Charles E. Whittaker

He came to a Court divided four and four, and he was the vote in the middle. Felix Frankfurter (§78), John Marshall Harlan II (§89), Harold Burton (§84), and Tom Clark (§86) sat on one side; Earl Warren (§88), Hugo Black (§76), William O. Douglas (§79), and William Brennan (§90) on the other; the ninth chair decided the cases that divided them, and Whittaker sat in it until Potter Stewart (§92) replaced Burton in the autumn of 1958 and there were two chairs in the middle. On the last day of March 1958 the Court decided two cases about the power of Congress to strip a citizen of his citizenship, and he went both ways. In Perez v. Brownell he filed a memorandum agreeing with Frankfurter's majority that Congress could expatriate a citizen for an act 'fraught with danger of embroiling our Government in an international dispute,' and then dissented from the result because the statute reached voting in a foreign election that was lawful where it was cast: 'Limiting myself to the issue decided by the majority, I dissent.' In Trop v. Dulles the same day he joined the Chief Justice's plurality holding that a wartime deserter could not be made stateless, the opinion that gave the law 'the evolving standards of decency that mark the progress of a maturing society.' The pairing was characteristic. He read each statute for what it did and answered each case on its own record; in the divided cases he went with Frankfurter and Harlan far more often than not, but not, as Trop shows, by rule. The first scholarly appraisal, Daniel Berman's in the Missouri Law Review in 1959, caught the method at two terms: an 'atomic approach to the cases' in which 'in no category of cases has he adopted so solid a position that modification would be difficult,' with 'the decisive fifth vote' falling to him again and again.

The opinions he wrote for the Court were careful and few are remembered. In Staub v. City of Baxley (1958) he struck down a Georgia town's ordinance requiring a permit before anyone could solicit union membership, because it 'makes enjoyment of speech contingent upon the will of the Mayor and Council of the City,' a licensing discretion the First Amendment did not allow. In Draper v. United States (1959) he upheld an arrest made on an informant's tip once the arresting officer had watched the details of the tip come true, and the opinion is still cited for the difference between the proof that makes a man guilty and the proof that makes his arrest lawful. In Meyer v. United States (1960) he wrote for the Court on the estate tax; in Kinsella v. Singleton (1960) he concurred in part and dissented in part on the court-martial of soldiers' dependents. He dissented, more often than not with Frankfurter and Harlan, from the decisions that made the Warren Court's name: with Frankfurter in Elkins v. United States (1960), with Clark in Boynton v. Virginia (1960), with Harlan and Frankfurter in Mapp v. Ohio (1961). The colleagues on both sides said the same thing about how he worked. The Chief Justice: 'His entire preoccupation was with the law. He refused to leave time for any diversion.' Harlan: he 'was a prodigious worker who was satisfied with nothing less than full mastery of every record and brief.' Douglas, who disagreed with him more than anyone, said he handled every case 'with a thoroughness never exceeded.'

The Supreme Court Database measures the middle chair and finds it further to the right than the man in it looked. Across 652 coded votes his liberal share was 43.5 percent against a docket baseline of 62.4, the Warren Court's, for a gap of 18.9 points. By liberal share alone he ranks twenty-second of the thirty-three justices on the site's modern scale; by the gap to his own docket he ranks thirty-first, and only William Rehnquist and Harlan sat further below theirs. He was twenty-nine points below his colleagues in economic cases and twenty-eight below them in First Amendment cases, and eighteen below in criminal procedure; he dissented in 21.6 percent of cases against colleagues who dissented at 20.0 on the same ones. His closest colleague across divided cases was Harlan, at 71.6 percent agreement over 423 of them; his furthest was Douglas, at 28.5 percent over 428. Six terms fall below the twelve the site requires for its drift series, so the question this program has asked of every subject, who moved, has no entry here. The record ends before the measurement begins, and in his case the record ended because he could not go on.

Baker v. Carr asked whether federal courts could hear a challenge to a state legislature's apportionment at all, and Frankfurter had spent his career saying they could not. The case was argued in April 1961, set for reargument, and argued again in October. Whittaker, by the accounts that survive, was torn, drafted opinions on each side, and in March 1962 left Washington. On March 26 the Court decided the case six to two, Brennan for the majority, Frankfurter in a dissent longer than the majority that was the last opinion he wrote; a stroke weeks later took him from the bench. Whittaker's line came at the end. On March 29 he wrote to his colleagues to confirm 'my retirement from regular active service as an Associate Justice of this Court,' effective April 1, 1962, 'with regret but in accordance with competent medical advice and with a desire to serve the best interests of all concerned,' and thanked them for 'the privilege which has been mine of serving the people of the United States upon the Federal Judiciary for nearly eight years, the last five as a member of this Court, to the best of my ability.' The eight wrote back the next day. 'It is with the utmost reluctance that we bow to the necessity of your retirement,' they said; his doctors had told them 'that excessive work is responsible for your physical exhaustion, and that only complete rest and relaxation can restore your vigor,' and 'in fairness to your family, neither you nor we have the right to insist that you continue to do that which would seriously impair your health.' Then the sentence that is his epitaph on the Court: 'No Justice could have worked harder or in more complete harmony with his Brethren.' President Kennedy announced the retirement at his news conference the same afternoon, 'at the direction of his physician for reasons of disability,' and named Byron White (§93) to the seat the next day. Whittaker was sixty-one. He had served five years and a week.

He did not come back. A retired justice remains a judge, and in 1965 he gave even that up: his commission ended by resignation on September 30, 1965, so that he could go to work for General Motors, where the Federal Judicial Center lists him as an arbitrator and other accounts as counsel. He found his voice again in the years that followed, on the other side of the decade's argument. In 'Dangers of Mass Disobedience,' in Reader's Digest in December 1965, and in speeches to bar associations, he warned that 'no group of men can be permitted, in a government of laws, to take the law into its own hands,' and that what seemed 'the earnest, honest, patriotic, kind-spirited multitude of today' was 'not a far step' from 'the fanatical, threatening, lawless mob of tomorrow.' It was the law he had loved from his earliest recollection, defended against the people who had taken to the streets. He died in Kansas City on November 26, 1973, at seventy-two, and was buried in Calvary Cemetery there. Congress named the new federal courthouse in Kansas City for him, the Charles Evans Whittaker United States Courthouse, which the Western District of Missouri has occupied since 1998. Craig Alan Smith's biography, Failing Justice (2005), argues, in its publisher's summary, that the record 'is definitely not one of inadequacy or failure, but rather one of illness and difficulty overcome with great determination,' and that is the fair reading of the farm boy's first fifty-six years. The last five were the ones his creed could not carry. He had said that justice was the product of long hours of hard, diligent, painstaking labor, and nobody on the Court put in more of them; what the job asked, in the cases that mattered, was the thing that hours could not produce, which was a decision. He sat in the chair that decided everything, and could not.