Supreme Court Month, Part 1

John Jay, John Rutledge, Oliver Ellsworth, John Marshall, Roger Taney, Salmon Chase, Morrison Waite, Melville Fuller, Willis Van Devanter, Hugo Black, Lewis Powell, Anthony Kennedy

John Jay, John Rutledge, Oliver Ellsworth, John Marshall, Roger Taney, Salmon Chase, Morrison Waite, Melville Fuller, Willis Van Devanter, Hugo Black, Lewis Powell, Anthony Kennedy

The first Chief Justice of the Supreme Court was John Jay (1745-1829), a major Father of the Revolution who got forgotten mostly because he just missed signing the Declaration of Independence, but definitely deserves the HBO-miniseries treatment. (Who would play him? I say: either John Tuturro or Jason Schwartzman.) Jay was born in NYC (before it was cool) and got a law degree from Columbia University. He was a member of the New York delegation in the Continental Congress, spent the last half of the American Revolutionary War as ambassador to Spain, and was one of the American negotiators at the Treaty of Paris that ended the War in 1783. Jay was then foreign secretary under the American Articles of Confederation while he, along with John Adams and Alexander Hamilton, wrote a series of essays in 1788 arguing for a new Constitution which are now known as the Federalist Papers. Once the new Constitution was passed George Washington offered Jay the office of Secretary of State, which he turned down. He did accept Washington’s nomination as Chief Justice on September 24, 1789, was approved unanimously by the Senate on September 26, and sworn in on October 19.

At that point the Supreme Court’s main function was the administrative overview of lower federal courts and the legal affairs of the US Government, and in the five-plus years Jay was Chief Justice the Court heard only four cases. The most important of theses was the 1793 case of Chisholm v. Georgia, in which it was determined that the Supreme Court’s rulings were legally binding on state law. During his term Jay also negotiated Jay’s Treaty of 1794, under which Britain agreed to vacate forts in the Great Lakes area and grant trade rights to the US in India and the Caribbean. (Despite the name, most of the treaty was written by Alexander Hamilton.)

Jay resigned from the Court at the end of June 1795 to run for Governor of New York, an office he held from 1795 to 1801. Jay was the kingpin of the abolitionist movement in New York and in 1799 passed a sort of emancipation-through-attrition law under which Jay saw the complete abolishment of slavery in New York in his lifetime. After leaving politics in 1801 he retired to his farm in Westchester County and died there in 1829.

Jay’s place as Chief Justice was filled by the appointment of John Rutledge (1739-1800) on June 30, 1795. This was Rutledge’s second kick at the SCOTUS can: he had been one of the original associate justices in 1789, but resigned in 1791 (before ever hearing a case) to accept an appointment as chief justice of the supreme court of South Carolina. Rutledge was named Chief Justice by recess appointment, meaning the Senate was out of session at the time. Over that summer Rutledge had given a speech denouncing Jay’s Treaty, losing him the support of the Federalist Party and the Washington administration. When it returned the Senate rejected Rutledge’s appointment, the only time a recess appointment has ever been overturned in Supreme Court history. Rutledge resigned on December 28, 1795, after only two days short of exactly six months as Chief Justice.

Rutledge was from a large and rich family in Charleston, South Carolina; his younger brother Edward signed the Declaration of Independence. Rutledge learned law by apprenticing in London, at the ancient Middle Temple. After returning to America Rutledge was a central opponent of the Stamp Act of 1765 and a delegate to the Continental Congress. In 1776 South Carolina passed a new constitution and Rutledge was elected its first President, from 1776 to 1778. After the constitution was altered he served as Governor from 1779 to 1782, and was a South Carolina delegate to the Constitutional Convention of 1787, where he strongly opposed limiting voting rights to landowners, but also defended slavery.

The Rutledge court heard only two cases, but they were both fairly important: United States v. Peters established that American courts held no jurisdiction concerning crimes involving Americans in international waters; and Talbot v. Janson decided that American citizens renouncing citizenship of a state or taking citizenship of another country didn’t automatically lose US citizenship, thus making dual citizenship possible.

Rutledge’s rejection by the Senate left him mentally unstable and tried to commit suicide by drowning shortly thereafter. He withdrew from public life and died at his home in Charleston in 1800.

Rutledge was succeeded by Oliver Ellsworth (1745-1807), Chief Justice from March 1796 to September 1800. He was born north of Hartford, Connecticut, and went to Yale for two years before transferring to Princeton and graduating with a degree in theology. He started studying law soon after and passed the bar exams in 1771, settling in Hartford and practicing law while raising nine kids, including Connecticut governor William Ellsworth and Commissioner of the US Patent Office Henry Ellsworth. Ellsworth was a Connecticut delegate to both the Continental Congress and the Constitutional Convention, where his main contribution was making the United States Government refer to itself as “the United States Government”, as opposed to Edmund Randolph’s suggestion to use “the National Government of the United States”. He served as a US senator for Connecticut from 1789 to 1796 and sponsored the Judiciary Act of 1789 that established the federal court system.

The Ellsworth court was the last period before the Supreme Court as we know it today was formed. Two of the cases it did hear were two important firsts: Hylton v. United States of 1796 was the first time the Court ruled on whether or not a law was “constitutional”, and 1799’s New York v. Connecticut was the first time two states sued each other. (Connecticut won.) There were another two important cases: Hollingsworth v. Virginia of 1798 ruled the President had no role in constitutional amendments; and 1798’s Calder v. Bull determined the constitutional prohibition on ex post facto laws (laws that retroactively change other laws) only applied to criminal law and not civil law.

From 1799 to 1800 Ellsworth led a mission to France to negotiate with Napoleon over shipping restrictions. He fell ill on the voyage home and retired from public life on his arrival, dying at home in 1807.

The new Chief Justice, sworn in on January 31, 1801, was John Marshall (1755-1835), whose term ending in July of 1835 made him the longest-serving Chief Justice and 4th-longest-serving justice in Supreme Court history. John Marshall was born in a log cabin in rural northern Virginia, where his father was a surveyor and land agent. Young John read widely from a young age, but got little formal schooling except for a year at a private academy a hundred miles away, where one of his classmates was future president James Monroe. Marshall joined the Virginia militia and was an officer of the Continental Army during the Revolution. He was friends with George Washington and was with him during the infamous winter at Valley Forge. After his time in the Army he studied law at the College of William and Mary and was admitted to the Virginia bar in 1780. Marshall was a member of the convention wherein Virginia ratified the Constitution in 1788. Marshall’s law career bloomed and eventually argued before the Supreme Court in the 1796 case of Ware v. Hylton, and although his side lost (the court ruled the state of Virginia could not confiscate debts owed to British subjects) his argumentative skill impressed many. Marshall followed this with a string of appointments declined: as Attorney-General in 1795, ambassador to France in 1796, and a seat on the Supreme Court in 1798. He did agree to join a trade mission to France in 1797, but failed to do anything because the French refused to meet with them unless they paid an enormous amount of bribes, an incident now known as the XYZ Affair and touched off a series of scuffles between the American and French navies in the Caribbean known as the Quasi-War. Marshall ran for Congress in 1798 and won a seat in Virginia, staying there until John Adams nominated him as Secretary of War in May 1800, only to change his mind a week later and nominate him as Secretary of State instead. Marshall took office in June 1800 and served until March 1801; in that time he negotiated the Treaty of Mortefontaine with France, ending the Quasi-War and annulling the Franco-American Treaty of Alliance of 1778.

Marshall’s nomination as Chief Justice came about as a result of some political skullduggery. The elections of 1800 saw the Federalist Party lose the control of Congress and the presidency. The lame-duck congress used its remaining time left to put a stranglehold on the judiciary with the Judiciary Act of 1801. At the same time Chief Justice Ellsworth was sickly and decided to retire. John Adams offered the seat to John Jay, who declined. Jay’s letter arrived on January 20, 1801, leaving Adams with little time: on receiving the letter he nominated Marshall, who happened to be in the room at the time and was taken totally off-guard. A hesitant Senate confirmed him and Marshall was sworn in on February 4, 1801.

It’s more than fair to say that without Marshall the Supreme Court would not exist as it does today. He started the practice of the court issuing majority opinions; before, each justice wrote his own opinion on every case. He took a leadership role on the court unseen in his predecessors. His court was the first to have an odd number of seats, when it was raised from 6 to 7 in 1807. And in 1803, he was given a case that would enable him to redefine the role of the Supreme Court and make it a branch of government equal to Congress and the President.

The case of Marbury v. Madison is known as one of the most important cases in US history because it established the principle of judicial review: that the court could review acts done by the legislative and executive branches and order them overturned if their contents contravened the provisions of the Constitution. This gave the Court a sort of veto power over the other branches and placed it on equal footing with them. (It’s worth noting that before Marbury, whenever anyone referred to the “3 branches of the federal government” they usually meant the President, the Senate and the House of Representatives.) The night before his last day in office, John Adams wrote out a number of commissions for justices of the peace, including one for Maryland financier William Marbury. Upon taking office his successor, Thomas Jefferson, ordered Secretary of State James Madison to withhold the undelivered commissions and Marbury sued. The court was faced with the question of whether Marbury was entitled to his commission and if the court should issue a writ of mandamus as authorized by Section 13 of the Judiciary Act of 1789 to compel Jefferson and Madison to do so. Unanimously, the court found that Marbury was entitled to his commission but not only could the court not compel the President to give it to him but the power of the Supreme Court to issue writs of mandamus given in the Judiciary Act of 1789 unconstitutionally expanded the Court’s powers and Section 13 was declared invalid, thus setting the precedent of judicial review. Marbury never got his commission.

Over a term spanning 34 years and six presidencies (Adams, Jefferson, Madison, Monroe, JQA and Jackson), Marshall ruled on a number of important cases: Fletcher v. Peck (1810), the first state law to be repealed under judicial review, found the Georgia legislature could not repeal the sale of land passed by a previous legislature because the sale constituted a binding contract; Martin v. Hunter’s Lessee (1816) proved the Supreme Court’s superiority over state courts in matters of federal law; McCulloch v. Maryland (1819) found both that states couldn’t tax federal institutions and that the power of Congress to pass “necessary and proper” laws gave it the power to do things not explicitly stated in the Constitution, paving the way for everything from the FCC to the EPA; Trustees of Dartmouth College v. Woodward (1819) affirmed the sanctity of private contracts and corporate charters against government intervention; Cohens v. Virginia (1821), where the Supreme Court asserted its ability to override the decisions of state courts; and Gibbons v. Ogden (1826), which had the effect of ending many state-granted commercial monopolies and promoted free enterprise. Marshall also presided over the trial of Aaron Burr for high treason in 1807 after Burr shot Alexander Hamilton, and between 1804 and 1807 Marshall wrote a 5-volume biography of George Washington. Marshall stayed on the court until his death in July of 1835 while receiving medical treatment in Philadelphia from injuries sustained in a stagecoach accident that spring.

President Andrew Jackson chose Roger Taney (1777-1864) as Marshall’s replacement, the first Catholic to serve on the Supreme Court. Taney had been nominated as an associate justice the year before, but was blocked by a hostile Senate; the Democrats winning control of the Senate in the intervening year brought Taney in upon Marshall’s demise, despite the bitter opposition of Daniel Webster, Henry Clay and John C. Calhoun, and Taney was confirmed and sworn in on March 15, 1836.

Roger Brooke Taney was born in 1777 on his family’s tobacco plantation in Maryland. He went to Dickinson College and passed the Maryland bar in 1799. He started a successful law practice and in 1806 married Francis Scott Key’s sister, Anne. He participated off and on in Maryland state politics until Andrew Jackson appointed him to Cabinet as acting Secretary of War in June 1831, then the following month made him Attorney-General. Jackson then appointed Taney as Secretary of the Treasury by recess appointment in September 1833; the Senate rejected the appointment and Taney returned to private practice the following June.

The 28-year tenure of Roger Taney is stained indelibly by its decision in 1857 in the case of Dred Scott v. Sandford. In essence, the court found that the Constitution had not allowed blacks to be capable of citizenship (“an inferior race”, as the ruling phrased it) and therefore could not be citizens, so Dred Scott (a slave) could not sue John Sanford (his master, whose name was misspelled by the Court) for his freedom because he had no status before the courts. It was later revealed that the new president, James Buchanan, had been pressuring the court to place the issue of slavery beyond the realm of political discourse by constitutionally enshrining slavery, which is why the Dred Scott case is often cited as a main cause of the Civil War. (Taney’s feelings toward slavery on a personal level were much different: he freed his slaves and paid pensions to the ones too old to work.)

The membership of the Supreme Court expanded twice under Taney, to nine in 1837 and to 10 justices by Abraham Lincoln in 1863. As opposed to the federalist John Marshall, the Taney court largely defended states’ rights. Other important cases it heard included Mayor of the City of New York v. Miln (1837), which sided with greater powers to the states to regulate commerce when Congress challenged a New York statute requiring ship captains to provide information on incoming passengers; Charles River Bridge v. Warren Bridge (1837), which found that the government’s duty to serve the public took precedence over monopolies granted to companies unless they are explicitly contractually stated to be monopolies; United States v. Libellants and Claimants of the Schooner Amistad (1839), where it ruled that a Spanish slave ship hijacked by its slaves and sailed to Long Island was full of kidnapped free men, not slaves, and ordered them returned to Africa (this is the event that the Spielberg movie is based on); Prigg v. Pennsylvania (1842), which found that the states were barred from both interfering with and providing assistance to federal fugitive slave laws; Sheldon v. Sill (1850), which said that although Congress could limit the subjects that lower federal courts could hear, it could not limit what the Supreme Court could hear; Hotchkiss v. Greenwood (1850), which established that a patent can’t be granted to something unless it is sufficiently inventive (known as the “non-obviousness rule”); Ableman v. Booth (1859), which made it clear that state courts cannot contradict the rulings of federal courts; and Ex parte Merryman (1861), which found Abraham Lincoln’s suspension of habeas corpus during the Civil War to be unconstitutional, and that such a suspension could only be performed by act of Congress.

Lincoln and the Army defied Taney’s ruling on Merryman, however, and thereafter he was largely ignored by most people in Washington. Impoverished by the loss of his plantations in the Civil War and caring for his sickly daughter, he died a broken man on October 12, 1864 – the very same day Maryland abolished slavery.

Lincoln chose Salmon Chase (1808-1873), his treasury secretary, to replace Taney, and Chase was sworn in on December 15, 1864. Salmon Portland Chase was born in Cornish, New Hampshire, in 1808. His father died when he was 9 years old and spent much of his teen years in Ohio with his uncle Philander Chase, a bishop of the Episcopalian Church. He spent some time at Cincinnati College before transferring to Dartmouth, graduating in 1826. He then studied law under Attorney-General William Wirt in Washington and passed the bar in 1829.

Chase moved back to Cincinnati the next year and became heavily involved in the abolitionist movement, defending so many escaped slaves in court he was nicknamed “Attorney-General of Fugitive Slaves”. He was elected as US Senator for Ohio in 1848 as a member of the abolitionist Free Soil Party and was pivotal in founding the Anti-Nebraska Party in 1854 (protesting the decision to allow slavery in Kansas and Nebraska if approved by popular vote), which soon was subsumed into the Republican Party. He left federal politics in 1855 to run for Republican governor of Ohio, served in that office from 1856 to 1860 and pursued a progressive agenda. He ran for the presidential nomination at the 1860 Republican National convention and finished in 4th place. He won his seat in the Senate back in 1860, but three days after being sworn in he resigned from Congress to serve as Secretary of the Treasury. Chase proved to be an excellent head of the Treasury, managing the sale of half a billion dollars’ worth of government war bonds in 1862, put “In God We Trust” on US coins, founded the forerunner to the IRS, and was instrumental in the creation of the modern banknote, issuing the first US greenbacks in 1861. To further his political career, he designed the dollar notes with his face on the front. (For his contribution to paper currency, the US $10,000 note, printed from 1928 to 1946, has Chase’s picture on it.) The Chase National Bank/ Chase Manhattan Bank/JPMorganChase was named in his honour; he had nothing to do with it and was dead several years before it was founded.

Throughout his tenure Chase schemed for higher office and often threatened to resign from Cabinet. Lincoln surprised Chase in June 1864 by accepting his resignation. To placate the Radical wing of the Republican Party Lincoln promised him a seat on the Supreme Court, and it was given to him when Roger Taney died that October. Several years into his tenure, Congress voted in 1866 to reduce the seats on the Supreme Court from 10 to 7, preventing Andrew Johnson from filling two vacancies; it was returned to 9 seats once Johnson was out of office in 1869, and the number of seats on the Supreme Court has not changed since.
Chase’s most important act as Chief Justice was to preside of the impeachment trial of Andrew Johnson, who was indicted by Congress for violating the Terms of Office Act by removing Edward Stanton from the office of Secretary of War without the consent of the Senate. Johnson was acquitted. Otherwise, the Chase court was largely occupied with cases concerning the aftermath of the Civil War: Ex parte Milligan (1866) found the use of military tribunals to try civilians was unconstitutional when civilian courts are available; Ex parte Garland (1866) found that a law barring former Confederate government officers from positions in the judiciary were unconstitutional; Crandall v. Nevada (1868) said it was illegal to tax people for leaving a state; United States v. Kirby (1868) set out that any law must be assumed to have exceptions to itself if the result of enforcing that law results in “an absurd consequence” (Kirby was a sheriff prosecuted for obstructing the mail when he arrested a postman for murder); Texas v. White (1869) decided that, under the Constitution, the Union of the states is assumed to be permanent; Paul v. Virginia (1869) decided that, unlike persons, corporations are not constitutionally guaranteed to have the same rights in every state; United States v. Klein (1871) forbade Congress from encroaching on the President’s power to issue pardons; and Taylor v. Taintor (1872) is now commonly used to justify giving bail bondsmen sweeping powers to capture the accused. In 1870 the Court ruled in the case of Griswold v. Hepburn that Congress did not have the power to issue paper money in peacetime, odd considering Chase was basically the father of paper money in the US. When the court reversed its decision in Knox v. Lee in 1871, Chase dissented.

One of Chase’s last rulings, in 1873’s Bradwell v. State of Illinois, threatened to be his Dred Scott moment when he agreed to the decision to keep a woman from practising law in Illinois; but the decision barely referenced her gender at all, instead concentrating on the opinion that the right to practice the profession of your choosing was not protected by the Fourteenth Amendment. Much more deleterious to civil rights was 1866’s Pervear v. Massachusetts, which, in keeping with the pre-Civil Rights era Court’s belief that the Bill of Rights applied only to federal law and not state law, decided that state prisons were exempt from following the “cruel and unusual punishment” clause of the Eighth Amendment, paving the way for Cool Hand Luke-style conditions in state penitentiaries until the 1960s.

Towards the end of his life Chase’s political ambitions reared up again, trying and failing to get the presidential nomination of the Democratic Party in 1868 and the Liberal Republican Party in 1872. He died of a stroke in New York City in May of 1873.

President Ulysses S. Grant chose as Chase’s replacement Morrison Waite (1816-1888), at the persistent lobbying of Ohio Republicans, on January 19, 1874. Prior to Waite, Grant had nominated Senators Roscoe Conkling, Oliver Morton, Timothy Howe and Caleb Cushing, Secretary of State Hamilton Fish, and Attorney-General George H. Williams, all of whom declined or withdrew their nominations. Waite was sworn in March 4.

Morrison Remick Waite (“Mott” to his friends) was born in Lyme, Connecticut, and graduated from Yale (where he was a member of the Skull and Crossbones) in 1837, moving to Ohio soon after. he became a well-known lawyer in Ohio and served a term in the state senate, failing twice to be elected to the US Senate. He gained national stature in 1871 when he was chosen to act as counsel in Geneva for American claims against Britain for its aid to the Confederate warship CSS Alabama.

Waite was not as intellectually robust as Marshall, Taney or Chase, but he had skill as a manager and the Supreme Court was productive and harmonious during his tenure. He was also a very hard worker, writing over a thousand opinions in his 14 years as Chief Justice. He was socially progressive, supporting the admission of women to the Supreme Court bar and vocally supporting education for blacks.

The Waite court’s most significant legacy was to solidify a very narrow reading of the “Equal Protection” clause of the Fourteenth Amendment that stayed with the court until the New Deal era. Although its nascence was in the Chase court’s ruling on Bradwell, the court firmly established it in the ruling on Minor v. Happersett in 1875, when it decided that the Constitution (at the time) did not guarantee the right to vote to women, and again in five similar cases in 1883 collectively known as The Civil Rights Cases, which ruled the federal government did not have the authority to outlaw discrimination by private interests. More infamously, the Waite court carried on the failure to apply the Bill of Rights to state actions when it threw out the indictments of Klansmen who massacred over a hundred blacks at a rally in Louisiana in the case of United States v. Cruikshank in 1876, ruling that the right to assembly “was not intended to limit the powers of the State governments in respect to their own citizens.” (It also ruled that the guarantees of due process and equal protection were for citizen-to-government actions, and not for actions between private citizens.) Waite did provide a stepping stone to New Deal-era regulation in Munn v. Illinois (1877), when he ruled governments could interfere with private business where it affected public interest. Equally as important for precedent were the three Head Money Cases of 1884, which found that the provisions of treaties did not take precedence over acts of Congress. Albeit less important to its legacy, another major event in the Waite court was a series of six cases from January 1887 to March 1888, together known as The Telephone Cases, concerning the patents granted to Alexander Graham Bell and AT&T for the telephone.

But perhaps the most relevant part of Waite’s legal legacy is a non-binding remark (or “dictum”) he made in his 1886 ruling on Santa Clara County v. Southern Pacific Railroad Company: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment […] applies to these corporations. We are all of the opinion that it does.” (Corporations are people, my friend.)

Morrison Waite died suddenly and unexpectedly of pneumonia in Washington on March 23, 1888, and his body was returned by train to Toledo, Ohio, to be buried.

The appointment of Waite’s successor was almost Waite’s appointment, redux; President Grover Cleveland (in his first term) passed over former ambassador to Britain Edward Phelps, the rumoured frontrunner; and instead dipped into the Midwest to find a local favourite, Melville Fuller (1833-1910). He was confirmed July 20, 1888, and sworn in on October 8 to a term which would stretch 22 years and into the next century.

Melville Weston Fuller, grandson of two judges, was born in Augusta, Maine, and attended Harvard for a year before transferring to Bowdoin College in Brunswick, Maine, and graduated in 1853. He went to Harvard Law School for six months, dropped out, articled in his uncles’ law firms, and moved to Chicago. He stepped up onto the national stage when he acted as campaign manager to 1860 Democratic presidential nominee Stephen “I Debated Lincoln and All I Got Was This Lousy Footnote to History” Douglas. Fuller took advantage of Chicago’s growing commercial importance to become a big-shot lawyer and a big player in the Democratic Party, serving as a delegate to every Democratic National Convention from 1864 to 1880. Cleveland had already offered Fuller the jobs of chairman of the Civil Service Commission and Solicitor-General before his appointment as Chief Justice, and later offered him the position of Secretary of State in 1893, all of which Fuller declined.

The Fuller court is overshadowed by the apex of what is now considered the gross misconstruing of the Fourteenth Amendment: the 1896 case of Plessy v. Ferguson. Homer Plessy, a mixed-race man from Louisiana, sued the Louisiana government for making him sit in a blacks-only railway car, claiming the segregation was in violation of the 13th and 14th Amendments. (Ferguson was the judge who first convicted Plessy, fining him $25.) The Supreme Court ruled that, since the white and black cars were of equal quality and the separation of races was ostensibly a matter of public policy and not an expression of the inferiority of blacks, the Constitution did not outright forbid the segregated cars. This ruling had the effect of legitimizing the Jim Crow laws spreading across the South enforcing segregation, which was not undone until the ruling of Brown v. Board of Education in 1954.

This era of the Supreme Court is also marked by a series of rulings, usually based on things like the 5th Amendment’s freedom of entering contracts or the limits on Congress’s power to regulate commerce, which worked against labour rights and in favour of robber-baron interests. It’s often called the “Locher Era”, after Lochner v. New York (1905), which struck down a law limiting the number of hours bakers could be obliged to work in a day in New York, a decision later mollified somewhat when the court agreed such laws could be applied to women workers in 1908’s Muller v. Oregon. The trend started earlier, though, with United States v. E.C. Knight Co. (1895), ruling that the manufacturing industry was not within the Congress’s regulatory purview. Adair v. United States (1908) upheld corporations’ right to make employees sign contracts forbidding them to join labour unions, and Loewe v. Lawlor (1908) declared secondary boycotts by labour unions to be illegal, and that unions could be liable for financial losses incurred by strikes.

One of the most important rulings of the Fuller court for contemporary life was in 1904’s Gonzales v. Williams, which declared Puerto Ricans were not foreign nationals, and therefore permitted free entry to the United States… but did not say they were US citizens, thereby by default creating the designation of “noncitizen nationals”. Nix v. Hedden of 1893 is of special importance to pedants: it ruled the tomato is a vegetable for the purposes of the Tariff Act. 1895’s Pollock v. Farmers’ Loan & Trust Company declared income taxes unconstitutional; but was rendered void in 1913 when the Constitution was amended to legalize income taxes. United States v. Shipp of 1906 was the only criminal trial in Supreme Court history: it sentenced Shipp to prison for failing to protect a prisoner in his custody from being lynched and was let out for good behaviour after 3 months. Continental Paper Bag Co. v. Eastern Paper Bag Co. (1908) found that the holder of a patent is not obligated to use it in order to keep it, the progenitor of the modern patent troll (a familiar pest if you keep up with the world of podcasting).

In his personal life Fuller was often mistaken for Mark Twain, and vice-versa, as they looked very similar. Fuller was also the great-uncle of R. Buckminster Fuller, the famous dome-oriented architect. Melville Fuller, like his four predecessors, died in office on July 4, 1910, while on vacation in Sorrento, Maine, and was buried in Chicago.

William Howard Taft surprised many by elevating associate justice Edward White to Chief Justice, and for the first time in 122 years the vacant spot of the chief justice went to an associate justice, Willis Van Devanter (1859-1941), who sat on the Supreme Court from January 1911 to June 1937.

Willis Van Devanter was born in Marion, Indiana, and graduated from Cincinnati Law School in 1881. In 1884 he moved to Wyoming Territory to become the city attorney of Cheyenne and was chief judge of Wyoming by the age of 30. He was in private practice from 1890 to 1896, when he moved to DC to take a job as an assistant attorney-general to the Department of the Interior, with some side work teaching at George Washington University. In 1903 he was appointed a judge of the 8th Circuit Court of Appeals and was elevated to the Supreme Court in 1910, serving in the White, Taft, and Hughes courts.

Van Devanter suffered from chronic writer’s block and rarely wrote decisions. His specialty was in judicial procedure and corporate law, and his time in Wyoming and the Department of the Interior gave him a wealth of experience in Native law, public land, and water rights. However, the conservative Van Devanter’s time on the bench was spent chiefly as a member of the “Four Horsemen” – a block of judges who often blocked Franklin Roosevelt’s economic programs throughout the New Deal.

By 1933 Van Devanter was ready to retire, but decided not to after Congress cut Supreme Court pensions in half that year as a Depression cost-cutting measure. The pensions were restored in mid-May of 1937 and Van Devanter retired two weeks later, the first of the Four Horsemen to leave the Court. He was the first Supreme Court justice to achieve “senior status”, whereby, though effectively retired, he would still be entitled to come back and put in his two cents’ worth. He led a quiet retirement and died in Washington in February, 1941.

With one of his thorniest opponents in the court gone, Franklin Roosevelt wanted as his first appointment to the Supreme Court a progressive liberal who would not block his New Deal reforms, and he found one in Hugo Black (1886-1971), who was sworn in on August 18, 1937, after an arduous confirmation wracked by Black’s former membership in the KKK. Black was the 5th-longest-serving member in Court history, serving for 34 years as a member of the Hughes, Stone, Vinson, Warren and Burger courts.

Hugo Lafayette Black was born to a poor family in a simple wooden farmhouse in rural Alabama. At the age of 17 he enrolled in Birmingham Medical School to follow in the footsteps of his brother Orlando. At Orlando’s advice, however, took up law at the University of Alabama and graduated in 1906. He practiced law in Birmingham, served briefly as a police court judge, and was elected as the county’s prosecuting attorney in 1914. He resigned 3 years later to join the Army during World War I, eventually making captain, but was never sent to Europe. He joined the Ku Klux Klan in 1921 in the hopes of furthering his political career, which he later admitted was a terrible mistake borne on craven opportunism. (Some biographers suggest, however, that Black shared some of the KKK’s anti-Catholic positions.) Black was elected to the US Senate in 1926 and was involved in a number of hard-hitting corruption investigations into air mail contracts at the Post Office and into Washington’s lobbyist industry. He became chair of the Senate Committee on Education and Labor in 1935 and sponsored minimum-wage and maximum-hours legislation that eventually became the Fair Labour Standards Act of 1938. He was also an unfailingly loyal Democrat, voting for every major piece of FDR’s New Deal legislation. Upon his nomination an investigation by Ray Sprigle of the Pittsburgh Post-Gazette revealed Black’s former Klan membership, but fears of his bigotry were soon assuaged by his rulings and his friendship with NAACP executive secretary Walter F. White. (Sprigle, meanwhile, won the Pulitzer Prize for his report.) Black’s empty seat in the Senate was filled by Alabama Governor Bibb Graves’s wife, Dixie.

Hugo Black is considered one of the most important judicial figures in American history, and an influence on many later judges from Earl Warren to Antonin Scalia. This is due to a number of factors: his longevity on the court; his service through the most important parts of the Civil Rights era; his frequent and well-written opinions, majority, concurring, and dissenting; and the strict adherence to several basic principles of jurisprudence. Black believed in the doctrine of incorporation, the principle that the terms of the 14th Amendment effectively required adherence to the Bill of Rights by state governments, and most thoroughly expressed this in his dissenting opinion in 1947’s Adamson v. California. He also believed constitutional rights should be held as absolutely as possible, rejecting most accepted limits on First Amendment rights. He also believed that the intention of the people as expressed by Congress mattered more than any interpretation of the Constitution by the Supreme Court. Black believed in the strict separation of church and state, but did not believe in the implied right to privacy, which was why he voted against Griswold v. Connecticut in 1964.

Black was also known to get into feuds with several of his colleagues on the bench, including Abe Fortas and John Marshall Harlan II. His most intense feud was with Justice Robert Jackson, to the point where he threatened to resign if Jackson was made Chief Justice in 1946.

Black checked in to Bethesda Medical Centre in August 1971 and retired on September 17. He died of a stroke a week later and was buried in Arlington National Cemetary.

Richard Nixon’s first choice to replace Black was Hershel Friday, a lawyer from Arkansas; Friday was pooh-poohed be the American Bar Association, however, and Nixon instead nominated Lewis Powell (1907-1998),who had previously turned down a Supreme Court appointment in 1969. Powell was sworn in on January 7, 1972, and served until the end of June 1987.

Lewis Franklin Powell, Jr., was born in Suffolk, Virginia, and graduated from Washington and Lee University, where he was elected student body president and became close friends with Edward R. Murrow. He then earned a master’s degree from Harvard Law School. He served as a code-breaker for the US Army in Europe during World War II, working his way up to Colonel. For more than two decades Powell was a corporate lawyer in Richmond, Virginia, where he specialized in railway litigation and working for tobacco companies; he sat on the board of directors for Phillip Morris (makers of Marlboro, Benson & Hedges, and Virginia Slims) for seven years. He chaired the Richmond School Board from 1952 to 1961, during Brown v. Board of Education; he had no power to enforce integration (that was a state power in Virginia) but, like most liberal white Southerners at the time, he cultivated friendships with civil rights leaders while declining to speak publicly on his state’s recalcitrance to enforce integration. He was involved deeply with the development of Colonial Williamsburg Village and served as the President of the American Bar Association from 1964 to 1965.

Very shortly before his appointment to the Supreme Court, in August 1971 Powell drafted a letter to a friend at the US Chamber of Commerce. Titled “Attack on the American Free Enterprise System”, it outlined dangers posed by fascist and socialist influences in religious, educational and media establishments to the American system of free enterprise, and the measures necessary to defend and further free-market capitalism against these threats. Now known as the “Powell Memorandum”, it is considered a keystone of modern American right-wing thought.

Powell’s judicial style was decidedly conservative, but open to compromise and was often a swing vote in the Court. He opposed the death penalty for non-fatal crimes and was responsible for most modern safeguards on the death penalty in the US established by Gregg v. Georgia in 1976. He was the deciding vote in 1986’s Bowers v. Hardwick, which upheld Georgia’s sodomy laws, though expressing reservations about the prison sentences involved. (Powell was very conflicted on the issue, voting to uphold it on the advice of a conservative law clerk. Powell believed at the time he had never met a gay man in his life, not knowing another of his clerks was in the closet. In his retirement, Powell came to see his position on Bowers had been a mistake.) He was odd man out in the 1978 affirmative action case of Regents of the University of California v. Bakke, where he wrote an opinion to which four justices agreed with one half and the other four agreed with the other half.

Powell retired from the Supreme Court at the end of June, 1987. He spent his retirement sitting on various US Courts of Appeals and died in his sleep at his home outside Richmond, at the age of 90, in the summer of 1998.

The selection of Powell’s replacement was one of the bigger media circuses of the later Reagan years. His first nominee, Yale law professor Robert Bork, was known for his strong opinions on tort and antitrust law and his silly beard. The Senate rejected Bork after a campaign by the Democrats painted him as an ultraconservative reactionary. (The columnist William Safire later used “bork” as a verb, meaning “to politically destroy a reputation”.) Reagan’s next choice, Harvard law professor Douglas Ginsberg, withdrew his nomination after confessing to smoking weed with his students. (Ginsberg later went on to serve as Chief Judge of the US Court of Appeals for the DC Circuit.) Finally, Reagan’s third nominee, Anthony Kennedy (1936-present), was accepted and sworn in on February 18, 1988, and is one of the current members of the Supreme Court.

Anthony McLeod Kennedy was born and raised in Sacramento, California, and got a degree in Political Science from Stanford University (although he spent his senior year at the London School of Economics). He then earned a law degree from Harvard and started his private practice in 1961. Gerald Ford appointed him to the 9th Circuit Court of Appeals in 1975; concurrently, he was a professor of constitutional law at the University of the Pacific from 1965 to 1988.

On the bench, Kennedy tends to take each case individually instead of adhering to a fixed ideology; consequently he is considered a swing vote in the Court, a label disliked by Kennedy himself, who considers himself a conservative. Controversially, he supports the use of foreign and international law in the interpretation of the Constitution. He supports abortion in principle, but in practice has favoured a number of restrictions on access to abortion. He has voted to protect habeas corpus, against gun control, and against sentencing the mentally ill to the death penalty. His most important act on the Court to date came in 2003, when he wrote the court’s opinion in Lawrence v. Texas, which struck down laws against homosexuality.

And that concludes Part 1 of Supreme Court Month. Join us next time when we start with a familiar face and explore the thrilling conclusion of the Lochner Era.

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One comment

  1. Psudo

    I think you mean John Turturro, not John Tuturro. Also watch out for “The most important of theses”.

    Can you recommend a good history of the Supreme Court or a good biography of John Marshall, John Jay, or other Chief Justices?

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