February 1, 1790 A Republic, if you can Keep it

Good judgement it’s been said, comes from experience. And experience? That comes from bad judgement.

Article III of the United States Constitution establishes the Supreme Court of the United States (SCOTUS), and “such inferior Courts as the Congress may from time to time ordain and establish”. There is no mention of the number of justices.

The first Congress passed the Federal Judiciary Act on September 24, 1789, specifying a six-justice Supreme Court. That same day President George Washington appointed John Jay of New York as chief justice along with associate justices John Rutledge of South Carolina, William Cushing of Massachusetts, John Blair of Virginia, Robert Harrison of Maryland and James Wilson of Pennsylvania.

Two days later the Senate confirmed all six. The Supreme Court of the United States sat for the first time in the Royal Exchange Building on New York City’s Broad Street on February 1, 1790.

Twelve years later, the presidency of John Adams was coming to an end. As a Federalist, Adams was pleased to throw a speed bump in the path of incoming Democratic-Republican, Thomas Jefferson. To that end, Adams appointed the infamous “midnight judges” in the last hours of his administration: 16 Federalist Circuit Court judges and 42 Federalist Justices of the Peace.

The incoming Jefferson administration sought to block the appointments. Jefferson ordered then-Secretary of State James Madison to hold those commissions as yet undelivered, thus invalidating the appointments. One appointee, William Marbury, sued.

The case advanced all the way to the Supreme Court which ruled in Marbury v. Madison, the provision of the Judiciary Act enabling Marbury to bring his claim, was unconstitutional.  Marbury lost his case but the principle of judicial review, the idea that the court would preside God-like over laws passed by their co-equal branch, remains the law of the land from that day to this.

marbury-v-madison

Over time, SCOTUS has proven itself to be as imperfect as any other institution.

In the early days of the Great Depression, Federal agricultural officials conceived the hare brained idea that artificially introducing scarcity would increase prices and therefore wages, in the agricultural sector. Six million hogs were destroyed in 1933. Not harvested, just destroyed and burned or plowed into the ground. 470,000 cattle were shot in Nebraska alone. Vast quantities of milk were poured down sewers, all at a time of national depression and widespread malnutrition.

With the Agricultural Adjustment Act of 1938, Washington began to impose production quotas on the nation’s farmers. Ohio farmer Roscoe Filburne was ordered to grow 223 bushels of wheat during the 1941 season. He grew 462.

ht_roscoe_filburn_nt_120130_wmain

Article 1, Section 8 of the Constitution permits Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. That’s it but, on this flimsy basis, the Federal Government took Roscoe Filburne to court.

The farmer argued the federal government had nothing to say as any “surplus” stayed on his farm, feeding the Filburne family and their chickens. Lower Courts sided with the farmer. The government appealed all the way to the Supreme Court arguing that, by withholding his surplus from the market, Filburne was effecting interstate market conditions, thereby putting him under federal government jurisdiction.

Intimidated by the Roosevelt administration’s aggressive and illegal “court packing scheme“, SCOTUS decided the Wickard v. Filburne case, against the farmer. Ever since that time, what you don’t do can be held against you by the government, in a court of law. Get it? Neither do I.

Kelo v. City of New London ruled one private party’s judicial theft of another’s was a valid use of the takings clause. Two dozen Connecticut families were evicted and forced out of their homes. Their houses were bulldozed, neatly kept yards overgrown with weeds and left a dumping ground and home, for feral cats. Small matter to those homeowners the proposed “redevelopment” of their neighborhood, never happened.

In the entire history of the court there have only been 115 justices. 

Some among those 115 have been magnificent human beings. Some of them were cranks. There have been instances of diminished capacity ranging from confusion to outright insanity. One justice spent part of his term in a debtor’s prison. Another killed a man. There have been open racists and anti-Semites.

There is no official portrait of the 1924 court because Justice James C. McReynolds wouldn’t stand next to Louis Brandeis, the court’s first Jewish Justice. One Justice was known to chase flight attendants around his quarters while another spent his time in chambers, watching soap operas.

There’s the former Klan lawyer turned Justice who took a single phrase from a private letter of Thomas Jefferson, “separation of church and state”, and transformed the constitutional freedom OF religion into an entirely made up freedom FROM religion.

Separation-of-Church-and-State

The Supreme Court reinforced chattel slavery with the Dred Scott decision. The Korematsu ruling gave us the forced incarceration of Americans of Japanese descent. Buck v. Bell gave Americans the “gift” of forced sterilization and Stenberg v. Carhartt enshrined the constitutional “right” to the unthinkable “procedure” known as partial birth abortion. Hammer v. Dagenhart supported the practice of children, put to work in the nation’s mines and factories.

From “Separate but Equal” to the “rights” of terrorists, SCOTUS’ rulings are final, infallible and sometimes, imbecilic.

Chief Justice John Roberts once said “remember that it’s my job to call balls and strikes, and not to pitch or bat.”

He who invented a new definition of taxation enshrining the “Affordable Care Act” as the law of the land.

The constitution invests state legislatures with sole authority to determine state voting regulations. Yet recently, we had election officials and state courts changing key states’ voting rules while SCOTUS declined to intervene. Is there any wonder why half a nation questions the validity of that election?

Just don’t say it out loud or you’ll be de-platformed, or worse.

Today a man barely a week in office convenes a commission to recommend Supreme Court “reforms”, up to and including exhuming Roosevelt’s court packing scheme. It’s not hard to guess how that will turn out. Because it never really was about transparency, fairness or even democracy, was it. Just the raw exercise of power.

Author: Cape Cod Curmudgeon

I'm not a "Historian". I'm a husband, a father, a son and a grandfather. A history geek and sometimes curmudgeon, who still likes to learn new things. I started "Today in History" back in 2013, thinking I’d learn a thing or two. I told myself I’d publish 365. The leap year changed that to 366. As I write this, I‘m closing in on a thousand. I do it because I want to & I make every effort to get my facts straight, but I'm as good at being wrong, as anybody else. I offer these "Today in History" stories in hopes that you'll enjoy reading them, as much as I’ve enjoyed writing them. Thanks for coming along for the ride. Rick Long, the “Cape Cod Curmudgeon”

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