Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Preet Bharara.

Today, we’re doing something a little bit different. I recently had the privilege of hosting a live conversation with author and historian, Brenda Wineapple at the New York Historical Society.

We discussed her new book Keeping The Faith: God, Democracy, and The Trial That Riveted A Nation, which explores a case that, as you’ll hear in a moment, holds personal significance for me, the 1925 Scopes monkey trial.

It’s centered on a pivotal legal question, “Can a state ban the teaching of evolution in public schools without violating constitutional rights?” Here’s our conversation.

Thank you. Thanks, everyone. It’s good to be here. Brenda, congratulations on the book.

Brenda Wineapple:

Thank you.

Preet Bharara:

It’s great to be with you. “Keeping the faith” has multiple meanings-

Brenda Wineapple:

It does.

Preet Bharara:

… perhaps for folks in the audience. I’m not referring to anything in particular.

Brenda Wineapple:

Keep the faith.

Preet Bharara:

Keep the faith.

Brenda Wineapple:

Keep the faith.

Preet Bharara:

It’s a good message, whether you read the book, or not, and you should because it’s a great book. I’d like to begin with a point of personal privilege that you know about. One of the reasons I agreed to do this a long time ago, and I immediately agreed to moderate this discussion, because the material that is the subject of your book is very near and dear to my heart.

When I was in seventh, or eighth grade, I always forget which, I read a play called “Inherit the Wind,” which is not loosely based on the drama, but quite literally takes a lot of material from the actual events of 1925 in Dayton, Tennessee.

And I have often said, because I think it’s true that reading that play, and reading about the trial was the first time I thought maybe I wanted to be a lawyer, because it really made a big impression on me.

And then I saw the movie, the original black and white starring Spencer Tracy, which has always been one of the great films.

And so, I wondered in preparing for today, whether, or not you also were moved by the film? And I discovered, much to my shock, that you did not see the film until after you completed the book.

Brenda Wineapple:

That’s right.

Preet Bharara:

Can you explain yourself?

Brenda Wineapple:

You’re not putting me on the defensive, or anything. Are you?

Well, there are a couple of reasons. I had never seen the film. I had heard of it, obviously, and with-

Preet Bharara:

You’re like, “I’m going to write an entire book, and then I’ll see if I like the film.”

Brenda Wineapple:

Well, it has nothing … Well, this is the reason, just in a sense, for the reason you said, because the movie has such a presence for so many people, like yourself, who’ve … And you’re not the first one I’ve heard that became a lawyer, because of that movie, or because of Spencer Tracy actually, or ran for president, because of Frederic March I guess would be the other way to look at it.

Preet Bharara:

Three times.

Brenda Wineapple:

Yeah. But in any event, because it’s such a cultural watershed for so many people, I did not want that movie in my head, because I was afraid that it would be so influential, because visual things are influential, and because if any of you, and I’m sure a lot of you saw it, I did eventually see it, not to worry, but if any of you saw it, the performances are so striking.

And because, as you suggest, a lot of the interplay between William Jennings Bryan and Clarence Darrow is actually taken from the transcript of the trial, which is available.

Preet Bharara:

Better writing than the playwrights themselves.

Brenda Wineapple:

Yeah. That part, absolutely, but when I did see it, because a number of people whom I trust completely said, “You can’t publish this book without mentioning Inherit The Wind.”

And so, it’s in the epilogue, and I do mention it. I even mention Spencer Tracy and Frederic March, and I talk about their performances all in a sentence pretty much.

But the fact of the matter is because it was so important, and I was glad that I saw it, because if you haven’t seen it recently, if anyone hasn’t seen it recently, it’s enormously dated, not so much what they took about the trial, but because of the way they … Well, they made a love story, and a love story didn’t exist, and, also, the role of the women, the women in Dayton, Tennessee, become these harridans right out of witchcraft trials that are surrounding Clarence Darrow, and, of course, that didn’t happen that way. The people in Dayton, Tennessee were actually very accommodating and hospitable to everybody who came to town, and there were quite a number.

Preet Bharara:

There are lines that I didn’t fully appreciate, or had forgotten in the film, and in the play that are taken wholesale and verbatim from the trial, like you mention.

One of my favorites is during the cross-examination of William Jennings Bryan by Clarence Darrow, which we’ll get to in some detail in a little bit, where I thought it was made-up by the playwrights where William Jennings Bryan says, “I don’t think about things I don’t think about.”

Brenda Wineapple:

I know.

Preet Bharara:

And Darrow says, “Do you ever think about things you do think about?” That’s great drama.

Brenda Wineapple:

It’s wonderful drama.

Preet Bharara:

So, let’s take a step back for folks who may not be initiated, and proceed in more lawyer-like fashion. Explain for folks, we’re going to get into the characters and some of the themes of the book, what is the trial about? Why is there a crime being committed, and being tested in Dayton, Tennessee?

Brenda Wineapple:

In 1925. Just about 100 years ago. How things change, and they don’t change. About 100 years ago, the Tennessee legislature passed a law that was commonly known as The Butler Act.

And simply put, what The Butler Act said is that in public schools that are supported by the state, you are not allowed to teach evolution, a theory of evolution, which conflicts with the theory of creation in the Bible. In other words, that people are descended from what are called lower animals.

That law sent shock waves, particularly, through the … Well, through certain aspects of the country, and someone at the fairly newly-founded ACLU saw that that law had been passed, and went to the head of it, Roger Baldwin, and said, “This would be a great test case for us, because of the constitutional issues that are involved.” And he said, “Absolutely.”

So, what the ACLU did was they put a little advertisement in a couple of Tennessee papers saying, “Anyone”-

Preet Bharara:

Criminal defendant needed.

Brenda Wineapple:

Yeah. Exactly. In the want ads.

Preet Bharara:

Right.

Brenda Wineapple:

In the want ads, and-

Preet Bharara:

I usually skip over those.

Brenda Wineapple:

Yeah. Well, now you won’t. You have the whole new career. So, they said, “If anyone is willing to step up and say that they broke the law, then the ACLU will pay for your defense. We’ll defend you.”

And in Dayton, Tennessee, long story short, there was a young man, a biology teacher, and I used to like to say he was also the football coach who let the boys smoke, and he was a biology teacher, and he, basically, said, “You can’t teach biology without teaching evolution.” And so, he said, “I would do it.” And that became the test case, and that became the trial.

Now the ACLU is involved, this little town in Tennessee is involved, and the fundamentalist organization that was very popular at the time got the three-time presidential nominee on the Democratic ticket, William Jennings Bryan involved to argue for the prosecution. Let that go for a second.

When Clarence Darrow, celebrated attorney Clarence Darrow, who had just come off a very celebrated case, when he heard Bryan was involved-

Preet Bharara:

He’s like, “I’m in.”

Brenda Wineapple:

He said, “I’m in.” He said, “I will waive my fee even.”

Preet Bharara:

Yeah.

Brenda Wineapple:

So, that’s how it became mushroomed in that particular way.

Preet Bharara:

Could you spend another minute-

Brenda Wineapple:

Sure.

Preet Bharara:

… talking about arguably the two most famous lawyers in America, or two of the most famous lawyers in America in 1925?

Brenda Wineapple:

Yeah.

Preet Bharara:

Where they were in their careers, not in their prime, and what this case meant for them not after it ended, because-

Brenda Wineapple:

No. No. Because that was different. Right?

Preet Bharara:

Yeah. And, also, on the eve of the trial, what did this case mean for those two individuals?

Brenda Wineapple:

Well, what’s interesting, I’ll start with William Jennings Bryan, and go in alphabetical order, and he had run for president three times. He was a lawyer. He was trained as a lawyer, but he really never practiced. He was a practiced politician, and he was very adept at running for president, and losing.

Preet Bharara:

That’s not always true unfortunately.

Brenda Wineapple:

Well, they kept at it. He kept coming back. And he was a huge leader, a very powerful man in the Democratic Party, even if he was not in his prime, which he wasn’t in 1925, but he still had a lot of power. He had moved from the Midwest where he had been to Florida, and he was actually at this time from my point of view, thinking of if not running for the Senate in Florida, maybe even the president again. Who knows? And that didn’t happen.

So, he was very interested in this trial, because, at this time, he not only was interested in power, but he also had been for many years a progressive, and progressive causes for him were not only that women should have the vote, but prohibition, because he felt that by curtailing drinking in the country, it’s not necessarily the horror that we think, that you will protect families. So, he’s very family-oriented.

And then he had become more and more a fundamentalist, which in the simplest sense of what that was at the time was he believed in a literal reading of the Bible.

And so, he felt for many reasons, at this juncture by 1925, particularly, after World War I, that there was something terribly wrong with the theory of evolution, which he associated with Darwinism, which he associated with social Darwinism, and which he also then associated with the whole idea of might makes right, and the First World War, and he was ready to do battle to duel to the death for the sake of Christianity.

And that’s what he felt he was there to do.

Preet Bharara:

So, pause on him for a second-

Brenda Wineapple:

Sure.

Preet Bharara:

… and we’ll get to Clarence Darrow. What was his fundamental misunderstanding in equating the theory of evolution as articulated by Charles Darwin-

Brenda Wineapple:

Right.

Preet Bharara:

… in The Origin of Species versus this other social theory that became in vogue of social Darwinism?

Brenda Wineapple:

Right. Social Darwinism, the simplest way to think about it is from the vantage point of the phrase we’ve all heard, “Survival of the fittest,” and the survival of the fittest became a kind of catchphrase. It was actually not Darwin’s phrase. It was somebody named Spencer, who became a, kind of, sort of, Darwin-lite, in a certain sense.

And what that meant was that species survived, because they should survive. In other words, that there wasn’t a kind of natural random selection, that occurs over time, change over time, but rather that if you are rich, it’s because you deserve to be rich. If you are powerful, you deserve to be powerful. If you’re a robber baron, or a capitalist at the top of your game, you deserve that. And if you’re poor, then you deserve that too, in that sense.

Preet Bharara:

And how did that conflict with his understanding of a literal interpretation of the Bible?

Brenda Wineapple:

Well, for him, that’s also another aspect of this, but let me just finish on the survival of the fittest. One of the things that was so offensive to Bryan about World War I was that he associated science with technology, and might makes right, which is survival of the fittest, with Germany, the enemy, and in that particular context, might makes right, and technology, well, what did that bring us? Poison gas, and almost 40 million casualties during that war.

So, he was horrified by the fact that, to him, science has run amok, because nobody was there to stop it. When nobody’s there to stop it … What he meant by nobody is he meant Christians, Protestants, who read the Bible literally, and who understood that God created humankind in six days, and then rested, and that we are created in God’s image.

The fact that we may have evolved over time, however that happened, because all the scientists and evolutionists who had come to the trial to testify said, “How evolution occurs is something that we don’t really entirely understand, but that it occurs we do understand, because we could just look at rivers, and the way riverbeds cut through mountains, things of that nature.”

Preet Bharara:

Yeah.

Brenda Wineapple:

But what Bryan says is, “No. We’re created in God’s image right at the outset of creation, seven days,” and that all occurred about 6000 years ago. So, that when Darrow has got Bryan on the stand, and says, “Did you ever realize? Do you know that there are civilizations that are older than 6000 years, or older than the flood? Because the flood presumably wiped out everything. You have to start all over again.”

That’s when Bryan says, “I don’t think about things that I don’t think about.” I’ve never thought about that really, and it’s not important, because that’s the speculations of men, and I’m only interested in the word of God as it’s written in the Bible, because that’s what was [inaudible 00:14:52].

Preet Bharara:

It was also aesthetically offensive. Somebody coined the term … Lots of people know the trial as the Scopes trial, or the monkey trial, or the Scopes monkey trial, because the idea of being descended from other animals is one thing, but monkeys is something different.

Brenda Wineapple:

Well, Darwin never said we’re descended from monkeys exactly, but this becomes one of the larger issues of the trial, because one of the things that from my point of view is that the trial really isn’t about science. Science becomes a metaphor for something else.

Because actually very few people understood evolution, and the mechanisms of evolution.

Preet Bharara:

Right.

Brenda Wineapple:

So, that’s really-

Preet Bharara:

Still may be true.

Brenda Wineapple:

But that’s not what was being fought about. It became a, kind of, as I said before about that movie, that’s a different issue. It becomes a cultural watershed itself in 1925, because there was a subtext, and the subtext of monkeys, for example, which had nothing to do with Darwin evolution, and the theory of evolution, or even what was in the authorized Tennessee textbook, that was a, kind of, codeword.

Bryan was a white supremacist, and he wanted to believe that when we were created in God’s image, God’s image, God happens to be male and white.

Preet Bharara:

Yeah. From Tennessee.

Brenda Wineapple:

So, that was something that’s going on there too. What?

Preet Bharara:

From Tennessee.

Brenda Wineapple:

No. He didn’t go that far.

Preet Bharara:

[inaudible 00:16:12] to Florida.

Brenda Wineapple:

Yeah.

Preet Bharara:

So, [inaudible 00:16:15].

Brenda Wineapple:

I actually was selling real estate. I didn’t want to tell you that. He made Plutocrats, he was being derided as a millionaire, and he said, “I’m not a millionaire. I only have $500,000,” or something like that.

Preet Bharara:

So, Clarence Darrow, when I was then in high school, and then in college, and thinking about becoming a lawyer, was, like, an idol to me.

Brenda Wineapple:

Is he still?

Preet Bharara:

A little less after reading the book.

Brenda Wineapple:

Right.

Preet Bharara:

But describe-

Brenda Wineapple:

I’ll have to ask you why.

Preet Bharara:

… the conflict … Well, I had not read deeply about the likelihood that he had tried to bribe a juror.

Brenda Wineapple:

But it’s not known. See, now we’re having the conversation. I’m turning the tables on him.

Preet Bharara:

But since the time that I read about all these things when I was pre-

Brenda Wineapple:

Yeah. Yeah. Yeah. Sure.

Preet Bharara:

… college, pre-law school, I was much more I think gullible. Having been a prosecutor for a long time, I believe in the guilt of people in certain circumstances, and it’s very sketchy to me-

Brenda Wineapple:

It is sketchy, but it’s not-

Preet Bharara:

… what I know about it. Not [inaudible 00:17:19] hung jury, and they didn’t retry the case. Anyway, sorry about that.

Brenda Wineapple:

A little aside.

Preet Bharara:

So, what’s interesting to me in many ways, and you make this point in the book, with respect to the clash of these two titans, they’re not hired guns, and they’re not just people who are excellent lawyers, who are making the case that it’s their duty to make.

They are the embodiment of the sides. But, as you said, William Jennings Bryan is a fundamentalist, is a literal interpreter of the Bible. He believes this.

Brenda Wineapple:

He definitely believes it.

Preet Bharara:

And Darrow, famous known agnostic, atheist, who has very solidified political views with the ACLU and otherwise, he embodied the other side. How did the community, and the country at large react to Clarence Darrow taking that role in this case?

Brenda Wineapple:

Well, just as an aside, because you’re a lawyer, which is intimidating to me, but, in any event, the ACLU wasn’t entirely happy with Clarence Darrow representing the anti-fundamentalist point of view.

They would have preferred not having him, but John Scopes, who was the young man who stepped up, and since he’s the one in the docket, really gets to choose who he wants for an attorney, and he said, “I want Darrow,” basically.

Darrow was enormously famous. He had had a colorful career. That’s fair.

Preet Bharara:

Yeah.

Brenda Wineapple:

In the sense that he had started as a labor law, and as a labor lawyer, he was defending anarchists, men accused of throwing bombs, socialists, communists, and most recently, the year before the trial, he was defending … He was no longer really a labor lawyer. He was defending two young men, Leopold and Loeb. You may be familiar with them from another movie.

But Leopold and Loeb-

Preet Bharara:

Have you seen that one?

Brenda Wineapple:

No. I haven’t seen that. I’m not writing a book on it. So, I don’t have to see it. No. Leopold and Loeb, who just for the hell of it killed a third teenager, a boy, basically, for no reason, just because they thought they could get away with it, because they thought they were Nietzschean super men, and, as super men, of course, might makes right, there’s no morals. That’s exactly what Bryan was horrified by.

Darrow took on their case, not because he thought they were innocent. They weren’t innocent. There was no way in which they were innocent, but Darrow wanted to save them from the electric chair. He hated capital punishment.

So, he wanted to make sure that they got life sentences as opposed to capital punishment, but this was a cause célèbre, and, basically, and this is the 1920s, don’t forget, these two young men, who committed this awful crime, were said to be products of the Jazz Age.

So, when Darrow takes on the case, the fact that he’s taking on the case, this is why the ACLU is a little nervous around him, he was known as a radical lawyer. Not so much because it was alleged that he may have bribed a juror, which happened about 10, 15 years earlier, but, because he was known to espouse radical causes.

Preet Bharara:

Yup.

Brenda Wineapple:

And in that sense, he was extremely articulate. He was just like Spencer Tracy actually, now that I think about it.

Preet Bharara:

Or vice versa.

Brenda Wineapple:

But he was very articulate. He wasn’t a lawyer, who was going to parse sentences, or what someone once called semicolon voice, that they were just looking at the way the law is written. He was speaking directly to jurors over, and over again, and talking about their, and our shared humanity.

And as a result, he was able to make inroads into trials like Leopold and Loeb that nobody ever thought were possible.

Preet Bharara:

Yeah. I believe he never lost a client to the death penalty.

Brenda Wineapple:

Yeah.

Preet Bharara:

Another personal disclosure, when I was a sophomore in high school, my sport was public speaking, because actual sports did not come easily to me, and there was a category of speech called declamation in which you delivered a speech written by someone else, delivered by someone else, and I gave the speech that was a portion of Clarence Darrow’s summation in the People v. Henry Sweet.

Brenda Wineapple:

Oh my God. It’s wonderful.

Preet Bharara:

Where he argues for the life of the boy-

Brenda Wineapple:

Wonderful.

Preet Bharara:

And then you ruined it with the jury tampering. No. I’m joking.

Brenda Wineapple:

I didn’t ruin that. He didn’t tamper with that juror. He was defending a Black family from-

Preet Bharara:

A white mob.

Brenda Wineapple:

Yeah. From a white mob that wanted them, this family, this doctor and his friends and family, the white mob wanted them out of the neighborhood. They had moved into a neighborhood in Detroit. This was right after the Scopes trial. He just didn’t miss a beat, Clarence Darrow. He goes from Leopold and Loeb to Scopes to the Ossian Sweet trial.

And he appeals to the jury. It’s so powerful what he says.

Preet Bharara:

Oh, my. It’s-

Brenda Wineapple:

Do you want to declaim?

Preet Bharara:

No. No. This is your show. You point out in the book that this trial of the century, unlike other so-called trials of the century, did not involve a homicide, did not involve a kidnapping, did not involve treason, did not involve the kinds of things that cause a trial to get that label, and I wonder if the answer lies in what the trial really was, and you’ve already alluded to it.

Obviously, technically, it’s the People v. Scopes.

Brenda Wineapple:

Right.

Preet Bharara:

Is it really a trial between religion and science? It sounds like you don’t think that’s the main conflict. Is it a trial between church and state, or is it something else that you mentioned, fundamentalism versus modernism? Or is it some other clash that captured everyone’s attention so much?

Brenda Wineapple:

The reason I said cultural watershed, it’s almost as if it’s … To use another kind of language, it’s over-determined. There are so many things that are going on here. Yes, of course, it’s religion and science. It’s faith and reason. There’s no doubt about that. We would be naïve to say that wasn’t on the table.

But the way that it’s manifest, it’s manifest in so many different ways, so that it’s about fundamentalism, but it’s about modernism. I said Leopold and Loeb are considered products of the jazz age. This was a time when suddenly literature and film and radio, there are all kinds of things happening in the culture that are very disorienting to people, particularly, after World War I. It’s a time of the lost generation. It’s a time of art. If you go to an art museum, you see art, you don’t understand it.

So, people are feeling very threatened by this. Women have the vote now. There’s the sense in which how did that happen?

Preet Bharara:

And you can’t get a drink.

Brenda Wineapple:

The whole country’s changing. You have prohibition, but you can get a drink. If you have enough money, you can get a drink.

Preet Bharara:

Yeah.

Brenda Wineapple:

And what prohibition does is create a whole criminal underworld, a series of syndicates, and racketeers, and guns on the streets. So, according to Darrow, which I believe, he said, “World War I unleashed a huge amount of violence in the culture too.” Probably always there in a different way, but, certainly, at this particular time.

So, you have that kind of progressivism on the one hand versus a kind of fundamentalism, modernism versus fundamentalism. You also have city versus country. By country, I mean rural places. Right? So, that’s something that’s being played out.

And you are in the south, and often the lawyers who come in from Chicago, New York, coming in from east coast, or major cities are called foreigners, and-

Preet Bharara:

Right.

Brenda Wineapple:

… the judge and the prosecution team says, “You’re welcome, you foreigners, to our place. We want you to be comfortable, Colonel Darrow.”

Preet Bharara:

Yeah.

Brenda Wineapple:

So, there’s a whole kind of language that’s going on. It’s almost the language of the lost cause, which is actually folded into the way the appeal is argued when it goes to the Tennessee Supreme Court.

So, you have all of these kinds of issues at play. So, as I said, you have a great deal that is happening in this trial, and then it’s very important to remember, and it’s hard to really imagine this, but in the same summer as the trial took place, in Washington DC … The trial is in July, and in August, about 50,000 people … Now, it may have been 40,000 Klansmen and women, because there were women, march in Washington. It’s a huge march. I had a picture of it, because I couldn’t resist it. It’s just unbelievable to see all these pointy-headed, hooded, masked people walking down the streets in Washington.

The Klu Klux Klan was very, very important at this time, and they are representing the values of Protestantism, whiteness, church and state, and state control of church.

So, all of that is happening as well, and that’s why Darrow when he makes the arguments that he makes at the trial is, basically, saying, what’s really at stake in all of these things, if you want to just bring it together, he thinks intolerance is at stake. It’s tolerance versus intolerance.

Speaker 3:

It’s time for a short break. Stay tuned.

Preet Bharara:

So, as a lawyer, and as a younger person reading the play and watching the movie-

Brenda Wineapple:

And declaiming.

Preet Bharara:

And declaiming. Maybe I’ll declaim. I must have believed that it was a feature of dramatic license when in that fictional drama, the defense lawyer calls as a key witness a member of the prosecution team.

Brenda Wineapple:

Yeah.

Preet Bharara:

So, since then I’ve gone to law school, practiced law a bit, tried cases as a prosecutor, I have never seen the defense successfully call to the stand the prosecutor.

Brenda Wineapple:

Indeed.

Preet Bharara:

And, of course, that is exactly what happened-

Brenda Wineapple:

Right.

Preet Bharara:

… in real life.

Brenda Wineapple:

It really did.

Preet Bharara:

Can you explain how the heck that happened?

Brenda Wineapple:

Yeah. Well, I actually wanted to turn to you, I’ll explain in a second, is that it doesn’t even seem legal to be able to just call the prosecution.

Preet Bharara:

It’s ridiculous. I’m sure-

Brenda Wineapple:

But that’s we thought of at the time. Right?

Preet Bharara:

… lawyers in the audience.

Brenda Wineapple:

Right? No, but-

Preet Bharara:

But there’s a psychology at play-

Brenda Wineapple:

Well, two things, psychology, and there’s a … Yeah. There’s a psychology, but there’s a kind of sleight of hand, which is Darrow and Hays. Arthur Garfield Hays, who, by the way, is named for three presidents, but just as an aside, I had to put that in.

But Darrow and Hays decide to call Bryan to the stand. He’s the lead prosecutor, and they do it. The sleight of hand is that they can do it, because Bryan has said he’s an expert on the Bible.

Preet Bharara:

Yeah.

Brenda Wineapple:

So, they said, “Oh, well, you’re an expert on the Bible? Well, then, come and you can testify about the Bible.” And Bryan is very happy to do this. You might think this is nuts, you shouldn’t do this-

Preet Bharara:

Yes.

Brenda Wineapple:

… if you were advising him.

Preet Bharara:

Correct.

Brenda Wineapple:

But, no. This is a man who has run for-

Preet Bharara:

There’s about 80 problems with it.

Brenda Wineapple:

Well, 81, at least. It’s really … But he’s a man … Don’t forget, he’s a politician. He’s run for office many times-

Preet Bharara:

And lost.

Brenda Wineapple:

Yeah, but he keeps coming back. If at first you don’t succeed-

Preet Bharara:

Fail again.

Brenda Wineapple:

Well.

Preet Bharara:

Yeah. I’ll be nicer to-

Brenda Wineapple:

You can be … Well, yeah. He should have been nicer to himself is what it was, but he couldn’t resist.

Preet Bharara:

It was his pride.

Brenda Wineapple:

He wanted to declaim.

Preet Bharara:

Yeah. Yeah. Yeah.

Brenda Wineapple:

You know these lawyers.

Preet Bharara:

That’s a Waterloo for a lot of men.

Brenda Wineapple:

Yeah.

Preet Bharara:

Wanting to declaim.

Brenda Wineapple:

But he really felt that he was going to get, so to speak, his day in court.

Preet Bharara:

So, how did that go?

Brenda Wineapple:

Well, no. You already gave a little bit of it away. It didn’t go very well. First of all-

Preet Bharara:

But it’s an extraordinary cross-examination.

Brenda Wineapple:

It’s extraordinary, but also set the scene, because the scene … There was so many people in the courthouse that had come to the trial. Plus, there was all kinds of camera equipment. So, on the second floor of the courthouse as it’s taking place, small town, Dayton, Tennessee, everybody’s there.

Preet Bharara:

No air conditioning.

Brenda Wineapple:

No air conditioning. It’s a heatwave in July in Tennessee. So, you can imagine. The poor head of the jury, the foreman of the jury came out, and said, “Can you get us a fan?” Basically, it was terribly hot.

And the judge, Judge Ralston had heard that there’s plaster falling from the second to the first floor. It looked like that the whole floor of the place was going to cave in.

So, he said, “We can all go outside.” So, everybody, the camera people and the news people and the spectators, and the lawyers, they all march outside. And that’s where the … I don’t know what you would call it. The courtroom drama between Darrow and Bryan, the showdown takes place. On a platform, outside, everybody’s sweating. They roll up their sleeves, and then we have the drama that doesn’t go well for Bryan at all, because Darrow has a whole set of questions, “Do you really believe that Joshua made the sun stand still? Do you realize that if the sun had really stood still the Earth would have turned to molten …” Whatever. Lava. Something like-

Preet Bharara:

Yeah. The sun was created on the third day, and had morning and night on days one and two?

Brenda Wineapple:

Yeah. It went on like this. “Where did Cain get his wife?” After the snake gave Eve the apple, it was condemned to walk on its belly, to move on its belly. How did it walk before that? On its hind legs?

It must have been awful to watch really, because it was pitiful, really pitiful.

Preet Bharara:

Yeah.

Brenda Wineapple:

What about Confucianism? What about Buddhism? What about other religions? Bryan said he’s not interested in other religions, Christianity and the Bible is all that he needs, he doesn’t need anymore. “They’re very inferior,” he said.

It was just shocking.

Preet Bharara:

Then there was the business of the six days-

Brenda Wineapple:

Yes. Well, that’s what-

Preet Bharara:

… and Bryan concedes in a way that didn’t endear him to everyone, he did not-

Brenda Wineapple:

Walked into a trap.

Preet Bharara:

… there were six days of each 24 hour duration-

Brenda Wineapple:

And so, if you read the Bible literally, and there are six days, they have to be of 24 hour duration, and he said, “Well, the six days could be …” He, basically, said a metaphor. We don’t know how long a day was measured, and, at that point, Darrow knew that he has him.

And, of course, the real prosecutors, the lawyers in Tennessee who were prosecuting the case, they had been horrified from the get-go, because they didn’t want Bryan on the stand, and then he was digging himself deeper, and deeper, and they kept jumping up, and saying, “It’s enough. It’s enough.” And Bryan, sweating, turning red, awful, and he wanted to keep going on.

And, finally, fortunately, it started to rain, and that was the end of that.

Preet Bharara:

There’s a point towards the end of the cross-examination I told you I was going to cite to this where there’s a discussion about what the purpose of this humiliation, cross-examination is, and Bryan says, “The purpose is to cast ridicule on everybody who believes in the Bible.”

And Darrow says, loudly, shouting, he said the purpose is, “We have the purpose of preventing bigots and ignoramuses from controlling the education of the United States, and you know it.”

So, that’s my segue to modern times. Could that be assigned-

Brenda Wineapple:

Oh, dear.

Preet Bharara:

Could that be the slogan on a sign at a protest in, for example, Florida?

Brenda Wineapple:

Yeah. It could be. I don’t know how much good it would do, because … No, seriously, because-

Preet Bharara:

We’re 100 years later, and we’re still fighting about who should-

Brenda Wineapple:

Yes.

Preet Bharara:

… control the-

Brenda Wineapple:

Control education.

Preet Bharara:

Yeah.

Brenda Wineapple:

Control education, and we haven’t started a fight about it yet, but we will, really what Bryan wanted, it seems to me, is a theocracy. The problem with that line when Darrow says, “We’re trying to prevent bigots like you,” it becomes an ad hominen. You, as a lawyer, would know that.

It becomes an ad hominem-

Preet Bharara:

Can’t do that either.

Brenda Wineapple:

… attack. No. No. No. And it’s horrible really in a sense, because there was this one man, and he actually believes what he believes, and it is bigotry. The problem is for Darrow, and maybe for me in this case, is that if Bryan wants to believe that, fine. Right? In that sense, Darrow wears-

Preet Bharara:

It’s the imposition of that view on everyone else.

Brenda Wineapple:

It’s the imposition of that view, that, basically, it was alleged that Bryan wanted a constitutional amendment mandating not just the Christian religion, but his brand of Protestantism, because as Darrow was trying to say over and over again, “I’m not fighting against. My enemy isn’t Christianity, or religion, per se. It’s the imposition of one view, one view,” and, to him, a narrow view of Christianity on a whole population.

So, he brought, or the defense team brought a whole host of scientific witnesses, witnesses who would explain evolution, if they were allowed to testify, and they were.

But they were all very religious men. One of them taught Sunday school in Massachusetts. You can’t get more religious than that. It’s Massachusetts, after all.

But they were all religious men, and they were, basically, saying the theory of evolution doesn’t contradict our beliefs at all. You can believe in something called theistic evolution, which means God sets things in motion. Who knows where creation began?

So, there are all kinds of ways of talking about this. Bryan, and this is why Darrow really lost his temper at that point, and he was out of … They were both out of control. Everybody was out of control. And he’s, basically, saying, “No. I’m not against religion.” He says it, “I’m not against religion. I’m against your full religion,” which is to say, “Your just very narrow view of it that you want everybody else to believe.”

Preet Bharara:

Yeah. Look, he says in the cross-examination, I think more than once, this point about how there are many devout Christians in the world who can square their religion in the Bible with evolution, and he says, “Are you the only man in the world who understands the Bible?” So, highlighting an arrogance there.

Brenda Wineapple:

Yeah.

Preet Bharara:

There’s another vignette that you give in the book that just occurred to me as you were speaking, when Clarence Darrow was asked when he shows up in Dayton, I think, “Do you believe in God?” And Darrow says, “What does God mean to you?” And the person says, “Love.” He says, “In that case, I believe in God.”

Brenda Wineapple:

Right. Right. Right.

Preet Bharara:

Interesting point.

Brenda Wineapple:

It’s moving, in a certain sense, because before when we started, you said, “Darrow, atheist, agnostic.” He wasn’t an atheist.

Preet Bharara:

Yeah.

Brenda Wineapple:

An atheist is too narrow itself. He was an agnostic-

Preet Bharara:

Here come the questions.

Brenda Wineapple:

He was an agnostic, which means that he remembered his father saying, “Doubt is the first step to wisdom.” In other words, he said he would be happy to learn there was a God, but he hadn’t seen anything that suggested as much. So, he was open-minded about it, and that’s what he was arguing for, that kind of open-mindedness.

But to go back to an earlier question that you asked, how did people see Darrow? Well, people saw Darrow as an atheist coming to take away your religion, to take away your belief, to take away your church, to take away your schools, to groom atheists, and that’s not what he was about at all.

But popular culture being popular culture, that’s how he was portrayed, and that’s why from a lawyer’s point of view, that’s him, that’s why the ACLU really wasn’t happy with having him front and center at the trial, because he was, basically, trying the case in the newspapers.

Preet Bharara:

Yeah.

Brenda Wineapple:

We know all about that.

Preet Bharara:

So, I have great questions here from this audience, but before I get to these questions, I have one last question for you from me, who won the case? And interpret the win in as broad a sense as you would like.

Brenda Wineapple:

Technically speaking, John Scopes was guilty. He knew he was guilty. There was a law, it was a Tennessee law, he broke the law. “I broke the law.” And in that sense, the jury took minutes, basically, to decide.

So, the whole case backed by the ACLU and Darrow, and all of that, wasn’t there to say he was innocent, per se. Although, the defense did try to do part of that.

What they were to do is to get this law before the higher courts. And so, when they got the guilty verdict, they had a whole bill of exceptions, as it’s called. Right? And that would go before the Tennessee Supreme Court.

So, they were on their way, they hoped to the Supreme Court. So, of course, Scopes is guilty. And then Darrow, and some others go to the Tennessee Supreme Court.

What the Tennessee Supreme Court then does, and also in a sleight of hand, was, basically, say, “Well, the judge got it wrong, because the judge fined,” it was a minimal fine, fined John Scopes, who was guilty, $100, and in Tennessee, any fine over $50 has to be determined by the jury. So, they threw the whole thing out.

So, technically, Bryan won, Scopes lost, Darrow lost, the ACLU lost, but to the extent that Darrow was right, and that this became a cause célèbre, and that everybody knew about it, and I don’t mean just in Tennessee, or New York, or California, or Florida where Bryan had been living, but internationally, since everybody knew about it, and since Bryan had made himself, with Darrow’s help, to look like such a horse’s ass, that, basically, what happened was that, in a sense, in the largest sense, the theory of evolution was allowed to be taught, that the law wasn’t going to be enforced, but it didn’t take until the ’60s until it was repealed.

Preet Bharara:

Repealed. Right. It took a long time.

Brenda Wineapple:

It took a long time, but it, basically, wasn’t being used. However, it became something that other legislatures weren’t going to touch. So, there was a win, and lose. Complicated in that sense. But what isn’t?

Preet Bharara:

So, here’s a question from the audience relating to what we’re talking about.

Brenda Wineapple:

Okay.

Preet Bharara:

“How did Americans feel about the separation of church and state? Did they understand it as an American value?” Presumably, this question is about Dayton, Tennessee-

Brenda Wineapple:

Yeah.

Preet Bharara:

… in 1925.

Brenda Wineapple:

Yeah. It is an American value. I think they did understand it as an American value, but, at the same time, they felt that the church had been denuded completely, and they wanted the church back in.

At the beginning, I say something in the book, and I was ambivalent about putting it in, but I’m glad I did now is that even in the ’50s, there was some kind of discussion about in the Pledge of Allegiance, whether the Pledge of Allegiance should have under God in it, “Pledge of Allegiance,” whatever under God.

And it was not there, and then it was there, and the argument was very much like in the Scopes trial, because if you don’t have that in, somebody said, “Well, then a communist could be taking the same pledge, if you don’t have under God.”

So, there was this misunderstanding that as a Christian nation, regardless of the separation of church and state, you can separate them, but you still have to be able to have God is what many were believing, and reasonably so.

Just one more thing, the ACLU wanted to fight the Scopes trial on constitutional grounds solely, which was to say it’s just about the separation of church and state.

And Darrow, Hays, and a man named Dudley Malone was also on the defense of Scopes, they thought it was a much larger issue.

Preet Bharara:

I was going to raise the issue in this next question myself, given what we’re talking about from 1925, there was that recent ruling in Louisiana relating to the requirement of displaying-

Brenda Wineapple:

Right. The 10 Commandments.

Preet Bharara:

… in classrooms.

Brenda Wineapple:

Yeah.

Preet Bharara:

A hundred years later, we’re still talking about that kind of a law. Is there anything from your research in what was pitted against what else in your book that gives you some way to think about the Louisiana issue?

Brenda Wineapple:

Well, if I read correctly today quickly, that the judge intervened in that, and threw that out, basically, and he said, if I understand this, and I did read it quickly, basically, I thought it was interesting the judge’s argument was saying that if you post the 10 Commandments, that then children are being forced to see it, you can’t not see it, which I thought was an interesting legal argument, which also means it’s going to be continued to be argued.

Preet Bharara:

Yeah.

Brenda Wineapple:

And it seems that we’re very much in a Scopes kind of moment where that’s going to go back and forth for a while.

Preet Bharara:

So, that leads to my question, which is-

Brenda Wineapple:

Yeah.

Preet Bharara:

… not a legal question, but what does it say that some fundamental issues, that legal scholars, constitutionalists, and others would say, “These are settled questions.”

Brenda Wineapple:

Yeah. Well, so was Roe v. Wade.

Preet Bharara:

But they’re not really settled. Are they?

Brenda Wineapple:

No.

Preet Bharara:

Yeah. And what does it say, good, or bad, or indifferent, about the country that some of these central questions about how we organize ourselves into an ordered society are unsettled?

Brenda Wineapple:

Yeah. Well, I’m not capable of really answering that quickly, or easily. The fact that it’s unsettled, these are settled questions, theoretically, that is unsettled, to me, if you forgive this use of the word again, suggests that there’s something unsettling that’s going on behind the questions as they keep coming up, because they must be themselves placeholders for something else.

In other words, they’re not the questions themselves, they’re about the way people are feeling, that lives are out of control. I think that’s what was going on in the ’20s. From what I understand now, it’s a similar … For different reasons, people feeling lives are out of control, feeling that certain institutions that seemed foundational are not foundational, wanting to go back to something that presumes to give security, it seems to me.

The irony, of course, is why wouldn’t a settled question give security? Well, it’s like Bryan says, “These are only settled by men.” So, it seems we’re going to keep coming back to this. I don’t see any end to that.

Preet Bharara:

So, here’s a question about arguably the most important character in the whole saga, the defendant. And the question is, “Did Scopes know what he was signing up for in terms of celebrity and infamy”-

Brenda Wineapple:

Yeah.

Preet Bharara:

… “When he started teaching evolution?”

Brenda Wineapple:

No. Of course, he didn’t know. He was just a guy who … He’s the football coach.

Preet Bharara:

But then he answered the wanted ad. Did he know then?

Brenda Wineapple:

He didn’t answer the wanted ad. There was a group of people in Dayton-

Preet Bharara:

One of his buddies?

Brenda Wineapple:

… hanging around in-

Preet Bharara:

His buddy’s like-

Brenda Wineapple:

Well, they weren’t even his buddies. They were just people who said, “Oh, you’re teaching biology? Come in here for a Coca-Cola,” which is, basically, what they did, and then they said, “Will you do this?” And bring, if you’re going at it from a cynical point of view, bring a lot of opportunity to our town, because people are going to come in, and they’re going to buy more Coca-Cola.

But I think he was also a serious young person, who believed that you can’t teach biology without teaching evolution, and there’s an irony here to that, that I only mention in an aside, he’s teaching from the Tennessee state-authorized textbook.

Preet Bharara:

Yeah.

Brenda Wineapple:

It’s the textbook authorized by Tennessee. He’s not teaching from James Joyce, or something. This is the Tennessee book, basically. But the thing about Scopes that’s also interesting, because we live in a celebrity culture, and it wasn’t any different in 1925. So, people say, “Oh, I’ll make a movie out of you,” or, “It can sell a book.” He didn’t want celebrity in that way.

It was the Scopes trial, we call it the Scopes trial, people don’t even know who he was. “What happened to Scopes? Do you know?” No. Of course, nobody knows.

Preet Bharara:

People think that’s the name of a monkey, or something.

Brenda Wineapple:

Yeah. Right. Or a mouthwash. A mouthwash.

Preet Bharara:

If I remember, I haven’t seen the movie in a while-

Brenda Wineapple:

No?

Preet Bharara:

… but this audience will know, I believe that the actor who played Scopes in the movie was the actor who played Darren in Bewitched.

Brenda Wineapple:

Oh, yeah. Yeah. Yeah. Yeah. Yeah. That’s my husband that said yeah. Yes. Absolutely. And Gene Kelly plays the journalist H.L. Mencken. So, it’s quite an array of characters.

But Scopes went on to live a reasonable and quiet life.

Preet Bharara:

Do you think the massive amount of media attention in that case impacted the final ruling? And if I can add another part to that question, because radio was a big deal. So, A, did that have an effect? And, B, in researching and writing this book, do you have a view about cameras in the courtroom today?

Brenda Wineapple:

Radio had enormous impact, because more and more people had radios. So, really, it was almost like the social media, as it were, of the day. It was brand-new, and, suddenly, you could have, lucky you, Calvin Coolidge in your living room, and-

Preet Bharara:

That’s how they sold radios in the old days.

Brenda Wineapple:

And this trial was actually I think the first trial that was ever broadcast on the radio. The Chicago radio station carried it. So, it gave it much more appeal in a certain sense. You could turn in your dial.

Did the media have an impact on the outcome? I don’t think so, but it had an … Not at the literal outcome, but on the figurative outcome, the symbolic outcome, the fact that, at least, for many years, I don’t know if it’s still true now, the Scopes trial was taught in high schools, or in grammar schools, that’s because it was a media event. It wasn’t just some arcane thing happening in some small town in the south.

So, yeah. I think it did have an impact, and I think probably a good one. About cameras in the courtroom today? I’m really so ambivalent.

Preet Bharara:

Really?

Brenda Wineapple:

Yeah. Yeah.

Preet Bharara:

So, we’re about out of time. Final question, would you preview the next book you might be working on? Might it be a book about the Menendez brothers trial?

Brenda Wineapple:

Yeah. Sure. Absolutely.

Preet Bharara:

Trial of the century.

Brenda Wineapple:

What an idea. My next book is a very, very, very small book for part of a series on Fiorello LaGuardia.

Preet Bharara:

There’s an airport named that.

Brenda Wineapple:

You think?

Preet Bharara:

Yeah. Brenda, thank you so much for your time.

Brenda Wineapple:

Thank you, Preet. Thanks.

Preet Bharara:

Congratulations on the book, Keeping The Faith: God, Democracy–

Brenda Wineapple:

Thank you.

Preet Bharara:

… And The Trial That Riveted A Nation.

Brenda Wineapple:

Thank you.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former U.S. Attorney Joyce Vance. Head to www.CAFE.com/Insider to sign up for a trail. That’s www.CAFE.com/Insider.

If you like what we do, rate and review the show on Apple Podcasts, or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at @PreetBharara with the hashtag #AskPreet.

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Stay Tuned is presented by CAFE, and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner, and Liana Greenway. Our music is by Andrew Dost.

I’m your host Preet Bharara. As always, stay tuned.