WHITTAKER, CHARLES (1901–1973)

A considerable number of Justices who served on the United States Supreme Court resembled T. S. Eliot's famous Mr. Prufrock: "an attendant lord, one that will do [to swell a progress, start a scene or two.…] Deferential, glad to be of use, [Politic, cautious, and meticulous;] Full of high sentence, but a bit obtuse.…" Charles Whittaker, a self-made man from Kansas, appointed to the Court by President dwight d. eisenhower, was one of these.

Whittaker joined the warren court in 1957, after earlier service on the Eighth Circuit Court of Appeals. His tenure was distinguished only by its brevity and by his own inability to develop a coherent judicial philosophy apart from the orthodox political and social conservatism of the Republican Middle West. His retirement and that of Justice felix frankfurter in 1962 marked the beginning of the Warren Court's most liberal and activist phase.

Several deportation and coerced confession cases best exemplified Whittaker's ad hoc approach to constitutional issues and the confusion that often plagued his opinions. Writing for a majority of six Justices in Bonetti v. Roger (1958), he overturned the federal government's attempt to deport an alien who had entered the country in 1923, joined the Communist party for a brief period during the 1930s, left the country to fight in the Spanish Civil War, and finally returned to the United States without rejoining the party. Earlier, Whittaker had voted to sustain the deportation of another alien who had resided continuously in the United States for forty years and whose only offense did not constitute a crime when he committed it (Lehmann v. Carson). Two years after Bonetti, he voted to uphold the termination of Social Security benefits to aliens deported for their membership in the Communist party during the Great Depression in Fleming v. Nestor (1960).

Whittaker displayed little more consistency in the coerced confession cases. In Moore v. Michigan (1957), he voted to reverse the murder conviction of a black teenager with a seventh-grade education and a history of head injuries, who had confessed to the crime without the benefit of a lawyer. During the next term, however, he voted, in Thomas v. Arizona (1958), to sustain the murder conviction of a black man in Arizona, who had confessed after a twenty-hour interrogation which included the placing of a rope around his neck by a member of the sheriff's posse.

Sometimes, Whittaker joined the Warren Court's liberal bloc, as in trop v. dulles (1958), where five Justices declared unconstitutional a provision of the Nationality Act of 1940 depriving wartime deserters of their citizenship. He also joined the liberals in Perez v. Brownell (1958) when they dissented against the expatriation of American citizens who voted in foreign elections. (See trop v. dulles, 1958.) Whittaker also wrote the opinion in Staub v. Baxley (1958), invalidating a city ordinance that required union organizers to secure a permit before soliciting new members.

More frequently, however, Whittaker cast his vote with the Court's conservative bloc led by Justices John Marshall Harlan, Tom C. Clark, and felix frankfurter. In Beilan v. Board of Education (1958) he helped to sanction the firing of public school teachers who refused to answer questions about their possible affiliation with the Communist party. He approved the contempt conviction of a college professor who refused to cooperate with a state legislative committee investigating subversive groups in uphaus v. wyman (1959). He likewise voted to compel the registration of the Communist party under the Subversive Activities Control Act and to allow bar examiners in California to deny admission to a candidate who refused to answer their inquiries about his past membership in the party. (See communist party v. subversive activities control board, 1961; konigsberg v. state bar of california, 1961.)

During his final term on the Court, Whittaker continued to affirm his conservative leanings by dissenting in mapp v. ohio (1961). He also joined in the Court's dismissal on jurisdictional grounds of an attack on Connecticut's anti-birth control statute in Poe v. Ullman (1961). After retiring from the bench, he became a legal adviser to the General Motors Corporation as well as a shrill critic of the civil rights and anti-vietnam war protest movements.

Michael E. Parrish
(1986)

Bibliography

Berman, D.M. 1959 Mr. Justice Whittaker: A Preliminary Appraisal. Missouri Law Review 24:1–28.

Friedman, Leon 1969 Charles Whittaker. Pages 2893–2904 in Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1969: Their Lives and Major Opinions. New York: Chelsea House.