Supreme Court Month, Part 4

Field, McKenna, Stone, Vinson, Warren, Burger, Scalia

Field, McKenna, Stone, Vinson, Warren, Burger, Scalia

In 1863 Abraham Lincoln and Congress added a tenth seat to the Supreme Court. To fill this seat Lincoln wanted to achieve both geographic and political balance: a Westerner and a pro-Union Democrat. On March 6, 1863,Lincoln nominated Stephen J. Field (1816-1899), the first Californian justice, and he was sworn in the next day.

Stephen Johnson Field was born in Haddam, Connecticut. His brother Cyrus was the millionaire investor who financed the first transatlantic telegraph cable. (A nephew, David Brewer, also later served on the Supreme Court.) Stephen grew up in Stockbridge, Massachusetts, and spent some time in the Ottoman Empire as a teenager with his missionary sister. He graduated from Williams College, in western Massachusetts, in 1837, read law in New York City and left for the gold fields of California in 1848. His legal practice boomed in California and served a term in the state assembly before being appointed to the Supreme Court of California in 1857, becoming Chief Justice in 1859 and stayed there until Lincoln came calling.

Field had a sharp legal mind and was one of the fathers of the doctrine of substantive due process – that the due process guaranteed by the 14th Amendment applied not only to the workings of the legal system but to the content of the laws themselves. On the downside, his California base fed into racist anti-Chinese feelings, and he wrote the majority opinion in 1889’s Chae Chan Ping v. United States, which upheld the Chinese Exclusion Act. But the most interesting aspect of his tenure on the Court was his relationship to his predecessor as Chief Justice of California, David Smith Terry, who vacated his seat when he killed US Senator David Broderick in a duel and fled the state, joining the Texas Rangers in the Confederate Army and getting wounded at the Battle of Chickamunga. In 1889 Terry and his wife Anita came before Field, in California on circuit duty, as part of an appeal in Anita’s divorce proceedings from her first husband. Field ruled against them and jailed them for contempt of court. Afterward, Terry attempted to murder Field in a train station near Stockton, but was shot dead by Field’s bodyguard, David Neagle, a US Marshal. The incident led to the 1890 Supreme Court case of In re Neagle, where the Court (big surprise) ruled the Attorney-General had the power to appoint US Marshals as bodyguards to Justices.

Unable to keep up with his workload and slowly going senile, an elderly Field stubbornly refused to resign until he had surpassed John Marshall’s 33 years on the bench. He finally resigned in 1897, having served 34 years; and he died in the spring of 1899, in Washington.

William McKinley filled Field’s seat with Joseph McKenna (1843-1926), appointing him on January 26, 1898. He took his seat the same day.

Joseph McKenna was born in Philadelphia and moved to California as a child. He passed he California bar in 1865 and served a term in the State Assembly. He was elected as a Republican congressman in 1884 and served until being appointed to the US 9th Circuit Court of Appeals in 1892. In 1897 he resigned to serve as Attorney-General under William McKinley until joining the Supreme Court.

McKenna was a very self-aware man; he took courses at Columbia Law School for the first few months of his tenure because he felt his credentials were lacking. His opinions were centrist, and rarely dissenting. His most important written opinion was the majority for 1911’s Hipolite Egg Co. v. United States, which unanimously upheld the Pure Food and Drug Act of 1906, thereby paving the way for the FDA. He voted for Hoke v. United States in 1913 but against Caminetti v. United States in 1917, believing that the Mann Act only applied to prostitution or, as he put it, “immoralities having a mercenary purpose”.
McKenna suffered a stroke in 1915 and became increasingly incoherent until resigning in 1925 at the behest of Chief Justice Taft. He died in November of 1926 in Washington.

McKenna was replaced by Harlan Stone (1872-1946) on February 5, 1925. One of only 3 justices to be elevated directly from Associate to Chief Justice, Stone was the first Chief Justice to never hold elected office, and the first to hold all nine levels of seniority on the Court. He was also the only judge nominated to the Supreme Court by Calvin Coolidge.

Harlan Fiske Stone was born in Chesterfield, New Hampshire, and graduated from Amherst in 1894, then earned a master’s in 1897. He went to Columbia Law School, graduating and passing the bar in 1898. He lectured and practiced law and served as Dean of Law at Columbia from 1910 to 1923. He grew tired of “administrivia”, as he called it, and joined a prestigious Wall Street firm in 1923. He was appointed Attorney-General by Calvin Coolidge the next year (where Stone appointed J. Edgar Hoover as Director of the FBI), and to the Supreme Court the year after that.

Stone was an anti-Lochnerian, and joined Louis Brandeis and Benjamin Cardozo to form the “Three Musketeers” that supported most of FDR’s New Deal reforms. This won him favour with Roosevelt, and so Stone succeeded Charles Hughes as Chief Justice on July 3, 1941.

The blackest spot on the Stone Court’s record was 1944’s Korematsu v. United States, which ruled that the American government could, within a fixed and narrow set of circumstances, intern sections of the population in times of crisis. This had the effect of legitimizing the US internment of Japanese-Americans during World War II. The most alarming part of this ruling is that no case since has revoked it; the government may technically still be able to exercise those powers, although in 2011 the Department of Justice admitted to being in error. (Fred Korematsu was eventually exonerated in 1983 when it was discovered Solicitor-General Charles Fahy had withheld evidence in Korematsu’s trial. He lived long enough to speak out against the internment of suspect Middle Easterners at Guantanamo Bay, and died in 2005 of lung failure.)

Stone’s tenure covered the whole of US involvement in World War II, and a number of its cases revolved around the war effort. Ex parte Quirin (1942) allowed enemy spies to be tried by military tribunals. Ex parte Endo (1944), decided the same day as Korematsu, found that individuals already approved as loyal by the government could not be interned. Cramer v. United States (1945) found that merely associating with people committing treason was not enough to convict a person of treason. After the war, Stone denounced the Nuremburg Trials as unfair to the Germans, even though his benchmate, Robert Jackson, was leading the American team there.

An oddity of the court involved the 1942 case of Jones v. City of Opelika I, which ruled that requiring a license to sell printed material was constitutional. The Court reheard the case almost immediately thereafter and overruled themselves in 1943 with Jones v. City of Opelika II.

Other important cases of the Stone Court include Skinner v. Oklahoma (1942), which found that forced sterilization was not a legitimate form of punishment; Parker v. Brown (1943), which found that state governments were exempt from the Sherman Anti-Trust Act; Martin v. Struthers (1943), which struck down a law prohibiting Jehovah’s Witnesses from going door-to-door; National Broadcasting Co. v. United States (1943), which found the FCC had the power to regulate the relationships between broadcast networks and affiliate stations; Oklahoma Tax Commission v. United States (1943), which found Native lands didn’t have to pay estate taxes to state governments; West Virginia State Board of Education v. Barnette (1943), which found that children can’t be forced to recite the Pledge of Allegiance in school; Prince v. Massachusetts (1944), which found not only that religious freedom did not trump child labour laws, but that parental authority is not absolute and the intercession of the state to protect child welfare was legal; United States v. Causby (1946), which found that property rights do not extend infinitely up into the sky and infinitely down into the Earth, an ancient common law doctrine known as “ad coelum”; and Pinkerton v. United States (1946), which found that all members of a conspiracy could befound liable for the substantive actions of one member of that conspiracy, a principle now known as the “Pinkerton Doctrine”.

On April 22, 1946, Stone finished reading a dissent in open court when he collapsed. He died of a brain hemorrhage at his home later that day.

Harry Truman nominated his Secretary of the Treasury, Fred Vinson (1890-1953), to replace Stone and was sworn in on June 24, 1946. As of 2013 he is the last Chief Justice appointed boy a Democratic president.

Frederick Moore Vinson was born in Louisa, Kentucky, where his father ran the county jail. He helped his father as a child and made friends with the prisoners. He graduated from Centre College in Danville, Kentucky, with a law degree in 1911 and set up a practice in Louisa. He served in the Army in World War I. In 1924 he was elected as a Democrat to Congress, serving to 1928 and again from 1930 to 1937. In 1937 he was appointed to the DC Appeals circuit, serving until he was appointed Director of the Office of Economic Stabilization, where he fought wartime inflation. Upon succeeding to the Presidency, Harry Truman appointed Vinson as Secretary of the Treasury in July 1945, serving 11 months. His principal achievement there was negotiating the repayment of British war loans. (Truman was good friends with Vinson and had encouraged him to seek the Democratic presidential nomination in 1952. Vinson declined to seek it.)

Vinson’s ease with personal relationships helped him paper over the deep ideological differences in his Court. His era was one of transition, after the Lochner era but before the Civil Rights era. He was not immune to harshness: he refused to hear appeals from the blacklisted Hollywood Ten, ensuring their jailing for contempt by refusing to answer to the House Un-American Activities Committee. He also famously sent planes to collect vacationing judges to ensure that Julius and Ethel Rosenberg would be sentenced to death for treason.

He also presided over 1952’s Youngstown Sheet & Tube Co. v. Sawyer, one of the most overt displays of political vanity in US presidential history. In 1947 Congress passed the Labour Relations Management Act, more commonly known as the Taft-Hartley Act, which, among other things, gave the President the power to nullify union strikes in national emergencies. A largely Republican-drafted bill, it was passed over the veto of Truman, who was then faced in 1951 with the threat of strikes at steel mills crucial to the Korean War effort. Rather than invoke his powers under Taft-Hartley, Truman seized the mills using his inherent executive authority to act in a national emergency. The Supreme Court ruled 6-3 that Truman had acted without the overt or implied approval of Congress or the Constitution and therefore overstepped his authority. A concurring opinion by Justice Tom C. Clark allowed for some flexibility in the President’s ability to act unilaterally, but pointed out that he could have had the legitimate authority to do what he did if he had invoked either Taft-Hartley or the Selective Service Act of 1948 (which Truman didn’t use in order to avoid dealing with Congress). The exact precedent set by Youngstown is unclear, because all six justices in the majority wrote a separate opinion, each with differing opinions on how Truman overstepped his authority and to what extent the President has the power to act in an emergency.

Other important cases of the Vinson court include United States v. Carmack (1946), which ruled that the federal government could seize municipally-owned lands under the rules of eminent domain; United Public Workers v. Mitchell (1947), which found that the Hatch Act of 1940, barring persons who have called for the overthrow of the US government from being hired by the civil service, to be constitutional; Adamson v. California (1947), which found you couldn’t plead the Fifth in state-level trials (later overturned in 1964’s Malloy v. Hogan); Woods v. Cloyd W. Miller Co. (1948), which found the wartime powers of Congress extended past the end of hostilities, to remedy problems caused by the war (such as veterans’ benefits); United States v. Paramount Pictures, Inc. (1948), which broke up the big Hollywood studios’ monopolies on cinema chains, thereby putting an end to the Golden Age of the Hollywood studio system; United States v. National City Lines, Inc. (1948), which found a conspiracy by bus manufacturers to purchase and dismantle streetcar systems across America, a plot later explored in “Who Framed Roger Rabbit?”; Henderson v. United States (1950), which ended segregation specifically in railroad dining cars; Joseph Burstyn, Inc. v. Wilson (1952), which found that movies count as free speech; Frisbie v. Collins (1952), which ruled it was legal for state officials to kidnap fugitives; Ray v. Blair (1952), which ruled the people states selected to act as electors in the Electoral College in presidential elections could be forced to swear they would vote for the person selected by popular vote before being certified as electors; and United States v. Reynolds (1953), which formally recognized that the executive had the “State Secrets Privilege”, the ability to withhold classified documents from court scrutiny.

Fred Vinson died suddenly of a heart attack at his home in Washington on the morning of September 8, 1953. A portrait of Vinson owned by a Phi Delta Alpha frat house at Centre College is used as a mascot and taken to football games.

Vinson was succeeded by Earl Warren (1891-1974), a man whose court, alongside that of John Marshall, is considered the very pinnacle of the Supreme Court’s influence. From his swearing-in on October 2, 1953, to his retirement on June 23, 1969, Warren presided over the greatest expansion of civil liberties in US judicial history.

Earl Warren was born in LA, to Nordic immigrant parents, and grew up in Bakersfield, where his railwayman father was murdered by a robber. He got a bachelor’s degree from UC Berkeley and a law degree from its law school at Boalt Hall, passing the California bar in 1914. he joined the Army in 1917 and served on a base in Washington state until the Armistice. From 1920 to 1925 he was deputy city attorney of Oakland, then was elected to three terms as DA for Alameda County (of which Oakland is the county seat), where he was tough on crime. He was elected Attorney-General of California in 1938 and oversaw the internment of Japanese-Americans during World War II, an action he later wrote he deeply regretted. In 1942 Warren was elected Republican governor of California, winning re-election in 1946 and 1950. (In fact, in 1946 Warren won both the Republican AND Democratic primaries for Governor.) His administration concentrated on public works improvement and was one of the first jurisdictions to use gasoline taxes to fund highway construction. (He also appeared as himself in a TV special in 1952 with Gracie Allen, George Burns’s wife and comedy partner.) He was chosen to run as Republican vice-presidential nominee on the Thomas Dewey ticket in 1948 (losing to Harry Truman and Alben Barkley) and was California’s favourite for the 1952 presidential nominee. He was opposed in this by California Sen. Richard Nixon, the eventual vice-presidential nominee (and eventual Vice-President), creating bad blood between the two men. To placate Warren, President Dwight Eisenhower nominated Warren as Solicitor-General, but instead made him Chief Justice on the sudden death of Fred Vinson. As of 2013, Warren is the last sitting elected politician to be elevated to the Supreme Court.

During Earl Warren’s tenure as Chief Justice, President Lyndon Johnson ordered Warren to chair a commission of inquiry into the assassination of President John F. Kennedy in 1963. The Warren Commission, for which Warren is probably most widely known, found that Lee Harvey Oswald acted alone in assassinating Kennedy, and that Jack Ruby acted alone in murdering Oswald. The small inconsistencies in the report – the result of compromises by Warren to obtain a unanimous decision by the commission – have been the stuff of conspiracy theorists ever since.

Warren’s strength as Chief Justice lay in his political abilities, marshalling together his justices to present a united front. His closest ally on the Court was William Brennan, whose legal skills matched Warren’s political skills. The apex of Warren’s talents, in this regard, was to muster a unanimous court in the historic case of Brown v. Board of Education of Topeka, the case that ended segregation and kicked off the Civil Rights era.

In 1951 a class action lawsuit by 13 parents led by welder Oliver Brown and backed by the NAACP sued the Board of Education of Topeka, Kansas, for an end to the racial segregation of the Topeka School Board. The US District Court ruled in favour of the Board, citing the precedent of Plessy v. Ferguson. Brown was then combined with four similar cases, all backed by the NAACP, and heard by the Supreme Court in the spring of 1953. Unable to come to a decision, it reheard the case that fall; both times, Brown’s counsel was future Supreme Court justice Thurgood Marshall. By May of 1954, Warren convinced every justice (Stanley Reed was not convinced that segregation was entirely detrimental to black society, and Robert Jackson shied away from judicial activism) of the need to hide all dissent among themselves and overturn Plessy, nullify the doctrine of “separate but equal” and kick-start the civil rights movement.

The Warren court began in earnest the practice of incorporation, whereby the 14th Amendment was interpreted to bring state law in line with the Bill of Rights. This involved the overturning of more precedent: Jones v. Cunningham of 1963 made state prisons respect the 8th Amendment’s forbiddance of cruel and unusual punishment, overturning 1866’s Pervear v. Massachusetts; Benton v. Maryland of 1969 made states follow the 5th amendment’s disallowing of double jeopardy, reversing Palko v. Connecticut of 1937; and Adamson v. California’s 1947 ruling exempting state trial from the provisions of the 5th Amendment was reversed by Malloy v. Hogan in 1964. Additionally, the 1966 case of United States v. Guest guaranteed the protection of constitutional rights against private conspiracies, annulling United States v. Cruikshank of 1876.

Civil rights on the Warren court were expanded in directions never before seen in America. the 1965 case of Griswold v. Connecticut not only made the case that forbidding married couples to use contraception was unconstitutional, but it gave legitimacy to an implied constitutional right to privacy. The aptly-named 1967 case of Loving v. Virginia struck down anti-interracial marriage laws and established the precedent of the Court’s power to define marriage. the 1963 case of Gideon v. Wainwright combined liberty and socialism when it ruled the government was obliged to provide defence lawyers to indigent suspects. The famous 1966 case of Miranda v. Arizona made information obtained by police questioning inadmissible unless the suspect is advised of his 5th Amendment rights – the so-called “Miranda warning” – which was bitterly complained about in period episodes of “Dragnet”. (The full story of Ernesto Miranda’s fateful run-in with the law can be found here.)

Warren’s court also had to contend with a number of cases involving the Vietnam War. United States v. Seeger (1965) found that religiously-based draft exemptions were not to be based on the moral directives of a supreme being, but a personal, sincere belief held by the objector, and United States v. O’Brien (1968) ruled that burning draft cards doesn’t count as free speech. The Supreme Court declined to hear the 1967 case of Mora v. Macnamara, challenging the legality of the Vietnam War. It claimed in its decision it had no jurisdiction in the matter, and that the legality of wars was a case for courts of international law.

Other important rulings of the Warren court included Toolson v. New York Yankees (1953), which found that congressional failure to legislate otherwise upheld a 1922 ruling exempting Major League Baseball from the Sherman Anti-Trust Act; Tee-Hit-Ton Indians v. United States (1955), which ruled that the 5th Amendment did not require the US government to compensate Natives for industry on federally-owned lands occupied by Native tribes; Commissioner of Internal Revenue v. Glenshaw Glass Co. (1955), which ruled that income tax taxes all forms of income unless specifically legally exempted; Radovich v. National Football League (1957), which found the NFL was not exempt from the Sherman Act; Federal Power Commission v. Tuscarora Indian Nation (1960), which ruled that the federal government has powers of eminent domain over Native-owned lands; Commissioner of Internal Revenue v. Duberstein et ux. (1960), which defined a gift for tax purposes as resulting from “detached and disinterested generosity”; Aro Mfg. Co. v. Convertible Top Replacement Co. (1961), which found that repairing an item doesn’t count as patent infringement, but reconstructing it does; Baker v. Carr (1962), which found that unfairness in legislative redistricting could be ruled upon by courts; MANual Enterprises v. Day (1962), which found that photos of nude men are not more obscene than similar photos of nude women (and, by extension, that pornography intended for homosexuals was not legally more obscene than pornography for heterosexuals); Wong Sun v. United States (1963), which ruled that the “fruit of the poisonous tree” rule for evidence applies to narcotics cases; Gray v. Sanders (1963), which legally established the principle that state electoral districts must be approximately equal in population (the “one person, one vote” principle); Silver v. New York Stock Exchange (1963), which decided the NYSE’s power to regulate itself didn’t exempt it from the Sherman Act; Wesberry v. Sanders (1964), which applied its ruling in Gray v. Sanders to federal congressional districts; New York Times Co. v. Sullivan (1964), which found reporting lacking in malice did not constitute libel or defamation; Wilbur-Ellis Co. v. Kuther (1964), which decided that enhancing the performance of an item isn’t patent infringement; One 1958 Plymouth Sedan v. Pennsylvania (1965), which found that illegally obtained evidence could not be used to cause a civil forfeiture of property; Schmerber v. California (1966), which ruled that the 4th Amendment doesn’t cover blood samples; Gilbert v. California (1967), which found the right to refuse to self-incriminate doesn’t cover handwriting samples; Katz v. United States (1967), which found that the 4th Amendment right to be “secure” extends to all areas where a “reasonable expectation of privacy” exists, including phone calls (and, by extension, e-mail and Internet use); Ginsberg v. New York (1968), which found states could legally prohibit the sale of obscene materials to minors; Haynes v. United States (1968), which found the right to avoid self-incrimination meant persons forbidden to own firearms, such as felons, could not be prosecuted for not participating in a mandatory registration of firearms; Levy v. Louisiana (1968), which found that illegitimate children’s right to sue on behalf of a deceased parent was constitutionally protected; and Stanley v. Georgia (1969), which found that the 1st Amendment protects the private possession of obscene materials.

Warren planned to retire at the end of 1968 so President Johnson could appoint a liberal Chief before his term ended. However, his choice, Associate Justice Abe Fortas, was turned down by the Senate, and Fortas resigned shortly thereafter due to a conflict-of-interest scandal. Warren resigned the next year and died in July of 1974 in Washington. Warren’s daughter Virginia was the second wife of John Charles Daly, veteran CBS news broadcaster, vice-president of ABC News, and host of the NBC panel show “What’s My Line?”. Also of note: in a 1992 episode of “The Simpsons”, Homer Simpson claimed Earl Warren was both Chief Justice and a male stripper.

Richard Nixon, hoping to sway the court rightward, selected the conservative Warren Burger (1907-1995) as Chief Justice, taking office on June 23rd, 1969.
Warren Earl Burger was born in St. Paul, Minnesota, the son of a Swiss immigrant. In high school he worked part-time on a construction crew that built the Robert Street bridge in St. Paul, which stands to this day. He went to night school at the University of Minnesota while holding a day job as an insurance salesman, then enrolled at the William Mitchell College of Law and graduated in 1931, going into private practice. He joined the Republican party, leading the Minnesota delegation at the 1952 presidential nomination convention. After his election, Dwight Eisenhower appointed Burger Assistant Attorney-General of the Civil Division of the Department of Justice, then appointed him as a judge of the Court of Appeals of the DC Circuit in 1956, where he stayed until becoming Chief Justice.

Warren Burger was a weak leader, overbearing and officious by nature, but a hard-working administrator of the court system, initiating the National Centre for State Courts and the National Institute of Corrections. The Supreme Court in Burger’s tenure largely followed the lead of associate justice William Brennan, Earl Warren’s old ally, and the rightward shift hoped for by Nixon would not be seen until the accession of William Rehnquist in 1986. Indeed, Nixon’s appointment of Burger would turn on him when Burger led the unanimous ruling in 1974’s United States v. Nixon, wherein the Court ordered Nixon to turn over his secret tapes in the Watergate affair. The Burger court continued the expansion of civil liberties, such as applying the 14th Amendment right to equal protection to matters of gender in 1971’s Reed v. Reed, but more notoriously so in 1973’s Roe v. Wade, which ruled that women have the right to get abortions. (“Jane Roe”, the plaintiff, was actually an assumed name; her real name was Norma McCorvey. She later came out as a lesbian, then stopped being a lesbian, changed her mind about abortion, and is now a born-again Catholic and pro-life activist. Henry Wade, the defendant, was the DA of Dallas County.) His court saw the abolition of the death penalty in Furman v. Georgia in 1972, only to reinstate it (with limits) a few years later with Gregg v. Georgia of 1976. The Burger court also finally put an end to the Warren court’s struggle to define obscenity in 1973’s Miller v. California, resulting in a three-part definition of obscenity now known as the Miller Test.

Other important cases of the Burger court include Rowan v. US Post Office Dept. (1970), where it was found people have the right to refuse junk mail, and senders of junk mail have no Constitutional right to foist it upon refuseniks; Baird v. State Bar of Arizona (1971), which found that lawyers could not be barred from practicing law for joining the Communist Party; Haywood v. National Basketball Association (1971), which required the NBA to comply with the Sherman Act; California v. Byers (1971), which found that requiring divers to supply identification at the scene of an accident did not count as “self-incrimination”; New York Times v. Untied States (1971), where the Court legitimized the publication of the now-infamous Pentagon Papers; Gottschalk v. Benson (1972), which found computer algorithms are not patentable; Bronston v. United States (1973), which found that statements in court that are misleading but literally factual cannot count as perjury; Cleveland Board of Education v. Lafleur (1974), which found the 14th Amendment protects against over-restrictive maternity leave regulations; Taylor v. Louisiana (1975), which found women couldn’t be excluded from juries hearing certain crimes; national Labor Relations Board v. J. Weingarten, Inc. (1975), which established the rights of unionized workers facing disciplinary hearings, now known as the “Weingarten rights”; United States v. Feola (1975), which established that the standard of soundness of mind in persons accused in conspiracies is the same as people committing substantive crimes; Estelle v. Williams (1976), which found making people appear in court wearing a prison jumpsuit violated due process; Whalen v. Roe (1977), which ruled a New York state law requiring doctors to file their issued prescriptions with the state health department did not violate privacy rights; Califano v. Goldfarb (1977), which ruled giving different pension amount to widows and widowers was discriminatory; Ingraham v. Wright (1977), upholding corporal punishment in public schools; Carey v. Population Services International (1977), which found it unconstitutional to forbid the sale of contraceptives to minors; Coker v. Georgia (1977), which found the death penalty is unconstitutional for rape; Vermont Yankee Nuclear Power Corp. v. National Resources Defence Council, Inc. (1978), which ruled courts cannot impose administrative or regulatory procedures on government agencies; Regents of the University of California v. Bakke (1978), which found that reserving spaces for minorities allotted by a separate admission process is an unconstitutional form of affirmative action; Federal Communications Commission v. Pacifica Foundation (1978), which ruled the FCC had the power to regulate strong language over broadcast transmissions (this case was famously caused by an airing of George Carlin’s “seven dirty words” routine); Diamond v. Chakrabarty (1980), which found that genetic modification can be patented; Haig v. Agee (1981), upholding the executive right to revoke US passports for matters of national security; Kolender v. Lawson (1983), finding policemen demanding identification from loiterers and vagrants to be unconstitutional; Sony Corp v. Universal City Studios (1984), finding the home recording of TV shows is legal (this case is best known for the moving testimony of Mister Rogers); Clark v. Community for Creative Non-Violence (1984), which found the National Park Service prohibiting protesters from sleeping in parks doesn’t violate the 1st Amendment; United States v. Maine (1985), which ruled that, for legal purposes, Long Island is part of the mainland of New York and Long Island Sound counts as US territorial waters and not the high seas; California v. Ciraolo (1986), finding that police looking into your backyard from an aircraft doesn’t violate the 4th Amendment; and Bowers v. Hardwick (1986), a rare step backward, upholding anti-sodomy laws.

Burger retired in 1986 and led efforts to celebrate the bicentenary of the US constitution in 1987. He died of heart failure in Washington in the fall of 1995.

Associate Justice William Rehnquist was elevated to Chief after Warren left, and the hole was filled with Antonin Scalia (1936-present), who joined the Court on September 26, 1986, and is now the senior associate justice.

Antonin Gregory Scalia was born the son of a Sicilian immigrant in Trenton, New Jersey, grew up in Queens, studied at Georgetown as a undergrad and got his law degree from Harvard in 1960 before going into private practice in Cleveland. In 1967 he became a professor of law at the University of Virginia, teaching until 1971. He served in a number of federal legal counsel positions in the Nixon and Ford administrations, then taught at the University of Chicago until he was appointed to the US Court of Appeals for the DC Circuit in 1982, serving until 1986.

Scalia is well known as the most rigorously intellectual conservative on the current Court, and his thought heavily influences his fellow conservative justices. His jurisprudence is heavily informed by his strident Catholicism. (Scalia insists on attending Tridentine masses conducted in Latin, and his son is a Catholic priest.) Scalia’s opinions are widely considered to be not only well-written but also to have a certain literary flair; A 2005 study by Boston University found him to be the funniest member of the Supreme Court.

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