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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Panelists look back at — and in one case, personally recall — Gideon v. Wainwright

Panelists look back at — and in one case, personally recall — <em>Gideon v. Wainwright</em>In most cases, Supreme Court review is discretionary: Four justices must vote to grant a petition for certiorari — a party’s request for review of a lower court’s decision. Chief Justice Earl Warren used to assign his law clerks the responsibility of reviewing all the many cert petitions filed “in forma pauperis,” or without payment […]

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Panelists look back at — and in one case, personally recall — <em>Gideon v. Wainwright</em>

In most cases, Supreme Court review is discretionary: Four justices must vote to grant a petition for certiorari — a party’s request for review of a lower court’s decision. Chief Justice Earl Warren used to assign his law clerks the responsibility of reviewing all the many cert petitions filed “in forma pauperis,” or without payment of a filing fee. Unlike petitioners with paid counsel, who send multiple copies of their petitions, indigent petitioners in the Warren Court era submitted only one document.

Those were the days before the court had a Xerox machine, an invention Warren resisted, and before the “cert pool,” a practice instituted by the next chief justice, Warren Burger, in which clerks from different chambers pool their resources to review the thousands of cert petitions the court receives each year. Warren’s clerks reproduced on carbon paper eight duplicates of potentially significant IFP petitions to distribute among the justices.

This is how Timothy Dyk, long before becoming a judge on the U.S. Court of Appeals for the Federal Circuit, came across the handwritten petition of an inmate in Florida, Clarence Gideon, in 1962. Gideon argued that under the Sixth Amendment (applied to the states through the due process clause of the 14th Amendment), he had a constitutional right to trial counsel.

Dyk, who told this story as part of a panel discussion Wednesday night at the Supreme Court sponsored by the Supreme Court Historical Society and the Supreme Court Fellows Association, had been looking for just such a petition. Warren had specifically instructed Dyk to find a case that raised the right-to-trial-counsel issue.

The previous term, the court had heard argument in a different case, Douglas v. California. Douglas asked the justices to decide whether the Constitution afforded a right to appellate counsel under the equal protection clause of the 14th Amendment. According to Dyk, a majority of the court agreed that the Constitution did guarantee this right, but felt they could not rule for the defendants in Douglas if a constitutional right to trial counsel had not been first established. Dyk added that until Gideon came along, the court was close to dismissing Douglas as improvidently granted.

Both issues were particularly important to Warren, who had been a prosecutor earlier in his career. Dyk suggested that the chief justice “thought of himself as primarily a prosecutor, and he believed that it was possible to convict people, send them to jail, and do it right.” Indications of unfairness in the criminal justice system alarmed Warren, particularly when they came from his home state of California.

Dyk compared what occurred after Gideon’s petition reached the court to Shakespeare’s “Hamlet” — “you knew what would happen but it was still interesting to watch the performance anyway.” On March 18, 1963, the court released a unanimous opinion in Gideon v. Wainwright, written by Justice Hugo Black, that established a constitutional right to trial counsel. Gideon would go on to be acquitted in a new trial in Florida. The same day, the court also ruled 6-3 for a right to appellate counsel in the Douglas case.

But before that, the court appointed Abe Fortas — who later became an associate justice (and a failed nominee for chief justice) — to represent Gideon. As Judge Jeb Boasberg of the U.S. District Court for the District of Columbia noted, Gideon wrote Fortas a 22-page letter explaining the details of his life — in Boasberg’s words, “the story of what it was like to be poor and on the margins of society, a life in and out of jail, with alcohol and marriage problems, trying to hold down various jobs, and battles with state agencies.”

Gideon finished his letter with a line that Boasberg said deeply moves him: “I believe that each era finds an improvement of law… maybe this will be one of those small steps forward.”

Fortas himself may not have been impressed — Dyk noted that Fortas didn’t want to meet or talk with Gideon, but saw the case solely as “an intellectual exercise.” Gideon was still prophetic. Boasberg described the right to counsel as “so ingrained in everything we do that it’s almost unfathomable that at one time it was not the law.” He added:

Anyone who has practiced law in last 50 years assumes that Gideon is the framework that exists and should always exist. No one anymore questions the right to counsel and Miranda [v. Arizona]. There are still some questions as to implementation and scope, but these cases establish the whole framework that governs everything we do every day.

Dyk noted that when he studied criminal law at Harvard Law School in 1961, the subject was taught without reference to criminal procedure. “It was all definition-based, as in learning first-degree murder, second-degree murder, etc.,” he explained. “Now criminal law has to a significant extent been constitutionalized, and I think many people would say that the criminal justice system is fairer because of that.”

Jelahn Stewart, a prosecutor in the office of the U.S. Attorney for the District of Columbia, characterized the Warren court as “absolutely path-breaking in terms of its expansion of rights, although subsequent courts have narrowed the scope of the ruling.”

More than 50 years after Gideon, Stewart praised the public defenders in Washington, calling the quality of their lawyering “outstanding.” Boasberg added that “many times I have shaken my head to see a defendant bring in a ‘paid lawyer’ as if that payment would make the lawyer clearly better than the public defender.”

Despite this praise, the panel — which did not include a public defender — referred as well to problems implementing and ensuring Americans’ right to trial counsel after Gideon. Dyk explained that a 1984 decision, Strickland v. Washington, established a high bar for defendants claiming ineffective assistance of counsel. Defendants must not only establish that their lawyers’ performance was deficient, but also must show a “reasonable probability that the case would have come out differently” but for the deficient performance, a showing that Dyk called “very difficult” to make on appeal.

In addition, Boasberg asked rhetorically, “is simply a lawyer even enough? Or does a lawyer need experts, investigators, and researchers?” He noted that lawyers can request such assistance, and judges often grant those requests, “but some jurisdictions are barely paying the lawyers, much less the ancillary people on the defense team.” (Boasberg did not mention McWilliams v. Dunn, a case before the court this term that asks whether an indigent defendant in a capital case is entitled to an expert who is independent of the prosecution.)

Stewart noted that the District already provides a statutory right to extra-legal trial assistance. Unlike the federal system, the city also provides a statutory right to post-conviction counsel, and Stewart reported that legislation is now before the city council for civil litigants to receive counsel in housing disputes. Stewart expressed hopes that other jurisdictions would follow the District in providing statutory rights to counsel beyond those that are constitutionally required, which she said are “needed to even the playing field, because it is too difficult for individuals to navigate the system on their own.”

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Women behind the bar (and the bench): Ginsburg presides over re-enactment of Goesaert v. Cleary

Women behind the bar (and the bench): Ginsburg presides over re-enactment of <em>Goesaert v. Cleary</em>“So, anything goes?” Justice Ruth Bader Ginsburg asked counsel Roy Englert on Monday at the Supreme Court, in a re-enactment of the 1948 Supreme Court case Goesaert v. Cleary, an event sponsored by the Supreme Court Historical Society and the Women’s Bar Association for the District of Columbia, which celebrates its 100th anniversary on May […]

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Women behind the bar (and the bench): Ginsburg presides over re-enactment of <em>Goesaert v. Cleary</em>

“So, anything goes?” Justice Ruth Bader Ginsburg asked counsel Roy Englert on Monday at the Supreme Court, in a re-enactment of the 1948 Supreme Court case Goesaert v. Cleary, an event sponsored by the Supreme Court Historical Society and the Women’s Bar Association for the District of Columbia, which celebrates its 100th anniversary on May 17. “Anything the legislature wants to do with regard to women’s occupations, as long as someone could conceive of some basis for it, that’s good enough” for the statute to be constitutional.

“Yes, that’s very well stated,” Englert responded matter-of-factly, in defense of Michigan’s ban on licensing women as bartenders (with an exception for the wives and daughters of male bar owners). “That is my understanding of the current doctrine of this court,” he added, expressing a view that the court accepted nearly 70 years ago.

Englert was at the lectern to rebut the argument put forth moments before by Deanne Maynard, who argued on behalf of Valentine Goesaert. In 1947, Goesaert, the owner of a bar in Dearborn, Michigan, challenged the Michigan law. A year later, Anne Davidow, Goesaert’s original counsel, became the first person to argue – albeit unsuccessfully – before the Supreme Court that the equal protection clause of the 14th Amendment prohibits discrimination on the basis of sex.

As Maynard re-argued on Monday, “the gender line this statute draws is an arbitrary one.” “Courts must ensure reasons given for classifications are not a mere excuse to disadvantage one class of people,” she continued, and “there is no fit” between Michigan’s stated aim – the protection of women – and the realities of this law. For instance, a male pub owner could leave his wife to tend bar alone while he was away, but a female owner could not tend bar alone even if she hired a muscular man as bouncer.

Maynard suggested an alternative basis for the Michigan law, one that Judge Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit had offered in her introduction to the event. As Millett first explained, an alliance arose in Michigan between “drys,” who even after the repeal of Prohibition still sought to limit the prevalence of alcohol in society, and the Michigan Bartenders Union, an all-male organization that wanted to limit competition from women. Millett noted that during World War II, many women served as bartenders – “Bessie the Bartender joins Rosie the Riveter.” Banning the licensing of female bartenders served the purposes of both groups.

Ginsburg, who sat in the middle seat normally occupied by Chief Justice John Roberts, did not spare Maynard or Englert any tough questions that they might have faced in 1948. “She’s a hot bench all by herself,” Maynard said afterward. For instance, cutting off Maynard almost immediately after Maynard began her argument, Ginsburg asked if the Supreme Court had ever declared unconstitutional a state law regulating liquor. Englert seized on this point, and began his time at the lectern by declaring firmly that the court had never done so – nor had it ever struck down a gender-based distinction under the 14th Amendment.

After the oral argument was over, Ginsburg explained that in the original opinion for the court, Justice Felix Frankfurter – despite referencing the presence of female bartenders in Shakespeare and throughout history – had upheld “the prerogative of legislatures to draw a sharp line between the sexes.” Although three justices dissented, “no justice contested the legitimacy of a total ban on women bartenders,” Ginsburg noted. Instead, the dissenters would have struck down the law because it made an irrational exception for certain women: A total ban, they believed, would have been more rational.

Ginsburg told the audience that her constitutional law casebook in the late 1950s presented this case “as an illustration of the court’s retreat from the Lochner decision championing liberty to contract.” “Not a word was said in the casebook or by my professor,” Ginsburg continued, “about the blatant gender-based discrimination infecting the Michigan law.”

“I will not attempt to substitute a different opinion for the one that the court wrote in 1948,” Ginsburg said. Although this case “might have been the turning-point case on gender discrimination,” instead “the court lagged pretty far behind social reality” until 1971, when the court in Reed v. Reed ruled that the equal protection clause of the 14th Amendment prohibited discrimination on the basis of sex, and 1973, when the court in Frontiero v. Richardson held that strict scrutiny instead of rational basis review applied to classifications on the basis of sex. Notably, Ginsburg did not mention her involvement in either of those two landmark cases.

The connection, however, did not escape Maynard. “It’s hard not to come away from that with a renewed appreciation for everything that Justice Ginsburg and other women and men who fought for equal rights have accomplished.” Maynard said afterwards. “To re-argue to her what she as an advocate ultimately got reversed was a once-in-a-lifetime experience.”

Maynard said she was particularly pleased her two daughters could watch in the audience. “It’s especially important for me to have them to realize the strides that we’ve made as a society in recognizing everything women can do and that they can be everything they want to be.”

His role as advocate completed, – “someone had to play the villain,” he said – Englert echoed Maynard’s sentiments, welcoming the chance “to reflect on where we came from and what kinds of attitudes there were in the lifetimes of people still living.” Englert added that while preparing for the event, he was surprised to realize that West Coast Hotel Co. v. Parrish, often seen as a landmark progressive decision, still contains “shocking retrograde language about discrimination between men and women.”

Such realizations are exactly what the event organizers intend. The re-enactment series is named for Frank Jones, a former president of the society. According to Jennifer Lowe, director of programs and strategic planning, Jones favored re-enactments for the “novel, new and different way” the experience “teaches people about Supreme Court cases.”

On May 10, the Supreme Court Historical Society and the Supreme Court Fellows Alumni Association host a “Look Back” at Gideon v. Wainwright. Speakers will include Judge James Boasberg, Judge Timothy Dyk, Jelahn Stewart and Elizabeth Woodcock. More information about the event is available on the society’s website.

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Colleen Sheehan explores Madison’s vision for the Bill of Rights to commemorate 225th anniversary of ratification

Colleen Sheehan explores Madison’s vision for the Bill of Rights to commemorate 225th anniversary of ratificationA week from today, the nation will celebrate the 225th anniversary of the ratification of the Bill of Rights, the collective name for the first ten amendments to the Constitution. To commemorate this occasion, the Supreme Court Historical Society and the Georgetown Center for the Constitution invited Villanova University professor Colleen Sheehan to lecture about […]

Colleen Sheehan explores Madison’s vision for the Bill of Rights to commemorate 225th anniversary of ratification

A week from today, the nation will celebrate the 225th anniversary of the ratification of the Bill of Rights, the collective name for the first ten amendments to the Constitution.

To commemorate this occasion, the Supreme Court Historical Society and the Georgetown Center for the Constitution invited Villanova University professor Colleen Sheehan to lecture about James Madison, who first presented to Congress what became the Bill of Rights and about whom Sheehan has written multiple books.

Justice Stephen Breyer, who introduced Sheehan, called the Bill of Rights “the document that helps 320 million Americans live a reasonably civilized life even though they think all kinds of different things.” Seeking to understand the genesis of this document, Breyer elaborated, is therefore “a very fine thing,” even “the most important thing we can do” – “tell the next generation and the generation after that a little bit about our … constitutional history.”

In her lecture, Sheehan explored the development of Madison’s thinking about the Bill of Rights, which he originally opposed. According to Sheehan, Madison feared that a written catalogue of rights would narrow the scope of essential liberties, giving a later government a basis for arguing that “rights not listed were not possessed.”

Sheehan explained that, in Madison’s initial view, a listed catalogue of rights made sense within the English legal system, because the sovereign monarchy had, over time, bestowed on its subjects new rights they had not previously possessed – “charters of liberty granted by power.” In the nascent United States, however, the people themselves were sovereign; a bill of rights would be superfluous in a system in which political authority derived from the consent of the governed – “charters of power granted by liberty.” The American people already enjoyed the liberties the Bill of Rights would presume to bestow on them, Madison believed.

Madison argued that the best protections against the partial interests or prejudicial zeal of a majority faction came from the Constitution’s “inventions of prudence”: the separation of powers (sorting the federal government into executive, legislative and judicial branches), bicameralism (splitting the legislative function between the House of Representatives and the Senate), and federalism (allocating authority between the federal government and the states). These checks and balances would serve to promote civic discourse and make it difficult for invidious bills to become law.

Politically, Sheehan explained, Madison faced significant opposition from anti-Federalists, including fellow-Virginian George Mason, one of the few delegates to the constitutional convention in Philadelphia who refused to sign the final document because of its lack of protections for individual liberty. Some anti-Federalists called for a second convention, which Madison feared would fail to produce a cohesive political document. He did not want to disturb the development of so recent a union, Sheehan elaborated.

At the same time, Madison was worried that the dispute over the need for a bill of rights might divide the young nation. As a result, he and George Washington – Sheehan said the pair always “worked in tandem” – changed their positions on the issue, announcing their wish to “cement the union.” Speaking from Federal Hall in New York, Washington acknowledged the concern people felt about the lack of a bill of rights and conveyed his support for the people’s judgment should they choose to ratify one. Shortly thereafter, at the outset of the first Congress, Madison introduced amendments to the Constitution.

According to Sheehan, Madison came to believe that the Bill of Rights would help unify the new country not only out of acquiescence to a more popular political position, but because of the role he thought the Bill of Rights could play in civil society. Madison feared that a majority faction determined to infringe the rights of a minority could not be stopped, whether or not the Constitution included a list of protected rights. The Bill of Rights would have a negligible impact on an unjust majority once formed, he believed, but the listed protections could help forestall the development of such a majority in the first place. In Madison’s view, the declaration of rights – such as the freedom of speech, the freedom of religion or the right to a fair trial – could play a didactic role in society, educating citizens about the mutual respect they owed each other and their shared responsibility to maintain the civic order. Over time, these precepts would become instilled in the public consciousness. Through the Bill of Rights, the people would develop control over their biases and prejudices as they began to “know moderation as the measure of liberty.”

Has Madison’s hope for a didactic Bill of Rights come to fruition? Sheehan closed by quoting the poet Robert Frost, speaking more than 150 years after Madison first introduced his amendments. Frost identified in the Bill of Rights the basic tenets of citizenship, and he singled out Madison, of all the leading figures of the young United States, for his vision of America – “a dream of a new land to fulfill with people in self-control.”