September 24, 1789 Supreme Court

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

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.

Twelve years later, the presidency of John Adams was coming to an end. As a Federalist, Adams wanted nothing more than to stymie the incoming administration of Democratic-Republican Thomas Jefferson. Toward 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 of the appointees, William Marbury, took the matter to Court.

The case advanced all the way to the Supreme Court, which ruled in Marbury v. Madison that 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 could preside Godlike, over laws passed by their co-equal branch of government, has been the law of the land, ever since.

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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 thrown away. 470,000 cattle were shot in Nebraska alone. Vast quantities of milk were poured down sewers, all at a time of national depression, when malnutrition was widespread.

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 in the 1941 season. Filburne grew 462.

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 is all but, on this flimsy basis, the Federal Government took Roscoe Filburne to court.

The farmer argued that the “surplus” stayed on his farm, feeding his family and his chickens. Lower Courts sided with Filburne. The government appealed all the way to the Supreme Court, arguing that, by withholding his surplus, Filburne was effecting interstate market conditions, thereby putting him under federal government jurisdiction.

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

Over time, SCOTUS has proven itself to be as imperfect as any other institution. There have only been 17 Chief Justices and 101 Associate Justices in the entire history of the court. Five Chiefs having previously sat as Associate Justices, there are only 113 in all.  Should Brett Kavanaugh be confirmed, he would be #114.

Some among those 113 have been magnificent human beings, and some of them 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, “separation of church and state”, from a private letter of Thomas Jefferson, and turned 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 hideous and detestable “procedure” known as partial birth abortion. From “Separate but Equal” to the “rights” of terrorists, SCOTUS’ rulings are final, inviolate, and sometimes imbecilic.

Chief Justice John Roberts, who once said “remember that it’s my job to call balls and strikes, and not to pitch or bat,” invented a whole new definition of taxation, enshrining the “Affordable Care Act” as the law of the land.

The framers gave us a Constitutional Republic with co-equal branches of government, with power diffused and limited by a comprehensive set of checks and balances.

They gave us two distinct means to amend that Constitution, should circumstances require it.

Traditionally, Congress proposes amendments, submitting them to the states for ratification. The problem is that many believe Congress itself to be part of the problem, and a broken institution is unlikely to fix itself.

Article V gives us a way to amend the constitution, if we would take it. Instead of Congress proposing amendments, an Article V convention of state legislatures would propose amendments, to take effect only if ratified by a super majority of states. We could start with an amendment permitting 2/3rds of the People’s representatives in Congress, to overturn a SCOTUS decision. Then we could term limit these people.

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Unless, that is, you believe it’s fine for the Federal Government to prohibit a farmer from growing wheat for his own use, that one man in a black robe can force you to buy a product you don’t want and call it a “tax”, or you believe that “established by the state” means by the state or federal government, at the sole discretion of the man who says, “I’m from the Government. I’m here to help”.

If you enjoyed this “Today in History”, please feel free to re-blog, “like” & share on social media, so that others may find and enjoy it as well. Please click the “follow” button on the right, to receive email updates on new articles.  Thank you for your interest, in the history we all share.
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July 22, 1937 Stacking the Deck

To Roosevelt, President Wilson’s age-70 provision was the answer to his problems, and the end to Supreme Court opposition to his policies.

United States ConstitutionArticle III, Section 1 of the United States Constitution creates the highest court in the land.  The relevant clause states that “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish“.  Nowhere does the document specify the number of justices.

The United States was in the midst of the “Great Depression” in 1932, when President Franklin Delano Roosevelt came to office. Roosevelt had promised a “New Deal” for America, and immediately began a series of sweeping legislative reforms designed to counter the devastating effects of the Depression. Roosevelt’s initiatives faced many challenges in the courts, with the Supreme Court striking down several New Deal provisions as unconstitutional in his first term.

The Supreme Court was divided along ideological lines in 1937, as it is today. “Judicial Realist” or “Liberal” legal scholars and judges argued that the constitution was a “living document”, allowing for judicial flexibility and legislative experimentation. Justice Oliver Wendell Holmes, Jr. first referred to a “living constitution” in 1920 in speaking of  Missouri v. Holland, a case which overrode state concerns about abrogation of states’ rights arising under the Tenth Amendment.  The “case before us” Holmes wrote, “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago”.

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“Judicial Formalists”, today we call them “Conservatives” or “Originalists”, seek to discover the original meaning or intent of the framers, of the Constitution. Formalist legal scholars and judges argue that the judiciary is not supposed to create, amend or repeal law; that is for the legislative branch. The role of the court is to interpret and uphold any given law, or strike it down in light of the original intent of the framers and the ratifiers.

In 1937, SCOTUS was divided along ideological lines, with three Liberals, four Conservatives, and two swing votes.

Woodrow Wilson’s Attorney General, James Clark McReynolds, made a proposal in 1914 that: “(When) any judge of a federal court below the Supreme Court fails to avail himself of the privilege of retiring now granted by law (at age 70), that the President be required, with the advice and consent of the Senate, to appoint another judge, who would preside over the affairs of the court and have precedence over the older one. This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court”.

To the President, this was the answer. The age 70 provision allowed Roosevelt to nominate 6 more handpicked justices, effectively ending Supreme Court opposition to his policies.

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Roosevelt’s “Judiciary Reorganization Bill of 1937” immediately came under sharp criticism from legislators, bar associations, and the public. Senate Judiciary Committee began hearings on the bill on March 10, 1937, reporting it “adversely” by a committee vote of 10 to 8. The full senate took up the matter on July 2, 1937, with the Roosevelt administration suffering a disastrous setback when Senate Majority Leader Joseph T. Robinson, a powerful supporter of the legislation, died of a heart attack.

1-new-deal-supreme-court-grangerThe full Senate voted on July 22, 1937, to send the bill back to the Senate Judiciary Committee, where provisions for additional justices were stripped from the bill. A modified version passed in August, but Roosevelt’s “Court Packing” scheme was dead.

In the end, the President would have the last word. Over the course of an unprecedented four terms, Roosevelt would eventually appoint eight out of the nine justices, serving on the Court.

If you enjoyed this “Today in History”, please feel free to re-blog, “like” & share on social media, so that others may find and enjoy it as well. Please click the “follow” button on the right, to receive email updates on new articles.  Thank you for your interest, in the history we all share.

March 6, 1857 Dred Scott

Dred Scott had lost at virtually every turn, only to win his freedom at the hands of the family which had once held him enslaved.

Dred Scott, his full name may have been “Etheldred”, was born into slavery in Southampton County, Virginia, sometime in the late 1790s.  In 1818, Scott belonged to Peter Blow, who moved his family and six slaves to Alabama, to attempt a life of farming. The farm near Huntsville was unsuccessful and the Blow family gave up the effort, moving to St. Louis Missouri in 1830, to run a boarding house. Around this time, Dred Scott was sold to Dr. John Emerson, a surgeon serving in the United States Army.

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Dred & Harriet Scott’s restored quarters, at Ft. Snelling

As an army officer, Dr. Emerson moved about frequently, bringing Scott with him. In 1837, Emerson moved to Fort Snelling in the free territory of Wisconsin, now Minnesota. There, Scott met and married Harriet Robinson, a slave belonging to fellow army doctor and Justice of the Peace, Lawrence Taliaferro. Taliaferro, who presided over the ceremony, transferred Harriet to Emerson, who continued to regard the couple as his slaves. Emerson moved away later that year, leaving the Scotts behind to be leased by other officers.

The following year, Dr. Emerson married Eliza Irene Sanford, and sent for the Scotts to rejoin him in Fort Jesup, in Louisiana. Harriett gave birth to a daughter while on a steamboat on the Mississippi, between the free state of Illinois and the Iowa district of the Wisconsin Territory.

images (25)Dr. Emerson died in 1842, leaving his estate to his wife Eliza, who continued to lease the Scotts out as hired slaves.

Four years later, Scott attempted to buy his freedom for the sum of $300, equivalent to about $8,000 today. Mrs. Emerson declined the offer and Scott took legal recourse. By this time, Dred and Harriett Scott had two daughters, who were approaching an age where their value would be greatly increased, should they be sold as slaves. Wanting to keep his family together, Scott sued.

Ironically, Dred Scott’s suit in state court, Scott v. Emerson, was financially backed by three now-adult Blow children, who had since become abolitionists. The legal position stood on solid ground, based on the doctrine “Once free, always free”. The Scott family had resided in free states and territories for two years, and their eldest daughter was born on the Mississippi River, between a free state and a free territory.

The verdict went against Scott but the judge ordered a retrial, which was held in January, 1850. This time, the jury ruled in favor of Dred Scott’s freedom. Emerson appealed and the Missouri supreme court struck down the lower court ruling, along with 28 years of Missouri precedent.

By 1853, Eliza Emerson had remarried and moved to Massachusetts, transferring ownership of the Scott family to her brother, John Sanford. Scott sued in federal district court, on the legal basis that the federal courts held “diversity jurisdiction”, since Sanford lived in one state (New York), and Scott in another (Missouri). Dred Scott lost once again and appealed to the United States Supreme Court, a clerical misspelling erroneously recording the case as Dred Scott v. Sandford.

On March 6, 1857, Chief Justice Roger B. Taney delivered the 7-2 majority opinion, enunciating one of the stupidest decisions, in the history of American jurisprudence:
“[Americans of African ancestry] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it”.

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Frederick Douglass

The highest court in the land had ruled that slaves were private property and not citizens, with no right to legal recourse. Furthermore, the United States Congress had erred in attempting to regulate slavery in the territories, and had no right to revoke the property rights of a slave owner, based on his place of residence.

The response to the SCOTUS opinion was immediate, and vehement. Rather than settle the issue of slavery, the decision inflamed public opinion, dividing an already fractured country, further. Frederick Douglass assailed Chief Justice Taney’s opinion, noting that:

“We are now told, in tones of lofty exultation, that the day is lost all lost and that we might as well give up the struggle. The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still . . . The Supreme Court of the United States is not the only power in this world. It is very great, but the Supreme Court of the Almighty is greater”.

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Dred Scott, photograph circa 1857

The Supreme Court had spoken, but the Dred Scott story was far from over.  Eliza Irene Emerson’s new husband was Calvin C. Chaffee, a member of the United States Congress, and an abolitionist.

Following the Dred Scott decision, the Chaffees deeded the Scott family over to Henry Taylor Blow, now a member of the United States House of Representatives from Missouri’s 2nd Congressional district, who manumitted the family on May 26. Dred Scott had lost at virtually every turn, only to win his freedom at the hands of the family which had once held him enslaved.

For Harriett and the two Scott daughters, it was the best of all possible outcomes.  For Scott himself, freedom was short-lived.  Dred Scott died of tuberculosis, the following year.

Nationally, the Dred Scott decision had the effect of hardening enmities already nearing white-hot, increasing animosities within and between pro- and anti-slavery factions in North and South, alike. Politically, the Democratic party was broken into factions and severely weakened,  while the fledgling Republican party was strengthened, as the nation was inexorably drawn to Civil War.

Slaves Issues Plague the Democratic Party

The issue of Black citizenship was settled in 1868, via Section 1 of the 14th Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside …”

Dred Scott is buried in the Calvary Cemetery in St. Louis, Missouri. The marker next to his headstone reads: “In Memory Of A Simple Man Who Wanted To Be Free.”

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If you enjoyed this “Today in History”, please feel free to re-blog, “like” & share on social media, so that others may find and enjoy it as well. Please click the “follow” button on the right, to receive email updates on new articles.  Thank you for your interest, in the history we all share.

February 22, 2005 Not for Sale

“Something has gone seriously awry with this Court’s interpretation of the Constitution”, Thomas wrote. “Though citizens are safe from the government in their homes, the homes themselves are not”.

In 1775, Connecticut Governor Jonathan Trumbull proposed a fortification at the port of New London, situated on the Thames River and overlooking Long Island Sound. The fort was completed two years later and named for the Governor. During the Revolution, Fort Trumbull was attacked and occupied by British forces, for a time commanded by the turncoat American General, Benedict Arnold.

By the early 20th century, the Fort Trumbull neighborhood consisted of 90 or so single and multi-family working class homes, situated on a peninsula along the fringes of a mostly industrialized city center.

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In 2000, Susette Kelo and her “little pink house” became the main plaintiff in the Supreme Court eminent domain case, “Kelo v. New London”

In 1996, chemists working at Pfizer Corporation’s research facility in England were studying compound UK-92, 480 or “Sildenafil Citrate”, synthesized for the treatment of a range of thoracic circulatory conditions.  Study subjects were expected to return unused medication at the end of the trial. Women showed no objection to doing so but a significant number of male subjects refused to give it back. It didn’t take long to figure out what was happening.  The chemical compound which would one day bear the name “Viagra”, had revealed itself to be useful in other ways.

For the newly divorced paramedic Susette Kelo, the house overlooking the Fort Trumbull waterfront was the home of her dreams. Long abandoned and overgrown with vines, the little Victorian cottage needed a lot of work, but where else was she going to find a waterfront view at such a price?  It was 1997, about the time that Connecticut and New London politicians resurrected the long-dormant New London Development Corporation (NLDC), in an attempt to revitalize the city’s waterfront.

Susette Kelo sanded her floors on hands and knees as Pfizer Corporation, already occupying the largest office complex in the city, was looking at a cataract of new business based on their latest chemical compound. The company was recruited to become the principal tenant in a “World Class” multi-use waterfront campus, including high-income housing, hotels, shopping and restaurants, all centered around a 750,000 sq. ft. corporate research facility.

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Bill von Winkle stands in front of two properties he owns in the Fort Trumbull neighborhood of New London, CT

Connecticut College professor and NLDC President Dr. Claire Gaudiani liked to talk about her “hip” new development project.  Fort Trumbull residents were convinced that stood for “High Income People”. With an average income of $22,500, that didn’t include themselves.

Most property owners agreed to sell, though not exactly “voluntarily”.  There was considerable harassment of the reluctant ones, including late-night phone calls, waste dumped on properties, and tenants locked out of apartments during cold winter weather.

Seven homeowners holding fifteen properties refused to sell, at any price. Wilhelmina Dery was in her eighties. She was born in her house and she wanted to die there. The Cristofaro family had lost another New London home in the ’70s, taken by eminent domain during yet another “urban renewal” program. They didn’t want to lose this one, too.

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Susette Kelo and her “little pink house”

In 2000, Susette Kelo came home from work the day before Thanksgiving, to find an eviction notice taped to her door.

Letters were written to editors and protest rallies were held, as NLDC and state officials literally began to bulldoze homes. Holdout property owners were left trying to prevent personal injury and property damage, from flying demolition debris.

Facing a prolonged legal battle which none of the homeowners could afford, the group got a boost when the Libertarian law firm Institute for Justice took their case pro bono. There was cause for hope. Retired homeowner Vera Coking had faced a similar fight against Now-President Donald Trump’s development corporation back in 1993, when the developer and Atlantic City New Jersey authorities attempted to get her house condemned to build a limo lot.

KeloAfterWreck0209Eminent domain exists for a purpose, but the most extreme care should be taken in its use. Plaintiffs argued that this was not a “public use”, but rather a private corporation using the power of government to take their homes for economic development, a violation of both the takings clause of the 5th amendment and the due process clause of the 14th.

Vera Coking won her case against the developer and the municipality.  The casino itself later failed and closed its doors. New London District Court, with Susette Kelo lead plaintiff, “split the baby”, ruling that 11 out of 15 takings were illegal and unconstitutional. At that point, the ruling wasn’t good enough for the seven homeowners. They had been through too much.  All of them would stay, or they would all go.

Connecticut’s highest court reversed the decision, throwing out the baby AND the bathwater in a 3-4 decision. The United States Supreme Court agreed to hear the case, argued before the seven justices then in attendance on February 22, 2005.

SCOTUS ruled in favor of New London in a 5-4 decision, Justices Stevens, Kennedy, Souter, Ginsburg and Breyer concurring. Seeing the decision as a reverse Robin Hood scheme that would steal from the poor to give to the rich, Sandra Day O’Connor wrote “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms“.

20110325_26_300x400Clarence Thomas took an originalist view, stating that the majority opinion had confused “Public Use” with “Public Purpose”. “Something has gone seriously awry with this Court’s interpretation of the Constitution“, Thomas wrote. “Though citizens are safe from the government in their homes, the homes themselves are not“.  Antonin Scalia concurred, seeing any tax advantage to the municipality as secondary to the taking itself.

In the end, most of the homes were destroyed or relocated. State and city governments spent $78 million and bulldozed 70 acres.  The 3,169 new jobs and the $1.2 million in new tax revenue anticipated from the waterfront development, never materialized.  Pfizer backed out of the project, moving 1,400 existing jobs to a campus it owns in nearby Groton.  The move was completed around the time when tax breaks were set to expire, raising the company’s tax bill by 500%.

Susette Kelo sold her home for a dollar to Avner Gregory, a preservationist who dismantled the little pink house and moved it across town.  A monument to what Ambrose Bierce once called “The conduct of public affairs for private advantage”.

Movie Trailer and feature image above from the film “Little Pink House”, scheduled for release in April, 2018.

In 2011, the now-closed redevelopment area became a dumping ground for debris left by Hurricane Irene.  The only residents, were feral cats.

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“Michael Cristofaro in the field in New London, Conn., where his parents lived. The city seized the land for a private “urban village” that was never built. Pfizer’s complex is in the background”. Credit Christopher Capozziello for The New York Times

September 24, 1789 SCOTUS

Over time, SCOTUS has proven itself to be as imperfect as any other institution. There have only been 112 justices in the history of the court. Some of them have been magnificent human beings, and some of them cranks.

Article III of the 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’s no mention of the number of justices. The first Congress passed the Federal Judiciary Act on September 24, 1789, creating a six-justice Supreme Court.

Twelve years later, the presidency of John Adams was coming to an end. As a Federalist, Adams wanted nothing more than to stymie the incoming administration of Democratic-Republican Thomas Jefferson. Toward 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.

350px-Plaque_of_Marbury_v._Madison_at_SCOTUS_BuildingThe 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 of the appointees, William Marbury, took the matter to Court.

The case advanced all the way to the Supreme Court, which ruled in Marbury v. Madison that the provision of the Judiciary Act enabling Marbury to bring his claim, was unconstitutional. Marbury had lost his case, but the principle of judicial review, the idea that the court could preside, Godlike, over laws passed by their co-equal branch of government, has been the law of the land, ever since.

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 thrown away. 470,000 cattle were shot in Nebraska alone. Vast quantities of milk were poured down sewers, all at a time of national depression when malnutrition was widespread.

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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 in the 1941 season. Filburne grew 462.

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”. On this flimsy basis, the Federal Government took Roscoe Filburne to court.

The farmer argued that the “surplus” stayed on his farm, feeding his family and his chickens. Lower Courts sided with Filburne. The government appealed all the way to the Supreme Court, arguing that, by withholding his surplus, Filburne was effecting interstate market conditions, thereby putting him under federal government jurisdiction.

Supreme_Court_cartoonIntimidated by the Roosevelt administration’s aggressive and illegal “court packing scheme“, SCOTUS ruled against the farmer. Ever since, what you don’t do can be held against you in a court of law. Get it? Neither do I.

Over time, SCOTUS has proven itself to be as imperfect as any other institution. There have only been 17 Chief Justices and 101 Associate Justices in the entire history of the court. Five Chiefs having previously sat as Associate Justices, there are only 113 in all.

Some of them have been magnificent human beings, and some of them 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, “separation of church and state”, from a private letter of Thomas Jefferson, and turned the constitutional freedom OF religion into an entirely made up freedom FROM religion.

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 American women the gift of forced sterilization, and Stenberg v. Carhartt enshrined the constitutional “right” to the hideous and detestable “procedure” known as partial birth abortion. From “Separate but Equal” to the “rights” of terrorists, SCOTUS’ rulings are final, inviolate, and sometimes imbecilic.

Chief Justice John Roberts, who once said “remember that it’s my job to call balls and strikes, and not to pitch or bat,” invented a whole new definition of taxation, enshrining the “Affordable Care Act” as the law of the land.

ConstitutionThe framers gave us a Constitutional Republic with co-equal branches of government, with power diffused and limited by a comprehensive set of checks and balances.

They gave us two distinct means to amend that Constitution, should circumstances require it.

Traditionally, Congress proposes amendments, submitting them to the states for ratification. The problem is that many believe Congress itself to be part of the problem, and a broken institution is unlikely to fix itself.

Article V gives us a way to amend the constitution, if we would take it. Instead of Congress proposing amendments, an Article V convention of state legislatures would propose amendments, to take effect only if ratified by a super majority of states. We could start with an amendment permitting 2/3rds of the People’s representatives in Congress, to overturn a SCOTUS decision. Then we could term limit these people.

Unless, that is, you believe it’s fine for the Federal Government to prohibit a farmer from growing wheat for his own use, that one man in a black robe can force you to buy a product you don’t want and call it a “tax”, or you believe that “established by the state” means by the state or federal government, at the sole discretion of the man who says, “I’m from the Government. I’m here to help”.

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July 22, 1937 Packing the Court

Article III, Section 1 of the United States Constitution creates the highest court in the land. The relevant clause states that “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”. Nowhere does the document specify the number of justices.

Article III, Section 1 of the United States Constitution creates the highest court in the land. The relevant clause states that “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”. Nowhere does the document specify the number of justices.Constitution

The United States was in the midst of the “Great Depression” when President Franklin Delano Roosevelt came to office in 1932. He had promised a “New Deal” for America, immediately beginning a series of sweeping legislative reforms designed to counter the devastating effects of the Depression. His initiatives faced many challenges in the courts, with the Supreme Court striking down as unconstitutional several New Deal provisions in his first term.

The Supreme Court was divided along ideological lines in 1937, as it is today. “Judicial Court Packing Scheme,1Realist” or “Liberal” legal scholars and judges argued that the constitution was a “living document”, allowing for judicial flexibility and legislative experimentation. Supreme Court justice Oliver Wendell Holmes, Jr., a leading proponent of the Realist philosophy, said of Missouri v. Holland that the “case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago”.

“Judicial Formalists”, today we call them “Conservatives” or “Originalists”, seek to discover the original meaning or intent of the constitution. Formalist legal scholars and judges argue that the judiciary is not supposed to create, amend or repeal law; that is for the legislative branch. The role of the court is to interpret and uphold law, or strike them down in light of the original intent of the framers, and the ratifiers, of the constitution.

In 1937, SCOTUS was divided along ideological lines, with three Liberals, four Conservatives, and two swing votes.

President Woodrow Wilson’s Attorney General, James Clark McReynolds, made a proposal in 1914 that: “(When) any judge of a federal court below the Supreme Court fails to avail himself of the privilege of retiring now granted by law (at age 70), that the President be required, with the advice and consent of the Senate, to appoint another judge, who would preside over the affairs of the court and have precedence over the older one. This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court”.

Court Packing SchemeTo Roosevelt, that was the answer. The age 70 provision allowed him 6 more handpicked justices, effectively ending Supreme Court opposition to his policies.

Roosevelt’s “Judiciary Reorganization Bill of 1937” immediately came under sharp criticism from legislators, bar associations, and the public. The Senate Judiciary Committee began hearings on the bill on March 10, 1937, reporting it “adversely” by a committee vote of 10 to 8. The full senate took up the matter on July 2, with the Roosevelt administration suffering a disastrous setback when Senate Majority Leader Joseph T. Robinson, a powerful supporter of the legislation, died of a heart attack.

The full Senate voted on July 22, 1937, to send the bill back to the Judiciary Committee, where provisions for additional justices were stripped from the bill. A modified version passed in August, but Roosevelt’s “court packing” scheme was dead.

In the end, the President had the last word. After an unprecedented four terms, Roosevelt would eventually appoint eight of nine justices to the Court.

April 10, 1869 SCOTUS

There have been fewer justices in Supreme Court history than you might think. The recent passing of Antonin Scalia made way for only number 113

ConstitutionThe Stuart King James had judges riding into the countryside once a year to hear cases, saving many of his subjects the arduous journey to London.  The custom carried “across the pond” and, from the earliest days of the American colonies, judges could be found “riding the circuit”.

Article III of the United States Constitution establishes the judiciary as a coequal branch of the federal government, “vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”. That’s about it.

Congress passed the Federal Judiciary Act in 1789, creating a six justice Supreme Court, and signed into law by President George Washington on September 24.  Principally written by Senator Oliver Ellsworth of Connecticut, the act established the office of Attorney General, and largely laid out the Federal court system, as it exists today.

United States Circuit courts were established in each federal judicial district, exercising jurisdiction over both original (first instance) matters and appeals, until the creation of the Federal Court of Appeals, in 1912.

Judicial Districts map
2017 Judicial Districts map

Supreme Court justices were not exempt from Circuit court duty, each justice “riding the circuit” to hear cases in his own district, in addition to his caseload, back at the capital.

Smaller districts may occupy a single federal courthouse, while larger districts stretch across thousands of miles.  This duty became increasingly onerous, until finally abolished by the Judiciary Act of 1891. Yet, the vestiges of this system remain. Today, each justice hears certain provisional appeals from specific circuits, which he or she may decide unilaterally, or refer “en banc” to the entire Court.

Increasing caseloads led Congress to increase the number of judicial districts to seven in 1807, and nine in 1837, finally raising that to ten during the Civil War.  With each new district, came another justice.

In one of the political skirmishes leading to President Andrew Johnson’s impeachment in 1868, Congress passed the Judicial Circuits Act in 1866, shrinking the number of justices to seven, thus preventing Johnson from appointing any new justices.

Congress raised the number to nine circuits with nine justices on April 10, 1869.  Today there are eleven federal judicial districts, while the number of justices remain at nine.

Supreme_Court_cartoonIn 1937, President Franklin Delano Roosevelt sought to increase the number of justices to 15. Then as now, the court was sharply divided along ideological lines, consisting of a four member conservative majority called the “four horsemen”, three liberals dubbed the “three musketeers” and two “swing votes”.

The conservative bloc became a roadblock to President Roosevelt’s New Deal programs, preferring the federal government take a hands off approach to the economy.

Buoyed by his landslide reelection in 1936, Roosevelt proposed to provide retirement at full pay for all justices over 70.  Any justice refusing retirement would be provided with an “assistant” with full voting rights, providing Roosevelt with an overwhelming liberal majority.

Not even vice president John Nance Garner would go along with Roosevelt’s aggressive and illegal “court packing scheme”, nor would a democrat-controlled congress. Yet Roosevelt’s effort had the desired result, as former swing vote Owen Roberts became a reliable vote for the liberal minority. By the time of his death 1945, Roosevelt had appointed every justice on the court, except Roberts himself.

supremecourtThere have been fewer justices in Supreme Court history than you might think.  The recent passing of Antonin Scalia made way for only number 113.

A proponent of “Judicial Originalism”, justice Scalia and his conservative allies on the court seek to decide on the constitutionality of the laws before them, based on what the framers of the constitution intended when they actually wrote the thing. In contrast, the liberal majority believes in a “living constitution”, a form of jurisprudence whose supporters believe the Constitution is a document which adapts to the times.  Detractors believe that amounts to law-making from the bench, a job more properly left the legislature.

With the ideological makeup of the Supreme Court hanging in the balance, President Obama and his allies pulled out all the stops to get his nominee confirmed and seated before the end of his presidency. The Republican controlled Senate invoked the “Biden Rule”, as described in the former Vice President’s 1992 speech on the Senate floor:  “It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”

Barack Obama himself tried to block the confirmation of Samuel Alito in 2006, saying Filibuster“There are some who believe that the president, having won the election, should have complete authority to appoint his nominee, that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed. I disagree with this view”. The filibuster was joined by Senators Kennedy, Leahy, Durbin, Salazar, and Baucus.

In 2007, now-Senate minority leader Chuck Schumer said “We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances”. That was 19 months before the next presidential inauguration.

The resulting conflict is great fodder for the bicker fest that passes for our national politics, from the legacy media and the talking heads of the punditocracy, to the endless and meaningless cage matches over the rhetorical anthills of Facebook.

CapitolSenator Schumer once said, “We have three branches of government. We have a house, we have a senate, we have a president.” He got that wrong, but he was part right.  We have three co-equal branches in our government, each having specific responsibilities as laid out in the Constitution.

The “advice and consent” clause contained in Article II grants the President authority to appoint judges to the Supreme Court, “by and with the Advice and Consent of the Senate.”  The Senate, for its part, will do what the Senate will do.

Later today, Justice David Kennedy will administer the oath of office to his former law clerk, judge Neil Gorsuch.  The 113th justice of the United States Supreme Court, and the first in history to serve alongside the justice for whom he once clerked.