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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Chief Justice Salmon Chase on the permanency of the Union, and Cynthia Nicoletti on Chase’s political ambitions

Chief Justice Salmon Chase on the permanency of the Union, and Cynthia Nicoletti on Chase’s political ambitionsIn Texas v. White in 1869, Chief Justice Salmon Chase famously wrote for the Supreme Court that the “Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” Chase’s opinion rejecting state secession may seem today like a foregone conclusion, an unsurprising legal corollary to the Union’s victory on the battlefield. […]

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Chief Justice Salmon Chase on the permanency of the Union, and Cynthia Nicoletti on Chase’s political ambitions

In Texas v. White in 1869, Chief Justice Salmon Chase famously wrote for the Supreme Court that the “Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” Chase’s opinion rejecting state secession may seem today like a foregone conclusion, an unsurprising legal corollary to the Union’s victory on the battlefield.

For the court-watchers of the 1860s – #AppellateQuillPens – the ruling was much less obvious, especially given its author. Just one year previously, Chase had avoided reaching this holding in a different case – Jefferson Davis’ trial for treason. Chase maintained in both cases that he was following only the dictates of logic. In a lecture sponsored by the Supreme Court Historical Society, law professor Cynthia Nicoletti told a different story that suggests Chase had more personal motivations.

In the aftermath of Appomattox, President Andrew Johnson wanted to charge Jefferson Davis with treason, a decisive legal step to cement victory in war. After all, there was no question that Davis, a prisoner at Fort Monroe in Virginia, had levied war against the United States, committing treason as defined in the U.S. Constitution. However, as Nicoletti observed, any case against Davis would bring into question the legality of state secession: Davis’ best defense was that he could not be charged with treason because he forfeited his U.S. citizenship upon the secession of the Confederate states.

According to Nicoletti, Johnson and his attorney general, James Speed, worried about raising the issue of secession because they thought they might lose in open court – having already dismissed the possibility of charging Davis before a military tribunal for fear that Southerners would reject a guilty verdict as illegitimate. Under the Constitution, Davis could only be charged in Richmond, where he had marshalled his army against the United States. And in a trial in Richmond before Virginian jurors, just one obstinate juror could have single-handedly prevented conviction.

Nicoletti went on to suggest that one judge – Chase – also factored into Johnson and Speed’s prosecutorial calculus. At that time, a judge from district court and a justice from the Supreme Court jointly presided over trials for major federal crimes, including treason. Chase, who was responsible for “riding circuit” in Virginia (full courts of intermediate appellate review had not yet developed), would be one of the two judges presiding over Davis’ trial.

Nicoletti explained that as governor of Ohio before the outbreak of the Civil War, Chase was a strong advocate for states’ rights – not because of support for slavery, but out of opposition to it. Chase firmly opposed the Fugitive Slave Act, a federal law that infringed on the rights of states, like Ohio, by forcing them to support the institution of slavery. Johnson and Speed worried about putting Chase to a tricky choice – acquit Davis or retreat from his earlier support for state sovereignty.

As Nicolleti pointed out, not every Northerner necessarily opposed state secession. For instance, Thaddeus Stevens, a leader of the radical wing of the Republican party, supported the recognition of the Confederacy as an independent nation. Stevens wanted greater federal and military pressure on the Confederate states to protect the civil rights of former slaves – a position that required the region to be treated legally as conquered territory, not as states. (Stevens believed in this idea so strongly that he even offered to serve as Davis’ lawyer. Davis refused.)

According to Nicoletti, Chase made every effort to avoid deciding the Davis case. For instance, he argued in private to Johnson that the state of martial law in Virginia infringed on his ability to hold a fair trial. In 1866, Johnson loosened the military presence. Chase complained that it wasn’t enough. Johnson loosened it further. Once Chase ran out of other excuses, he simply didn’t show up at key legal events.

As Nicoletti told it, Chase found his way out of the case through the 14th Amendment in 1868 – three years after Davis’ original capture. Section 3 of the amendment prohibited former members of the Confederacy from holding office. Chase reasoned that this provision limited the government’s ability to impose further punishment on Confederates. Chase even took the step of inviting Davis’ lawyer to a private meeting to express this view.

After Davis’ lawyer repeated these arguments at trial, Chase ruled for the defendant, without endorsing state secession, although the district court judge disagreed. The prosecution chose not to appeal the case to the Supreme Court.

Less than a year later, Chase issued his ruling in Texas v. White. This case reached the Supreme Court on original jurisdiction – but the court could hear the case only if Texas had in fact remained a state during the Civil War. Chase supported his holding that Texas never left the Union with arguments made by President Abraham Lincoln in his first inaugural address: The Articles of Confederation explicitly pronounced the union perpetual, and the preamble to the Constitution said it made the union “more perfect.”

Unlike the Davis trial, Texas v. White attracted little attention or publicity. Most newspapers focused on another case handed down the same day and ignored this one.

What explains Chase’s seeming shift on state sovereignty? Nicoletti suggested that the issue was never Chase’s primary concern. Instead, Chase primarily saw the Davis case through the lens of his presidential ambitions. Chase had run against Lincoln for the Republican nomination in 1860, and Lincoln nominated him to the Supreme Court in 1864 in large part to avoid a primary challenge. At the same time as the Davis trial in 1868, Chase was actively running for president – as a Democrat. Given his party affiliation, Chase feared alienating Democratic Southerners by convicting Davis.

Chase had little to gain from the Davis trial, but a lot to lose. So he punted. A year later, having again failed in his presidential bid, Chase seized a chance to slip a major ruling into an otherwise inconsequential case. Throughout both cases, Chase maintained that he only followed logic. Looking at his actions, Nicoletti suggests otherwise.

Nicoletti spoke as part of the historical society’s 2017 Leon Silverman Lecture Series, which this year focuses on Supreme Court justices and presidential cabinets. On November 1, professor John Barrett will give a lecture entitled “Attorney General Robert H. Jackson and President Roosevelt.” And December 6, Sidney Milkis will give a lecture entitled “Answering the Call: Leaving the Bench to Serve the President – James F. Byrnes and FDR.” More information is available on the society’s website.

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When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. Constitution

When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. ConstitutionThe first three articles of the U.S. Constitution establish the three branches of the federal government – legislative, executive and judicial. This separation of powers provides a check on the consolidation of control over the government. Montesquieu, a source of inspiration for the framers at the constitutional convention, worried about the loss of liberty and […]

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When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. Constitution

The first three articles of the U.S. Constitution establish the three branches of the federal government – legislative, executive and judicial. This separation of powers provides a check on the consolidation of control over the government. Montesquieu, a source of inspiration for the framers at the constitutional convention, worried about the loss of liberty and the rise of tyranny should any person or body control more than one of these sources of authority.

Presumably, then, the chief justice of the United States cannot serve as the president’s secretary of state. Au contraire, argued professor Saikrishna Prakash last week in a lecture at the court sponsored by the Supreme Court Historical Society. And in fact this very situation occurred in the nation’s early history. John Jay, who had been the secretary of foreign affairs under the Articles of Confederation, continued to fulfill this role in an acting capacity during the nation’s transition to the new federal government, even after he became the first chief justice. John Marshall, after becoming the fourth chief justice, also continued to serve as secretary of state for President John Adams (and briefly for President Thomas Jefferson). Perhaps more striking than these temporary overlaps, three of the first four chief justices – Jay, Marshall and Oliver Ellsworth – negotiated treaties as special envoys to foreign nations.

What to make of this double duty? Prakash suggested that these overlapping appointments reveal conceptual differences between the 18th century and today about the independence of judicial power.

Even at the start of the republic, Prakash explained, not everyone approved of this practice. Perhaps the most notorious founding father, Sen. Aaron Burr of New York – later vice president, killer of Alexander Hamilton and defendant on charges of treason – led a 1794 Senate campaign against Jay, whom President George Washington had nominated as a special envoy to negotiate a treaty with Great Britain.

Prakash quoted Burr as calling the appointment of a sitting judge to an executive-branch position “contrary to the spirit of the Constitution,” “mischievous and impolitic.” Burr and his Senate allies presented a series of arguments against Jay that may seem intuitive to a modern American audience.

Most generally, the anti-Jay forces contended that the possibility of obtaining a position within a presidential administration would corrupt judges into ruling in such a way as to impress the president and other executive officials. In addition, the supremacy clause of the Constitution declares that treaties with sovereign nations are the law of the land. As a special envoy, Jay would make law that he would then interpret as a judge. Burr and his allies pointed out as well that a chief justice who also served in a presidential cabinet might be unable to preside impartially over a president’s impeachment trial in the Senate. Finally, they wondered whether the Supreme Court needed more work if its chief justice had time to take on an additional assignment.

In contrast, Prakash maintained, Washington – the “general contractor” of the Constitution, as professor Edward Larson argued in a different society lecture – evidently did not see a constitutional problem with nominating Jay, nor did Jay with accepting the nomination. In the end, even the Senate did not object, and it sent Jay off to conduct the negotiations.

A provision in the Constitution prohibits legislators from serving in either of the two other branches. But, Prakash observed, no clause similarly limits judges from engaging in executive functions, or vice versa. Prakash noted that some delegates to the constitutional convention in Philadelphia did propose such a rule, but the group never even voted on the idea.

Although some state constitutions in the 18th century did specifically bar judicial-executive double-duty, overlap of personnel was common, Prakash reported. For instance, the governor of New Jersey at that time served as chancellor of the state’s court of appeals.

Prakash argued that the framers’ apparent acceptance of overlap between judicial and executive positions reveals that legal conceptions at the time of the framing differed from our current understanding. Within English law, the judicial power historically constituted a subcomponent of executive power. Even an independent judiciary maintains a close connection to the executive function because both involve the application of laws. James Madison once described the two sources of authority as representing “two shoots from the same stalk.”

In Prakash’s telling, Congress took other actions that reflect this conceptual merging of the two powers. For example, Congress formed two executive committees – a “sinking fund” committee to buy up debts and a minting committee to verify coins. By statute, the chief justice served on both of these committees.

Returning to Jay, Prakash suggested that political more than constitutional concerns motivated Burr and his associates, who feared Jay was too pro-British to negotiate a favorable treaty. Indeed, popular opinion largely denounced the resultant Jay Treaty. Jay – once widely seen as the natural successor to Washington as president – found his national reputation ruined. Jay did maintain popularity in New York, and he resigned from the Supreme Court to serve as the state’s governor. (However, Prakash noted, nothing in New York or constitutional law would have technically forbidden him from keeping both jobs.)

Prakash closed by acknowledging that contact between the executive and judicial branches is frowned upon today – a contrast from Washington’s frequent practice of turning to Supreme Court justices for advice.

Prakash spoke as part of the historical society’s 2017 Leon Silverman Lecture Series, which this year focuses on Supreme Court justices and presidential cabinets. On October 18, professor Cynthia Nicoletti will give a lecture entitled “Salmon Chase and the Permanency of Union.” More information is available on the society’s website.

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Burger would lead charge ‘to the ramparts’ to defend rule of law, lecturer says

Burger would lead charge ‘to the ramparts’ to defend rule of law, lecturer saysThe late Chief Justice Warren Burger was committed to the rule of law and the moral authority of the Supreme Court, and he would have led the charge against contemporary attacks on the law and the judiciary, one of his former law clerks said Monday in a lecture before the Supreme Court Historical Society. “It […]

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Burger would lead charge ‘to the ramparts’ to defend rule of law, lecturer says

The late Chief Justice Warren Burger was committed to the rule of law and the moral authority of the Supreme Court, and he would have led the charge against contemporary attacks on the law and the judiciary, one of his former law clerks said Monday in a lecture before the Supreme Court Historical Society.

“It is beyond dispute that he would have rushed to the ramparts had he lived to see the concomitant attack on the rule of law and the courts that is now occurring,” John Sexton, the president emeritus of New York University and former dean of its law school, said in the courtroom where Burger presided from 1969 until 1986.

Sexton, who served Burger during the court’s October 1980 term, provided some inside stories of his work with the chief justice, as one might expect in such a lecture. But he wasn’t hesitant to suggest that Burger would be dismayed by the coarsening of the American political landscape, as well as by attacks on lawyers and the judiciary that include those from the current occupant of the White House.

Sexton, speaking as part of the historical society’s annual meeting, noted that some 20 years ago a Republican pollster advised candidates that it would be “impossible to go too far in demonizing lawyers.”

“Twenty years later, even the president attacks ‘so-called judges’ and calls our courts ‘political,’” Sexton said in reference to statements made by President Donald Trump.

“At his core, Chief Justice Burger believed in the institutions targeted by these attacks,” Sexton said. “He believed in an America based on law and forged by lawyers. For him, law was the principal means by which we’ve been able to knit one nation out of a people whose dominant characteristics have always been diversity.”

Sexton said there is a consensus among scholars that although Burger cared more than his predecessor, Chief Justice Earl Warren, about the state of the legal profession and the judiciary, he had numerous faults.

“When it comes to his oeuvre as a justice, [Burger] is criticized for lacking a judicial philosophy [and] he is lambasted for ambiguity in discussing cases at conference after argument,” Sexton said. “Indeed some commentators go so far as to say he miscounted his own votes so he could control the assignment of opinions. And finally, he is indicted personally as aloof, pompous and self-important.”

Sexton said he and other Burger clerks know of a “powerful counter-narrative.”

He recalled being hired despite having gone to work as a clerk for Burger’s longtime adversary — Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit — during Burger’s clerk selection process. (Sexton had started out working for Judge Harold Leventhal of the D.C. Circuit, who died during Sexton’s clerkship.)

Sexton was 40 when he became a Burger clerk, well above the typical age for the job. Burger always expressed concerns for his clerks’ health and family lives, and he once volunteered to make sure Sexton’s wife could get an appointment at the Mayo Clinic for a medical issue she faced.

Burger would dictate his “Thoughts While Shaving” to his secretary, offering the beginnings of a draft merits opinion. Clerks soon experienced the chief justice’s felt pen as he took it to their drafts with questions, comments and deletions.

Sexton recalled that he once drafted a 20-page proposed contribution to a Burger opinion in a case on the free exercise clause of the First Amendment. Sexton offered his “magnum opus” as a way to reconcile that clause once and for all with the amendment’s establishment clause.

Burger returned the submission with a felt-pen slash mark on every page, meaning it was not going into the opinion, Sexton said.

Sexton said he had plenty of disagreements with Burger that continued beyond his clerkship, including taking issue with the chief justice’s idea of creating a national court of appeals just below the Supreme Court to reduce the Supreme Court’s workload.

“I will not try to defend particular aspects of the chief justice’s work,” Sexton said, though he did point to Burger’s “signature moment” — the court’s unanimous 1974 decision, with an opinion written by Burger, in United States v. Nixon, requiring the president to turn over the Watergate tapes.

Burger “would be alarmed” by a society today that has “developed an allergy to the hard work of dealing with nuance and complexity” and become a “colosseum culture that reduces discourse to combat,” Sexton said.

Against that backdrop, Burger “would argue that the court—especially the court—must stand even stronger as a testament to the power of thought and reason,” the former clerk said.

“It will not be easy to find an antidote to the powerful forces at work,” Sexton said. “We all must go to the ramparts for this cause. It would surprise many that Chief Justice Burger would have led us there. It does not surprise me or the others who worked by his side.”

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Legal scholarship highlight: Getting to know you – The unifying effects of membership stability

Rachael K. Hinkle is an Assistant Professor of Political Science at the University at Buffalo, SUNY. Morgan Hazelton is an Assistant Professor of Political Science and Law (by Courtesy) at St. Louis University. Michael J. Nelson is an Assistant Professor of Political Science and Affiliate Law Faculty at Pennsylvania State University. In the modern Supreme […]

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Rachael K. Hinkle is an Assistant Professor of Political Science at the University at Buffalo, SUNY. Morgan Hazelton is an Assistant Professor of Political Science and Law (by Courtesy) at St. Louis University. Michael J. Nelson is an Assistant Professor of Political Science and Affiliate Law Faculty at Pennsylvania State University.

In the modern Supreme Court, public disagreement is often the order of the day. The current polarized political environment renders it natural to focus on what divides us rather than on what unites us. We reverse this focus in our research and explore centripetal social forces that draw people together. Specifically, we provide empirical evidence that increased interpersonal interaction between judges leads to greater consensus on federal appellate courts, even the Supreme Court.

Despite the old adage that familiarity breeds contempt, there is reason to believe that people who spend time together develop relationships that facilitate cooperation, compromise and agreement. Research indicates that early 19th-century legislators who both lived and worked together were more likely to reach consensus, even across party lines. Even Chief Justice John Marshall believed in the salutary effects of such an arrangement. According to G. Edward White, between 1815 and 1830 Marshall organized boardinghouse accommodations for the justices each year and ensured that all the justices stayed there together during the Supreme Court term. In a 1931 letter to Justice Joseph Story, Marshall explained his concern that geographic dispersal would undermine the unanimity of the court’s decisions. The data from Supreme Court terms during the relevant time period bear out this concern. As Figure 1 shows, dissenting votes decreased markedly in the 1816 term, after the justices began their new living arrangements. Conversely, dissenting votes spiked, and then began an increasing trend upward, in 1830, the final year that the justices lived together.

Figure 1: Dissenting votes in the U.S. Supreme Court during the 19th century

Although the age of the boardinghouse is long past, the spirit of the tradition lives on. Modern justices spend time together outside of work in many settings, including meals, social events and governmental functions. And, like Marshall, the justices believe that these experiences are important to the functioning of the court: Speaking about the role of food in the court’s history, Justice Ruth Bader Ginsburg referenced the boardinghouse era and noted the historical effectiveness of shared meals and lodging for fostering unanimity. The justices’ clerks also benefit from this experience. A former Supreme Court clerk who was initially skeptical about weekly happy hours wrote:

As things get busier and the amount of tension in the building increases, these happy hours serve as weekly reminders that, in fact, everyone still likes each other. No doubt, clerks continue to disagree — just like the Justices sometimes disagree. But the clerks disagree as colleagues, not enemies. […] Everyone is able to work together. The fact that every week, without fail, the clerks meet together in a social setting helps them get the job done at the end of the year when everyone is tired, stressed, and a little cranky.

These anecdotal accounts of court life, both past and present, suggest that justices (and appellate judges more broadly) may be less likely to dissent under conditions that facilitate closer relationships with their colleagues. Our research empirically examines how collegiality affects judicial consensus both in the Supreme Court and on the U.S. courts of appeals. We measure this effect by quantifying the duration and frequency of contacts between two judges. We hypothesize that a judge will be less likely to dissent from a majority opinion written by another judge when those two judges have had more extensive interactions. Federal circuit judges’ interactions vary quite a bit, but those of Supreme Court justices remain relatively stable. They all work in the same building and (mostly) hear the same cases. The length of time two justices have served together on the court necessarily varies over time, and some justices serve as long as three decades together. Analyzing the justices’ opinions in relation to the length of time they have spent together on the bench provides a way to explore whether any vestiges of the “boardinghouse effect” persist in an age of rising partisanship and polarization.

An increase in cotenure – the number of terms that two justices serve together on the Supreme court – should reduce the likelihood of dissent for at least two reasons. First, justices may suppress their dissent, signing on to a majority opinion they might otherwise dissent from because the social costs of a dissenting opinion outweigh the expressive benefits of publicly stating one’s dissatisfaction. Second, as two justices serve together for longer periods of time, their shared familiarity increases their ability to reach agreement. They gain a large store of information about each other’s likes and dislikes, knowing what their colleagues are likely to think on the issues that come before the court and, more importantly, what arguments and counterarguments are likely to sway them. In this sense, increased cotenure reduces the need to dissent because the potential dissenter is able to bargain with the opinion author, nudging the majority opinion toward her preferences.

An example of the voting behavior of two justices illustrates our theory. Chief Justice William Rehnquist and Justice Ginsburg sat together on the court for a relatively short period, just over a decade. Yet their dissenting behavior towards one another changed substantially from the first two years they shared on the bench to their last two years serving together. In the early years, Rehnquist dissented from 41 percent of Ginsburg’s majority opinions, and she dissented from 36 percent of his majority opinions. Yet in these justices’ final two years together those numbers fell to 24 percent and 25 percent respectively. The years did not erase the fundamental disagreements between Rehnquist and Ginsburg, but they do appear to have dampened their effect.

We estimated a statistical model of Supreme Court cases from 1955 to 2008 to test our theory more rigorously. A similar pattern emerges, even after controlling for other factors that influence the decision to dissent. Most importantly, we account for the relative ideological views of two justices (using Martin-Quinn scores). One might think that for two similarly minded justices, the passage of time may have little effect simply because they are very likely to agree from day one. Interestingly, such a conditional effect does not emerge. Increased time on the bench significantly decreases the probability of dissent both for pairs of justices with relatively similar political preferences and for pairs with fairly divergent views. These effects are illustrated in Figure 2. The solid red line shows that the probability that a judge dissents from an ideologically disparate colleague is always higher than the probability of dissenting from an ideologically similar colleague (the black line). Serving more years together on the court dampens the probability of dissent a similar amount in both instances. The size of the cotenure effect is somewhat moderate. A justice who has served with the majority opinion author for 30 years is about five percent less likely to dissent than he would be in his first year of service with the majority opinion author.

Figure 2: The effect of cotenure on the decision to dissent

The U.S. courts of appeals offer the opportunity to test more nuanced implications of our theory. In addition to cotenure, we measure variation in interpersonal interactions based on whether two circuit judges work in the same city or serve in a smaller circuit, where they are more likely to serve on a panel with any given colleague. As we hypothesize, these factors affect a circuit judge’s willingness to express dissent publicly. Judges who work in the same city, who have been on the circuit together longer and who have a higher probability of serving on the next panel with a colleague are all significantly less likely to dissent. Moreover, in this context, we find that such effects are conditioned by ideology. The extent of interpersonal interaction has a more substantial impact when two judges’ divergent ideology makes them particularly likely to disagree. In fact, the evidence indicates that in some cases the impact of increased collegial contact can even render the impact of ideology irrelevant to the decision to dissent. For example, the ideological distance between two judges is not a significant predictor of dissent when two judges have their chambers in the same city.

In short, our results suggest that the institution that stays together decides together. Elected officials are motivated to place relatively young justices on the Supreme Court to maximize their impact on the court’s jurisprudence. This move has the unintended consequence of leading to greater membership stability. Our research indicates that this stability can generate increased consensus over time, even between pairs of justices placed on the court by diametrically opposed political regimes. The primary factor that changes between two justices over time is how well they know each other. This suggests that our findings also indicate the importance of the many meals and other social events justices share over the course of each term. Although suggesting a return to the boardinghouse days of Chief Justice Marshall is hardly practical, there may be a good reason for the justices to linger over dessert or crack open another bottle of wine.

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SCOTUS for law students: Waiting for Gorsuch

Justice Neil Gorsuch has cast his first consequential vote on the Supreme Court, denying a request for a stay of execution filed by several death-row inmates, and participated – actively, by many accounts – in the court’s April argument session. The next major milestone for the newest justice will be his first majority opinion for […]

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Justice Neil Gorsuch has cast his first consequential vote on the Supreme Court, denying a request for a stay of execution filed by several death-row inmates, and participated – actively, by many accounts – in the court’s April argument session. The next major milestone for the newest justice will be his first majority opinion for the court.

If history is a guide, the moment, which is likely to occur in the next six weeks before the court recesses for the summer, will be more memorable as a rite of passage than as a landmark of the law.

What Gorsuch is writing will remain secret until the decision is announced. In all likelihood, however, Gorsuch was quickly assigned a majority opinion to write by Chief Justice John Roberts after taking part in 13 oral arguments between April 17 and April 26. Under the court’s practice, when the chief justice is in the majority, he makes the assignments for majority opinions in the cases; if the chief justice is in dissent, then the senior associate justice in the majority makes the assignment, most often Justice Anthony Kennedy on the current court.

Justice Neil Gorsuch (Art Lien)

For some part of the court’s history, this next step for Gorsuch would have been governed by well-established and much-respected tradition. According to custom, a new justice’s first opinion assignment was in a deliberately uncontroversial case, and all of the other justices would take pains to join the opinion and make it unanimous. The purpose of the tradition was apparently to welcome the new justice with a show of the collegiality on which the court prides itself. So settled was this custom that when Justice William Brennan issued his first decision on December 3, 1956, an 8-1 ruling in a tax case (Putnam v. Commissioner of Internal Revenue), the dissenting Justice John Harlan wrote him privately to say he was “sorry” that he could not “sign up at once with your first.”

The current vitality of this practice is a subject of some debate. Commentators and bloggers about the court still refer to the tradition. If the tradition still exists, however, it seems to be honored only some of the time. Among the eight justices whom Gorsuch joined on April 10, half of them, appointed by Republican presidents, wrote unanimous first decisions and the other half, appointed by Democrats, did not.

Among the longest-serving justices, the first decisions of Kennedy in 1988 and Justice Clarence Thomas in 1992 were unanimous. Among the more junior justices, the first opinions of Roberts in 2005 and Justice Samuel Alito in 2006 were also unanimous.

Other current members of the court did not have the same experience. Justice Ruth Bader Ginsburg’s first in 1993 was decided 6-3 with Thomas in dissent, joined by Kennedy and Justice Sandra Day O’Connor. Justice Stephen Breyer’s first in 1995 was 7-2 with Thomas and Justice Antonin Scalia each dissenting.

Ginsburg recalled in 2015 what happened when she announced her first decision, John Hancock Mutual Life Insurance Co. v. Harris Trust and Savings Bank, a ruling on the complicated Employee Retirement Income Security Act. As Ginsburg read a summary in the courtroom, she said, O’Connor, despite joining the dissent, wrote her a note that said, “This is your first opinion for the court. It is a fine one. I look forward to many more.”

Ginsburg said she wrote similar notes to Justices Sonia Sotomayor and Elena Kagan when they announced their first decisions. Those notes were likely very welcome, because both Sotomayor’s and Kagan’s first decisions prompted some of their colleagues to write separately.

Sotomayor’s first opinion in 2009 occasioned an opinion concurring in part and concurring in the judgment by Thomas. Although Thomas agreed with the outcome in Mohawk Industries, Inc. v. Carpenter, a civil procedure ruling, his separate opinion provoked commentary about its tone, especially given that it was Sotomayor’s first decision. Thomas concluded his opinion by criticizing the “value judgments” in which he said Sotomayor “subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea.” One news story at the time reported that Thomas “took a swipe at his new colleague.”

Kagan’s first decision in 2011 was accompanied by a Scalia dissent. Ransom v. FIA Card Services, N.A. was a bankruptcy ruling. In dissent, Scalia set forth a straightforward legal disagreement with Kagan, omitting the strong language that often marked the late justice’s dissents.

How quickly might Gorsuch produce his first opinion? Among the current justices, Roberts was the fastest, turning out his first decision about four weeks after oral argument. Kennedy was a close second, taking about five weeks.

Much can be learned from a justice’s decisions, but the lessons from the very first decision may be limited. Eventually justices make basic style choices: whether to reveal the result at the beginning of the opinion or only at the end; whether to minimize or make full use of footnotes; what tone to adopt in writing; how much to respond to dissenting opinions. Court watchers will look for such clues in Gorsuch’s first opinion, but those hints may be hard to find.

If past practice is followed, it will also be difficult to gain any ideological insight from Gorsuch’s first decision. Tradition has it that the first decision for a justice is generally in a case that is not one of the more controversial or visible of the term, so this one may shed little light on Gorsuch’s analytical approach to important issues.

Gorsuch’s first decision is likely to become a footnote to history, eclipsed by a long career on the Supreme Court bench. For now, though, it is a milestone eagerly awaited.

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