequent cases have come down, its suburban voters that end up gaining the most from the representation as opposed toish not voters. People were moving out of the cities. Yeah. Alan is in brooklyn. Hi,alan, youre on. Caller im hearing about geography instead of population. And i have a question about whether we have to reexamine 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. Many of the most populace states in the United States have a larger minority population than many of the list populace states. When we examine the fact the Voting Rights act was passed in 1965, three years after bakerer have baker vs. Carr fl, if t were examined after the Voting Rights act. The representation by minority status was before us. I think that the dilution of minority voting in the country is as much of a scandal as police abuse of power and overincarceration. And i think to examine whether we can continue to call ourselves a democracy when wyoming has a few white people with far american voting power than any of the black people in chicago or new york city. It major issue is the composition of the u. S. Senate. Of course, that is written specifically into the constitution. Unlike the issues that the court settles on. It was clear, even when opponents of a reapportionment would say, well, the next thing you know the Supreme Courts going to tell us we have to reapportion the u. S. Senate. That was never an issue because it is specifically written into the u. S. Constitution. Thats the compromise. That would require a Constitutional Convention or constitutional amendment. People might say that, well, we dont call ourselves a democracy. We call ourselves a republic. And that version in the constitution is there. The other thing about the senate and its really exacerbated by the filibuster rules because the more you give power to a small number of people in the senate, you are taking power away from the larger numbers of people. And so its not just the way the senate is constructed, but the senates rules that give power to a minority of members of the senate. So that really exacerbates or magnifies the point that your caller put his finger on. Next up is jesus in st. Louis. Youre on. Caller good evening. Thank you for taking my question. Its quite an honor to have mr. Olson on the line now. He was someone of my inspirations to go to law school and pursue a career in applet investigation. My question regards harris v. Arizona commission on equal protection grounds. What effect will that litigation have on the one personone vote principle . Thank you very much. Why dont you take this. Youve spent in time well, i have to confess that there was another case out of arizona last year that i was familiarizing myself the redistricting right. This one i have not actually ive been focused on evanwal versus abbott, the texas case that i havent looked closely. I dont know the answer. The one last year i knew more about that, too. A wrote a brief in that case. It was a very interesting case. The state of arizona and californias done this, too, is to take the redistricting in order to deal with the political gerrymandering, issue out of the legislature and put it in independent commission that will 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 that the constitution is written. I have been focusing on the earlier case, too. I havent spent too much time on this. This is something that is not just its these kind of cases, the redistricting commissiontype 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 redistricting and voting are so inextricably linked, there are cases coming back again and again to the courts. These questions from your viewers have been very, very, very good questions. Josh is up next. Ill go to iowa. Hi, josh. Caller thanks for taking my call. Justice fraunkfurter said they should seek relief in the system not the courts. If we had relied on judicial restraint like justice frankfurter wanted us to, would we have ever gotten reapportionment, the quote unquote one person, one vote . And judicial restraint we would have never had brown vs. The board of education. Well, i think the second point first. I think that is a trickier one for folks who truly believe in judicial restraints. I think your first part of your question is a great one. I dont know i dont want to i think were going to talk about the deliberations within the court. Especially tom clark, one of the members of the court, he in particular had a change of mind in the middle of this case, precisely along the point that you were just discussing. Okay one of the questions during i guess maybe im getting ahead of it, too, was what would what resort does anybody have in tennessee, and they believed it and talked about it. And the answer was that, well, you can petition the legislature, theyre not going to do anything. Going to take one more call, then the first of two of oral arguments. Lets hear from chip in st. Paul. Caller yeah. Thank you so much for taking my call. I grew up in east tennessee. I never heard about there case. That was a bit of a surprise to me that it was tennessee involved. And the one question i had is how could the court im curious how they could compel the legislature to reapportion . I think they could say, tennessee legislature, you should reapportion and the legislature could say we appreciate the advice and no. A great question. That was at the heart of frankfurters rationale for his position was that we cant compel them to do this. It comes up later. You thought the reaction from brown vs. Board was bad in the south, wait until you tell the legislatures do this. What ended up is they leave it to the District Courts to enforce enforce reapportionment when the legislature doesnt voluntarily do it. It actually it worked. The state courts, im sorry, the federal courts, Federal District courts made it happen. And it actually once we get through the decisions, it actually happens fairly easily. So here are the questions before the court in baker vs. Carr. There are two. First, its a jurisdictional one. Can federal courts hear a constitutional challenge to legislative apportionment . And the second what is the test for resolving whether a case presents a political question . The first oral argument was heard over april 19th and 20th, 1961. Thats indicates the importance of this, two days of oral argument. And the first oral argument was done by Charles Bakers attorneys, tennessees attorneys responded on the second day. Now were going to hear some audio again from the oral argument. But the the attorneys for Charles Baker and tennessee voters, Charles Rhyne, and zt osborne, Charles Rhyne is an interesting character. Had quite a life. Can you tell us about him . Sure, Charles Rhyne, at the time he lived in washington, d. C. , had been a former head of the American Bar Association. He was he had built a pretty lucrative Supreme Court appellate practice. He was brought on to the case for the Supreme Court argument. He was not from tennessee. He was not part of the original team. Tom osborne, who you mentioned, along with Walter Chandler and Hobart Adkins from memphis, national, and chattanooga knoxville, sorry, were the three tennessee lawyers who brought the case filed. There was quite a bit of sort of behindthescenes drama when Charles Rhyne was brought on. Some of the local attorneys were not happy about that. Rhyne had a reputation, connections with the Eisenhower Administration. He was seen as a good move to bring him big Supreme Court lawyer on this for case. Ive got a few other points because i found this interesting. He went on later to be the head of the American Bar Association and helped integrate the aba by changing its constitution to eliminate the word white from it. And also during the nixon watergate years, he served as rosemary woods attorney for the notorious 18 minutes of missing interview. He died at age 81 in washington, d. C. Weve heard from jark wilson, the other was james gloss gouw. What should we know . They were part of a large attorney general staff who took the case, represented the state in the case. As we heard earlier, their argument was pretty straightforward and yes, mall apportionment is pretty bad in tennessee, but theres nothing the federal courts can do about it. Lets listen to a little bit from the first oral argument. The real question here is whether or not youre going to have two classes of citizenship in tennessee, half slave and half free or at least onethird free and twothirds slave because there is no way that you can get out of this illegal straightjacket without some federal assistance. Now lets get down to bedrock on this thing. If there is discrimination under the 14th amendment, will it bear examination . Well, going to have discrimination, youre going to have to treat one class from another class i take it. Now, its recognized and sound law that, of course, there may be reasonable classification under state law. Is there discrimination between classes where there is unequal representation . In a state legislature . And this case may turn on it. This case may turn on that very point. We say not. We say that there cant be discrimination in the usual sense. A few of the points made by the competing attorneys in baker vs. Carr. And the first oral argument in april, 1961. We have a number of people who have been tweeting in about the role of Archibald Cox who was the u. S. Solicitor general. Here is David Vincent greco, Archibald Cox insists that scotus must be dismissed. What was Archibald Coxs role in this . As solicitor general, as mr. Olson was know a lot more than i do, he represented the position of the United States before the court. Whats interesting is we heard a clip from Charles Rhyne, the lawyer hired by the tennessee plaintiffs. And his argument actually was heavily criticized. Rhyne essentially argued that tennessee violated its own state constitution, and therefore, the federal government needs to step in, step in to help. And even an assistant to the solicitor general, one of coxs assistants who started in the Eisenhower Administration, wrote a memo criticizing this argument saying that theres no foundation for this argument. And urged Archibald Cox and the United States to take a different position which was to basically say there is some line across which one cannot across which one cannot step without violating the equal protection clause. We dont know what the line is, the standard, but theres some level of description clearly so out of line that it would have to violate the 14th amendment. Thats essentially the argument that cox made before the Supreme Court. He didnt ask them to try to david that line but simply to say theres clear discrimination here. Its it lacks rational basis, its theres no other alternative but for the courts to least hear the case. Theres a couple of points about that. First place, it was a case between people representing tennesseeans and against the state of tennessee. So 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. And 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 id make is that were weve been talking about the 114th amendment without emphasizing the point that what the 14th amendment provides is that citizens shall not be denied equal protection of the laws. And so the argument here ultimately was treating peoples votes differently depending upon where they lived was a violation of equal protection of the laws. But the third point was that to dougs point that Archibald Cox was making an incremental step. I think that he felt 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. If you took it incrementally, and that was what the assistants that doug was talking about, the assistants of the solicitor general was saying take it one step at a time. Lets argue that the court can at least consider the courts can at least consider the issue and then they can then decide and then well decide in a later case what the first what the 14 tth amendment principle is. The first was can the federal courts entertain this issue. And i think there was a genius involved in that. And that was it got the votes necessary without pushing it too far. And when you add our view 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. So the next stage in the process is you have learned or you know as a lawyer is that it goes to conference. And the rumor the justices meets is a cloistered one. No staff are allowed in that room while the justices are debating the cases. Going to show you what that room looks like. Cspan is one of the few organizations that have ever been allowed to have their cameras inside that room. It looks very much like it did back in 1962 when the warren court was debating baker vs. Carr. As were looking at it, tell us what happened after the first oral argument. So the friday after the argument is over, they go into conference. And the initial sort of the justices discuss the cases in order of seniority at the time. The chief justice went first, to the most junior under the berger court doesnt the justice go last . Flow, he still goes first. All right. There werent any real surprises for the first seven basically. Chief Justice Warren, Justice Brennan, justice hugo black and william o. Douglas side with the tennessee plaintiffs. Black and douglas i should point out had descended vigorously from the 40s. They believed as far back as 1946 that there was a 14th amendment issue here to consider. Brennan joined them and suggested that the federal court should get involved. Frankfurt passionately ly dissented. And the former attorney general of the United States had come from stekts. There wasnt a great surprise. 43 when we get to the last two members where the drama begins. The next in line would have been Charles Whitaker who had been appointed in 1957 by president eisenhower. And unlike most of his peers who had been United States senators, governors, and pretty highprofile people, whitaker had been a prominent prominent in kansas city, but it was a regional attorney. He had been put on the district court, then the Appeals Courts and Supreme Court rapidly. He was someone who from the beginning really struggled to keep up with the pace and had selfdoubt about his own ability to contribute. And whitaker was really torn. Whitaker had during the argument expressed, asked questions which suggested that he had a great deal of sympathy for the petitioners and given hope to the folks filing the case. And as he expressed this in conference, he suggested that he thought that this really was this was there was so much discrimination here that the court should step in. He said this is such a big case, i dont want to be the fifth vote. Im not sure that i can do that. This apparently set Felix Frankfurter off. And according to justice black who told clerks that frankfurter spent four hours berating whitaker. In conference brennan said it was 90 minutes even so. Can you imagine 90 minutes youre viewers see theres copies of the Supreme Court reports on the back apparently frankfurter was pulling off volumes and reading, lecturing whitaker, belittling him. Whitaker ultimately decided, you know tentatively cast his vote and that left Potter Stewart, another eisenhower appointee. And stewart was on the fence. He had serious doubts that even if they as the Court Allowed the District Courts to hear cases, he didnt think on the merits that the petitioners could win. He recognized that there was a problem. He wasnt willing to make up his mind. They waited another week, went into conference. High said i dont know what to do, can we reargue it in the fall. Thats why the case of reargued in october because there was a 44 split and stewart asked for it to be put over to the next term. Might be worth mentioning that they do not have that kind of conferences anymore. Theres no threehour haranguing that goes on. Theyre relatively short. They do the votes, they explain what the decision are to colleagues. 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 back to you by the door. If anybody has a message or wants a book or some the from the outside, the junior justice has to answer the knock on the door. But they dont have these long harangues anymore. You saw extensive notes. They were the justices were keeping notes about whats going on. They gave you a chance to tell the story about whats happening. Every justice decides, a, every justice takes whatever notes he wants, and also as we were talking about, every justice decides what to do with those. Hugo black famously had his conference notes burned upon his retirement. He felt like what went in the Conference Room was sacrosanct and should not be shared. And byron white also destroyed his notes. Others are available in various libraries around the country. Good for you. The second argument was scheduled for october 9th, 1964. And our guest, doug smith, tells the story that Felix Frankfurter to use the colloquialism was gunning to prepare for this. Well learn what happens next. I want to take a few calls. Lets hear next from ron who is in oxford, minnesota. No, sorry, oxford, new hampshire. Im sorry. Go ahead, please. Caller yeah, i had a quick question about the gerrymandered districts. I wanted to correct something that was said earlier on about the Senate Representation in congress. Thats an entrenched clause in the constitution, were going to have that forever, as long as the constitution is in effect. On jerry mantle egerrymandering principles between this case and gerrymandering cases, and just generally discuss the similarities and differences between those two issues. Sure. Theres absolute connection. In fact, at the height of this, the New York Times wrote an editorial which they rivered to the twin evils of mall apportionment and gerrymandering. Today we talk about gerrymandering because i think once in part mall apportionment is addressed gerrymanderings been around a long time but became necessary. Once you require fall populations it becomes necessary to dry funny lines. Theres a different connection. The justices in the later reapportionment cases were aware they were not tackling the issue of jerry mantgerrymandering and apportionment was by far more importance at that time. The most recent what they call now political gerrymandering cases opposed to racial, the most recent case to involve that, the justices were not able to come to a conclusion. The majority said were not going to get into that. There arent standards. Some of the same arguments as you were saying, doug. What is the standard pursuant to which we would decide that some Political Party rearranged things so that they would have the advantage and the 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 have declined to get into the thicket so to speak. Gary is in macon, georgia. Hi, gary. Caller thank you for taking my call. My call is similar to the previous caller. Baker v. Carr spawned other decisions as related to one man, one vote. Specifically, gray vs. Sanders with with the state of georgia with the county unit system. Could you speak to some of the cases that were spawned as relate to baker v. Carr specifically the elimination of county unit system in the state of georgia . We will. And if im 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 that the court took up. Thanks for asking that question. Let me get to judith in anchorage, alaska, and then oral argument number two. Judith, youre on. Caller thank you very much. My question is this i understand that the court, though, still allows significant variation in districts like up to 10 . So why would a state in a district that had been consistently overpopulated while other districts in my state have been consistently overpopulated . So over the course of the 40 years that ive lived here, you can add those together and see how pretty effective weve done, you know, deprived of a vote. Why does that allow such a huge variation . Thank you. And i dont know the specifics in alaska as it plays out now. This was certainly at the heart of the issue is how you know, how exact can you draw districts, and the court certainly made it clear that they should be as equal as possible. And i think 10 has sort of evolved to be the maximum deviation that would be allowed. Back in in the early 60s the deviations were far they were 50 , 100 , sometimes several hundred percent. 10 would have been considered small. I dont know the specifics of the case that youre situation youre talking about. One of the i think so ththin justices are concerned about and allowing play in the joints is to allow geographic integrity like a particular city or community, the political boundaries, so all the people in that area might have something in common so that it isnt it doesnt have to be exact by the number. And between census the populations change a lot in certain districts. So if you start in 1950 and get to 1960, theres going to be a change in the population of particular district just by virtue of changes in population. Okay. Let me get to oral argument number two. One of the little, small court historical things we mentioned, it was argued the second time it was argued, sets for 10 00 a. M. , the first time in the courts history that they heard an argument before noon. Thats standard for 10 00 a. M. Its now standard. Very seldom are they in the afternoon. You mentioned before the first one went 3. 5 hours over two days. Would not happen today. I mean, in the 20s and earlier the arguments would go on a lot longer. Its 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 of days. But this was very encourage. And they they start at 10 00 in the morning at least for the first argument of the day. As we said, justice Felix Frankfurter who was passion qat about this was well prepared for the second oral argument and dominated it. Correct . He was iran cloudy unexpected lee n edly not very the first. And cox jokenadic frankfurter spent the entire summer waiting for him. Cox had been a student of frank further had particular ire for the solicitor general. Frankfurter had spent the summer working on a memo which essentially becomes his dissenting opinion. He had written it before the case was heard with the the exception of a few pages that he added later on. Were going to hear two backtoback clips. The first is Felix Frankfurter, justice frankfurter, as he spars with the attorney we heard about earlier, Charles Rhyne, representing baker in the case. Lets listen. From my point of view, if you were right, my point of view if you were right, i see no difference between writing into a constitution equal representation and not driving units about the 14th amendments is concerned. Where where where this is essential. Where the state power which is ultimately lodged in the highest court of the state in securing a constitutional provision says that no legal right. Well, mr. Justice i have to think about not saying this case, going to have to think about maryland, which im told is manifolding and think about a lot of states, this is not just tennessee. I would say the main thing to think about here is Voting Rights. And disparagement and degrading and dilution of those rights all over the United States of america. I grant you that this is a rotten situation that exists in most of the states, and that its destroying the integrity of State Government. But the only way to restore that integrity is to carry out Voting Rights, and that is the very point that were making here. A bit of the argument. And the second hearing of this case in october of 1961. Were going to move to justice William Brennan as he has an exchange with tennessees assistant attorney general jack wilson. As my based on having a 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 and your lower house of two, and squachi, 600 larger,. 63. In other words, moore apparently has about three times the representation as sqachi, although its the smaller of the two counties. Maybe. How could that be justified . If theyre both Rural Counties, what would be the factors which perhaps you might justify a disparity rural city, but how do you do it among counties the Supreme Court, we have a plea of sovereign immunity here no, no. This is on the same premise that the same premise that mr. Justice black, this is a question may it please the court, even so, the appelees are not authorized to speak to the state of tennessee or to explain or justify why the legislature has not done this. What are you hearing there, mr. Olson . Well, its a lot like what happens today. And 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 and arguments from the 50s and the 60s, theres long periods of time when the advocate is allowed to just make their arguments. When i was listening, i was thinking there is very much like it is today when eight of the justices at least almost always participate in an argument, and they can be very aggressive. They did k interrupt one another. They can certainly interrupt the advocate. Ive been asked 50 interrupted 50 to 60 times in the course of 30 minutes. And the justices are they dont do it so much in conference, with they do it in oral argument. Theyre arguing with their colleagues. Theyre trying to make their points using the lawyer as a foil. And so this was tough going. You saw also that Justice Brennan, although he was very persistent, had a much softer tone. He was quite a gentleman. Justice frankfurter was a very aggressive guy. So you saw i thought it was very interesting to watch or listen to that. When i hear a couple of things. An interesting note, in the 3. 5hour argument, douglas asked one question. At the beginning and was specifically to needle frankfurter about the case. Here the two clips i think highlight quite well two things that are quite important. The first, frankfurters taking apart ryans case, the one that even the assistant to the solicitor squlernl identified as general had identified as the weakness of the case. So what if tennessees situation is bad, the federal government doesnt have the right to step in. Brennan by contrast is identifying an issue that really gets to the heart of where tom clark ultimately comes down on the case. What brennan is saying, its not just a matter of giving rural areas more representation, but within the rural areas theres no rhyme or reason. What tom clark later refers to as a crazy quilt. Saying one rural district has this many, this district has this many despite having less population. So how many hours of oral arguments the second time. Another three hours. It was when we get to the state reapportionment cases, were gone to have time to the court spent close to 30 hours on reapportion investment a twoyear period. And this case, hundreds of pages of the briefs that were filed, as well. Yes. On to conference. The vote is taken. This one comes out finally at 62. Tell us the story. Only eight now. You have to tell us why there are only eight votes it starts out the conference initially was actually i think a lot less dramatic than the previous conference because most people had made up their mind. Potter stewart tentatively comes down on the side of brennan, black, douglas, and warren. He again, he still doesnt think that actually theyll on the trial on the merits will go anywhere, but he thinks that there the courts should have the the lower court should hear the cases. Its tentatively 54. With that in minds, warren has to decide who to write the opinion. For that reason, he doesnt pick douglas because douglas he knows has been arguing for equal population since the 40s. Considers black and brennan and actually consults with both douglas and black. They decide that brennan would be the right choice. As you pointed out brennans tone, much more gentle, moderate. They know that stewarts vote is ten use. They have to hold on to him. Brennan writes a very, very narrow opinion in which, as weve said, only gets to the issue of jurisdiction and whether or not we havent said it yet, but when the vote is takes place, if the chief justice is in the majority, he assigns 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 seniormost justices does the assignment. Theres politics, really was here. Justice brennan was one of the younger members of the court. Least experienced members of the court. And but part of that was as doug was saying, chief Justice Warren wanted the opinion to be written carefully, very narrowly so that he could hold the majority. Okay. Now the only 30 minutes mark. Were going to have to move through a lot of big things here. Sure. Why were there only eight votes . There are only eight votes because Charles Whitaker, what had a lot of difficulty the first time around, continued to have difficulty with the case. He said a defense he had written two diametrically opposed opinions, arguing both sides. Ultimately decided to vote with frankfurter. The case was 54. Douglas was easier to get the decision done in february. But the chief justice and brennan and clark went off to a conference for ten days. While they were away, frankfurter asked tom clark to write a dissenting opinion on remedies available to tennessee. Comclark, after he gets back from the judicial conference, sits down to write that. In one of the most amazing documents in the trove is clarks very polite letter to Felix Frankfurter saying i sat down to write the dissent but come to the conclusion that there is no alternative for the petitioners in tennessee. Theyve tried everything, and the federal courts offer the only possibility. Therefore, i regret to ask you to permit me to withdraw from your dissent. Clark switches votes. Bhi whitaker, meanwhile, we know suffered from severe anxiety and depression. And was having a really difficult time. We shouldnt we should say that baker, you know, drove him to a breakdown, but clearly it was a major factor. And after joining frankfurters opinion on march 6th, he ended up checking himself into walter reed hospital. And ten days later, it became clear that he was really quite severely disabled. The chief justice arranged for him to retire with full benefits. So he in the last days of the decisionmaking process leading up to baker was no longer part of the court. His name was removed from the dissenting opinions. Clark switched to make it six, wri whitaker dropped off, it was a 62 decision. His son that went to visit him thought his father was suicidal from the stress and the depression. So the court made a 62 decision. And here are some of the words from this. Here is Justice Brennans it does not contain a political question. The denial of equal protection presents a justiceable, constitutional cause of action, the key words, upon which appellants are entitled to a trial and a decision. The right is asserted the right asserted is within the reach of judicial protection under the 14th amendment. And let me also read to you from justice frankfurters dissents, which you said he had been working on for months. The Courts Authority possess of neither the purse near the sword. Ultimately rests on sustained Public Confidence in its moral sanction. Such feeling must be nourished by the courts complete detachment in fact and appearance from political entanglements and by abstention from injecting itself into the clash of Political Forces and political settlements. Were going to go to the library of congress, and well hear some of the notes from that conference. It will tell us more about justice frankfurters view of the case. Lets watch. Justice Felix Frankfurter had a general belief in judicial restraint which meant that he didnt believe the courts should be intervening in political questions. Something like political reapportionment would be saved for congress or the state legislature and not the judiciary. Well be looking at papers from the Supreme Court justice collections related to Felix Frankfurters thoughts on the baker v. Carr case. Well start with conference notes written by william o. Douglas, documenting one of the first conference meetings the justice had after the first argument. The first two opinions you can see are chief Justice Warren and hugo black, in favor of reapportionment, and the third is Felix Frankfurter, dissenting from their opinions. 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 a gerrymandering. The subject matter is not proper for judicial inquiry. Our second document is from february, 1962, a year roughly a year after the court conference. What you have is an example of frankfurter crystallizing and refining his thoughts. Coming up with a dissent we have an exserpgs inserted into the dissent from the william j. Brennan papers, though it is frankfurters thoughts. And you can see here, he says in effect, todays 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 put on the federal courts or on this court if state decisions do not satisfy this courts 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 really made to decide or to intervene on. And that this was congress responsibility, not the courts. And doug smith, you tell the story in your book that just one week after the baker v. Carr decision, justice frankfurter had a major stroke and never returned to the court. And you wrote baker vs. Carr claimed its second victim. Right. Again, you know, we cannot be sure exactly what role baker played. But it was just a week after the decision was handed down that frankfurter did suffer the stroke. And he never never recovered sufficiently to be able to return to the court. Okay. Weve had a lot of questions on twitter and we had a caller wanting to know about the subsequent cases. Im going to put them on the screen, and were going to talk about the importance of it. So this case was the first of many, all together eight cases that they heard. And the first two were gravy v. Sanders, argued in january of 63, decided in march of 63. Westbury vs. Sanders, both were georgia cases. We had a georgia caller. It was gray vs. Sashnders where the one personone vote came through. The language from that, the conception of political equality from the declaration of independence to lincolns gettysburg address to the 15th, 17th, and 19th amendments can mean only one thing one person, one vote. And then later on, a whole series of cases from new york, alabama, maryland, virginia, delaware, and colorado. All decided on the same day, june 15th, 1964. So what do people need to know, gentlemen, from both of you about this whole series of cases and what they did . Sure. Since you mention and the caller asked about gray v. Sanders, technical notty not reapportionment case, it challenged the system in georgia basically rather than statewide elections such as governor, instead of the winner being determined by the overall vote, georgia would assign a certain number of units to each counties. Whatever won that particular countys vote would win the units. The problem was that georgia had so many counties that the Rural Counties could it didnt matter how many people the candidate how many votes the candidate got in the urban area, the rural areas would always dominate. This is a key component in White Supremacy and jim crow. So in gray v. Sanders the Court Strikes down the county system with the language that you said. Thats william o. Douglas opinion. He was the first person to use the phrase one personone vote. Its interesting given the case well hear tomorrow in the Supreme Court. This a law clerk suggested that douglas change that to one voterone vote. He declined and said, no, were sticking with one personone vote. s interesting that people refer to there as one manone vote. Warren said it in the beginning, but douglas wrote one personone vote specifically. Then the cases that you recommends are all these are the state reapportionment cases. There are cases filed in about 40 different states. All of which have different facts, different histories, but they all ask the question, what is the standard for reapportionment required by the equal protection clause. Each of those cases represents a different set of facts, but they come together. The court hears all six of the arguments in the 1963 term and four in november. Then the others soon thereafter. Those are the decisions that are handed down in june where they declare that to the surprise of a lot of people that all legislative chambers, both branches must be apportioned according to the principle of one personone vote. You cant have a federal system or one branch based on population and the other on other factors which is what a lot of people thought would happen. I cant explain it better than doug just did. I mean, it caused a revolution in government, in our country. The court easily could come other solutions that werent exactly organized according to population and one person, one vote, 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 legislature but all that was blown away. And its hard to imagine what this country would be like or what political crisis we may have had because of the system and the continued exacerbation of that system. Ep writes, it was not a example were proposed. The one one point i want to add is we talked about whitaker and frankfurt having to step off the court. They were replaced respectively by byron white and arthur goldberg. Without those changes, theres no way the court at that time would have embraced one person, one vote in both branches of the legislature. That were two of the six votes for that sweeping of a standard. This was by no means universally hailed. No. In fact, congress, the members of congress who were opposed to it, immediately sought legislative solutions. What happened . This is to me one of most interesting parts of the story and the one i knew absolutely nothing about prior to this. Yes, beginning that day, there were a whole series of bills and resolutions introduced in the house and the senate to try to overturn the decision juan way or another, to strip the Supreme Court of all jurisdiction and anything having to do with reapportionment. There was efforts to, you know, to write a constitutional amendment, to pass a constitutional amendment, which eventually all the disparate forces came together and began to Work Together to try to make this happen under the leadership of everett dirkson, from illinois, who proposed amendments sort of three years in a row which essentially would have allowed legislatures to adopt the little federal plan. Population one branch, other factors in another. 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. You know, alabama, which hadnt reapportioned in 60 years, people thought, fine. Colorado, which had only reapportioned two years earlier, a lot of people thought, whats wrong with that . The voters of colorado chose this system. So dirkson led a campaign, tried three times to get a constitutional amendment through the senate. Got 58 votes every time but never got the twothirds that were necessary. Then they took the campaign to the states and tried to get enough state legislatures to call the petition for a Constitutional Convention which, of course, is allowed under article 4. But has never actually happened. They came close, didnt they . They came close. We have a map here. He made it to 33 states of the 34 necessary. 33 of the 34 necessary. Map. He made 33 states of the 34 necessary. By the time they got to 32, 33, there was a lot of dispute whether some of the petitions werent actually valid because the legislatures that passed those had not first reapportioned. It was a potentially an enormous mess. The other issue is a Constitutional Convention. Who says you can only limit it to this one issue . Is the entire constitution up for grabs now . It was a potentially disastrous or depending on your point of view, historymaking event. Just shows you how great the passions were about this, because someone like Everett Dirksen saw downstate illinois power being ced erceded. The two of them epitomized the idea of reapportionment. They had very different interests at heart even though they both represented the entire state. 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 that sail. It shows you how time has gone by, it couldnt happen now. You wouldnt have 30 states signing up to amend the constitution to do this. Its somewhat like brown v. Board of education. You cant go back. Even as close as it is, or as close as it was and contentious, what it happens, public accepts it and we go on. Im going to have one more video from the chief justice also talking about this case and well spend the last 12 minutes or so with your questions and put a bow around this whole discussion. As we close out here. So lets listen to chief Justice Earl 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 this Supreme Court. If everyone in this country has an opportunity to participate in his 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 interests, that most of these problems that were now confronted with would be solved through the political process rather than through the courts. And as you mentioned, shortly thereafter, the Voting Rights legislation in the congress. There was really a revolution in this country about the way people were electing their representatives. So lets talk a little bit with our viewers about what they want to hear about. Well begin with barry in alabama. Youre on the air, barry. Go ahead, please. Caller yes, i would like the commentators to discuss the justice harlins 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 involved in the electoral processes of the state. And you might be interested to know that archbald cox, who was eme amicus in renled v. Sims say theyre an example of reading into the generalities of the due process and equal protection clauss, notions of wise and fundamental policy which are not even faintly suggested by the words of the constitution and which lack 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 harlin was right is conclusive, and reach this decision in reynolds v. Sims . Thank you. Well, a good question. And youre right, harlin was the only member of the warren court to dissent from all of the reapportionment cases. Even the alabama case, which came down 81. And he was very much in the frankfurter mold in that sense. He was the one true sort of person most like minded after frankfurter left the court. Youre right, he did root his argument in reading the history of the ratification of the 14th amendment. I think the answer is that there were eight other members of the court who saw it a little bit differently and thought that that was not the stumbling block that harlen did to stepping into this issue which they thought had become so unmanageable. This will frame into it. This is an a. P. Government teach whoor wants you to answer this question for his students. Is the baker v. Carr case an act of judicial restranint or judicial activism . People use those terms to identify the cases they like or dont like. If its judicial activism if you dont like the outcome of the case, its judicial restraint if you do. The point, and 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 as opposed to its exclusive legislative history, which had to do with slavery. The 14th amendment now stands for propositions, including all kinds of different rights. And if you go back to what the framers of the 14th amendment were actually thinking about, you cant get to a lot of these decisions, but thats not the way the court has determined to construe the 14th amendment. Larry in englewood, colorado. Caller thank you for another important episode. You know, i wonder if the timing and nature of tonights case, others related to it, and Civil Rights Movement and the passage and the civil rights bill, if it really isnt kind of representing the cleaning up of the failed postcivil war reconstruction bit of business. And wondered how much time was wasted between then and these cases that occurred. Thank you. Well, thats a great question. I think certainly we continue to grapple with these issues today, tomorrow, the court will be hearing more cases. They are constantly listening to Voting Rights cases, and its a neverending process, one we have to continue working at to figure out how to make our democracy real. Its not just our democracy but the principles of the declaration of independence and the gettysburg address and the 14th amendment of the concept of equality. We have never been a very perfect country with respect to living up to those ideals, but i think a lot of it is that the justices are struggling in the context of today or yesterdays today. Of what that really means, and what it really means to our citizens. It comes up in the context of who can serve on juries, and who can be excluded from juries. It comes up in all different kinds of ways. The justices, i think if theres 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 a particular constitutional provision. Heres a question for you from courtney on twitter who says if gray v. Sanders states one person one vote and states, why does the Electoral College still apply federally for president s . Because its written into the constitution. When you were talking about the unit system in georgia, in a sense, thats what the Electoral College system does. Now, courts, the states can divide up their Electoral College votes. That doesnt have to be one winner take all. But the Electoral College is going to stay in the constitution. And 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 doing. Jack is in wilmington, north carolina. Hi, jack. Caller hi. Yes, i just would like to hear some commentary on the problem, the practical problem we have run into wherein state legislatures when redistricting or slicing and dicing counties, because in terms of political efficacy, virtually Everybody Knows what state and county they live in. After that, it all becomes a blur. Were changing lines every ten years. Were having elections change the people in office, and the average person doesnt have any idea which state Senate District theyre in. I think youre absolutely right, and this goes back to the comment ted made earlier. Youre talking about either stacking voters in one district to get a result or packing them into different districts to get a result. The court said you cant do that for racial reasons, but as of now, you can do it for political reasons. Until the Supreme Court changes its mind and decides political gerrymandering is unconstitutional, were going to continue to battle it. On twitter, could baker also have been decided based on the guarantee clause . Well, there were arguments at the time whether or not the guarantee of its in article 4, section 4 of the constitution, guarantees a republican a republic form of government, and there were arguments then that if thats the provision that ought to be the basis for the subsequent cases as opposed to the equal protection clause. That carries its own complications, and i think probably most of the people then and most people now would agree that probably if were going to have this outcome, you have to sort of use the 14th amendment rather than the guarantee clause. Robert in springfield, new jersey, youre on. Caller yes. I do agree with the ruling in baker v. Carr, but related to the earlier speakers question, im wondering how do our guests view the fact that the section 2 of the 14th amendment is a part of the same amendment as the equal protection clause and it does say that if states congressional delegation shall be reduced unfortunately to the percentage of citizens in the 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, so what are your s views, please . I think what you refer to was obviously intended to make sure that the Southern States did in fact enfranchise africanamericans, and there were many debates well into the 20th century as the jim crow laws disenfranchised many of those folks that perhaps the Southern States should lose a number of members of congress. So i think at a truth, that clause is still trying to guarantee the rights of all americans, or at least all american men at that time, to vote. So i guess i am not sure i see the real conflict with that, and the real heart and soul of baker and reynolds and the dewritersi make sure everyones vote counts equally. I dont see the inconsistency. I randy, our last caller. Randy, are you there . All right, we lost randy. So as we close out here, we talk about this has been an evolution in our country over the time since the case was first decided. What context do you want to put it in as we close . Whats the important thing for people to take away from the first of the several cases that the warren court heard . Going back to the question you asked at the opening. Why is baker v. Carr a landmark case . Why does earl warren consider it to be the most vital of the cases he decided at his time, which most people would expect him to choose brown or one of the many others. At the heart of what warren is getting at is this case is really about whether or not were going to continue to live with a system of minority rule. Its something we dont think about in the United States. We think about majority rules and majorities have rights, but what developed was a system of minority rule in most states. With baker v. Carr and the subsequent reapportionment cases did was to correct that. Doesnt mean the system was perfect as a result, but we made enormous strides towards the realization of real democracy. What would you say to Justice Warrens legacy is in this area . If it wasnt for chief Justice Warren, i dont think we would have ever had this outcome. Its very interesting that the present Supreme Court consists of eight former federal Appeals Court judges and a dean of the harvard law school. That court, i dont think if there was any federal Appeals Court judges on it, i cant recall who it might have been. There might have been one. But earl warren was a former governor. Douglas had been a chairman of Securities Exchange question. 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. Earl warren placed a huge stamp, and i think part of it was because he was a politician, hes one of three chief justices that had run for president , by the way. We have two more cases left in our 12part series. We have the miranda case, another earl warren decision, and its part of the overhaul of the criminal justice system. Well talk about his legacy as chief justice in that area, and our final one is roe v. Wade in two weeks from now. If you missed any of our cases and you have been learning along the way, we do have a book available that is a companion guide to the series, just 8. 95. Available on our website. Rin by a veteran Supreme Court reporter, and it has summaries of each of the cases, some highlights of the decision, and what the impact or legacy of each case has been. And thats easily available to you as a way to catch up and then all 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 historical background of this case. Ted olson for your Legal Expertise and also for giving us insight into what its like to be in the court and how the court operates. Really appreciate that extra color. Thanks for your time tonight. During the summer months, reach out to your elected officials with cspans congressional directory. It contains all the Contact Information you need to stay in touch with members of congress, federal agencies and state governors. Order your copy online today at cspanstore. Org. Tonight on American History tv, our series on landmark cases, produced in cooperation with the National Constitution center, we explore the issues, people, and places involved in some of the nations most significant Supreme Court cases. We begin at 8 00 eastern with miranda v. Arizona, the 1966 case which established that police must notify subjects of their right to counsel and their right to avoid self incrimination. Then at 9 35, roe v. Wade, the 1973 case which upheld the due process clause of the 14th amendment, protects a womans right to terminate a pregnancy. Watch landmark cases tonight on cspan3 and anytime at cspan. Org. Up next on American History tv, jim newton talks about his book justice for all, earl warren and the nation he made. The book focused on Supreme Court Justice Earl Warren who served until 1969. He presided over the Supreme Court cases brown v. Board of education which desegregated schools and griswold v. Connecticut which established a constitutional right of privacy. He also talked about