Between now and the end of the term, the Supreme Court will issue decisions concerning abortion, guns, administrative law and Trump, Trump, and more Trump. (In addition to the high-profile cases, for example, today the court hears oral argument in a case that tests whether the statute used to try January 6 defendants applies to their conduct.) My guess is that a lot of pain is coming our way as we head towards that great artificial deadline the justices created for themselves known as "June."
As we are in a bit of a holding pattern with tornado-type turbulence surrounding us, I thought I'd provide a bit of, well, let's call it legal levity, as we wait for the court to inflict pain on our people and our country.
Here are 10 fascinating facts about SCOTUS you might not know.
1. MARBURY V. MADISON: THE POLITICAL TURNS PERSONAL AND THE PERSONAL TURNS POLITICAL
Most academics view much of Marbury v. Madison skeptically for many reasons, including that Chief Justice John Marshall likely should have recused himself from the case and because he made up a pretend statute to strike down so nobody would question judicial review.
But what's really interesting is that President Thomas Jefferson (who had denied Marbury his commission to be a judge) and Marshall, both from Virginia and distant cousins, hated each other with a passion. They disagreed politically (Marshall a Federalist and Jefferson an Anti-Federalist) but their animosity was also personal. Jefferson publicly called Marshall a hypocrite while Marshall publicly labeled Jefferson a dishonorable "great lama." Additionally, Marshall married into a wealthy family who had rejected Jefferson (Marshall's wife's mother had declined a marriage proposal from Jefferson).
The foundational case of American constitutional law was as much a personal dispute as a political one. Constitutional law was not off to a great start.
2. THE GREAT LEAK
Most of us lived through the mysterious leaking of the Dobbs decision, but this was not the first leak of a landmark and controversial court decision. As Professor Mark Graber recounts here, President Buchanan was tipped off by Justice Catron about the infamous Dred Scott opinion a few weeks before its scheduled release, and then the president pressured a northern justice to join the opinion along with the southerners on the court. Buchanan and Chief Justice Taney thought the decision might go a long way to settling the slavery issue so they orchestrated the decision for maximum consensus.
Three years later, the Civil War began.
3. DESEGREGATION IS ANOTHER FORM OF SLAVERY?
Most people know that in The Civil Rights Cases of 1883, the most ironically titled decision in Supreme Court history, the justices held that Congress could not end segregation in hotels, restaurants and theaters because Section 5 of the 14th Amendment only allowed Congress to regulate state action and the commerce clause was barely a twinkle in the court’s eye. In other words, the court ended Congress's efforts to stop Jim Crow before they began.
The author of that opinion, Justice Joseph Bradley, wrote this in his personal diary after the case: "depriving white people of the right of choosing their own company would be to introduce another kind of slavery."
Say what now? Think his personal attitude and values affected his decision?
4. SCOTUS AS A NUMBERS GAME
There has been a lot of discussion from the left about adding three or four seats to the court to make it more liberal and to undo the harm caused by Mitch McConnell's norm-breaking manipulation of the court's vacancies. The number has been nine since 1869, but before that the number of justices had been manipulated by Congress and the president over and over for political reasons. For example, the original number was six, but in 1801 President Adams and the Federalist Congress reduced the number to 5 after Jefferson won the 1800 election. The number shifted to six to 10 to seven, finally settling on nine in 1869 where it has been ever since.
But make no mistake, you originalists out there. The tradition of changing the number of justices for political reasons goes back to the very beginning of our history.
I vote we add three libs as soon as possible to get us back to an even number, just like at the beginning.
This idea is not a joke.
5. TORCHING THE COURT
If you think you are angry about the court reversing major decisions on abortion, affirmative action and many other important issues, I can assure you that President Franklin D. Roosevelt was likely even angrier back in 1937. After the justices struck down several major New Deal programs, he said the following on the largest and most important media of the day:
It is perfectly clear, that as Chief Justice Hughes has said: "We are under a Constitution, but the Constitution is what the judges say it is."
The court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress — a super-legislature, as one of the justices has called it -- reading into the Constitution words and implications which are not there, and which were never intended to be there.
We have, therefore, reached the point as a nation where we must take action to save the Constitution from the court and the court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution — not over it. In our courts, we want a government of laws and not of men.
If only President Biden ... well, you know.
6. WAS JUSTICE HUGO BLACK UNCONSTITUTIONAL?
Professor Will Baude, who among other things coined the phrase "the shadow docket," wrote a short and persuasive little ditty that Justice Black's appointment to the court was likely unconstitutional. Here is the story.
Article I, Section 6 of the Constitution says: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States . . . the Emoluments whereof shall have been encreased during such time." The Senate, while Black was a member, voted to increase the pensions for Supreme Court justices, thus increasing the "emoluments" of that office and thereby rendering Justice Black's appointment a violation of the United States Constitution. Eventually someone sued, challenging the appointment and the court did what it often does when the law unequivocally points in a direction the justices simply do not want to go.
The case was dismissed for lack of standing.
7. CITIZENS UNITED, ELENA KAGAN AND THE QUESTION THAT HAD NO PLAUSIBLE ANSWER
Most liberals and progressives view Citizens United v. FEC as a four-letter word. When it comes to the overbroad rationale of the case, fair enough, but when it comes to the specific result, those critics have it all wrong.
The case involved a prior restraint on political speech. A public-interest, nonprofit corporation was prohibited from distributing a movie about Hillary Clinton a set number of days before the presidential primaries (unless it funded the movie out of segregated funds). This problem was exactly why the First Amendment was adopted in the first place. If you don't believe me, here is the liberal Brennan Center's description of the case: "A conservative nonprofit group called Citizens United challenged campaign finance rules after the FEC stopped it from promoting and airing a film criticizing presidential candidate Hillary Clinton too close to the presidential primaries." What? Exactly.
Justice Kagan argued the case when she was the United States Solicitor General and after the court held it over for re-argument (so that the conservatives could effectively rewrite the questions presented). In the first argument, there was quite a discussion about whether the law that barred the movie too close to an election could also bar political books during the same time period. The government fumbled this question at the first argument, but Kagan said that the government had changed its position and now: “We went back, we considered the matter carefully, and the government's view is that although [the statute] does cover full-length books, that there would be a quite good as-applied challenge to any attempt to apply [the law] in that context. And I should say that the FEC has never applied [the law] in that context. So for 60 years a book has never been at issue."
Listen folks, if the law couldn't be applied to books, then it can't be applied to movies, and the government had to lose. Full stop.
8. ALITO’S AWFULNESS
From 2006-2019, the court had five conservative justices and four liberal ones (with the exception of most of 2016 after Justice Scalia passed away and the aforementioned McConnell acted badly). During that time, Alito the Awful was the only conservative who never sided with the libs in a 5-4 case. Ever.
Chief Justice Roberts and Justice Thomas, not exactly left-leaning fellows, both sided with the libs in important 5-4 cases, such as when Roberts saved the Affordable Care Act and Thomas joined the libs upholding Texas’s decision to ban Confederate flags on license plates. In that case, by the way, Alito compared the Confederate flag to football slogans.
Alito the awful is always awful.
9. "GET OVER IT”
Justice Scalia used to hammer audiences with this command when asked about Bush v. Gore. But maybe just maybe he also used it during his very first oral argument as a justice when, during the middle of it, Justice Powell, a soft-spoken southern gentleman, leaned over to a colleague and whispered, "do you think he knows that the rest of us are here?''
Scalia likely did not care.
10. THE THOMASES
“Do not concede. It takes time for the army who is gathering for his back.”
Ginny Thomas's advice to Trump’s Chief of Staff Mark Meadows in a text message urging him not to accept the 2020 election. She also wrote him the following:
This is a fight of good versus evil. Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it.
Ginny Thomas was in the crowd listening to Trump on January 6, but she did not go to the Capitol.
In related news, Trump’s role in the January 6 attack on the Capitol and election interference is before the court later this month.
In more related news, the Supreme Court has no enforceable ethics or recusal code and there is no indication Thomas will recuse.
And, in related, adjacent news, the Thomases together and individually are a serious threat to the rule of law, the civil rights of many groups and American democracy.
Now we wait until June.
