October 2, 1967 – Thurgood Marshall Is Sworn In As The First African American Supreme Court Justice

On this day in history, Thurgood Marshall was sworn in as an Associate Justice of the United States Supreme Court, making him the first African American to hold a seat on the Supreme Court.

Portrait Of Thurgood Marshall

Marshall attended Frederick Douglass High School in Baltimore and graduated a year early in 1925. Subsequently he went to Lincoln University and included among his classmates the poet Langston Hughes and the musician Cab Calloway. He graduated from Lincoln cum laude, with a major in American literature and philosophy.

Marshall wanted to go to University of Maryland Law School, but was prevented from doing so because it admitted only whites. He thus attended Howard University School of Law, where he was mentored by the influential dean Charles Hamilton Houston. (Houston became the Litigation Director of NAACP and played a significant role in dismantling the Jim Crow laws, which earned him the title “The Man Who Killed Jim Crow”.) In 1933 Marshall graduated first in his class. Three years later, he successfully argued a case against the University of Maryland Law School for its segregation policy in the State of Maryland Court of Appeals, ending that policy. (Murray v. Pearson, 182 A. 590, 169 Md. 478, 103 A.L.R. 706, Jan. 15, 1936.) You can read the decision here.

(Years later, the University of Maryland named its law library for Marshall, and the City of Baltimore honored him by placing a bronze likeness, more than eight feet tall, outside the Federal courthouse.)

Marshall became known for his high success rate in arguing before the U.S. Supreme Court and for the victory in Brown v. Board of Education, the landmark decision that desegregated public schools.

From left, attorneys George E.C. Hayes, Thurgood Marshall, and James Nabrit Jr. celebrate their victory in the Brown case on May 17, 1954

From left, attorneys George E.C. Hayes, Thurgood Marshall, and James Nabrit Jr. celebrate their victory in the Brown case on May 17, 1954

President John F. Kennedy appointed him to serve on the United States Court of Appeals for the Second Circuit, and President Lyndon Johnson appointed him to serve as the Solicitor General. In 1967, President Johnson nominated him to the United States Supreme Court.

In failing health, Marshall stepped down from the bench in 1991 even though he was reportedly unhappy that it would fall to President George H. W. Bush to name his replacement. Clarence Thomas was the man Bush nominated to replace Marshall. Marshall passed away in 1993 at the age of 84.

At his retirement, one of his former law clerks and later the Potter Stewart Professor of Constitutional Law at Yale Law School, Paul Gewirtz, wrote in a tribute:

He grew up in a ruthlessly discriminatory world — a world in which segregation of the races was pervasive and taken for granted, where lynching was common, where the black man’s inherent inferiority was proclaimed widely and wantonly. Thurgood Marshall had the capacity to imagine a radically different world, the imaginative capacity to believe that such a world was possible, the strength to sustain that image in the mind’s eye and the heart’s longing, and the courage and ability to make that imagined world real.”

(Gerwirtz’s entire tribute is moving and inspirational; you can read it online here.)

August 8, 2009 – The First Hispanic Joins the Supreme Court

On this date, Sonia Sotomayor became the first Hispanic to take the oath of office to the Supreme Court. It was also the first time an oath-taking ceremony at the Court was open to broadcast coverage. Previously, oath-taking ceremonies held at the Court, other than formal investiture ceremonies, were private events and not open to the media.

Sotomayor, of Puerto Rican descent, is also the Court’s 111th justice and its third female justice.

220px-Sonia_Sotomayor_in_SCOTUS_robe

Sotomayor was nominated to the U.S. District Court for the Southern District of New York by President George H. W. Bush in 1991, to the U.S. Court of Appeals for the Second Circuit by President Bill Clinton, and to the U.S. Supreme Court by President Barack Obama, to replace retired Justice David Souter.

July 23, 1936 – Birthdate of Justice Anthony M. Kennedy

On this day in history, Anthony Kennedy was born in Sacramento, California. Kennedy graduated cum laude from Harvard Law School and entered private law practice in California. He befriended many politicians, including Ed Meese, and donated large sums of money to Republican officials in the state. When Meese went to work for Ronald Reagan, Meese recruited Kennedy to help Reagan draft a tax cut plan. Reagan was impressed with Kennedy and recommended him for a vacancy on the U.S. Court of Appeals for the Ninth Circuit, which Kennedy joined in 1975 as the youngest federal judge in the country.

When Supreme Court Justice Lewis Powell retired in 1987, Reagan first nominated Robert Bork, but he failed to win confirmation. Reagan then turned to Douglas Ginsburg, who withdrew himself from consideration after only nine days when allegations leaked concerning his past marijuana use. Reagan, on the advice of Meese, finally turned to Kennedy to fill the vacancy on the Supreme Court. Kennedy’s nomination encountered little resistance and he was unanimously confirmed by the Senate and he took his seat on February 18, 1988.

Justice Anthony Kennedy

Justice Anthony Kennedy

Today, Kennedy is frequently viewed as the Court’s swing vote on social issues and has consequently held special prominence in several politically-charged, highly anticipated 5 to 4 decisions, including the notorious Citizens United v. Federal Election Commission (Docket No. 08-205), for which he delivered the opinion in 2010.

You can access an extensive list of articles about and analyses of the Citizens United decision here.

Supreme Court Revisionism

The New York Times reported recently:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice.”

For example, this past April, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus Ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the EPA for seeking cost-benefit authority in a 2001 case. But as the New York Times noted, that “he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.”

After law professors pointed out the mistake, Justice Scalia quickly altered the opinion, revising the text and substituting the heading “Our Precedent.”

Justice Scalia, proponent of "originalism" except in the case of his own opinions

Justice Scalia, proponent of “originalism” except in the case of his own opinions

Now, there is a way to find out quickly and easily when revisions happen. David Zvenyach, General Counsel to the Council of the District of Columbia, recently launched @Scotus_servo, a Twitter account that alerts followers whenever a change is made to a Supreme Court opinion.

The process uses an application written in JavaScript that crawls through the “slip” opinions posted to the Supreme Court website. If the application, which performs a crawl every five minutes, detects a change, it notifies the automated Twitter account, which tweets out an alert. Shortly thereafter, Zvenyach sends out a manual tweet that calls attention to the change. Here is an example:

Screen Shot 2014-06-14 at 11.36.36 AM

Since Zvenyach launched his twitter account, Joshua Tauberer (@JoshData) came up with a way to highlight the changes and he tweets them out in a “before” and “after” format like this example:

Screen Shot 2014-06-14 at 11.39.36 AM

These changes should make interesting complications for legal researchers.

June 14, 1943 – Justice Jackson Fixes A Star in our Constitutional Constellation

On this date, the Supreme Court decided West Virginia State Board of Education v. Barnette (319 U.S. 624).

The Court’s opinion, delivered by Justice Robert H. Jackson, held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school.

It might be noted in addition that up until 1942, many children in America used the “Bellamy salute” to accompany the American Pledge of Allegiance. (Francis Bellamy authored the Pledge, and described the salute shown below to accompany it.) After the Fascists adopted this style of salute, Congress officially adopted the hand-over-heart stance to be used while the Pledge is recited.

American students citing the Pledge with the Bellamy salute

American students citing the Pledge with the Bellamy salute

In West Virginia State Board of Education v. Barnette, Justice Jackson memorably wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Justice Robert H. Jackson

Justice Robert H. Jackson

June 1, 1916 – Louis Brandeis Joins the Supreme Court

On this date, Louis Brandeis began serving as the first Jewish member of the Supreme Court. His nomination, by President Woodrow Wilson, was bitterly contested. The controversy surrounding Brandeis’s nomination was so great that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis’s confirmation.

Justice William O. Douglas wrote in 1964 that the nomination of Brandeis “frightened the Establishment”:

Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible.”

220px-Brandeisl

May 15, 1911 – The Supreme Court Orders the Dissolution of the Standard Oil Company

On this day in history, the Supreme Court ruled, in Standard Oil Co. of New Jersey v. United States (221 U.S. 1) that the Standard Oil Company was in violation of the Sherman Anti-trust Act of 1890 (26 Stat. 209). The Court’s remedy was to divide Standard Oil into several geographically separate and eventually competing firms.

You can read our detailed analysis of this case, here.

1904 Political cartoon showing a Standard Oil tank as an octopus with many tentacles wrapped around the steel, copper, and shipping industries, as well as a state house, the U.S. Capitol, and one tentacle reaching for the White House.

1904 Political cartoon showing a Standard Oil tank as an octopus with many tentacles wrapped around the steel, copper, and shipping industries, as well as a state house, the U.S. Capitol, and one tentacle reaching for the White House.

Follow

Get every new post delivered to your Inbox.

Join 73 other followers