Whittaker

"Here it comes, here it comes, here it comes, here it comes

Here comes your nineteenth nervous breakdown"

-The Rolling Stones

Taking a break from juggling studying for finals with practicing law during a very busy time in my life. When's it going to slow down? My experience so far suggests never. Might as well make the best of it.

And what a beautiful morning here in Corning, enjoying the spectacular vistas from the new condo.

I'll taunt my Florida friends by observing that it just now cracked 60 degrees at nine a.m. One could get used to this.

For the last couple weeks I've found myself wanting to write a little about a Supreme Court Justice of whom I'd never heard until recently, when in my State and Local Corporate Income Tax class the two professors, both heavy-hitters in the field both as scholars and practitioners, mentioned in an off-hand reference to a recently deceased colleague that he had "clerked for Justice Whittaker on the Supreme Court. He wasn't there for very long, for good reason."

That last comment led me to look up Whittaker, who in fact only served on the Court for five years before resigning following a nervous breakdown. Who does that?

And what is a "nervous breakdown", exactly? I always thought it must look like the catatonic schizophrenia I'd once heard affected a big league relief pitcher by leaving him standing nude in the locker room after a game, one arm outstretched at shoulder level and eyes fixed on some distant object no one else could see. Maybe that's one manifestation. I can't find any clear description of what befell Whittaker, except to note that everyone around him seemed to realize it was an authentic breakdown, and he resigned at the urging of Chief Justice Warren.

Whittaker's path to the nation's highest court absolutely doesn't exist today.

Born and raised on a farm in Kansas, he dropped out of school in the ninth grade, after his mother died, so he could work. He moved to Kansas City and took an interest in law, and somehow convinced the president of the Kansas City Law School (now UMKC) to allow him to enroll on the condition he would finish high school before completing his law degree. So for the next few years he held down a job while taking high school and law classes. He stayed in KC after graduation, building a corporate law practice and a stable of heavy-hitter clients like the Union Pacific Railroad.

He also became a face card among the local Republicans, which came in handy when he decided he'd like to transition to the bench. Eisenhower nominated him to the district court bench in Kansas City in 1954, when he was in his early 50s. He stayed there for less than two years, when he moved up to the Eighth Circuit Court of Appeals, and barely unpacked there when, not even a year later, he was nominated for an open seat on the United States Supreme Court. It's a pretty remarkable story for a one-time high school dropout. It's also the last time a graduate of a public law school made it to the SCOTUS (ponder on that, won't you?).

It seems poor Justice Whittaker had a very bad case of imposter syndrome, and never really flourished on the Court. The final psychic break came during deliberations in an epic case you probably never heard of, Baker v. Carr. He ended up recusing himself, not returning to work, and ultimately resigning and going on disability in 1962, before declaring himself undisabled to become Chief General Counsel to General Motors a couple years later.

Why did Baker cause a nervous breakdown? No one really knows, as near as I can tell. It was in fact a very big case--Justice Warren cited it as the single most important decision during his tenure on the Court, which is saying something given that Griswold and Miranda were also decided on his watch.

Baker involved the sort of legal question attorneys love and laypeople find soporific. It seems Tennessee had decided to reapportion its electoral maps for the first time in a half-century, and a Republican politician (recall back then the former Confederacy was run by Democrats) didn't like the result. He sued, and the question arose whether the redrawing of electoral maps was subject to judicial scrutiny under the Fourteenth Amendment, or instead was a political act over which the judicial branch had no authority to exercise oversight. In a 6-2 vote, the Court ruled that it did, in fact, have the ability to exercise judicial review to determine if state redistricting violated the Equal Protection Clause.

Scintillating stuff, eh? There were echoes of Baker a couple years ago when the neo-Confederates tried again in Moore v. Harper to argue the courts had no role in setting limits on how a state legislature could redraw electoral maps, but again the SCOTUS stepped up, uncharacteristically these days, in reaffirming there are in fact some judicially-imposed limits on what the gaggle of used car salesmen and religious cranks who populate the state legislatures of the South can do to rig elections.

I digress.

But again, why did Whittaker implode over such a relatively anodyne case? He was in fact a rock-ribbed Republican who later came out strongly against the civil rights movement after he left the bench, and the immediate consequence of Baker proved to be a shift of political power from rural to urban where, presumably, lots of people of color lived.

One has to question whether that was it, however, given that two years before he wrote a concurrence in Gomillion v. Lightfoot, and reasoned that the State of Alabama's redrawing of the city limits of Tuskegee violated the Equal Protection Clause of the 14th Amendment when it served to disenfranchise all but four or five black citizens of that fine metropolis.

Maybe the trigger wasn't the case itself. Maybe he just felt isolated and out of his depth there in the hallowed halls across the street from the Capitol, jousting with the likes of Felix Frankfurter and Hugo Black. This was a guy who'd spent his first 55 years living and working within maybe a hundred miles of Kansas City, and hadn't been a judge for much more than a couple years before his elevation to the Supreme Court.

Maybe the breakdown was a consequence of his own self-awareness that he didn't really belong there, and needed to go home. It's something we never see on the Court anymore, or at least since Souter left--realizing when it's time.

Speaking of which, it's time to get to work.