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More Perfect: the new podcast about the Supreme Court

More PerfectIn 2005, then-Senator Barack Obama gave a speech about his decision to vote against confirming Supreme Court Chief Justice John Roberts. Obama reasoned that, “while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95% of the cases — what matters on the Supreme Court is those 5% of cases that are truly difficult.” In 5% of the cases, Obama said, “the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.”

Obama was concerned about where Chief Justice Roberts would fall on those 5% cases, believing that Roberts had “far more often used his formidable skills on behalf of the strong in opposition to the weak.”

I immediately thought of this speech while I was listening to a recent episode of More Perfect, a great new podcast about the Supreme Court from the creators of Radiolab (an excellent podcast in its own right). In the second episode of More Perfect, entitled “The Political Thicket,” the podcast takes a look at Baker v. Carr, a Supreme Court case that Chief Justice Earl Warren referred to as the most important case of his tenure (which included the landmark cases of Brown v. Board of Education, New York Times v. Sullivan and Loving v. Virginia, just to name a few). Baker v. Carr was so contested that it is said to have pushed Justice Charles E. Whittaker into a nervous breakdown and put another Justice in the hospital.

The Court was sharply divided over whether a challenge to the legislative apportionment of districts in Tennessee—where urban areas had as many as ten times the residents as some rural districts, resulting in urban citizens’ votes being significantly diluted—was valid under the equal protection clause of the Fourteenth Amendment or was a political question from which the Court should abstain.

The podcast delves into the arduous journey the case took from when it was first argued, including the effect it had on the Justices likeWhittaker who eventually had to recuse himself for health reasons. Here, Justice Whittaker was presented with a  “5% case,” where he was wrenched that he is said to have drafted opinions on each side of the issue, and it literally drove him to madness. Perhaps he was torn by the crisis the case presented, where citizens in urban areas had no hope of having their votes count without Court intervention, and what the implications would be if the Court waded into the “political thicket.” (Many legal observers opine that the Baker v. Carr paved the way for the Court to wade into such matters as presidential elections.)

We live in a country that is sharply-divided politically, and too often we reduce our Supreme Court Justices to “red” or “blue” votes. And, while one could argue that many of our Justices could easily be defined by such a binary system of classification, More Perfect’s “Political Thicket” episode is a good reminder that our Justices are generally decent men and women who have (or had) an immense appreciation for their responsibilities on the Court and the far-reaching impact of their decisions.

There are currently four episodes of More Perfect available for your listening pleasure. It provides a unique perspective on cases and issues that come before the Supreme Court and should be especially interesting for attorneys. You can access it wherever you get your podcasts or click on the links below (which also provide a ton of interesting material about the cases discussed in each episode).

Episode 1 – Cruel and Unusual

Episode 2 – The Political Thicket

Episode 3 – Adoptive Couple v. Baby Girl

Episode 4 – The Imperfect Plaintiffs