A look back at Justice Hugo Black’s first day on the bench

A look back at Justice Hugo Black’s first day on the benchProtesters repeatedly interrupted Justice Brett Kavanaugh’s confirmation hearing in September, but the new justice’s first day on the bench this morning passed without disruption. At least one justice had a more eventful inaugural experience. On October 4, 1937, Justice Hugo Black’s first day, “two vigorous protests to his legal right to sit were laid before […]

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A look back at Justice Hugo Black’s first day on the bench

Protesters repeatedly interrupted Justice Brett Kavanaugh’s confirmation hearing in September, but the new justice’s first day on the bench this morning passed without disruption.

At least one justice had a more eventful inaugural experience.

On October 4, 1937, Justice Hugo Black’s first day, “two vigorous protests to his legal right to sit were laid before the other justices and himself,” as reported in the New York Times. In contrast to disruptions to Supreme Court proceedings in 2015 – in which protesters were removed and warned by Chief Justice John Roberts of criminal charges — Chief Justice Charles Evans Hughes engaged with both men, who tried to make verbal legal arguments, were allowed to remain in the courtroom, and spoke afterward with reporters.

Patrick Henry Kelly, a lawyer, first approached the bench and introduced himself after Hughes welcomed Black and asked if there were any bar admissions.

Hughes quickly cut him off, asking, “Are you here to present a candidate for admission to the bar?”

When Kelly said he wasn’t, Hughes called him “out of order,” and an attendant escorted him to his seat.

Kelly interrupted again shortly thereafter, announcing “a question of personal privilege.” This time Hughes asked him, “Is it in writing?”

“I put it in writing in a letter to each of the justices,” Kelly answered.

“If it is in writing, it will be considered,” Hughes replied.

This is when Albert Levitt – a former U.S. assistant attorney general, elaborately identified in the Times as a “soldier of fortune, preacher, professor, corporation lawyer, Federal judge and utility ‘baiter’” – rose to speak. He said he wanted to file a brief asking the court to order Black to show cause for being permitted to serve as a justice. Hughes told Levitt to submit the brief to the clerk of the court.

Kelly then made his third announcement, holding a piece of paper he claimed was his motion.

“Very well, you may submit it to the clerk; it will be considered by the Court,” Hughes said.

Throughout these exchanges, “Mr. Black the new justice sat back in his big leather chair. His lips were set tightly together and his hands clasped over the rich black silk robe which he wore for the first time.”

Kelly and Levitt’s written arguments involved the clause of the Constitution that states: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.”

As explained by Todd B. Tatelman in a 2009 report by the Congressional Research Service, “The Emoluments Clause: History, Law, and Precedents,” Black had been a senator when Congress raised the pension amount for justices retiring over age 70.

Justice Willis Van Devanter, over 70 and among the “Four Horsemen” whose rulings striking down New Deal legislation contributed to President Franklin Roosevelt’s court-packing plan, soon retired.

Opponents to Black argued that the nominee, who had been elected to serve as a senator until March 4, 1939, could not in 1937 constitutionally serve as a justice after Congress had so recently increased the justices’ pensions.

His supporters argued that Black, then only 51, would not receive any pension benefits until long after his senatorial term would have expired.

According to Tatelman, the Supreme Court ultimately disposed of Levitt’s case, Ex parte Levitt, in a per curiam opinion “stating that the plaintiffs’ interest was insufficient as all they could demonstrate was that they were citizens and members of the Supreme Court bar.”

Black’s nomination had been contentious from the beginning. Turner Catledge reported for the New York Times on August 13, the day after Roosevelt picked Black, that the nomination “dropped like salt into the political wounds already rubbed raw by the court issue” and other conflicts.

Two senators insisted that Black’s nomination be referred to the Senate Judiciary Committee. Catledge wrote that the “Senate’s rule of courtesy by which executive appointees from its membership are confirmed promptly and unanimously was thus abrogated for the first time since L.Q.C. Lamar of Mississippi was nominated to the court in 1888.” (Lamar was nominated on December 6, 1887 and confirmed on January 16, 1888.)

Nevertheless, Black was confirmed by a 63-16 vote only days later, on August 17, 1937.

As Virginia Van Der Veer detailed in an 1968 issue of American Heritage, rumors about Black’s past membership in the Ku Klux Klan had circulated after his nomination, but only in September did a series of articles by Ray Sprigle of the Pittsburgh Post-Gazette present evidence that broke open the story.

On October 1, Black went on national radio to give an 11-minute speech in which he admitted to having once joined the Klan but condemned the “concerted campaign” against him. Van Der Veer wrote that “newspapers opposed to the President almost universally criticized the speech,” but Roosevelt called the speech “a grand job [that] did the trick” for convincing “the man in the street.”

Three days later, Black took the bench. Upon Black’s retirement in September 1971, after 34 years as a justice, Robert Semple in the New York Times described Black as having been “firmly within the ‘liberal’ wing of the Court, particularly on cases involving freedom of expression and religion,” and as having “joined the majority in the landmark cases of the 1950’s and 1960’s in which the Court broadened racial desegregation in the schools and in public accommodations.”

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Academic highlight: Greenhouse and Siegel on the past, present and future of Roe v. Wade

Academic highlight: Greenhouse and Siegel on the past, present and future of <em>Roe v. Wade</em>The future of a constitutionally protected right to abortion is uncertain now that Justice Anthony Kennedy has retired from the Supreme Court, leaving a vacancy for President Donald Trump to fill. During the campaign, Trump promised to appoint justices who would vote to overturn Roe v. Wade – the standard position of all recent Republican […]

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Academic highlight: Greenhouse and Siegel on the past, present and future of <em>Roe v. Wade</em>

The future of a constitutionally protected right to abortion is uncertain now that Justice Anthony Kennedy has retired from the Supreme Court, leaving a vacancy for President Donald Trump to fill. During the campaign, Trump promised to appoint justices who would vote to overturn Roe v. Wadethe standard position of all recent Republican nominees for president. Members of the Senate Judiciary Committee questioned Judges Neil Gorsuch and Brett Kavanaugh closely on the matter, and many legal scholars have opined that Roe is at risk of either outright reversal or gradual erosion with the addition of a new justice to the bench. At a time when the future is unknown, it is worth considering Roe’s past.

In “The Unfinished Story of Roe v. Wade,” a chapter in the forthcoming book “Reproductive Rights and Justice Stories” (Melissa Murray, Kate Shaw & Reva Siegel eds.), Linda Greenhouse and Reva Siegel provide a fascinating account of the abortion debate before and after Roe that upends some of our basic assumptions about the politics of abortion. Today, Roe is as much a symbol as a legal precedent. For some, the case exemplifies the Supreme Court’s essential role in protecting freedom and equality for those who lack political power. For others, it is a prime example of judicial overreach, and illustrates the backlash that can result when the court inserts itself in politics. But in Greenhouse and Siegel’s account, the focus on Roe v. Wade overstates the court’s role in the abortion debate. They describe how the views of the public, political parties and religious groups shifted both before and after the court’s decision in Roe, and often independent of it. And they explain that many of the battles took place in state legislatures, not before the nine justices.

Although abortion was not a crime at the time of the Constitution’s ratification, by the late 19th century it was criminalized in every state. Even so, by the middle of the 20th century approximately one in four pregnancies ended in an abortion. Upper-class women were able to obtain abortions relatively safely, but the poor could not, and an estimated 10,000 women died from abortions every year.

Alarmed by these statistics, medical providers were the first to call for reform. Not surprisingly, they sought to give doctors, not pregnant women, the power to decide who could obtain an abortion. In 1970, the American Medical Association authorized its members to perform therapeutic abortions, but only in appropriate cases, and they were told not do so in “mere acquiescence to the patient’s demand.” Only in the 1960s did feminists begin to frame the repeal of laws criminalizing abortion as about “freedom,” “equality” and women’s right to exercise control over their bodies and reproduction — the standard rhetoric of -abortion-rights advocates today.

The movement against abortion looked very different in the years before Roe than it does today. Leaders of the Catholic Church mobilized against reform of abortion laws in the late 1960s, but polls showed that more than half of all Catholics disagreed with the church’s official position. The Republican Party before 1972 was not opposed to abortion, nor were evangelicals, and a significant majority of Americans supported abortion. In a Gallup poll taken in August 1972, 64 percent of Americans agreed with the statement that “abortion should be a matter for decision solely between a woman and her physician,” and significantly more Republicans than Democrats took that view (68 percent of Republicans as compared to 59 percent of Democrats).

Despite broad popular support, reforms stalled in the early 1970s. The New York legislature repealed a reform measure it had enacted two years before (though the governor vetoed the repeal), and reform failed to pass in Michigan. Greenhouse and Siegel attribute these losses to “the ability of a mobilized minority, committed to a single issue and institutionally funded and organized, to thwart reforms that have broad public support.” Stymied by the political process, abortion-rights supporters turned to the courts.

The justices were well aware that public support for abortion was growing ever stronger; Justice Harry Blackmun, the author of Roe v. Wade, kept a copy of the 1972 Gallup poll results in his files. Greenhouse and Siegel suggest that such polls may have influenced the court to issue a broader opinion than it otherwise might have. By a 7-2 vote, the court proclaimed a constitutionally protected right to privacy that entitled women to obtain abortions in the first trimester of pregnancy. The court grounded this right in the Ninth and 14th Amendments and derived it from earlier decisions protecting intimate family choices. Yet the court’s opinion relied more on medical evidence and the role of doctors than on women’s autonomy. As Greenhouse and Siegel explain, that rationale is not surprising considering that the decision came in 1973, before the bulk of the court’s jurisprudence protecting women against discrimination based on sex.

Contrary to the conventional view, Greenhouse and Siegel argue that Roe did not produce a public or political backlash — at least, not immediately. Three years after Roe was decided, public support had only grown. In a February 1976 nationwide survey, 67 percent of respondents agreed that the “right of a woman to have an abortion should be left entirely up to the woman and her doctor.” Nor did abortion appear to be a particularly polarizing or significant issue. At his confirmation hearing in 1975, John Paul Stevens was not asked a single question about abortion.

Having lost before the Supreme Court, abortion opponents shifted the fight to Congress and state legislatures. They succeeded in ending Medicaid funding for abortions and obtaining passage of state and federal laws restricting access to abortion. In 1992, in a challenge to such a law in Pennsylvania, the Supreme Court reaffirmed Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, but it abandoned Roe’s trimester framework for an “undue burden” standard permitting states to regulate abortion. Greenhouse and Siegel observe that in Casey, unlike Roe, the court framed its decision around “[r]espect for the equal citizenship of women” — an argument “barely acknowledged” in Roe.

Casey further opened the door to regulation incrementally cutting back on access to abortion, which has been the focus of much of the abortion-related litigation for the last 25 years. Legal experts expect that trend to speed up once a new justice appointed by Trump joins the court. Gillian Metzger, a professor at Columbia Law School, explained that she does not expect to see Roe and Casey reversed immediately, but “incremental pullback” will mean that “in practice it will become even more difficult, and in some states practically impossible, for women to exercise the right recognized in Roe and Casey of making the ultimate choice of whether or not to bear a child.”

Greenhouse and Siegel do not try to predict the future of Roe and Casey, but their historical account demonstrates that the abortion debate has followed a long and winding road. Over the last 60 years, the arguments made for and against access to abortion, the public’s support for those arguments, and even the parties on either side of the issue have shifted significantly. The Supreme Court has played a role, but it has shared influence with many players in the past, and likely will continue to do so. As Greenhouse and Siegel conclude, “[t]hese are conflicts that law can shape—but cannot settle.”

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Six Connecticut judges remember arguments before the U.S. Supreme Court

Six Connecticut judges remember arguments before the U.S. Supreme CourtSix current Connecticut judges argued before the U.S. Supreme Court between 1981 and 1991. Their recollections of those arguments – prepared by Judge Jon Blue of the Connecticut Superior Court for the annual Connecticut Judges Institute – present a portrait of the justices at work in an earlier era. Judge Julia DiCocco Dewey argued before […]

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Six Connecticut judges remember arguments before the U.S. Supreme Court

Six current Connecticut judges argued before the U.S. Supreme Court between 1981 and 1991. Their recollections of those arguments – prepared by Judge Jon Blue of the Connecticut Superior Court for the annual Connecticut Judges Institute – present a portrait of the justices at work in an earlier era.

Judge Julia DiCocco Dewey argued before the court in a Fifth Amendment case about the admissibility of a criminal defendant’s statements when she was about eight months pregnant. She remembers a marshal informing her that a nurse was waiting in the anteroom in case she went into labor. The first argument that day – in Wimberly v. Labor and Industrial Relations Commission of Missouri – happened to address a woman’s claim for unemployment benefits after she was not rehired following her pregnancy leave for lack of an open position. The advocate argued that “pregnancy was an emotional, physical, and mental disability that required preferential treatment,” and Dewey remembers the sense that all of the justices, especially Justice Sandra Day O’Connor, were looking at her throughout the argument. (O’Connor wrote an opinion in Wimberly holding that Congress in the Federal Unemployment Tax Act intended to prohibit states from singling out pregnancy for unfavorable treatment, not to mandate preferential treatment.)

Judge Robert Genuario, who lost the argument against Dewey when the justices ruled that the defendant had voluntarily waived his right to counsel and his statements were therefore admissible, recalls answering questions about the facts from O’Connor, who as second-most junior justice sat on the far left of the bench. He heard a “booming voice,” like “a chain around [his] neck,” “jerking him back to the righthand side of the room.” It was Justice Antonin Scalia, the most junior justice, demanding, “that’s not what happened, counsel, is it?” The argument “went downhill from there.”

Other memories are less reverent: Justice Potter Stewart, who had just quit smoking, chewing rubber bands during oral argument; or Chief Justice Warren Burger, who, rumored to ask at least one “dumb question” every argument, fulfilled that prediction during Little v. Streater, in Blue’s estimation.

The judges and their cases are as follows:

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SCOTUS for law students: Supreme Court celebrity

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

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SCOTUS for law students: Supreme Court celebrity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Constitutional interpretation and Loving v. Virginia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Newly released document gives voice to a private justice

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

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Newly released document gives voice to a private justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The straight bench used by the Supreme Court before February 1972

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

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

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

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

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

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

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

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

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

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Thurgood Marshall remembered by Justice Kagan and other former clerks

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

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Thurgood Marshall remembered by Justice Kagan and other former clerks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice for the poor: Gideon v. Wainwright

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

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

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

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

Freedom for religious minorities: Epperson v. Arkansas

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

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

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

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

Civil rights for African-Americans: Brown v. Louisiana

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

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

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

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

Freedom of speech

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

True or false?

6) The justices eat during oral argument.

7) The justices discuss legal matters together during lunch.

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

9) Bread should be served with pasta.

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

Answer sheet at this link.

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