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The Supreme Court: Cases and Controversies”

The Supreme Court: Cases and Controversies”

“THE SUPREME COURT: CASES AND CONTROVERSIES”

PROFESSOR JONATHAN TURLEY NEW TITLE: THE CUBS AND THE COURT

• 1986-2016 • Appointed by President Ronald Reagan • First Italian- American on the Court 113th redux

Merrick Garland the quest for the five decade justice

At 49, Gorsuch will be the youngest hominee since in 1991 (Thomas was 43)

Since 1900, only 12 nominees have been under 50. Myth v. reality

• Scalia replacement will be the 125th confirmation. • How long does it take? Depends how you count. • From 1900, it took 25 days for a candidate to be either confirmed or rejected or to withdraw. • Historically, the longest pendency of a nomination was 125 days for , the first Jewish member. • If you look at the current members, 68 days. Trivia

WHO WERE THE QUICKEST AND THE LONGEST CONFIRMATIONS ON THE CURRENT COURT? ROBERTS - THOMAS

SHORTEST: Ginsburg (50 days) John G. Roberts Kennedy (65 days); Jr. - 19 days. Sotomayor (66 LONGEST: days) Breyer (74 days) Clarence Thomas - 99 Alito (82 days). days. Kagan (87 days). CROWD PLEASERS

WHO HAD THE BEST AND WORST MARGINS? KENNEDY - THOMAS

BEST MARGIN: Ginsburg (96-3) Kennedy (97-0) Breyer (87-9) Sotomayor (68- WORST MARGIN: 31) Thomas (52-48) Kagan (63-37) Alito (58-42). A checkered history

• Incompetent justices on undersized court. • Political spasms with every opening on the Court. • Nominees selected for their ease of confirmation rather than proven extraordinary intellect and ability. The court of one

• With the nine-member court, we have had long periods of 4-4-1s split with a single swing justice.

• Justice Sandra Day O’Connor determines a host of major social issues for years.

• That role is now played by Justice

• The concentration of such authority in any one justice runs against the founding principles of the Framers. POP QUIZ

WHERE DID THE SUPREME COURT FIRST MEET? HOW MANY MEMBERS DID THE COURT HAVE ORIGINALLY? February 1, 1790 • First met in the Royal Exchange Building in (Merchants Exchange Building). • Only 2 of 6 members present • Chief Justice ; ; ; James Wilson; John Blair Jr.; and . THE CHANGING COURT

• The Court increased in 1807 to seven members. • It reached nine members in 1837. • It then was increased to 10 justices in 1863. THE of 1866 • For example, in 1866, two justices died, and the Congress passed the Judicial Circuits Act of 1866 to leave the two seats empty to reduce the seats to seven to prevent from filling the seats. • Chief Justice Salmon Chase supported the reduction in the hopes of increasing the salaries of the justices. HISTORY REPEATING ITSELF? • Henry Stanberry was appointed by Andrew Johnson to the Supreme Court in 1868 (after he successfully defended Johnson at his impeachment) • Johnson remained highly unpopular and the Senate refused to confirm. Marbury v. Madison (1803) • appoints the federalist “midnight judges”: 16 circuit judges and 42 Justices of the Peace (including William Marbury) as term ends.

• was appointed Chief Justice but continued to serve as acting Secretary of State and delivered some, but not all, of the commissions.

• Thomas Jefferson ordered that the remaining commissions not be delivered, despite Marshall’s assumption that they would be. Conflict of interest?

• Democratic-Republican Congress (7th) voids Judiciary Act of 1801 with their own . • Marbury filed his petition for the writ of mandamus with the Supreme Court (and Marshall) • Question of original jurisdiction and judicial review. MARBURY WINS (SORT OF) • Unanimous 4-0 ruling that “It is emphatically the Marbury had a right to his province and duty of Commission. the Judicial Department [the • Court acknowledged that it could not force Madison to judicial branch] to say execute the Commission. what the law is. Those who apply the rule to • Marbury never did become a particular cases must, justice of the peace. of necessity, expound and interpret that rule.” Jefferson’s objection

“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy .... The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.” The challenge: history or mythology?

John Marshall Andrew Jackson Worcester v.

• Jackson’s legendary response “John to the ruling of the Court declaring Georgia statute Marshall has (prohibiting non-Native Americans from entering made his Indian lands without a state permit) to be decision; now unconstitutional. let him • Established foundation for federal jurisdiction vis-à-vis enforce it!" Indian lands. Letter to john Coffee The quote is questionable Coffee commanded troops under Jackson in the Creek War and the but does seem to reflect Battle of New Orleans Jackson’s views from a letter to John Coffee. "...the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” Justice robert h. jackson "We are not final because we are infallible, but we are infallible only because we are final.” THE BEST . . .

• John Marshall (CJ, • Oliver Wendell 1801-35) Holmes (1902-32) • Charles Evan Hughes (CJ, 1930- • William Brennan 41) (1956-90) • (CJ, • John Marshall 1953-69) Harlan (1877-1911) • Louis Brandeis • Hugo Lafayette (1916-39) Black (1937-1971) Best of the best – • Served 1812-1845 (Joined court at age 32) • Martin v. Hunter’s Lessee (1816) he established the Court’s authority over state decisions • v. Dandridge (1827) led to the creation the modern • United States v. Amistad (1841) (Story was later played by Henry Blackmun in the movie) THe rest . . .

• (1811-35) • 18 cases in 23 years • Reportedly so deaf that he was unable to participate in conversations. • Only constitutional decision is three words: “Duvall, Justice Dissented.” John Rutledge

• Appointed by in 1795 to be second Chief Justice. • Given to “mad frolicks” and was “frequently so much deranged as to be in great measure deprived of his senses.” • Senate rejected elevation to Chief Justice. From rutledge to cushing • Rutledge tried to drown himself in the Ashley River (SC). • Rutledge’s confirmed successor was Justice William Cushing, an original member of the court. • Cushing was himself described as “much impaired” mentally and ultimately declined the position. (1830- 44) • Described by Daniel Webster as suffering from “incurable lunacy” • Later hospitalized but did not resign. • Remained on the Court for 11 more years. Robert C. Grier (1846-70) • Three strokes in 1867 left him unable to participate in decision. • Chief Justice Salmon Chase insisted that he resign . . . after securing his key on to strike down the Legal Tender Act. (1858-81)

• Described as a “babbling idiot” and “particularly vacant.” • Served until his death on the Court. (1872-82) • Colleague of Clifford who was speechless and paralyzed by illness. • Refused to resign because he needed to finish his 10th year for a pension. • Congress relented and gave him a pension to get him to resign. addiction

Frank Murphy (1940-49) (painkiller Demerol ) (1986-2005) (painkiller Placidyl) TRIVIA

In 1945, Rehnquist worked as a weather observer in North Africa (United States Army Air Force) WHAT HISTORIC EVENT OCCURRED IN 1945? ANSWER

It was the last time that the Cubs played in the World Series. Game 4 was the start of the Billy Goat Curse by Billy Goat Tavern owner Billy Sianis. Why nine?

• In 1863, a 10th Circuit was added. • The added circuit was eliminated in 1866. • With the reduction, Congress let the seat remain under filled. • Simply a matter of riding circuit. Riding circuit

• Replication of English system allowing Justices to rule as circuit judges and then again as Supreme Court justices.

• Maine and Kentucky were always excluded from the burden as too remote and hostile.

• 121 years of circuit riding ended in 1801 – ended by the Federalists but that act was then rescinded a year later by the Republicans.

• It was not until the Evarts Act of 1891 that the practice truly ended. The Cloistered Court

Some members warned of a “fossilized” Court would result from not riding circuits with justices becomes arrogant and detached.

Senator William Smith : “completely cloistered within the city of Washington, and their decisions, instead of emanating from enlarged and liberal minds, will assume a severe and local character.” The (Circuit Judges Act of 1869) Congress codified the size of the United States Supreme Court would consist of the Chief Justice and eight associate justices. THE RIGHT REFORM FOR THE WRONG REASON Franklin Delano Roosevelt had the right reform for the wrong reason. Four horsemen: , James C. McReynolds, George C. Sutherland, and . Court packing Scheme Judicial Procedures Reform Bill of 1937

Allowed the President to appoint an additional justice for every justice over the age of 70

Up to six new justices for a court of 15

All of the four Horsemen were over 70 THE SWITCH IN TIME

On the , Chief Justice Charles Evan Hughes and Associate Justice (right) were swing votes. When Roberts shifted in favor of the New Deal, it was declared the “switch in time that saved nine.” The Court’s leading Anti-semite JAMES THE MISSING 1924 MCREYNOLDS COURT PHOTO • One of the Four Horsemen, McReynolds was also a raging anti-Semite.

• Legend has it that there is no 1924 Court portrait because McReynolds refused to be photographed with a Jew.

• When Brandeis retired in 1939, he refused to sign the customary dedicatory letter. EQUAL OPPORTUNITY HATER • When Brandeis (left) spoke, McReynolds would leave the conference room. • He would not accept "Jews, drinkers, blacks, women, smokers, married or engaged individuals" as law clerks. • He would leave when a women appeared as counsel. NOT UNIQUE

McReynolds wrote the President (with justices Pierce Butler and Willis Van Devanter) opposing the appointment of Benjamin Cardozo so not to "afflict the Court with another Jew”. When Cardozo (right) was nominated, McReynolds said "Huh, it seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew, or both.” THe end of a Racist relic McReynolds, who was known as an exceptionally bigoted and hateful man, died alone in a hospital in 1946. No justice came to his funeral. However, when McReynolds African-American messenger Harry Parker died in 1956, his funeral was attended by sic justices including the Chief Justice of the United States. Expansion proposal

• Expansion to a nineteen (19) member court. • Twenty (20) year expansion period with no president able to appoint more than two new justices per term. • Once the Court is at full capacity, two justices each year would be selected by seniority to sit on lower courts for one year by designation. • Seventeen (17) member voting court would be roughly the size of an en banc . Non-amendment option • Congress previously increased or decreased the size of the Court through congressional action. • Alternative to proposed age limits and term limits that would require a constitutional amendment. COMPARATIVE COURTS

• 12 • Japan 15 • Israel 15 • Germany 16 • India 31 • Spain 74 • France 124 Confirmation

• Improving the quality of nominees • Improving substance of confirmation hearings • Potentially achieving greater diversity in backgrounds and education. THE YEAR FOR A NEW CUBS AND NEW COURT?

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