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.

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January 18, 1943 The Greatest Thing since Sliced Bread

Ohio farmer Roscoe Filburne was ordered to destroy the surplus and pay a fine, even though his “surplus” was being consumed on the farm by the Filburne family and their chickens

The first automatic bread slicer was invented by Otto Frederick Rohwedder of Davenport, Iowa, in 1912. The idea was not at all popular among bakers, who feared that pre-sliced bread would go stale faster, leading to spoiled inventory and dissatisfied customers.
st-_louis_electrical_bread_slicer_1930The project almost ended in a fire in 1917, when the prototype was destroyed along with the blueprints. Rohwedder soldiered on, by 1927 he had scraped up enough financing to rebuild his bread slicer.

Frank Bench, a personal friend of the inventor, was the first to install the machine. The first pre-sliced loaf was sold in July of the following year. Customers loved the convenience and Bench’s bread sales shot through the roof.sliced-bread-wonder

Sliced bread became a national hit when the Continental Baking Company, then owner of the “Wonder Bread” brand, began using a modified version of Rowhedder’s machine in 1930. Sliced bread was here to stay. Sort of.

The United States had been in WWII for two years in 1943, when Claude Wickard, head of the War Foods Administration as well as Secretary of Agriculture, had the hare brained idea of banning sliced bread.

Mr. Wickard was no stranger to hare brained ideas; it is he who lends his name to the landmark Supreme Court case Wickard v. Filburne. Speaking of hare brained ideas. The Agricultural Adjustment Act of 1938 limited the area that farmers could devote to wheat production, in an effort to stabilize the price of wheat on the national market. An Ohio farmer named Roscoe Filburne was producing more than his allotment. The federal government ordered him to destroy the surplus and pay a fine, even though his “surplus” was being consumed on the farm by the Filburne family and their chickens.

constitutionArticle 1, Section 8 of the Constitution includes the “Commerce Clause”, permitting the Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. That’s it. The Federal District Court sided with the farmer, but the Federal government appealed to the US Supreme Court, arguing that, by withholding his surplus from the interstate wheat market, Filburne was effecting that market, and therefore fell under federal government jurisdiction under the commerce clause.

The United States Supreme Court, apparently afraid of President Roosevelt and his aggressive and illegal “court packing” scheme, ruled against the farmer. Ever since, what you don’t do can be argued in a court of law to affect interstate commerce, putting what you didn’t do under the jurisdiction of the federal government. Get it? Neither do I, but I digress.

Back to Mr. Wickard, who enacted his ban against sliced bread and put it into effect on January 18, 1943. The push-back, as you might guess, was immediate and vehement. One woman wrote to the New York Times: “I should like to let you know how important sliced bread is to the morale and saneness of a household. My husband and four children are all in a rush during and after breakfast. Without ready-sliced bread I must do the slicing for toast—two pieces for each one—that’s ten. For their lunches I must cut by hand at least twenty slices, for two sandwiches apiece. Afterward I make my own toast. Twenty-two slices of bread to be cut in a hurry!”

The stated reasons for the ban never did make sense. At various times, Wickard claimed that it was to conserve wax paper, wheat and steel, but one reason was goofier than the one before. According to the War Production Board, most bakeries had plenty of wax paper supplies on hand, even if they didn’t buy any. Furthermore, the federal sliced-breadgovernment had a billion bushels of wheat stockpiled at the time, about two years’ supply, and the amount of steel saved by not making bread slicers has got to be marginal, at best.

The ban was rescinded on March 8, 1943, and pre-sliced bread was once again available to the federal government and its subjects. There’s no telling who first used the expression “the greatest thing since sliced bread”, but a reasonable guess may be made as to why.