SCOTUS for law students: Supreme Court celebrity

SCOTUS for law students: Supreme Court celebrityJustice Ruth Bader Ginsburg may be the most “notorious” Supreme Court justice, but she is not the first to achieve some media celebrity while a sitting justice. To be sure, no other justice has been the focus of a box office hit the way Ginsburg is featured in the documentary “RBG.” According to film industry […]

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SCOTUS for law students: Supreme Court celebrity

Justice Ruth Bader Ginsburg may be the most “notorious” Supreme Court justice, but she is not the first to achieve some media celebrity while a sitting justice.

To be sure, no other justice has been the focus of a box office hit the way Ginsburg is featured in the documentary “RBG.” According to film industry reports, the movie was recently showing at more than 400 theaters nationwide and topped $5 million in gross sales. “RBG, a Documentary about Ruth Bader Ginsburg, Has Become an Unlikely Box-Office Hit,” Vanity Fair recently declared.

Who came before Ginsburg? The first answer is Justice William O. Douglas. During his Supreme Court tenure from 1939 to 1975, still the longest in history, Douglas wrote more than 30 books. Among his “firsts” was what most identify as the first television interview of a sitting justice. Aired on ABC on May 11, 1958, “The Mike Wallace Interview” featured a 30-minute discussion with Douglas, primarily focused on a book the justice had just published, “The Right of the People.” The interview focused on threats to American freedom and liberty and was not about the Supreme Court or Douglas as a justice.

Douglas would later publish what is considered by many to be the first memoir written by a sitting Supreme Court justice. (Justice Felix Frankfurter recorded a series of oral histories, which were edited in 1960 into “Felix Frankfurter Reminisces,” covering the period before his Supreme Court appointment in 1939.) “Go East, Young Man,” by Douglas was published in April 1974 and spent several weeks on best-seller lists. The book centered on Douglas’ life before the Supreme Court but still was unusual at the time. A second volume, “The Court Years,” was published posthumously in 1980.

Justice Hugo Black, the Alabaman former senator who served on the Supreme Court from 1937 to 1971, is credited with giving the first television interview in which a sitting justice discussed the court and his own judicial philosophy and views. On December 3, 1968, CBS aired a 32-minute prime-time interview with Black, conducted by correspondents Martin Agronsky and Eric Sevareid, and entitled “Justice Black and the Bill of Rights.” Black discussed his views of the First Amendment and freedom of speech. He defended his view that he did not need to examine the books, magazines and films that were at the center of controversial obscenity prosecutions at the time; because he believed obscene material was protected speech, there was no reason for him to view the evidence, he said.

Black’s interview did not afford him the celebrity that Ginsburg enjoys today, but it was highly unusual for the moment. Already approaching his twilight on the bench, Black reclaimed the limelight occasionally. On February 27, 1971, celebrating his 85th birthday, Black held an unusual press conference, asserting among other things that he had no plans to retire; ill health forced him to leave the court about seven months later.

The second Supreme Court memoir did not bring celebrity with it because it was released posthumously. “The Memoirs of Earl Warren” was published in 1977 after the chief justice’s death in 1974.

Perhaps the next Supreme Court celebrity was in the public eye by virtue of being the first woman appointed to the Supreme Court. Justice Sandra Day O’Connor was nominated to the court by President Ronald Reagan in 1981 and became a prominent figure in the Washington social scene and a much-sought-after speaker among women’s groups of lawyers, judges and other professionals. As the court’s first woman justice, O’Connor drew attention throughout the 1980s, well before she added to her image by publishing her autobiography in early 2002, “Lazy B: Growing Up on a Cattle Ranch in the American Southwest,” co-authored with her brother. To burnish her celebrity status even more, later in 2002, O’Connor published “The Majesty of the Law: Reflections of a Supreme Court Justice.” O’Connor served from 1981 to 2006 and remained a visible figure throughout her tenure.

Rivaling O’Connor’s celebrity, even exceeding it in some circles in the second half of the 1980s, was Justice William J. Brennan. For much of his tenure from 1956 to 1990, Brennan kept a low profile and was little known outside legal circles. Initially this was because he believed it was the proper role for justices to speak largely through their opinions or sometimes through speeches to bar groups, law schools and universities. Then from 1969 to 1982, while his wife, Marjorie, was suffering from cancer and until her death in December 1982, Brennan was rarely seen in public other than on the Supreme Court bench. In March of 1983, Brennan married his secretary, Mary Fowler, and he began a new era as a much more public and visible individual.

It was the confluence of two events that brought a celebrity status to Brennan. In 1986, he celebrated his 80th birthday on April 25 and his 30th anniversary on the Supreme Court in September, and he seemed to decide that it was time to enjoy some recognition for his years of writing important decisions. Suddenly Brennan was everywhere on television and in newspapers and magazines. He granted interviews to most major news organizations, both newspapers and television networks. He was featured in the New York Times Magazine on Sunday, October 5, 1986, portrayed in an iconic cover photo wearing his robe and looking defiant, with his arm stretched against one of the Supreme Court’s columns, as if at age 80 he was just reaching his prime and wanted Reagan to know that he had no plans to give up his seat. The article included a question-and-answer session about the court with Brennan’s former law clerk, Jeffrey Leeds.

In 1986, Brennan agreed to cooperate with this author on a biography that was eventually published in 2010, “Justice Brennan: Liberal Champion.” He also began cooperating with two different public television documentaries on his life.

Between Brennan’s celebrations of 1986 and the bicentennial of the Constitution in 1987, Brennan went from relative obscurity to high-profile celebrity. In May 1987, he appeared in a lengthy PBS interview with Bill Moyers as part of a series, “In Search of the Constitution,” in which some other justices also gave separate interviews, among them O’Connor and Justices Harry Blackmun and Lewis Powell.

Brennan undoubtedly would have liked to enjoy his celebrity for many years, but his health deteriorated, and he was forced to resign from the court in 1990.

The public exposure of justices, if not actual celebrity, has continued to increase in different ways. Chief Justice William Rehnquist published a book about the court in 1987, “The Supreme Court: How It Was, How It Is.” Later editions dropped the subtitle, and Rehnquist went on to write two other books. Justices Clarence Thomas and Sonia Sotomayor have published well-received autobiographies, telling of their lives before they reached the Supreme Court. Justice John Paul Stevens has written two books since he retired in 2010.

And the CBS program “60 Minutes” has become almost a must-stop for justices, with appearances in recent years by the late Justice Antonin Scalia, also the author or co-author of three books, as well as Stevens, Sotomayor and Thomas. And Justice Stephen Breyer, who has written two books while on the court, has made appearances on “The Late Show with Stephen Colbert” and “Charlie Rose.”

Although no other justice has been the focal point of a first-run film (The movie “Marshall” focuses on Thurgood Marshall more than two decades before he joined the Supreme Court.), Scalia was the topic of a well-reviewed play, “The Originalist,” which debuted in Washington in 2015, a year before Scalia died. The one-man Broadway production of “Thurgood” in 2008 focused on Marshall’s life but premiered some 15 years after his death.

Ginsburg’s celebrity was also marked by the creation of an opera, “Scalia/Ginsburg,” which debuted in 2015 and celebrated the friendship of the two justices, who had different ideological viewpoints.

Despite this history of growing visibility and even occasional celebrity for Supreme Court justices, there is little doubt that Ginsburg sits atop the pop chart – an opera, a movie, a fan-created website, t-shirts. No other Supreme Court justice in history has had a box-office hit to show as part of her celebrity, and it seems unlikely that movie theaters will suddenly fill with sequels telling the life stories of other justices. At the moment, and for whatever reason, there is only one Notorious RBG.

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Constitutional interpretation and Loving v. Virginia

Constitutional interpretation and <em>Loving v. Virginia</em>“How would each of you have decided Loving v. Virginia?” Justice Ruth Bader Ginsburg put this question to scholars Richard Primus and Randy Barnett on Tuesday at the Supreme Court, interrupting their debate over modes of constitutional interpretation. According to Jennifer Lowe, the director of programs at the Supreme Court Historical Society, it’s the first […]

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Constitutional interpretation and <em>Loving v. Virginia</em>

“How would each of you have decided Loving v. Virginia?”

Justice Ruth Bader Ginsburg put this question to scholars Richard Primus and Randy Barnett on Tuesday at the Supreme Court, interrupting their debate over modes of constitutional interpretation. According to Jennifer Lowe, the director of programs at the Supreme Court Historical Society, it’s the first time a justice has interrupted a speaker at one of these events.

Loving is a 1967 decision in which the Supreme Court held that Virginia’s anti-miscegenation law violated the equal protection clause of the 14th Amendment. Ginsburg has called Loving “one of the most important decisions” in history, “as important, if not more important, than Brown v. Board of Education,” “the one that, more than anything else, was meant to end apartheid in America.”

Primus began his answer with “a plea for humility as we think about history.” “It’s so easy to think, ‘well, of course I would have done the right thing,’” he said, but “we don’t know what we would have done.”

“If the question is about who I am today,” Primus continued, “my view would be that by the time of Loving, we have the equal-protection principle of Brown. The law in Loving made the criminality of an act depend on the race of the actor, and it just follows from the principle of Brown and equal protection that that can’t be.”

Earlier in the debate, Primus had called himself a common-law constitutionalist. Under his theory, “where decision-making by courts is concerned, precedent is the best guide to constrained discretion of judges, to hold the legal system stable, to let people order their affairs.” “It does not succeed in completely eliminating discretion and judgment calls,” he admitted; “no sane theory of adjudication does.”

For his part, Barnett defended public-meaning originalism, the theory that “the meaning of the text of the Constitution should remain the same until it’s properly changed by amendment.” He contrasted his approach with other theories of originalism based on the framers’ intentions for a particular amendment or on expectations by the public for how an amendment would be applied. Public-meaning originalism requires extensive historical investigation, but not, unlike other types of originalism, “impossible” counter-factual inquiries.

Barnett criticized Primus’ response to Ginsburg’s question. “I think on Richard’s approach, it’s very difficult to know why Loving wouldn’t have come out the other way before Brown.” “Without Brown being decided, then Loving is obviously wrong,” Barnett continued, because “legal practice and precedent said [Virginia’s law] was constitutional and so it must have been constitutional.”

Under Primus’ approach, Barnett suggested, anti-miscegenation laws “only became unconstitutional … 13 years after 1954,” when Brown was decided. But “if Loving is correctly decided, as it clearly is, in my view,” Barnett argued, “it’s because it was unconstitutional the day the 14th Amendment was enacted,” in 1868.

“Just because people back then didn’t think it was irrational” for a state to pass anti-miscegenation laws, Barnett continued, “doesn’t mean that it was rational” under the actual text of the 14th Amendment. “That was true in 1868 and it was true all the way through,” Barnett said; “it’s only people’s opinions about whether it was irrational that have changed, not the Constitution itself.”

Primus observed that the Supreme Court in the 1883 case Pace v. Alabama unanimously upheld a law restricting interracial marriage, 15 years after the passage of the 14th Amendment. “I’m fine with the proposition that the content of the law at the time of Pace was morally objectionable,” Primus suggested. “I have a difficult time with the idea that for decades and decades the whole legal profession can just be wrong about what its law is.”

Countering this characterization of the 19th-century views of the legal profession, Barnett observed that some justices did dissent from certain incorrect decisions — notably Chief Justice Salmon Chase, who dissented from Bradwell v. Illinois, an 1873 decision upholding Illinois’ ability to deny law licenses to women, and Justice John Marshall Harlan, who dissented from Plessy v. Ferguson, an 1896 decision upholding Louisiana’s statute requiring separate accommodations for blacks and whites on railway cars.

Throughout the debate, Barnett attempted to distinguish between interpretation and application. “People make mistakes in the application phase,” and “it’s entirely possible for judges to be wrong,” even for decades. “Mostly what courts do,” Barnett had explained earlier, “is apply the doctrines they’ve developed in the past to implement the meaning of the text.” “That is your true living Constitution,” Barnett said, employing a term often used in contrast with originalism, “the living Constitution is how doctrines that have been developed to implement the Constitution have evolved over time.” “They’re only to be reconsidered,” he asserted, “if it’s established that they are somehow undercutting or inconsistent with or not faithful to both the letter and the spirit of the original Constitution.”

Barnett called for “an intellectual division of labor” between historians and judges. It’s “not realistic” that judges do the historical research required under public-meaning originalism, which should be accomplished by historians from law schools, history departments and outside the academy. Barnett noted that “in major cases that have been decided in the last five or 10 years that concern the original meaning of the Second Amendment, the right to keep and bear arms, and the original meaning of the recess appointments clause, justices don’t have to originate their own research. They rely on research that’s been done by others.”

Primus disagreed about the proper roles of judges and historians. “I think judges should mostly do the thing that is the core skill of appellate lawyers, which is reading cases and applying precedent,” he asserted. “It’s the thing that the system is built for them to do. It’s one of the features of our system, that the people who are asked to make those decisions are trained in those skills as lawyers and not as historians.”

“The Constitution is a kind of sacred text,” Primus continued; “its meaning is likely to be Protean when it matters in ways that has also been true of some other sacred texts.” “We will never stop running out of constitutional disagreements with each other,” he predicted.

Ginsburg did not comment on each professor’s answers to her question. She will be back in the courtroom on Monday for orders and possibly opinions.

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Newly released document gives voice to a private justice

Newly released document gives voice to a private justice“The challenge in writing about Justice Louis Brandeis,” says Brad Snyder, a historian of the Progressive Era and the author of “The House of Truth: A Washington Political Salon and the Foundations of American Liberalism,” is “that he played things so close to the vest. There’s very little in all the Brandeis scholarship out there […]

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Newly released document gives voice to a private justice

Photo published in the Boston American on January 28, 1916, the day that Brandeis’ nomination to the Supreme Court was announced (Supreme Court Historical Society)

“The challenge in writing about Justice Louis Brandeis,” says Brad Snyder, a historian of the Progressive Era and the author of “The House of Truth: A Washington Political Salon and the Foundations of American Liberalism,” is “that he played things so close to the vest. There’s very little in all the Brandeis scholarship out there about his inner life.”

Biographer Melvin Urofsky, author of “Louis D. Brandeis: A Life,” observes that Brandeis – the co-author of 1890 Harvard Law Review article, “The Right to Privacy,” and a dissenter in Olmstead v. United States, a 1928 Supreme Court decision allowing the federal government to wiretap without a warrant – was “the great apostle of privacy, and he applied it to himself.” He kept his personal life secret.

A newly-recovered dictation about his life that Brandeis made in 1916 to his secretary, Alice Grady – for her use leading a public-relations campaign during his contentious Supreme Court nomination – changes the landscape of Brandeis scholarship. According to Snyder, there’s “a new starting point for writing about Brandeis’ early life.” Jeffrey Rosen, president and CEO of the National Constitution Center and author of “Louis D. Brandeis: American Prophet,” adds that this document is “definitely a very valuable contribution to Brandeis scholarship and reveals sides to him we haven’t seen before.”

Peter Scott Campbell, a librarian at the University of Louisville Brandeis School of Law, found the 26-page document – “what a researcher dreams about” – in preparing “The Quotable Brandeis,” a book of Brandeis quotations. Campbell says that archivists at the Robert D. Farber University Archives and Special Collections at Brandeis University “were surprised” when he showed them what he found.

In its most recent issue, the Journal of Supreme Court History published the complete document, “Notes for a Lost Memoir of Louis D. Brandeis,” with some light editing by Campbell and 91 explanatory footnotes providing helpful contextual information. Campbell writes in an introduction that “as no researcher appears to have seen this document before, many facts and incidents here have yet to make it into any of Brandeis’s biographies.”

When asked about what they find interesting in this material, historians give a wide variety of answers. “As a general matter,” Snyder explains, “when anybody ever narrates his or her life story, the events they choose are illuminating.” “Brandeis felt like he had been accepted by the Boston Brahmin class as one of them,” Snyder continues, “and the pain he felt when they turned on him” during his Supreme Court nomination shows that “beneath the case-oriented people’s lawyer was a real person who had struggles.” Snyder contrasts this revelation with many of the previously published letters of Brandeis, which “read like bullet points” and in which “he never talks about thoughts and feelings, trials, tribulations, or challenges.”

Susan Pasternack, author of “Justice Louis Dembitz Brandeis: Guided by the Light of Reason,” was “struck by both the immediacy and ordinariness of the account, and its ‘as told to’ nature. Though Brandeis drops names with the best of them, from prominent members of the Harvard faculty to the leaders of Boston’s cultural and judicial life, and overwhelms with a characteristic deluge of facts and figures, look a little closer and the essence of the man shines through.”

Rosen agrees that the dictation conveys Brandeis’ voice, calling this a “remarkably non-defensive document” without “a lot of spin to it.” Rosen, who in his biography explores Brandeis’ role in the Zionist movement, sees in Brandeis’ “energetic efforts” to raise money for causes at Harvard Law School a precursor to his work for a Jewish homeland in Israel. Rosen also hadn’t realized that Brandeis’ family traced its ancestry all the way back to Portuguese Jews who settled in Amsterdam after being expelled from Portugal during the Inquisition.

For Rosen, other “truly illuminating” aspects of “this fascinating fragment” include the influence the financial troubles of Brandeis’ father had on the future justice, who never invested in the stock market and spent much of his career fighting monopolies. According to Brandeis, the family’s losses during the Panic of 1873 “had for me, and I think for my brother, the greatest advantages, and I have attributed my own attitude toward money and life a good deal to the fortunate circumstances of my father’s troubles.”

For Urofsky, this document solves a very specific question about how Brandeis obtained certain funds to pay for law school. In a 1980 biography, “Brandeis of Boston,” Allon Gal writes that Brandeis provided a bond from a Boston financier to the law school as a surety. In researching his own biography of Brandeis, Urofsky never located any primary-source documentation for this assertion. But in this new material, Brandeis reports that Jacob Hecht – identified in a Campbell footnote as “one of the leaders of the Boston Jewish community” – provided a $400 bond for the young law student.

Three items stand out for Campbell, the librarian who found the document. As a student in Germany, Brandeis, along with other American students, resisted bowing to certain teachers, which for Campbell shows Brandeis’ emerging libertarian spirit. Rosen compares this incident to an anecdote in Rosen’s biography in which Brandeis, reprimanded for whistling in Germany, complains, “In Kentucky you could whistle.”

Campbell also highlights how the document reveals substantial health problems Brandeis carefully monitored throughout his life. These health problems – which Rosen also “hadn’t realized the extent of” – contributed to Brandeis’ austere way of living. According to Brandeis, because of health issues: “I, who had been a singularly sociable individual, began to find that if I wanted to do my work I must withdraw. I used to go practically into retreat. My habit of avoiding people was not that I was not sociably inclined, but it was a question of doing one thing or another. So I began to lead a pretty solitary life.”

With this discovery, Campbell, who has also published essays written by Justice John Marshall Harlan, finds his research come full circle. Reading the document, Campbell was surprised to find out that Brandeis considered Harlan’s daughter Edith “a very intimate friend.”

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Does the shape of the Supreme Court’s bench affect oral argument?

Does the shape of the Supreme Court’s bench affect oral argument?In the summer of 1969, shortly after his confirmation as chief justice, Warren Burger stood at the lectern in his new courtroom. Burger faced a straight bench, with the justices’ chairs arranged in a line. Reminiscing for his clerks about his one oral argument before the justices, he remembered that they kept interrupting one another, […]

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Does the shape of the Supreme Court’s bench affect oral argument?

In the summer of 1969, shortly after his confirmation as chief justice, Warren Burger stood at the lectern in his new courtroom. Burger faced a straight bench, with the justices’ chairs arranged in a line. Reminiscing for his clerks about his one oral argument before the justices, he remembered that they kept interrupting one another, presumably because they could not see or hear each other well. “That situation should be changed,” Burger said, “… by curving the bench so each Justice could see his colleagues.”

Ryan Black, Timothy Johnson and Ryan Owens relate this Burger story, originally reported in Bob Woodward and Scott Armstrong’s landmark book, “The Brethren,” in an article in the latest issue of the Journal of Supreme Court History, “Chief Justice Burger and the Bench: How Physically Changing the Shape of the Court’s Bench Reduced Interruptions during Oral Argument.”

During the winter recess of the October 1971 term, Burger followed through on his plans. Carpenters cut the pre-existing bench and repositioned the three seats on either end at an angle to make the winged bench still used today.

The straight bench used by the Supreme Court before February 1972

Initial reaction among the justices was mixed. The authors cite a note Justice Harry Blackmun wrote to himself during the first oral argument after the change, “New bench separates Brennan and White, hurrah!” Apparently, Justices William Brennan and Byron White used to chitchat during oral argument. The increased separation between them caused by the new angle in the bench seemed to put a stop to that, at least for this first argument.

In contrast, Justice William O. Douglas called the change “as useless and unnecessary as a man’s sixth Cadillac.”

Personal assessments aside, the authors empirically examined whether the new winged bench had the intended effect of limiting interruptions. The American Bar Association in 1971 “suggested such an analysis may be warranted,” as the authors note, but theirs is the first systematic attempt.

The authors analyzed the oral argument transcripts from the October 1962 to October 1982 terms, a span that includes the 10 term terms prior to and after the bench change. A computer script assessed whether a speaking justice was followed by the advocate or another justice.

The authors found that every justice “benefitted” – “they all were interrupted less often after the bench change.” Moreover, the justices farthest from the center of the bench – the most junior justices – became “considerably less likely to be interrupted with the curved bench.” Because the chief justice sits in the middle of the bench, Burger received the least benefit from his own project. As the second most senior justice at the time, Douglas, who derided the new bench, was also among those whose spot was not affected.

The authors also cite social-science findings about the importance of “visual and auditory connections” in communication. According to the authors, this research shows that “eye contact can foster greater cooperation among individuals” and “when people cannot hear, decision-making and collegiality can suffer.” The contribution these sensory dynamics make to group functioning is important, the authors suggest, because in many ways oral argument is a discussion among the justices. As the authors quote from Justice Anthony Kennedy:

When the people come … to see our arguments, they often see a dialogue between the justices asking a question and the attorney answering it. And they think of the argument as a series of these dialogues. It isn’t that. As John [Justice Stevens] points out, what is happening is the court is having a conversation with itself through the intermediary of the attorney.

Changing the bench isn’t the only institutional reform Burger instituted as chief justice. Among other innovations, he increased the allotment of clerks per justice to four, began issuing a regular report on the state of the judiciary and founded the Supreme Court Historical Society. He also established the practice of ensuring that a syllabus, or summary, is published with every opinion.

These syllabi help journalists, but that group may still have reason to object to Burger’s reconstructed bench. To make room for the bench wings’ new intrusion into the courtroom space, the old press section had to move. As the Wall Street Journal reported at the time, “The reporters lost … the best seats in the house, a few feet from the Justices and from the lectern at which lawyers address the court.”

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Thurgood Marshall remembered by Justice Kagan and other former clerks

Thurgood Marshall remembered by Justice Kagan and other former clerks“His voice is still in my head,” Justice Elena Kagan told the audience on Tuesday when asked how her former boss, Justice Thurgood Marshall, had affected her life. Kagan, along with three other former Marshall clerks, described a justice who demanded much from his clerks, but gave his time and knowledge generously in return. They […]

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Thurgood Marshall remembered by Justice Kagan and other former clerks

“His voice is still in my head,” Justice Elena Kagan told the audience on Tuesday when asked how her former boss, Justice Thurgood Marshall, had affected her life. Kagan, along with three other former Marshall clerks, described a justice who demanded much from his clerks, but gave his time and knowledge generously in return. They also remarked on the peculiarity of working for, as one panelist put it, “not just a regular Supreme Court justice, but a living legend.”

In addition to Kagan, the event, which was hosted by the Supreme Court Historical Society, featured Harvard Law School professor Randall Kennedy, Judge Paul Engelmayer of the U.S. District Court for the Southern District of New York, and Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit, who also moderated the panel.

The evening was filled with reminiscences about working for Marshall. The former clerks recalled Marshall’s fierce commitment to his values and his dogged pursuit of what he believed was right. As an example, Kagan pointed to Kadrmas v. Dickinson Public Schools, a case involving a schoolgirl in rural Kansas whose family had to pay for her to take a bus to a school 15 miles away and who challenged the fee structure as a violation of the Constitution’s equal protection clause. Kagan told Marshall that it would be difficult for the schoolgirl to win, because the court’s prior cases suggested that the fee structure would be upheld under a lenient standard of review. Marshall rejected her analysis immediately; Kagan explained that he believed he was on the court to “make sure that people like Kadrmas got to school every day, and he was going to do what he could to make that happen.”

Kennedy told the story of Batson v. Kentucky, in which the court ruled that peremptory challenges used by prosecutors to strike jurors based solely on their race are unconstitutional. Kennedy explained that the court only agreed to hear Batson after Marshall had filed dissent after dissent from the court’s denial of certiorari in similar cases. Even after his colleagues finally agreed to hear the case and adopted his position, Marshall wrote a concurring opinion, arguing that the court wasn’t going far enough. Kennedy explained that Marshall’s willingness to constantly “push the envelope is what I admired about him.”

Engelmayer remembered City of Richmond v. J.A. Croson Co., in which the court ruled that Richmond’s plan to ensure that a certain percentage of construction contracts were awarded to minority-owned businesses was unconstitutional. Marshall was very distressed by the outcome and instructed his clerks to point out in his dissent the irony of the former capital of the Confederacy’s attempting to do something progressive and being shut down.

Marshall’s convictions would sometimes take him to surprising places. Kagan recalled Torres v. Oakland Scavenger Co., in which a group of Hispanic employees lost an employment discrimination case. Jose Torres’ name was left off the subsequent notice of appeal because of a clerical error, so he was unable to take part in the appeal. Marshall’s clerks believed that Torres should win, but Marshall ended up overruling them and writing the Supreme Court’s 8-1 decision against Torres. Kagan explained that “playing by the rules was one of the most important principles for [Marshall],” even if doing so produced undesirable results.

The panelists traced much of Marshall’s ideology to his time crisscrossing the Jim Crow south as an attorney for the NAACP. Engelmayer noted that it took a great deal of physical courage to work as a defense attorney representing black people in the south. He recalled Marshall telling stories of being moved between houses in the middle of the night for his protection and taking note of who was sleeping closest to windows in case a bomb was thrown into the room. According to the panelists, these experiences influenced Marshall’s decision to dissent in every capital case that came before the Supreme Court, because he had represented many black defendants who were executed or lynched.

Though Marshall witnessed many painful things in his career, each former clerk agreed that humor was one of the justice’s defining characteristics. During a discussion of the death penalty, Kagan remembered, Marshall declared that when one of his clients was sentenced to life in prison rather than condemned to death, “he absolutely knew that the guy was innocent.” Each former clerk described his or her first conversation with Marshall, all following a similar pattern. In Kagan’s case, Marshall called and asked, “So, you want a job?,” to which Kagan replied, “I’d love a job.” Marshall deliberately misheard her and replied, “Oh, so you have a job?” This kind of back and forth continued until Marshall warned his future clerks to prepare to write dissents, and then hung up.

During deliberations over a case, Marshall would tease and joke with his clerks. Kennedy once told Marshall that if he ruled the way he was intending, he would contradict one of his own earlier decisions. In response, Marshall asked Kennedy, “Do I have to be a damned fool all my life?” Likewise, Kagan recalled that, when told that he had to rule one way or another, Marshall often retorted: “There are only two things that I have to do: stay black and die.”

Clerking for Marshall was demanding and stressful, but the clerks were all able to step back and realize how much their boss meant to others. For Engelmayer, one such moment came when the justice took his clerks out for lunch. As their group walked into the dining room, everyone fell silent and stood up until Marshall motioned for them to sit down. Kennedy remarked on how intimidated he was when he first met Marshall face to face, in large part because he grew up hearing his father repeat a story about seeing Marshall argue a case in South Carolina challenging an all-white primary election. To Kennedy’s father, hearing Marshall referred to as “Mr. Marshall,” a title seldom given to black men in the Jim Crow south, made a lasting impression. At the end of Kennedy‘s clerkship, his father was able to meet Marshall and tell him about that argument in South Carolina.

Kagan closed the evening on a lighthearted note. On the last day of her clerkship, when Kagan’s parents came to the court, Marshall was nicer than he had been all year. “That was the only time I knew that he liked me,” she said.

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More to Fortas than scandal – Timothy Huebner on a justice “made in Memphis”

More to Fortas than scandal – Timothy Huebner on a justice “made in Memphis”There are two primary biographies of Justice Abe Fortas — Bruce Allen Murphy’s 1988 “Fortas: The Rise and Ruin of a Supreme Court Justice” and Laura Kalman’s 1992 “Abe Fortas: A Biography.” Neither of these works devotes much attention to Fortas’ life in his hometown of Memphis, Tennessee. Murphy – writing after the discovery of […]

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More to Fortas than scandal – Timothy Huebner on a justice “made in Memphis”

There are two primary biographies of Justice Abe Fortas — Bruce Allen Murphy’s 1988 “Fortas: The Rise and Ruin of a Supreme Court Justice” and Laura Kalman’s 1992 “Abe Fortas: A Biography.” Neither of these works devotes much attention to Fortas’ life in his hometown of Memphis, Tennessee.

Murphy – writing after the discovery of President Lyndon Johnson’s papers relating to Fortas, which Johnson ordered destroyed but which his staff secretly preserved – focused on Fortas’ downfall as a result of ethical scandals that surfaced during and after his nomination for chief justice. Kalman wrote a more comprehensive work, but still gave Fortas’ Memphis life only six pages before turning to his time at Yale Law School.

In a recent article in the Journal of Supreme Court History, “Memphis and the Making of Justice Fortas,” Timothy Huebner fills that void in historians’ understanding of Fortas’ early life. Through research in archives at Memphis public libraries, Temple Israel in Memphis, local newspapers, the University of Memphis and Rhodes College (where Huebner teaches and which Fortas attended when it was known as Southwestern), Huebner provides history that “none of us have gotten” before, as Kalman wrote in an email.

Huebner’s new research presents a different side to this man, who “grew up in an immigrant Jewish family of modest means in Memphis,” but who is “often portrayed as a consummate Washington insider,” as Huebner writes.

Huebner argues that experiences and relationships in Memphis “helped to shape some of Fortas’s specific attitudes about law and justice.” In particular, Huebner focuses on the Tennessee roots of Fortas’ approach to three constitutional values – justice for the poor, freedom for religious minorities and civil rights for African-Americans – that “have been obscured by the ethical scandals that ended his brief tenure on the Court.”

Huebner’s approach – focused on biographical more than doctrinal history of the Supreme Court – has marked his entire career as a scholar. For Huebner, any study of constitutional law “has to come with an understanding that law is shaped by institutions made up of individuals with their own backgrounds and experiences,” he said in an interview. To understand Chief Justice John Marshall, he explained, one needs to know that Marshall’s interest in a strong national government was shaped in part by fighting for American independence alongside General George Washington at Valley Forge.

In an interview, Fortas biographer Murphy said that Huebner’s insights into Fortas’ early life – including the future justice’s popularity, involvement in college affairs and close relationships with mentors – “fills in a lot of gaps and explains the man later involved in the culture of the White House” as a “close friend” of Johnson’s. For Murphy, the question of Fortas’ “rule-bending” remains open; he posited that it rested in Fortas’ association with New Deal politics. However, that inquiry was outside the scope of Huebner’s analysis, which sought simply to root some of Fortas’ jurisprudence in his early life experiences.

Justice for the poor: Gideon v. Wainwright

In this unanimous 1963 decision, the Supreme Court “held that the right to counsel was included among the rights incorporated by the Fourteenth Amendment to apply to the states.”

Fortas argued the case for the prevailing defendant, Clarence Gideon, at the request of the Supreme Court. As Anthony Lewis, author of the famous book on this case, “Gideon’s Trumpet,” wrote at the time in the New York Times Magazine, Fortas’ “oral argument was as thorough, as dramatic, as suave and—most important to the Justices—as well-prepared as anything that could have been done for the best-paying corporate client.”

Huebner argues that the poverty Fortas experienced as a child “affected Fortas’s ideas about protecting the legal rights of the poor and marginalized.” A 1991 study by sociologists E. Digby Baltzell and Howard G. Schneiderman, “From Rags to Robes: The Horatio Alger Myth and the Supreme Court,” found that up to that point, Fortas and Justice Thurgood Marshall were the two most “underprivileged” justices in history.

Huebner also suggests that “perhaps Fortas knew that in 1917, during his childhood, Memphis had established the first public defender east of the Mississippi River, only the third public defender office in the nation at the time.”

Freedom for religious minorities: Epperson v. Arkansas

In this 1968 decision, the Supreme Court held that an Arkansas statute forbidding the teaching of evolution violated the establishment clause of the First Amendment. As Fortas wrote in the opinion, “It is clear that fundamentalist sectarian conviction was and is the law’s reason for existence.”

Huebner writes that Fortas concluded his opinion “by citing not the words of the Arkansas statute, but the Tennessee statute under which Scopes had been convicted” in the famous Scopes Trial. “Growing up Jewish in Memphis during the 1920s—a fundamentalist place at a fundamentalist time”—”influenced his view of the appropriate place of religious doctrine in public policy,” Huebner argues.

As Huebner notes, Memphis newspapers had praised the conviction of John Scopes, and the city’s political boss, Edward Hull Crump, had advocated banning Clarence Darrow from Tennessee. Fortas’ first college debate as a freshman was a mock trial about the teaching of evolution.

Huebner reports that the “Justices were united in wanting to strike down the statute,” but not as a violation of the establishment clause. Fortas “took the lead” in grounding the court’s ruling against the government in that constitutional provision. As he wrote to a clerk who advised that the court not grant the case, “I’d rather see us knock this out.”

Civil rights for African-Americans: Brown v. Louisiana

In this 1966 decision, the Supreme Court “struck down as a violation of the First Amendment a Louisiana breach of peace statute that had been used against African-American civil rights protesters in a public library.” Huebner writes that Fortas also “voted with the majority in cases upholding the Voting Rights Act, striking down the poll tax, and advancing the desegregation of public schools.”

Huebner maintains that “Fortas’s experiences of seeing segregation and racial oppression in Memphis affected his outlook on matters of racial justice and civil rights.”

Throughout his career Fortas spoke out against racial injustices. In a 1946 speech in Memphis at his alma mater, Southwestern, eight years before Brown v. Board of Education and 18 years before the first black student enrolled in the college, he told a white audience, “It seems to me that our domestic problem and specifically the problem of the South must also be dealt with … We must realize that in this country of ours the democratic and constitutional promises of happiness are not the exclusive possessions of a few. They are the rights of all.”

As Fortas would write more explicitly in a 1972 op-ed in the New York Times, “as a Southerner—born and brought up in the Mississippi Delta—I recall the outrages of the Ku Klux Klan, directed against Jews, Catholics, and Negroes.”

Freedom of speech

Gideon, Epperson and Brown v. Louisiana do not represent the only areas of the law in which Fortas exerted some influence, although they are the cases Huebner said he found most rooted in Fortas’ early life experiences. Fortas was also involved in landmark rulings involving the freedom of speech. In Tinker v. Des Moines Independent Community School District, Fortas wrote an opinion holding that students wearing armbands did not lose First Amendment rights to free speech at school. Kali Borkoski reported for this blog on a lecture about this case given by Kelly Shackelford at the Supreme Court in 2013.

In discussing what would happen to Justice Antonin Scalia’s unfinished opinions after the justice’s sudden death two years ago, Steve Wermiel wrote for this blog that “one of the most important free speech rulings in the Court’s history,” Brandenburg v. Ohio, “originally belonged” to Fortas before he left the bench. Justice William Brennan “used most of the opinion that Fortas had prepared, but he revised the most important part, the First Amendment test,” and released the opinion as an unsigned, per curiam decision. ­

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Exams aren’t over yet: SCOTUS quiz on “Table for 9”

Exams aren’t over yet: SCOTUS quiz on “Table for 9”We dine once a year with the President, and that is all. On other days we take our dinner together, and discuss at table the questions which are argued before us. We are great ascetics, and even deny ourselves wine, except in wet weather [when it is medicinally advisable]. What I say about wine, sir, […]

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Exams aren’t over yet: SCOTUS quiz on “Table for 9”

We dine once a year with the President, and that is all. On other days we take our dinner together, and discuss at table the questions which are argued before us. We are great ascetics, and even deny ourselves wine, except in wet weather [when it is medicinally advisable].

What I say about wine, sir, gives you our rule; but it does sometimes happen that the Chief Justice will say to me, when the cloth is removed, “Brother Story, step to the window and see if it does not look like rain.” And if I tell him that the sun is shining brightly, Judge Marshall will sometimes reply, “All the better for our jurisdiction extends over so large a territory that the doctrine of changes makes it certain that it must be raining somewhere.” You know that the Chief was brought up upon Federalism and Madeira, and he is not the man to outgrow his early prejudices.

–Justice Joseph Story in a letter to a friend about early practices at the Supreme Court.

“Food in good company has sustained Supreme Court Justices through the ages,” writes Justice Ruth Bader Ginsburg in her forward to “Table for 9: Supreme Court Food Traditions & Recipes,” by Clare Cushman of the Supreme Court Historical Society. In this book – filled with tidbits from history, quotations drawn from letters, dozens of pictures and, of course, over 40 recipes – Cushman looks at the history of the Supreme Court through the lens of its food customs. This isn’t just a cute topic — it relates directly to the effective functioning of the court. As Cushman writes of the justices, “[t]o foster harmonious working relations, they have traditionally sought opportunities to enhance cordiality and cooperation by breaking bread together.”

These recipes provide a glimpse into the lives of the justices before and during their time on the bench. For instance, we learn how to make:

  • Lazy B Ranch Beef Jerky – Justice Sandra Day O’Connor’s brother produced this jerky on the Arizona cattle ranch where they both grew up.
  • Gibson Island Club Maryland Crab Soup – Justice Thurgood Marshall made this soup as he put himself through law school by working summers at the exclusive club on the Chesapeake Bay.
  • Oysters Le Burger – Chief Justice Warren Burger invented this oyster dish in 1979 to celebrate the circulation of the final 16 opinions of the term.

Throughout the book, Cushman also introduces us to various characters who have shaped the court from off the bench, including:

  • Jasper Crouch, a black freedman who worked as a bartender and pig-roaster in Richmond, Virginia. Crouch was highly praised by early 19th-century elites (especially Chief Justice John Marshall) for his mint juleps and pigs seasoned with mustard, cayenne pepper and mushroom ketchup.
  • Dorothy Kurgans, the wife of Justice Arthur Goldberg. She hosted Passover seders at their home for the justices and other leaders in Washington.
  • Marty Ginsburg, Ginsburg’s late husband. The cross-ideological friendship of Justices Ginsburg and Antonin Scalia has been widely documented: Marty Ginsburg cooked the venison from the deer Scalia hunted.

* * *

This quiz based on quotations from the book will test your mastery of Supreme Court food-related trivia. Answers (with explanations) are available at the hyperlink below.

1) “I’ll tell you what, if I am lucky enough to be confirmed, I will ask Justice Scalia to take me hunting.” Which justice made this promise to the Senate Judiciary Committee?

  • John Roberts
  • Samuel Alito
  • Sonia Sotomayor
  • Elena Kagan

2) “Good cheese is one of the gifts of the Gods, a fact that is not appreciated in this country as it ought to be.” Which chief justice lamented this sad fact?

  • William Rehnquist
  • Harlan Fiske Stone
  • William Howard Taft
  • Charles Evans Hughes

3) “The Justice had a lot of faith in bourbon as a cure for just about any ailment.” A clerk said this about which Kentucky-born justice?

  • John Marshall Harlan
  • Louis Brandeis
  • Stanley Forman Reed
  • Fred Vinson

4) Which Prohibition-era justice, after being sent three bottles of wine, made this pseudo-constitutional determination: “The 18th Amendment forbids manufacture, transportation and importation. It does not forbid possession or use. If I send it back I will be guilty of transportation. On the whole, I think I shall apply the maxim de minimis and drink it.”

  • James McReynolds
  • Edward Sanford
  • Oliver Wendell Holmes
  • Louis Brandeis

5) “The trick is to keep the steak moving on the hot pan, add butter just before it’s finished, and accent with a little garlic salt.” Which justice offered this culinary advice?

  • Hugo Black
  • Sandra Day O’Connor
  • Earl Warren
  • Neil Gorsuch

True or false?

6) The justices eat during oral argument.

7) The justices discuss legal matters together during lunch.

8) Justice Sonia Sotomayor doesn’t cook Puerto Rican food.

9) Bread should be served with pasta.

10) I have spent entirely too much time preparing this post.

Answer sheet at this link.

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Forgotten Founder: William Ewald on Justice James Wilson, the Constitution and the Declaration of Independence

Forgotten Founder: William Ewald on Justice James Wilson, the Constitution and the Declaration of IndependenceDespite signing both the Declaration of Independence and the Constitution and being one of six original justices appointed to the Supreme Court, James Wilson is not often thought of as a leading light among America’s founders. One explanation for this is that Wilson’s time on the Supreme Court was not especially noteworthy; only nine cases […]

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Forgotten Founder: William Ewald on Justice James Wilson, the Constitution and the Declaration of Independence

Despite signing both the Declaration of Independence and the Constitution and being one of six original justices appointed to the Supreme Court, James Wilson is not often thought of as a leading light among America’s founders. One explanation for this is that Wilson’s time on the Supreme Court was not especially noteworthy; only nine cases were heard during his tenure. In fact, Wilson may be best remembered for being the first and only Supreme Court justice to be jailed while on the court. He spent time in two separate debtor’s prisons in the late 18th century before dying in 1798 at the age of 55.

Professor William Ewald, in a lecture last week to the Supreme Court Historical Society, illuminated Wilson’s significant role in the drafting and modern understanding of the Constitution and Declaration of Independence. Justice Elena Kagan introduced Ewald after recounting how he was recommended to her by Elizabeth Warren, then a law professor at the University of Pennsylvania. Kagan came to realize that Ewald’s academic prowess proved “Senator Warren right, as she always is.” Realizing the implication of what she had said, Kagan quickly added, “in matters like that.”

Wilson was born and educated in Scotland before coming to Pennsylvania in 1765 at the age of 23. He would apprentice for John Dickenson before playing a leading intellectual role in the American Revolution. Ewald’s lecture focused on Wilson’s impact on both the Constitution and Declaration of Independence. Ewald explained that the popular misunderstanding of Wilson is due in part to the limited records he left behind. Unlike other Founding Fathers’ surviving papers, which were politically significant and were later preserved and analyzed, many of Wilson’s are remarkably banal financial documents and contracts, while other papers were destroyed.

Wilson’s influence on the Constitution was fairly straightforward. He was the principal drafter and perhaps the driving force on the Committee on Detail, which filled in the gaps in the broad constitutional framework agreed upon at the 1787 convention. Ewald pointed out that the committee did far more than just fill in legal technicalities: It provided the enumeration of federal powers and supremacy clauses in Article I, designed much of the presidency and defined the jurisdiction of the federal courts. The vast majority of the committee’s work went directly into the final Constitution without significant revisions from the convention at large.

Wilson himself proposed, with fellow delegate Roger Sherman, the infamous Three-Fifths Compromise between northern and southern states, under which each slave was counted as three-fifths of a person in calculating the population of a state to apportion congressional representation. Ewald explained in a follow-up email that James Madison had originally proposed that rate of counting slaves relative to the free population for purposes of taxation, and that Wilson, an opponent of slavery, suggested using the formula for representation as well. Ewald explained the decision as pragmatic; “the Convention would have come to a rapid end if [Wilson] had pushed for abolition,” he wrote.

According to Ewald, the Constitution that was enacted and ratified may have resembled Wilson’s preconception of it more closely than those of the other Founding Fathers. The final document had a stronger central government than Southern delegates like Thomas Jefferson and Madison desired, yet was more democratic and egalitarian than Alexander Hamilton preferred. Wilson was, for example, a major proponent of the principle of “one-man-one-vote.” Nonetheless, Ewald cautioned against calling Wilson, or anyone else, “the Father of the Constitution,” because the document was far too complex for any one person to have been its prime mover.

If Wilson’s role in the drafting of the Constitution was clear and well established at the time, his role in the Declaration of Independence was obscured in the revolutionary era. Yet Wilson was well ahead of his contemporaries in understanding how the document would evolve over the course of American history. Wilson did sign the Declaration, but he was not a member of the “Committee of Five” that drafted the document. His influence can be traced to a 1774 pamphlet titled “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” in which he argued, in what was then a radical stance, that Parliament did not have authority over the American colonies.

One of Wilson’s core arguments was:

All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.

Ewald noted that is it clear that Jefferson, who copied other passages from Wilson into his own writings, used Wilson’s words as a direct source for the famous line in the Preamble to the Declaration of Independence, which in Jefferson’s rough draft read: “We hold these truths to be sacred & undeniable; that all men are created equal and independent, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty & the pursuit of happiness.”

But, Ewald explained, the concept of America being founded on the basis of human freedom and equality was not especially important to most of the Founding Fathers. Jefferson never used the phrase “created equal” in any of his writings from 1776 until his death in 1826. The same is true for George Washington, Madison, Hamilton, John Adams and many other Founding Fathers. In fact, the phrase was seldom used in American discourse before the middle of the 19th century, when the abolitionists began citing it to justify ending slavery. Of course, it is now part of perhaps the most iconic line in the Declaration of Independence, a shift that Ewald cited to argue that the Declaration can only be analyzed as a living document.

Wilson, however, was well ahead of his peers in understanding the importance of human equality in the American Revolution. During the Pennsylvania debates over whether or not to ratify the Constitution, Wilson quoted the entire second sentence of the Declaration of Independence and added, “[T]his is the broad basis on which our independence was placed; on the same certain and solid foundation this system [of the US Constitution] is erected.” According to Ewald, Wilson intended to draw an explicit link among the Declaration, human equality and the Constitution, which no other delegate did during any ratification debates.

Why was Wilson so far ahead of his contemporaries? Ewald argued that the answer could lie in Wilson’s Scottish roots, which were unique among the great thinkers of the Revolution. Scotland still thought of itself as a colony of England in the 18th century, when Wilson was growing up and being educated. In Ewald’s view, Wilson’s “different philosophical [and] analytical background” may have engendered his radical view of the egalitarian basis for America’s founding.

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Legal scholarship highlight: Justice Scalia’s textualist legacy

Legal scholarship highlight: Justice Scalia’s textualist legacyJonathan R. Siegel is Professor of Law at George Washington University Law School. The late Justice Antonin Scalia left his mark on the law in many ways, but perhaps his greatest legacy is that he changed the way we think about statutes. Before Scalia’s tenure on the Supreme Court, most judges and lawyers casually assumed […]

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Legal scholarship highlight: Justice Scalia’s textualist legacy

Jonathan R. Siegel is Professor of Law at George Washington University Law School.

The late Justice Antonin Scalia left his mark on the law in many ways, but perhaps his greatest legacy is that he changed the way we think about statutes. Before Scalia’s tenure on the Supreme Court, most judges and lawyers casually assumed that when a court interprets a statute, its job is to implement “legislative intent.” Courts often paid more attention to statutory purpose and legislative history than to statutory text.

Scalia rebelled against these interpretive methods. He believed that when a court interprets a statute, the court’s job is to read the statutory text and do what it says.  Even if what it says is stupid. Even if what it says is not what anybody intended. The text of a statute, Scalia believed, is the law.

In a recent article, I chronicle and assess Scalia’s campaign for “textualism.” In the end, I suggest, Scalia both won and lost. He had tremendous influence over interpretive methodology. But he never convinced the Supreme Court, or federal judges generally, to adopt his textualist ideal that “the text is the law.” In some cases, federal courts still depart from statutory text in order to implement legislative intent or statutory purpose.

The way things used to be

In the period preceding Scalia’s arrival on the Supreme Court, the court used interpretive methods that are almost unimaginable today. It often gave itself up to wholly unrestrained reliance on extratextual considerations, especially legislative history. For example, in 1978, in Monell v. Department of Social Services of City of New York, the court considered whether a municipality is a “person” subject to suit under 42 U.S.C. § 1983. With barely a glance at the statutory text, the court launched into an analysis of legislative history that was so long it had to begin with an overview. The Court devoted 18 pages to recounting congressional debates blow by blow and concluded that Congress “intend[ed]” municipalities to be covered. In Citizens to Preserve Overton Park, Inc. v. Volpe, in 1971, the court made the now-incredible remark that because the legislative history of the statutes at issue was ambiguous, the court would have to look to the statutes themselves to find the legislative intent. Truly, as Scalia later complained, the legal culture was such that “lawyers routinely … ma[d]e no distinction between words in the text of a statute and words in its legislative history.”

Enter Justice Scalia

Scalia started his protests against these interpretive methods modestly. In the 1989 case Blanchard v. Bergeron, he challenged the Supreme Court’s reliance on legislative history, but primarily on the ground that legislative reports are an unreliable guide to legislative intent. He said that committee reports had become “increasingly unreliable evidence of what the voting Members of Congress actually had in mind,” thereby implicitly accepting that a court should care what members of Congress had in mind.

Scalia’s opinions evolved over the next decade and took on a sharper tone. In 1993, in Conroy v. Aniskoff, he said, “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.” Scalia crystalized his thoughts into a set of lectures delivered at Princeton in 1995, which later appeared in book form. He complained particularly about reliance on legislative history, but that was merely one detail in the bigger picture. The bigger picture was that “[t]he text is the law, and it is the text that must be observed.”

Scalia employed this textualist philosophy from that point forward. Legislative history always remained a particular sticking point. Even when Scalia joined an opinion, he made a point of refusing to join portions that relied on legislative history — a practice he continued over decades. But more generally, he argued that the goal of statutory interpretation is to implement the meaning of statutory text, not the intent behind the text.

Assessing Scalia’s influence

Scalia’s textualist campaign was tremendously influential. He changed the way courts interpret statutes. His influence is visible in virtually every Supreme Court opinion interpreting statutes today. Consider, for example, the 2010 case Bilski v. Kappos, which tested whether a business method can constitute a patentable “process.” For over a century, courts applied patent law with a rich awareness of the history, policies and background understandings of the patent system, which frequently caused courts to gloss, strain and even depart from the patent statute’s text. In Bilski, however, the Supreme Court simply consulted “dictionary definitions,” “common usage” and the interpretive canon against statutory redundancy. Gone were appeals to history, policy and background understandings. Cases like Bilski are far more common today than cases like Monell or Overton Park.

With regard to legislative history, Scalia’s most particular concern, the Supreme Court still consults it, but in a somewhat apologetic way. Often it adds a disclaimer such as “for those who consider legislative history relevant.” The practice of putting legislative history on a par with statutory text has been repudiated.

Nonetheless, the Supreme Court, and federal courts generally, have never fully accepted Scalia’s textualist ideal that “the text is the law.” Justice Elena Kagan, in a lecture at Harvard Law School, recently said that thanks to Scalia, “we are all textualists now.” Kagan, however, is correct only in a relative sense. We are all textualists now compared with the 1960s and 1970s. It is now generally agreed that when interpreting a statute, a court should start by reading the statutory text and should not lightly depart from the text. But we are not all textualists by Scalia’s definition. There is not general agreement that “the text is the law.” Recent cases show that courts are not committed to following statutory text no matter what.

For example, two years ago in Yates v. United States, the Supreme Court determined that a fish is not a “tangible object” within the meaning of a statutory prohibition against impeding a federal investigation by destroying or concealing “any record, document, or tangible object.” The four-justice plurality observed that the statute in question, the Sarbanes-Oxley Act, was passed primarily to combat financial fraud and held that it did not apply to the case, far removed from its purpose, of a ship’s captain who ordered fish thrown overboard to thwart an investigation into catching undersized fish.

Similarly, in the monumental 2015 case of King v. Burwell, the Supreme Court held that a health-care exchange created by the federal government was an “Exchange established by the State” within the meaning of a provision of the Affordable Care Act that provided subsidies only for health insurance purchased on such an exchange. The statutory text suggested that subsidies were not available in states that had not set up their own health care exchanges, but the court gave the statute a broader reading in light of the essential role that the subsidies played in the overall statutory scheme.

Lower courts also depart from statutory text when the occasion demands. For example, from 2005 to 2008, numerous courts of appeals held (over one fiery textualist dissent) that a provision of the Class Action Fairness Act that allowed certain appeals to be taken “not less than 7 days after” entry of a district court’s order really required such appeals to be taken not more than 7 days after entry of the order. The statutory text was so obviously a drafting error (appeals are always subject to a time limit, not a waiting period) that the courts read it to mean the opposite of what it said.

These and similar cases show that courts do not really believe that “the text is the law” — at least, not always. Scalia’s Supreme Court colleagues did not share his devotion to his textualist ideal. It seems that the newest justice, Justice Neil Gorsuch, may step into Scalia’s textualist role, but the textualist ideal still remains a minority viewpoint.

Why do courts reject the textualist ideal? One reason is that legislatures act generally and in advance, whereas courts encounter statutes at the moment of their application to particular facts. This institutional structure guarantees that legislatures will fail to anticipate everything that statutory text will do and will pass statutes that require courts to deviate from the textualist ideal to reach sound results.

From an advocate’s perspective, the moral is that one must always deploy both textual and extratextual arguments in statutory cases. Advocates should start with the text, no doubt. But they should remember that most judges do not fully embrace the textualist ideal and they should also include extratextual arguments.

Scalia did an important service in recalling attention to the importance of text in statutory interpretation. But other considerations can be important too. There will always be room for debate as to how much judicial gloss on statutory text is permitted, but following statutory text no matter what is not the answer.

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Portrait of a justice: Roberts and Barrett on the life and legacy of Robert Jackson

Portrait of a justice: Roberts and Barrett on the life and legacy of Robert JacksonAmong the privileges and immunities of the chief justice is the right to adorn the walls of the Supreme Court. And in the justices’ private conference room, Chief Justice John Roberts has chosen to hang portraits of John Marshall, Benjamin Cardozo, a John Marshall Harlan (wagers as to which one?), and the subject of a […]

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Portrait of a justice: Roberts and Barrett on the life and legacy of Robert Jackson

Among the privileges and immunities of the chief justice is the right to adorn the walls of the Supreme Court. And in the justices’ private conference room, Chief Justice John Roberts has chosen to hang portraits of John Marshall, Benjamin Cardozo, a John Marshall Harlan (wagers as to which one?), and the subject of a lecture sponsored by the Supreme Court Historical Society on Wednesday, Robert Jackson.

Roberts – who clerked for then-Associate Justice William Rehnquist, who clerked for Jackson – proudly noted this “genealogical connection” to the renowned jurist. After praising Jackson’s “eye for allocating his time and talent for the furtherance of our constitutional system of government,” Roberts suggested that the historical society could offer a whole series just on Jackson the country lawyer; or on Jackson the chief prosecutor in Nuremberg; or on Jackson the solicitor general, a position Justice Louis Brandeis once said he wished Jackson could occupy for life. Or of course the society could host a series just on Jackson the Supreme Court justice, a dissenter from the infamous Korematsu v. United States decision that upheld the internment of Japanese Americans during World War II and the author of the enduring aphorism about the justices – remember Korematsu – “We are not final because we are infallible, but we are infallible only because we are final.”

“But an evening on Jackson as a member of FDR’s cabinet is a good place to start,” Roberts concluded.

Roberts yielded the lectern to John Q. Barrett, a law professor at St. John’s University School of Law and the sender of the “Jackson List” – periodic emails about Jackson, the Supreme Court, Nuremberg and other topics.

Barrett opened by evoking the official groundbreaking for the current Supreme Court building. On October 13, 1932, President Herbert Hoover held a trowel as lawyers crowded around him. Barrett hypothesized that Jackson was among them. After all, Jackson – an attorney in private practice in upstate New York and friend of (and campaigner for) Franklin Roosevelt – was in Washington that day to speak at the American Bar Association’s annual meeting.

If Jackson was there, he likely did not even daydream about one day taking a seat behind the bench of the completed courtroom, Barrett suggested. Jackson, then 40, had “great self-confidence and ambition,” but that “would have been far-fetched.”

A “meteoric” rise got Jackson there in nine years. Barrett detailed the timeline:

1932: Roosevelt wins the presidency.

1933: Jackson “plays a little hard to get.” He wants a “lawyerly job with stature.”

1934: Jackson becomes general counsel of the Bureau of Internal Revenue in the Treasury Department – a precursor to the Internal Revenue Service that makes Jackson the head of the largest law office in the country (larger than the Department of Justice).

1935: Jackson moves to the Securities and Exchange Commission to work on defending the constitutionality of the Public Utility Holding Company Act.

1936: Jackson becomes assistant attorney general in charge of DOJ’s tax division.

1937: Jackson takes charge of DOJ’s antitrust division.

1938: Jackson becomes U.S. solicitor general.

1939: Jackson loves his job. The “switch in time that saved nine” – in which the Supreme Court became more “inclined to support” New Deal legislation – helps, but Jackson’s success in nearly 40 oral arguments is “overwhelming.”

1940: Jackson becomes attorney general. He’s also a serious presidential candidate. Expectation remains high that Roosevelt will retire as all two-term presidents have before, following a tradition set by George Washington. (Hitler’s aggression will change the political calculus, but Jackson remains a possible nominee for vice president.)

1941: Jackson becomes an associate justice.

Another date that Barrett evoked came after Jackson had served as a justice for a decade. On May 13, 1952, Jackson and his colleagues heard oral argument in Youngstown Sheet & Tube Co. v. Sawyer.

The U.S. solicitor general, Philip Perlman, sought to defend President Harry Truman’s seizure of steel mills to prevent a labor strike during the Korean War. As Roosevelt’s attorney general, Jackson had defended similar actions during World War II. Time and again Perlman referenced this earlier position.

In the end Jackson did not agree with Perlman, and he wrote an influential concurrence about the limits of executive power (distinguishing Roosevelt’s policies). However, Barrett did not dwell on the specifics of Jackson’s argument, but on more personal realizations swirling in the justice’s mind after oral argument. Jackson realized that he was one of the last living participants in Roosevelt’s administration and that his own memories of that period were fading. He began writing a biography of his former friend, one he did not complete before his death two years later.

Much of Jackson’s work as attorney general involved war preparation and its legal arguments: about the resumption of selective service and the seizure of defense-production facilities; about “lend-lease,” in which the United States would “lend” material aid to the Allies, who in return would “lease” bases around the world; and about detentions of foreign nationals and citizens, at that time only envisioned to be Germans and Italians. One legal argument suggested that the United States need not make a formal declaration of war, because instead of joining a battle the country would be aiding victims of Nazi Germany’s international crimes – an argument dropped but later developed during the Nuremberg prosecutions.

Barrett’s lecture – and Jackson’s writing about Roosevelt – extended beyond the professional ties between these 20th-century luminaries.

It seems that the two men were not disposed to deep emotional intimacy, but they took “pleasure in each other’s company” – fishing or playing poker together. They also shared a “sense of propriety,” and only once, Jackson wrote, did Roosevelt attempt to compromise Jackson’s judicial principles. During a poker game, Roosevelt asked Jackson how he had voted in Southern Steamship Company v. National Labor Relations Board. (Jackson joined a five-justice majority ruling against the president’s position.)

Barrett suggested that Roosevelt valued Jackson’s independence. Whether that’s true – and Barrett was not entirely sure – Jackson was certainly not a “yes man.” Barrett quoted from a letter written by Jackson to Roosevelt in 1916, before they were friends. Jackson had recommended a candidate for postmaster in upstate New York, but someone else had been nominated:

Our friend Mr. Smith … was turned down … because some time in the remote past he suffered from a venereal disease. Just how this disqualified him as postmaster I am not able to see, but never having suffered from this affliction myself, I cannot share the prejudice against it which the Post office officials seem to have.

As for Jackson’s unfinished biography of Roosevelt? Jackson’s son gave the manuscript to Barrett, who edited and completed the work: “That Man: An Insider’s Portrait of Franklin D. Roosevelt.”

The Supreme Court Historical Society has three upcoming events:

November 8: “The Reenactment of Clay v. United States

November 30: “James Wilson and the American Founding,” by William Ewald of the University of Pennsylvania

December 6: “Answering the Call: Leaving the Bench to Serve the President – James F. Byrnes and FDR,” by Sidney Milkins of the Miller Center for the Presidency

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