The video are interesting, as moving-pictures of the Justices always are for this blogger, but don’t really reveal anything particularly scandalous. You can hear about Justice O’Connor and Justice Ginsburg grappling with the always-important issue of proper Judicial attire, but for the most part the Justices stick to the script. The full interviews, which will be broadcast in batches throughout the first week in October, should provide some interesting insight into the Court’s functions at this critical time in it’s history. The video published yesterday features interviews from Chief Justice Roberts, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice, Breyer, Justice Alito, and Justice O’Connor.

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• Upcoming Cases to Watch (June 17, 2009)
• Two More Pieces of Triva about Yesterday’s Arguments (September 10, 2009)
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Justice John Marshall warned every new member to avoid contact with two people,a leper and the President of the United States.The more dangerous being the President that appointed you .

I’ve never heard that quip and I’ve certainly never heard one like it attributed to Marshall. I would assume that he was fond of the President who appointed him, John Adams, as he served as his Secretary of State for a period of time. Perhaps he gave this advice only to later Jefferson and Jackson nominees?

Has anyone else heard this story? Does anyone know more about the context in which Marshall used it?

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On December 10th, Senate Majority Leader Harry Reid decided to celebrate Blagojevich’s 52nd birthday by drafting a letter soliciting his resignation. The letter, which was subsequently co-signed by the entire Democratic caucus, includes this warning:

Please understand that should you decide to ignore the request of the Senate Democratic Caucus [to resign as Governor] and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

The Majority Leader is referring to Article 1, § 5, Clauses 1-2 of the Constitution of the United States, which read:

Section 5. [Clause 1] Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

[Clause 2] Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Due to the impeachment proceedings and Blagojevich’s newfound support for a special election, the chances are very good that no one will ever have to answer the question of whether or not Reid actually has the authority not to seat an appointed Senator. On face, this question would appear to be judicial taboo, plainly fitting the parameters for what Federal Judges often call “non-justicable political questions.” But seeing as how it is isn’t very polite to threaten someone with a constitutional power that you don’t have, some people are starting to ask some questions.

In Powell v. McCormack 395 U.S. 486 (1969), the Supreme Court held 8-0 (with Justice Fortas ironically not voting due to his own political scandal) that the House of Representatives did not have the authority to “exclude” a constitutionally-eligible person from serving in Congress. Representative Adam Clayton Powell (D-NY) – who brought the case against the Speaker, the House Clerk, the Sergeant at Arms, and even the Doorkeeper of the House – alleged that the House’s decision to exclude him (as made in House Resolutions 1 and 278, both in 1967) was unconstitutional. Powell, who was accused of misusing travel funds and paying his wife an unearned Congressional salary, fit the constitutional requirements for office as stated in Article 1, § 2, Clause 2. The United States District Court for the District of Columbia dismissed the case for lack of jurisdiction; the Appeals Court ruled that it did have jurisdiction, but that the matter was, in fact, a non-justicable political question. The Supreme Court accepted review, and heard arguments on April 21, 1969.

In the majority opinion, Chief Justice Warren wrote that the Court’s analysis of Article I § 5

demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

Thus, it would seem that Harry Reid lacks the authority to refuse to seat a duly-appointed Senator assuming he or she meets the constitutional requirements. The Senate could, of course, vote to expel the member with a 2/3 majority. And it would also be prudent to note that no self-respecting politician would accept a Blagojevich appointment at this point anyway.

In the end, it appears that this a pretty cut-and-dry sort of thing. Harry Reid either misspoke, intending to threaten an expulsion, or else someone needs the Majority Leader of the United States Senate a copy of the Constitution.

Related posts

• Justice Stevens and Roe v. Wade’s Initial Reception (July 30, 2007)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)

Tradition holds that, on the Sunday before the opening of the Court’s October term, the Catholic Church hosts a mass to bring wisdom and guidance to the Justices of the high court. Although the current Court is a 5-4 majority of Catholics, many of the non-Catholic Justices often join other public officials at the event (Justice Breyer, who is Jewish, has attended in the past). You can find pictures and a bit of history about this fascinating tradition here.

Certainly, we all join the Church in wishing health to the Justices this term. Well, all of us except those buying up contracts in the Intrade market for which Justice will die next.

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• Kelo Turns Three Today (June 23, 2008)
• Supreme Introductions (December 20, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)

I found a first edition for $2500 (here), but unfortunately thats a bit much for a poor student like myself. I was definitely looking to spend less than $750 on this book but I would definitely go for the 1702 print at $850 if the opportunity presented itself.

Does anyone know where I could find a copy of the book? I’m also looking for an inexpensive first edition (pardon the oxymoron) of The Common Law, but that I’ve already come to cope with the fact that that is nothing but a pipe dream. An early english version of either of Burlamaqui’s two masterpeices, Principes du droit naturel (1747) and Principes du droit politique (1751), would also be greatly appreciated. Are there any other classics that I need?

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• What Is Your Favorite Quote From A Supreme Court Opinion? (December 12, 2008)
• What Happened Between Congress and the Supreme Court in March of 1837? (July 28, 2007)
• Welcome Back, Old Friend (October 4, 2008)

The New York Times archive is a great resource for information about our recent history. In my brief search, I found a few articles from 1957 about the Dred Scott decision here, here, and here. As far as I can tell from the articles, the Dred Scott case was followed more closely by the general public than any case in recent memory. There were 3-4 front page articles in the New York Times outlining just the arguments that were made during oral arguments. Today, even the hottest Supreme Court cases would only get one front page article.

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• Kelo Turns Three Today (June 23, 2008)
• If I Hear One More Word About Clarence Thomas And Originalism… (July 12, 2007)
• Could Antonin Scalia Be The New John Marshall? (July 29, 2007)

I think, after all — he’s talking about Roe against Wade there and so forth — and I think there are powerful stare decisis arguments there, but it’s also true that that has been a controversial decision in recent years.Interestingly, though, it was decided just two or three years before I went on the Court, and at the time, I was not asked a single question about that issue, because it was not then controversial. That’s quite interesting. It was a 7 to 2 decision, a sort of fairly routine decision at the time.

I remember during the confirmation hearings for Justice Thomas he was asked about his discussions in law school about that case, and he said he didn’t remember having any, and that people thought, well, he’s not being forthright. Well, he was being absolutely honest, because I remember, at that time, it was not something law students generally talked about. It was considered a fairly settled, noncontroversial matter.

It became more and more controversial as the years have gone on. 

When Thomas was being confirmed, he was ridiculed for telling people that he never discussed the idea in law school. Thomas graduated from Yale Law School in 1974 and Roe was decided on January 22, 1973 so it seems unlikely, but not impossible, that Thomas would go through the second half of his Law School experience without discussing the case. Althouse correctly identifies Steven’s remark a shrewd political move, but I think the notion of Roe being an unimportant decision when it was handed down is rather interesting. My first instinct was to consult my copy of “The Supreme Court” by the late Chief Justice Rehnquist. Well, I couldn’t find it so I had to turn to the next best option, “The American Supreme Court” by the late Harvard Law Professor Robert McCloskey and revised/edited by UT’s own Professor Stanford Levinson. McCloskey seems to believe that Roe served as a major step in the political accent of the pro-life movement but makes no mention of its role in the legal community.

[O]pponents of the decision, many of whom saw it basically as offering constitutional protection to the mass murder of innocent fetuses, mobilized against it. Although it is not self-evident that one’s views on abortion would necessarily correlate with more typical measures of “liberalism or “conservatism,” the antiabortion movement quickly allied itself with the Republican Party, especially the wing sharply crtical of the permissive cultural trends of the 1960′s. By 1978 several Democratic supporters of abortion rights lost their seats in the United States Senate, and tehir can be little doubt that the rise to power of Ronald Regan and the Republican capture of the Senate in 1980 were considerably helped along by the energies of the “right-to-life” movement.  

Levinson’s account of the whole Roe saga is a rather interesting take on an overlooked issue although he concludes that “with the 1993 retirement of White and his replacement by Ruth Bader Ginsburg…it is unlikely that Roe will be overruled.” Ha. His book was published in 2005 but if he had only waited a few more months, he would have had to reconsider this assessment in light of the nominations of John Roberts and Samuel Alito. Regardless, I think it would be interesting to research the history behind the alignment of the pro-life movement with the Republican party.

The next place I searched was the New York Times Archive. A subscription is required to access the archives but individuals with a .edu email address get free access to the whole TimesSelect package. To find contemporary analysis of the Roe decision, I specifically searched for ‘abortion court‘ and found a number of hits that dealt with the political and policy implications.  A front-page article from January 23 quotes a member of the New York state legislature as saying “I will have to study the decision to see if the language allows room for my bill but I will not change my bill to suit the decision.” Another article from January 23 provides excerpts from the Justice Blackmun’s opinion and from Justice White’s dissent.

As early as April 1973, just 3 months after the decision was released, critical analysis of the Roe decision started popping up in law reviews across the country. The first of which I found was John Hart Ely’s review in the Yale Law Journal and he cuts straight to the privacy matter:

[I]t seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support. . . .
Unfortunately, . . . the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Thomas tried to join the Yale Law Journal during his time in the law school but wasn’t accepted. Presumably, if he had joined the Journal, he would have at least read about Roe. In November 1973, Professor Laurence Tribe authored a review of the Court’s 1972 term in the Harvard Law Review and devoted a considerable number of pages to analysis of Roe. At one point he offers commentary that sounds eerily like the commentary Justices would provide decades later in Casey and Carhart.

It is as though the Supreme Court were itself choosing, with the legislature’s help on matters of factual detail, either for itself or for some hypothetical person, between abortion and continued pregnancy

Justice Ginsburg wrote in Carhart:

It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).

Some things never change. Regardless of what Stevens was asked during his confirmation hearings, Roe v. Wade was almost definitely a major issue in the minds of his contemporaries.

Updated 7/30 @ 9:13- I was rereading Tribe’s article in the Harvard Law Review when I ran across this analysis:

When the court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation to severe that no abortion law in the United States remained valid

I’m not sure if I would consider that “a fairly standard, noncontroversial matter.” I found law review articles from 1973 (Supreme Court Review), 1974 (Columbia Law Review and Supreme Court Review), 1975 (California Law Review), and 1976 (Virginia Law Review) all of which discuss the Roe decision at great length.

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• President Obama and the Future of the Supreme Court (December 4, 2008)
• OT2007 Watch- #7 Up Close And Personal (September 24, 2007)
• Nine Swinging Justices (April 16, 2007)

For at least thirty-one out of thirty-five years as Chief Justice, Marshall had been out of sympathy with the political views predominant among the people, and inspiring the statesmen at the head of the Government. Moreover, he had never been a lawyer deeply grounded in the common law; and he had possessed a highly conservative nature and mental attitude in view of the changes and reforms which were now taking place in the economic and social conditions, and the liberalization of political sentiment and process which was marking a new era in the county’s development, he was clearly out of touch with the temper of the times and less fitted to deal with the new problems of the day than with the great constitutional questions of the past.

Admittedly, history usually smiles down upon justices who were left of their contemporaries (Marshall) and frowns upon justices who were right of the mainstream at the time (Taney.) When I read Warren’s refreshingly honest account of Marshall’s later years, I am reminded that Supreme Court justices are valuable precisely because they serve unnaturally long terms and resist, for better or worse, change that would have been unimaginable years earlier. Even though I’m not a particularly vocal fan of Justice Scalia’s judicial philosophy, I must admit that there is value in having a diverse collection of Justices sitting on the court. Justice Scalia’s rejection of recent trends such as civil rights, free speech, and democracy may seem archaic to some, but he’s just a relic of the past and we should love him for it. Bless you, Antonin, and thanks for the good times.

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• If I Hear One More Word About Clarence Thomas And Originalism… (July 12, 2007)
• Which Justice Is The Most Talkative? (November 8, 2007)
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Some very intelligent people have been arguing that Congress can reign in these rogue justices or, at the very least, minimize their importance. The now-infamous New York Times editorial entitled “Stacking the Court” suggests that the Democrats should increase the number of justices on the Court in an effort to drown out the conservative block.

First of all, this plan would only be pertinent if the Democrats win the Presidency in 2008. That’s the biggest component of this whole plan, but since it isn’t terribly unlikely, I’ll assume for the rest of this article that the Democrats get their big wish.

If the Democrats win their big election and retain at least 45-50 person Senate contingency, the question becomes, ‘is it a good idea for the Democrats to try and pack the court?’ I don’t think so. Mostly because the measure would be wildly unpopular and would also have a very small chance of being passed.

Any measure to expand the Court for even remotely political reasons would push Congress’s approval rating to levels that we haven’t seen in years. The reason that Congress has been able to get away with expanding (and in some cases contracting) the court is that they have always tried to do it for practical purposes or at rather extreme times in our nation’s history with huge majorities in Congress.

The first alternation to the court’s numbers came in 1800 when a lame-duck congress decreased the number of justices to five just prior to the first peaceful party-swap in our (and some say all of) history. The Federalists in Congress didn’t want to give the Democratic-Republicans a chance to appoint many Justices.

The next change in the court’s composition came in 1807 when the heavily Democratic-Republican Congress added one seat for the Democratic-Republican President Thomas Jefferson to fill to counter the loss of that seat a few months earlier. When I say heavily Democratic-Republican, I don’t mean a 60% majority like we would now consider a major victory- 28 out of 34 members of the Senate (82.3%) and 116 out of 142 members of the House (81.6%) were of the same party as the President in 1807. Its not hard to imagine why Congress wanted to change the court’s numbers back to the way they originally were.

The next expansion of the Supreme Court was a more curious affair. Our favorite New York Times article hypothesizes that Supreme Court expansions are political affairs and makes no exception for the expansion of 1837. I discuss the issue at great length here, but I’ll paraphrase the story:

In March of 1937, the Democratic President Andrew Jackson was wrapping up his wildly divisive, eight-year Presidency. His hand-picked successor, Martin Van Buren, had been elected 4 months earlier and was gearing up to begin his own term in office. On March 3, 1837 Congress passed the ‘Act of March 3, 1837′ that (1)added two circuit courts in the Southwest (2)abolished certain circuit court responsibilities that overlapped with district courts and (3)added two Supreme Court Justices. Since the days of President Madison, Congress had refused to create new circuit courts because they were reluctant to give the President the privilege of appointing more Justices. Because of the country’s population growth and geographical expansion, Circuit Courts were forced to assume certain district court responsibilities that they would ordinarily not perform. This legislation ended that practice and created two new circuits. Because of the way the courts were structured at the time, each circuit needed at least one justice so Congress added the two new justices.

Congress added two justices to the court not simply because they wanted to give Andrew Jackson the power to appoint two justices, but because the growing nation needed circuit courts and it was a political climate just happened to be conducive to that change. In 1837, the court was comprised of seven justices and Jackson had nominated five of those himself. Thompson, one of the two justices who wasn’t appointed by Jackson, was certainly sympathetic to his cause meaning Jackson that had six of seven Supreme Court Justices in his pocket. At the time, The Democrats held a majority in the House (143/242 or 59%) and plurality in the Senate (26/52 or 50% The two Nullification Party Senators, William C. Preston and John C. Calhoun, would likely have sided against allowing Jackson to appoint more members.) The Democrats maintained the Presidency and a rather strong majority in both bodies of Congress (67% in the Senate and 53% in the House against a split coalition), so they certainly weren’t trying to add Justices in before they lost power in 1837.

The expansion of the court in 1863 and the subsequent contraction in 1867 should come as no surprise to anyone. In 1863, the radical Republicans in Congress had a strong majority and wanted to ensure that the Supreme Court would let them have their way during Reconstruction after the war. In 1867, Andrew Johnson, a democrat, became President and the Republicans in Congress dropped the number of Justices to seven because they didn’t want him to have the opportunity to appoint any new Justices that would interfere with Reconstruction in the south.

After returning the court to nine members during the Grant administration in 1868, the court’s numbers sat still for almost seventy-years. Franklin Roosevelt, just a liberal President beginning his second term at the time, tried to pack the court with a relatively complicated scheme that would appoint new Justices whenever a sitting Justice reached the age of 70. Jean Smith suggests that “Roosevelt’s convoluted scheme fooled no one and ultimately sank under its own weight.”

I’m not sure what would be different this time around if the Democrats try to pack the court. The failure of Roosevelt’s plan had nothing to do with its complexity but instead had everything to do with the fact that the American people have grown increasingly fond of the Supreme Court. Roosevelt had used up a lot of his political clout on the New Deal legislation that he passed four years earlier but he certainly had a rather large contingency in Congress (75/96 or 79% in the Senate and 333/435 or 76% in the House.) As history shows, the Democrats are going to need the White House, an overwhelmingly large majority in both houses of Congress, AND an excuse for packing the court that goes beyond ‘the current justices are bad.’

Also, this post isn’t strictly about Samuel Alito, but ‘Alito’ sounded like a better substitute for ‘Maria‘ than ‘politically conservative Justices who try to pass as judicially conservative Justices.’

My main source of information was my trusty first-edition copy of “The Supreme Court in US History” written by Charles Warren and published in 1922.

Related posts

• OT2007 Watch- #7 Up Close And Personal (September 24, 2007)
• Justice Stevens and Roe v. Wade’s Initial Reception (July 30, 2007)
• Could Antonin Scalia Be The New John Marshall? (July 29, 2007)

In March of 1937, the Democratic President Andrew Jackson was wrapping up his wildly divisive, eight-year Presidency. His hand picked successor, Martin Van Buren, had been elected 4 months earlier and was gearing up to begin his own term in office. On March 3, 1837 Congress passed the ‘Act of March 3, 1837′ that (1)added two circuit courts in the Southwest (2)abolished certain circuit court responsibilities that overlapped with district courts and (3)added two Supreme Court Justices. Since the days of President Madison, Congress had refused to create new circuit courts because they were reluctant to give the President the privilege of appointing more Justices. Because of the country’s population growth and geographical expansion, Circuit Courts were forced to assume certain district court responsibilities that they would ordinarily not perform.

Congress added two justices to the court not because they wanted to give Andrew Jackson the power to appoint two justices, but because the growing nation needed circuit courts and it was a political climate just happened to be conducive to that change. At the time, The Democrats held a majority in the House (143/242 or 59%) and plurality in the Senate (26/52 or 50% but the Nullifier Party held two of the remaining seats, giving the Dems a plurality. The two Nullifier Senators, William C. Preston and John C. Calhoun would likely have sided against allowing Jackson to appoint more members.) The Democrats maintained a rather strong majority in both bodies of Congress (67% in the Senate and 53% in the House against a split coalition), so they certainly weren’t trying to add these Justices in before they lost power.

Jackson appointed two individuals later that day, John Catron of Tennessee and William Smith of Alabama. Catron would eventually be confirmed and went on to fulfill a 28-year Supreme Court tenure. William Smith however, rejected his appointment. Smith had been a ardent supporter of the Union during the Nullification Crisis and had been a “warm supporter of Jackson’s policy of maintenance of Federal supremacy.” He “issued a public statement of refreshing frankness.” I quote the following from my favorite Supreme Court book, “The Supreme Court in US History” by Charles Warren (I purchased a first edition of the whole 3-volume set from 1922 from a lovely bookstore in California for only $50!):

“It has become a matter of considerable inquiry, as well as of some speculation, why I would decline a very dignified office of light labors, and a permanent salary of $5000 a year,” he wrote, and he explained that it was not due to bodily infirmity or “to any doubt of my legal learning” nor “to cold indifference to the honor”, but rather to his desire to retain his freedom to take part in political discussion in support of Jackson’s policies. For, he continued, “although I have always believed a Judge was not bound by any moral principle to abstain from the political discussions that so much agitate our country, I have, nevertheless, believed him under the strongest prudential motives to do so; as he might, with perfect innocence, in discussion a political subject elsewhere,, express an opinion which might afterwards cross his judicial path whilst on the Bench, place him in a delicate situation, and the public estimation cast a blot upon the sacred ermine.”

In his place, Van Buren appointed John McKinley of Alabama. All was good in the (Supreme Court’s) Universe.

Updated 7/29/2007 @ 8:40am- AJ brings up the biggest remaining question- Why would congress rush to pass the Act on the last day of Jackson’s term when they know that Van Buren could and probably would select very similar, if not the same, individuals for the Court? Was there another part of the Act that had to be passed while Jackson was in office?

Related posts

• Welcome Back, Old Friend (October 4, 2008)
• Vintage SCOTUS: The First Justices (June 2, 2007)
• OT2007 Watch- #7 Up Close And Personal (September 24, 2007)

Morse v. Fredrick: HA. This student would have been beaten to death by a teacher. Thomas would support it. Not only would the teacher have won in the Supreme Court, but there wouldn’t be a suit in the first place.

Gonzalez v. Carhart: A women’s right to an abortion?! Not so much. Forget about a woman bringing a suit in court. Women had rights, they just didn’t have the right to question the actions of their state legislature. Griswold found its core by applying the Fourteenth Amendment to the states but there was no Fourteenth Amendment until 1868. Justice Ginsburg’s riveting dissent? Forget it, she wouldn’t be on the Court. Maybe they would have let her write a riveting court transcript?

Ledbetter v. Goodyear: “Sex-based discrimintation? Isn’t that the best kind?” — reads the Opinion of the Court in a 9-0 decision penned by the Court’s most liberal member: Justice Scalia.

Roe v. Wade: Assuming Thomas Jefferson adhered to originalism himself, he would have found that George Washington and John Adams did not acquire more land for the United States through treaties and he was therefore not authorized to buy land from France. This set the precedent for future Presidents and Texas never would have been annexed in 1845. No Roe v. Wade (in US Federal Court, at least.)

Brown v. Board: Thurgood Marshall would never be admitted to the Supreme Court Bar so he never would have given his rather brilliant defense of Brown in this case. Also, a 9-0 court would have somewhat easily squashed the notion that fourteenth amendment equated to protection of people against de facto racism. How can the government force people to get along with one another?

Oh, don’t forget that the Bill of Rights didn’t even apply to the states until the ratification of the 14th Amendment following the Civil War.

Jack Balkin finds fault at Clarence Thomas’s views in some of the latest cases before the Court. Professor Balkin legitimately contends that one form of originalism searches for the meaning of certain words and another searches for the application of those words to real-world scenarios. Where Balkin and I diverge, however, is on the legitimacy of those approaches. Balkin seems to support the search for definitional clarity while disapproving of the search for interpretation- I disapprove of both.I disapprove of the theory of original intent so categorically because of both its theoretical motives and the way in which it is (nearly) always implemented.

The generally accepted intent of originalism is to search for the way in which our forefathers viewed matters and apply those notions to issues today. The problem with looking to our forefathers for advice is that when we try to mimic the past we have to first assume that the past was better than the present in a certain area. In the case of Morse, Justice Thomas makes the assumption that since schools were better when we beat children, we should allow our children to be beaten today. That type of presupposition isn’t nearly as universally accepted as Justice Thomas would like us to believe and he offers no reason for us to join in his logic. Well, I contend that things weren’t better when teachers treated students like pinatas of knowledge. In so many other fields of study, we consider the present to be superior to the past. For example, most people (Justice Thomas included) would say that mankind has made great strides in civil rights. Hopefully Justice Thomas would not roll back the clock on civil rights to say….before the Thirteenth, Fourteenth, and Fifteenth Amendments? Even outside the realm of civil rights, I contend that mankind has made huge strides in closing the socio-economic gap, making food storages more available, and enhancing the role of education in the populous. Even if Justice Thomas disagrees, it is presumptuous at best to assume that the past is always right. If he offered justification for adhering to the past, it would be originalism with arguments from today and I don’t see anything wrong with that (although I imagine I would disagree with his logic.)

If Justice Thomas disagrees with me on this point, he forgets that his opinion never would have been heard because he wouldn’t be a Supreme Court Justice in his own beautiful world. If the Senate chose to follow original intent during his confirmation process, they would have found that neither George Washington nor any of our nations first 35 executives were interested in appointing an African-American to the nation’s highest court. In fact, in order for the Senate to find solace in confirming Justice Thomas, they would have to flip back only 20 years in their history books, making sure to ignore quite a bit of history before then. We wouldn’t know who he was because his role (and mine) as a second-class citizen would have been cemented in society long after the War of Northern Aggression. In reality, why did the Senate confirm Justice Thomas (or Justices Louis Brandeis, Thurgood Marshall, and Sandra Day O’Connor before him)? Because they felt that the American people were ready to buck the trend of racial, gendered, and religious inequality. Our representatives knew that at the time, the American people were ready for something different and acted upon that.

I realize that a lot of people will reply with the predictable response- “The legislature is a political body but the Court is supposed to work with precedent. Therefore, Originalism is simply the purest way to adhere to precedent.” Try not to act surprised– but I disagree. The difference between adhering to precedent and subscribing to originalism is the notion that originalist believe that a single fixed period of time should be our method of evaluating whether or not a given action is appropriate. Adhering to precedent means looking at recent applications of a law and maintaining a constant evaluation. In many cases, originalism and ‘judicial restraint’ are in conflict. (I use the word ‘judicial restraint’ casually but I know it has all sorts of connotations that could spark a war of their own.) For example, Justice Thomas could contend that our founding fathers originally owned slaves and very intentionally did not abolish slavery in the Constitution of 1787. Justice Scalia could come back and say, like he has in the past, that he wishes that we still lived in the good ol’ days, but he has to stick to the way the court’s current (~150 year old) interpretation despite his personal reservations. Both those types of logic have been hailed as conservative hallmarks for decades now but they are obviously contradictory.

This is where my second reservation to originalism comes into play- It appears illogical at best and downright malicious at worst to pick-and-choose at the past for advice in today’s legal arena. Looking at 1787 without looking at every year in between ignores the trials and tribulations of history that Americans have been through. We change over time precisely because we experience things as a nation that force us to change our perceptions and attitudes to actions that we never would have ordinarily considered. Originalism always involves very clear activism on the behalf of a judge who is operating under the disguise of ‘judicial restraint’ and is a blatant use of ‘activism’ that should never, ever be labeled as anything other than a judge using the past to rationalize his true (usually personal) attitude towards a subject. Today, we look at the recent behavior of the court or the trend in interpretation and evaluate decisions based off of that. If Justices have reservations about the current trend, they rule on the facts of the current case as they deem appropriate. I have no idea why we need to act like 1787 is somehow the benchmark for society in 2007. We’ve made great strides in the last 200 years and we certainly hope to better ourselves over time- there is no reason why we should pick that arbitrary date and try to mimic it. Our founding fathers certainly weren’t concerned about adhering to norms of their day. I’d say that American Revolution was quite the act of judicial (political) activism…

Related posts

• Kelo Turns Three Today (June 23, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• Originalism Reconsidered (August 9, 2007)

Per the Judiciary Act of 1789, George Washington was charged with the task of appointing five associate justices and one chief justice as well as a number of minor justiceships to the federal district courts. Washington had long decided that he would appoint not only competent lawyers, but farsighted statesmen who also tended to agree with him on matters pertaining to the development of the union (not unlike what presidents do today.) Washington first appointed John Jay to the position of Chief Justice. Jay had a distinguished career in public service; serving as President of the Continental Congress during the Revolution, Secretary of Foreign Affairs under the Articles of Confederation, and Chief Justice of New York immediately prior to his appointment to the Supreme Court. After writing a number of the Federalist Papers in support of a strong federal judiciary, Washington could hardly question Jay’s support for a strong national government. The remaining five appointees to the Court had equally distinguished careers. Just after nominating Jay, Washington nominated a close friend, Robert Harrison of Maryland, to be an associate justice of the Supreme Court. Harrison declined this seat in favor of the Chief Justiceship of the Supreme Court of Maryland because of the extensive circuit riding duties. In his place, Washington appointed James Iredell of North Carolina. Iredell, the former Attorney General of North Carolina, would go on to be an influential justice until his death in 1799. Washington next appointed James Wilson of Pennsylvania, arguably one of the most well-known and celebrated lawyers in the new nation. Former Governor of South Carolina John Rutledge was nominated to fill the next seat.

William Cushing and John Blair, the Chief Justices of Massachusetts and Virginia respectively, were nominated to fill the two remaining seats. The distinction that the members of the inaugural Court held in the new nation can hardly be compared to the relatively unknown nature of today’s justices. Three of the first six Justices had been members of the Constitutional Convention in the summer of 1787 and James Wilson himself was a member of the Committee of Style and Arrangement that created the first draft of the Constitution. The other three Justices had served as prominent proponents of the Constitution in their respective State Conventions.

In the coming years, turnover on the Court resulted in a rapidly changing Court, but these first six justices had an intregal part in establishing quite a bit of procedural and jurisprudential precedent that has survived until today.

Related posts

• What Happened Between Congress and the Supreme Court in March of 1837? (July 28, 2007)
• Welcome Back, Old Friend (October 4, 2008)
• OT2007 Watch- #7 Up Close And Personal (September 24, 2007)