January 23, 1915 – Birth of Potter Stewart, 94th Supreme Court Justice

Potter Stewart was born into a powerful Ohio Republican family on this day in history. He attended Yale for both undergraduate studies and law school, made law review, and graduated cum laude in 1941. He took a job at a law firm, but enlisted in the Navy when WWII began, acting as defense counsel in court-martial proceedings.

After the war, Stewart joined a prominent law firm in Cincinnati, and in 1954, President Eisenhower appointed Stewart to a seat on the Sixth Circuit Court of Appeals. In 1958, President Eisenhower named Stewart to a recess appointment to replace retiring Justice Harold H. Burton on the Supreme Court. This was Eisenhower’s third recess appointment, and despite criticism of the practice, Justice Stewart was confirmed by the Senate in a 70-17 vote on May 5, 1959.

US Supreme Court official portrait of Potter Stewart, 1976

Oyez reports that Justice Stewart believed in judicial restraint, seeing the proper function of a judge as interpreting the law as it applied to a particular case, rather than attempting to assert judicial influence over matters he saw best left to the legislature. This put Stewart in the ideological center of the Court, and he became an influential swing vote on many cases.

One of his more well-known opinions was in the obscenity case Jacobellis v. Ohio (378 U.S. 184, 1964). Justice Stewart famously said that while he could not readily define the term “hard-core” pornography, “I know it when I see it.”

Justice Stewart stepped down from the Court in July of 1981 at age 66. He said that his decision was influenced by his desire to spend more time with his grandchildren while he was still in good health. In 1985, he died from a stroke and was buried in Arlington National Cemetery. Upon his death, journalist Bob Woodward revealed that Justice Stewart was the primary source for The Brethren, the seminal book on the inner workings of the Supreme Court.

Rowena Scott Comegys, in her article, “Potter Stewart: An Analysis of His Views on the Press as Fourth Estate,” 59 Chi.-Kent L. Rev. 157 (1982), online here, contends that Justice Stewart’s support for freedom of the press stood out as part of his legacy, writing:

Stewart indicated in judicial opinions and extrajudicial commentary that he believed that the press deserves a special place among American institutions. [He believed] the Freedom of Press Clause was a structural provision of the first amendment, which the framers thought necessary in order to assure “openness and honesty in government. . . an adequate flow of information between the people and their representatives . . . [and] a sufficient check on autocracy and despotism. ‘ ‘ As he said in his speech at Yale in 1974, “If the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy.”

January 12, 1948 – SCOTUS Rules Qualified Black Students in Oklahoma to be Admitted into All-White State Law Schools in Sipuel v. Oklahoma State Board of Regents

Ada Lois Sipuel (later married to Warren Fisher), a Black woman, was born on February 8, 1924 in Chickasha, Oklahoma. She was an excellent student and was her high school valedictorian. She graduated from Langston University in Oklahoma with honors and hoped to become a lawyer. As a site by the Oklahoma Historical Society explains, Blacks were not allowed to attend white state universities such as the University of Oklahoma which had a law school. Instead, Oklahoma actually provided funding for Blacks to go outside the state of Oklahoma and attend law schools and graduate schools that accepted them.

At the urging of the National Association for the Advancement of Colored People (NAACP) twenty-one-year-old Fisher agreed to seek admission to the University of Oklahoma’s law school in order to challenge Oklahoma’s segregation laws and achieve her lifelong ambition of becoming a lawyer.

Ada Lois Sipuel Fisher

The president of the University of Oklahoma agreed that Fisher had the necessary credentials, but pointed out that Oklahoma statutes prohibited whites and Blacks from attending classes together. The laws also made it a misdemeanor to instruct or attend classes comprised of mixed races. Had they admitted Fisher, the president would have been fined up to fifty dollars a day, and the white students who attended class with her would have been fined up to twenty dollars a day.

On April 6, 1946, Fisher filed a lawsuit in the Cleveland County District Court, prompting a three-year legal battle. The future U.S. Supreme Court justice, Thurgood Marshall, represented Fisher. She lost her case in the county district court and appealed to the Oklahoma Supreme Court. It sustained the ruling of the lower court, finding that the state’s policy of segregating whites and Blacks in education did not violate the United States Constitution.

Fisher then filed an appeal with the U.S. Supreme Court. On January 12, 1948, the court ruled per curiam in Sipuel v. Board of Regents of the University of Oklahoma (332 U.S. 631) that Oklahoma must provide Fisher with the same opportunities for securing a legal education as it provided to other citizens of Oklahoma:

The State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group.”

According to Supreme Court Associate Justice John Paul Stevens, who sat in the gallery and watched Marshall argue the case before the court on January 8, 1948, Marshall was “respectful, forceful and persuasive – so persuasive that on the following Monday – only four days after the argument – the Court unanimously ruled in Sipuel’s favor.”

Fisher shown with lawyer Thurgood Marshall to her right

The case was remanded to the Cleveland County District Court to carry out the ruling.

Following the Supreme Court’s favorable ruling, the Oklahoma Legislature, rather than admit Fisher to the Oklahoma University law school or close the law school to students both Black and white, decided to create a separate law school exclusively for her to attend. As Melvin Hall writes for the Oklahoma Historical Society, the new school, named Langston University School of Law, was thrown together in five days and was set up in the State Capitol’s Senate rooms. It was not be any means “equal.”

On March 15, 1948, Fisher’s lawyers filed a motion in the Cleveland County District Court contending that Langston’s law school did not afford the advantages of a legal education to Blacks substantially equal to the education whites received at OU’s law school. The Cleveland court ruled against her, averring that the two state law schools were “equal.” The Oklahoma Supreme Court upheld the finding.

Fisher’s lawyers announced their intention to again appeal to the U.S. Supreme Court, and the Oklahoma attorney general knew it was a lost cause to argue equality in front of the same court.

As a result of this concession, on June 18, 1949, more than three years after Fisher first applied for admission to the University of Oklahoma College of Law, she was admitted. She enrolled on June 18, 1949, becoming the first African American woman to attend an all white law school in the South.

Ada Lois Sipuel Fisher

It was not a total experience in “equality”: Fisher was forced to sit in the back of the room behind a row of empty seats and a wooden railing with a sign designated “colored.” All of the Black students enrolled at the University of Oklahoma were provided separate eating facilities and restrooms, separate reading sections in the library, and roped-off stadium seats at the football games. These conditions persisted through 1950.

But as Hall contends, the end of segregation in higher education had already begun. In 1948 a group of six Black Oklahomans applied to University of Oklahoma’s graduate schools in disciplines ranging from zoology to social work. All were denied admission under the same statute that denied admission to Fisher. Thurgood Marshall selected one of the six students, George W. McLaurin, to present yet another challenge to segregation in higher education. On June 5, 1950, the U.S. Supreme Court ruled in McLaurin v. Oklahoma State Regents, that the restrictions of segregation imposed on McLaurin at OU impaired and inhibited his ability to study.

Meanwhile, in August, 1952 Fisher graduated from the University of Oklahoma College of Law. She earned a master’s degree in history from the University of Oklahoma in 1968. After briefly practicing law in Chickasha, Fisher joined the faculty of Langston University in 1957 and served as chair of the Department of Social Sciences. She retired in December 1987 as assistant vice president for academic affairs. In 1991 the University of Oklahoma awarded Fisher an honorary doctorate of humane letters.

On April 22, 1992, Gov. David Walters appointed Dr. Ada Lois Sipuel Fisher to the Board of Regents of the University of Oklahoma, the same school that had once refused to admit her to its College of Law. As the governor said during the ceremony, it was a “completed cycle.” The lady who was once rejected by the university was now a member of its governing board.

In April 1992, Gov. David Walters appointed Fisher to the OU Board of Regents – the very group that had once rejected her. Gov. Walters said during the ceremony it was a “completed cycle.” Via UO College of Law

Fisher died on October 18, 1995. In her honor the University of Oklahoma subsequently dedicated the Ada Lois Sipuel Fisher Garden on the Norman campus. At the bottom of a bronze plaque commemorating Fisher’s contribution to the state of Oklahoma, an inscription reads, “In Psalm 118, the psalmist speaks of how the stone that the builders once rejected becomes the cornerstone.”

September 25, 2020 – Ruth Bader Ginsburg Becomes 1st Woman and 1st Jew to Lie in State at U.S. Capitol

Supreme Court Justice Ruth Bader Ginsburg died on September 18, 2020 at age 87 of complications from metastatic pancreatic cancer.

She became the first woman in American history to lie in state in the U.S. Capitol. She was also the first Jewish-American to lie in state and just the second Supreme Court justice. The first, Chief Justice William Howard Taft, also had been president.

Ginsburg joined the court in 1993. David Ebershoff wrote movingly after her death:

On the page her voice is the same as the one Americans came to know and revere, and that we now mourn: precise, concise, unyielding; fearless, factual, and so often focused on the marginalized. Justice Ginsburg used her voice to create opportunities for millions—this is one reason her death is painful for many of us. We reflect on those opportunities and are fearful some might close up as a result of her absence.”

You can read more about her life and tenure on the Supreme Court here.

She was known as “Notorious RBG”

August 19, 1937 – Justice Hugo Black takes Supreme Court Oath of Office

Hugo Lafayette Black was born on February 27, 1886 in Alabama. After graduating from the University of Alabama Law School in 1906, he established a legal practice, first in Ashland and then in Birmingham. In 1914 he began a four-year term as Jefferson County Prosecuting Attorney.

In the early 1920s, Black became a member of the Robert E. Lee Klan No. 1 in Birmingham, before resigning in 1925. In 1937, after his confirmation to the Supreme Court, it was reported he had been given a “grand passport” in 1926, granting him life membership to the Ku Klux Klan.

Black was also a member of the Democratic Party. He won a U.S. Senate seat in 1926, and was reelected in 1932. During his Senate career, Black consistently opposed the passage of anti-lynching legislation, as did all of the white Democrats of the Solid South. In 1935 Black led a filibuster of the Wagner-Costigan anti-lynching bill.

Justice Hugo LaFayette Black

Black was a committed supporter of Franklin D. Roosevelt and the New Deal. He was nominated by FDR to the Supreme Court on August 12, 1937. The Senate departed from the tradition for the first time of confirming Senate nominees to the Court without debate.

Black was criticized for his presumed bigotry and allegations of his Klan membership. But Black was a close friend of Walter Francis White, the African American executive secretary of the NAACP, who helped assuage critics of his appointment.

The Judiciary Committee recommended Black by a vote of 13–4 on August 16, and after six hours of debate, the full Senate voted 63–16 to confirm him. Ten Republicans and six Democrats voted against his nomination.

Black became one of the most influential Supreme Court justices in the 20th century. He is noted for his advocacy of a textualist reading of the US Constitution and for his position that the liberties guaranteed in the Bill of Rights were imposed on the states (“incorporated”) by the Fourteenth Amendment. Although Black’s early KKK membership was eventually confirmed, Black was a prominent champion of civil liberties and civil rights on the Court, at least in some cases: the most notable opinion authored by Black was Korematsu v. United States (1944), which upheld the Japanese-American internment during World War II.

Oyez reports that over the last 10 years of his term, Black gradually became more conservative, dissenting often with the liberal court of Chief Justice Earl Warren. An article in the Biographical Encyclopedia of the Supreme Court observes:

Black gave one of the fullest expressions of his approach to judicial decision making in the inaugural James Madison lecture at New York University Law School in 1960. He denounced the practice of other justices, such as Felix Frankfurter and John Marshall Harlan, to engage in judicial balancing, which ‘regard[ed] the prohibitions of the Constitution, even its most unequivocal commands, as mere admonitions which Congress need not always observe.’ Rather, Black recognized that ‘the whole history and background of our Constitution and Bill of Rights [belie] the assumption or conclusion that our ultimate constitutional freedoms are no more than our English ancestors had when they came to this new land to get new freedoms.’ He believed that the framers had resolved all of the necessary balancing of constitutional liberties in 1791: ‘Where conflicting values exist in the field of individual liberties protected by the Constitution, that document settles the conflict.’”

Black left office in 1971 following a stroke. He passed away eight days later, after serving 34 years on the Court.

July 19, 2005 – John Roberts Nominated to the Supreme Court

On July 19, 2005, President Bush nominated John Roberts to the U.S. Supreme Court to fill a vacancy to be created by the retirement of Justice Sandra Day O’Connor, the first female on the Supreme Court. While Roberts’s confirmation was pending before the Senate, Chief Justice William H. Rehnquist died on September 3, 2005. Two days later, Bush withdrew Roberts’s nomination as O’Connor’s successor and announced Roberts’s new nomination as Chief Justice.

John Roberts was born was born in Buffalo, New York, on January 27, 1955. He graduated from Harvard Law School and served as a law clerk for Circuit Judge Henry Friendly and then-Associate Justice William Rehnquist before taking a position in the attorney general’s office during the Reagan Administration. He later served in the administration of George H. W. Bush. Roberts became a federal judge in 2003, when President George W. Bush appointed him to the U.S. Court of Appeals for the D.C. Circuit.

Chief Justice Roberts

Roberts has been described as having a conservative judicial philosophy and also as an institutionalist. Stuart Gerson, in an analysis of Roberts for Jurist, maintains:

Roberts is, at the ground, an institutionalist concerned with the durability of the law and the maintenance of respect for the Court. He strives to have the Court decide cases on the narrowest grounds possible and that create the least dislocation to the coordinate branches of government and the generally-accepted expectations of the citizenry.”

Jeffrey Rosen, interviewing Roberts for an article in “The Atlantic,” also emphasized Roberts’ focus on institutional legitimacy:

At a time of greater partisan conflict between the president and Congress than any time since the Civil War, as Americans are questioning the legitimacy of all three branches of the federal government, Roberts worked to ensure that the Supreme Court can be embraced by citizens of different perspectives as a neutral arbiter, guided by law rather than politics.”

Eric Segall, by contrast, analyzing Roberts’ decisions for “Dorf on Law,” argues that the defining feature of Chief Justice Roberts’ jurisprudence is not his alleged institutionalism but his “non-judicial hubris.”

That is to say, he avers:

Across the spectrum of our most contested and controversial constitutional law questions, the Chief has reached out to coerce local, state, and federal government officials to govern according to his personal wishes whether or not positive legal sources supported his preferences. He has voted to dictate important governmental policies in cases ranging from health care to affirmative action to campaign finance reform to voting rights to the separation of church and state to the separation of powers. In all of these areas, as well as many more, the Chief has used catchy sound bites and worn cliches as justifications for ignoring and/or distorting what is supposed to be the stuff of constitutional interpretation: text, history, and prior case law.”

His article goes on to explore the ways in which he believes Chief Justice Roberts has penned numerous other opinions that constitutionalize his own values. It is an argument certainly worth considering.

And it now may be moot. As Ruth Marcus reports for the Washington Post, Mike Davis, who worked to confirm Trump’s judicial nominees, said:

Trump transformed the 5-to-4 John Roberts court into the 5-to-4 Clarence Thomas court, meaning it’s more likely the court’s just going to follow the law and not be concerned about the political fallout.”

She notes that the more conservative justices show little inclination to heed Roberts, and added:

Harvard Law School professor emeritus Laurence H. Tribe, co-author of a book on the Roberts court, made the same point [as Mike Davis] from the opposite ideological perspective. ‘He’s largely irrelevant, except that the court has gone so far, so fast that he may become more relevant depending on whether anybody else is chastened,’ Tribe said.”

June 28, 1971 – Supreme Court Decides Cassius Clay, Jr. (Muhammad Ali) v. U.S.

On this day in history, the Supreme Court decided Cassius Marsellus Clay, Jr. also known as Muhammad Ali, Petitioner, v. US (403 U.S. 698).

As the Court noted:

The petitioner was convicted for willful refusal to submit to induction into the Armed Forces. 62 Stat. 622, as amended, 50 U.S.C.App. § 462(a). (1964 ed., Supp. V). The judgment of conviction was affirmed by the Court of Appeals for the Fifth Circuit. We granted certiorari, 400 U.S. 990, 91 S.Ct. 457, 27 L.Ed.2d 438 to consider whether the induction notice was invalid because grounded upon an erroneous denial of the petitioner’s claim to be classified as a conscientious objector.” (Footnote omitted)

Daily News Backpage June 29, 1971

In February, 1964, at age twenty two, Cassius Clay won the world heavyweight boxing title by upsetting Sonny Liston in Miami Beach. Two days later, Clay revealed that he had become a convert to the Muslim faith. The following week, Nation of Islam leader Elijah Muhammad declared that Clay would be renamed Muhammad Ali.

In February 1966, the Selective Service informed Ali that he was, for the first time, eligible for military service. Ali announced his objection to serving in the Vietnam War, claiming that “war is against the teachings of the Holy Qur’an.” Notably, he added:

‘Why should they ask me to put on a uniform,’ he said, ‘and go 10,000 miles from home and drop bombs and bullets on brown people in Vietnam while so-called Negro people in Louisville are treated like dogs and denied simple human rights?’”

A review of the case by the Inter Press Service News Agency explained that Ali applied for conscientious-objector classification, only to have multiple appeals rejected. At the scheduled induction, Ali refused to answer all three times his name was called. Ali was immediately stripped of his boxing license and championship, and in 1967, he was indicted and convicted by the Justice Department of violating the Selective Service laws.

(It should be noted, as Marty Lederman writing for SCOTUSblog pointed out, that DOJ convened a hearing before a designated “hearing officer,” Lawrence Grauman, a well-respected former Kentucky state judge. Judge Grauman concluded that Ali had a sincere religious objection to war in any form, and he recommended that the service grant Ali status as a conscientious objector. The DOJ, however, did not forward Judge Grauman’s report to the appeal board, or even tell Ali what the judge had concluded. Instead, DOJ wrote its own letter to the appeal board, advising that it should reject Ali’s conscientious objector claim.)

Ali demonstrating against the Vietnam War

Eventually, the case made it to the US Supreme Court (Lederman reviews the complex journey in detail.) Lederman explains that the statutory test for conscientious objector status was whether an individual was opposed to war in any form. Objections to a particular war didn’t count.

This distinction was critical to the case.

The appeals board had found that Ali’s objection was selective, because he acknowledged he would be willing to fight for Islam in a “religious” or “holy” war, and whether that concept varied among different strains of Islam.

Lederman provides fascinating details about how the Court moved from its initial inclination to find against Ali. Thomas Krattenmaker, one of Justice Harlan’s law clerks (Justice Harlan was assigned the writing of the majority opinion) began to review the canonical Nation of Islam texts Ali had cited as the basis for his religious objection. Krattenmaker, Lederman writes, “came to understand that the prospect of such a ‘holy war’ was entirely abstract and hypothetical – contingent upon future events and a divine decree that were unlikely ever to occur.” Thus it seemed that Ali’s case was similar to the 1955 case Sicurella v. United States (348 U.S. 385) in which a Jehovah’s Witness claimed to be only willing to fight in a “theocratic war” at Armageddon. The Court concluded that was unlikely to occur. . . . Lederman writes:

Ali’s willingness to fight in a war only if commanded to do so by God made his case analogous to Sicarella’s, Krattenmaker reasoned: Ali was, as a practical matter, religiously opposed to fighting in any wars that might actually occur.”

He persuaded Justice Harlan of his position.

John Marshall Harlan II

(You can watch a video of Tom Krattenmaker, Eugene Robinson and Michele Norris discussing the case on an NPR segment, here.)

The justices then got into a debate on the Islamic notion of jihad, or “holy war.”

The justices were divided four to four (Thurgood Marshall was recused because he had been Solicitor General in an earlier phase of the case).

As an excellent Federal Judiciary Center history recounts, Justice Potter Stewart circulated an alternative opinion based on the narrower ground that that the DOJ had erred in advising the board that Ali was insincere and that his beliefs were not religious. Since the board could have reached its decision on those incorrect bases, there was no need to decide the harder question of selectivity. Stewart’s opinion persuaded a majority of his colleagues, who adopted it as the Court’s per curium (a brief opinion of the Court as a whole, rather than of any individual justice).

Justice Potter Stewart

On June 28, 1971, this day in history, the Court issued its decision in Clay v. United States, reversing the finding of the Selective Service System specific to the facts of Ali’s administrative proceedings. The Court thereby avoided, as Lederman notes somewhat wryly, deciding whether the theoretical prospect of participating in a “holy war” against Islam meant that members of the Nation of Islam were, or were not, “conscientiously opposed to participation in war in any form.”

Meanwhile, in 2018, the notoriously uninformed President Donald Trump announced he was considering granting a posthumous pardon for Muhammad Ali, prompting a lawyer for his estate and family to say thanks, but no thanks: The boxing great had his criminal conviction overturned by the Supreme Court nearly 50 years ago.

You can find a thorough review of the case and events leading up to it as well as pertinent documents in the aforementioned history prepared for the Federal Judicial Center, here.

June 25, 1984 – Supreme Court Decides Chevron v. Natural Resources Defense Council Establishing Principle of “Chevron Deference” for Administrative Actions

“The Chevron Deference” is a term derived from the landmark case decided on this day in history, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In that case, the Supreme Court, in a majority opinion written by Justice John Paul Stevens, found that:

With regard to judicial review of an agency’s construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Kevin W. Saunders, writing for the Arizona Law Review in 1988, noted that “When the administration of a statute is entrusted to an administrative agency, the agency is naturally faced with questions as to what the statutory terms mean.” (“Agency Interpretations and Judicial Review: A Search for Limitations on the Controlling Effect Given Agency Statutory Constructions,” online here.)

In Chevron, Saunders pointed out, the Court did not grant the agency view mere deference, but instead granted controlling weight, even without finding an explicit delegation to the agency of the authority to construe the statute. If the delegation was implicit rather than explicit, Justice Stevens wrote, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. (footnote omitted)”

Justice John Paul Stevens

In 1990, Cass R. Sunstein argued in the Columbia Law Review in “Law and Administration after Chevron” (online here) that the Chevron principle is “quite jarring to those who recall the suggestion, found in Marbury v. Madison and repeated time and again in American public law, that it is for judges, and no one else, to ‘say what the law is.’” But, he adds, “it is also strikingly reminiscent of the New Deal enthusiasm for agency autonomy and the New Deal belief in a sharp disjunction between the realm of law and the realm of administration.”

What Chevron did, Sunstein asserted, was to alter the distribution of national powers among courts, Congress, and administrative agencies.

As a discussion of the Chevron Deference on the Cornell law website points out, however, in subsequent Supreme Court cases, the scope of the deference has been narrowed:

. . . only the agency interpretations reached through formal proceedings with the force of law, such as adjudications, or notice-and-comment rulemaking, qualify for Chevron deference, while those contained in opinion letters, policy statements, agency manuals, or other formats that do not carry the force of law are not warranted a Chevron deference.  In such cases, the Court may give a slightly less deferential treatment to the agency’s interpretation, giving a persuasive value under the Court’s ‘Skidmore deference’ analysis.” 

The “Skidmore Deference,” as the website Ballotpedia explains, was developed in the opinion for the 2000 U.S. Supreme Court case Christensen v. Harris County (529 U.S. 576) and named for the 1944 U.S. Supreme Court decision in Skidmore v. Swift & Co. (323 U.S. 134).

Unlike Chevron deference, which requires a federal court to defer to an agency’s interpretation of an ambiguous statute if the interpretation is considered reasonable, Skidmore deference allows a federal court to determine the appropriate level of deference for each case based on the agency’s ability to support its position.

Controversy over the Chevron Deference can be seen in recent cases before the court involving Medicare. (They include Becerra v. Empire Health Foundation and American Hospital Association (AHA) v. Becerra.) As reported in Penn’s “Regulatory Review,” during oral arguments over one of the cases held in January, 2022, “the complexity of the Medicare system led U.S. Supreme Court Justice Stephen Breyer, who used to teach courses on regulation at Harvard Law School, to acknowledge that ‘the chances I understand it correctly are near zero.’” Justice Neil Gorsuch, on the other hand, said that Chevron allows agencies to supplant courts, which are supposed to interpret the laws. Critics also argue that Chevron encourages Congress to grant agencies broad discretionary authority that should remain with lawmakers.

Update: James Romoser, Editor of ScotusBlog, reported of the newly decided American Hospital Association v. Becerra:

In a narrow and unanimous opinion [written by Justice Brett Kavanaugh] on [June 15, 2022], the court did not overturn the Chevron doctrine. Instead, it just ignored it. And in doing so, the court may have portended the future of Chevron, which already has been narrowed considerably over the years. Rather than a single, decisive blow or a continued death by a thousand cuts, the court might simply snuff out Chevron with the silent treatment.”

ScotusBlog continues:

Notably, the opinion does not contain even a single citation to Chevron v. Natural Resources Defense Council, even though hundreds of pages of briefing and a large chunk of the oral argument focused on the continued vitality of the landmark 1984 case and the doctrine it created.”

June 13, 1967 – Thurgood Marshall is Nominated to the Supreme Court & Book Review of “Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America” by Wil Haygood

Thurgood Marshall was born on July 2, 1908 in Baltimore, Maryland. After graduating from Howard University School of Law in 1933, he established a private legal practice in Baltimore.

He began his 25-year affiliation with the National Association for the Advancement of Colored People (NAACP) in 1934 by representing the organization in the law school discrimination suit. In 1936, Marshall became part of the national staff of the NAACP. In 1940, he established the NAACP Legal Defense and Educational Fund, Inc. (LDF) as a separate legal entity, and served as its executive director.

In that position, he argued several cases before the Supreme Court, including Smith v. Allwright, Shelley v. Kraemer, and Brown v. Board of Education, which held that racial segregation in public education is a violation of the Equal Protection Clause.

Thurgood Marshall in 1957

In 1961, President John F. Kennedy appointed Marshall to the United States Court of Appeals for the Second Circuit. Four years later, President Lyndon B. Johnson appointed Marshall as the United States Solicitor General.

On June 13, 1967, President Johnson nominated Marshall to the Supreme Court following the retirement of Justice Tom C. Clark, saying that this was “the right thing to do, the right time to do it, the right man and the right place.”

At Marshall’s Supreme Court confirmation hearings, as his eventual clerk Stephen L. Carter recalled:

To this day, the 1967 battle over Marshall’s confirmation to the Supreme Court remains one of the two most vicious in our history — the other being the 1916 fight over the nomination of Louis Brandeis, in which the opposition to the first Jewish justice included seven former heads of the American Bar Association, the president of Harvard and former U.S. Attorney General George Wickersham, who described Brandeis’s supporters as a ‘bunch of Hebrew uplifters.’ But because there was no television — cameras were not introduced until 1987 — we engage in collective forgetting.”

Arguments against confirming Marshall ranged from accusations that he was a “Communist sympathizer” to that he was “prejudiced against white people in the South” (per Mississippi Democrat James Eastland). But as Carter notes, the biggest objection was that, as a Black man, Marshall couldn’t possibly be smart enough. (While he graduated first in his class at Howard University School of Law, it was after all a Black school.) Never mind, observed Carter, his remarkable record as an advocate – Marshall won 29 of the 32 cases he argued before the Supreme Court. He was Black, so by definition he could not possibly be up to the job.

Nevertheless, Marshall was confirmed as an Associate Justice by a Senate vote of 69–11 on August 30, 1967. He was the 96th person to hold the position, and the first African American.

Wil Haygood, in his book Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America begins by taking takes us back to Marshall’s childhood to tell us what it was like for a young, smart, ambitious kid growing up in a world in which he couldn’t even use most public bathrooms or be admitted to many restaurants and hotels. But this never diminished his spirit and determination. On the contrary, it inspired him further not only to achieve, but to work for change for everyone else.

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This book uses the Senate confirmation hearings for Marshall’s Supreme Court nomination as scaffolding to structure his story; the author goes back and forth in time, basically telling in large part the history of black America from post-Reconstruction times onward. It is a nasty and brutal history which will often have you cringing (there are, for example, two blow-by-blow accounts of lynchings, though the accounts are quite germane), but will greatly enhance your understanding of the country as it is today.

Thurgood Marshall with the president who nominated him to the Supreme Court, Lyndon Johnson

Thurgood Marshall with the president who nominated him to the Supreme Court, Lyndon Johnson

At Marshall’s Supreme Court confirmation hearings, as his eventual clerk Stephen L. Carter reported,

Marshall once described his legal philosophy as this: “You do what you think is right and let the law catch up.”

Marshall served on the Court for 24 years, compiling a liberal record that included strong support for Constitutional protection of individual rights, especially the rights of criminal suspects. His most frequent ally on the Court (the pair rarely voted at odds) was Justice William Brennan, who consistently joined him in supporting abortion rights and opposing the death penalty. Brennan and Marshall concluded in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional, and never accepted the legitimacy of Gregg v. Georgia, which ruled four years later that the death penalty was constitutional in some circumstances. Thereafter, Brennan or Marshall dissented from every denial of certiorari in a capital case and from every decision upholding a sentence of death.

Justice William Brennan

Marshall retired from the Supreme Court in 1991 due to declining health. President George H. W. Bush nominated Clarence Thomas to replace Marshall; Bush couldn’t have found someone more diametrically opposed to Marshall in jurisprudence or integrity.

Evaluation: If you only read about the life of one trailblazing hero, I recommend reading about Thurgood Marshall. His unparalleled bravery in spite of constant threats against his life, his unflagging dedication to others, and his unfailing good humor and optimism in the face of unrelenting efforts by whites to keep him down, is utterly amazing and inspirational.

I’ve seen some reviews opine that Devil in the Grove, also about Marshall, is superior to this book. I found it excellent as well, but the fact is, when you’re writing about a true giant of a man like Marshall, it’s hard to go wrong.

Rating: 4.5/5

Hardcover published by Alfred A. Knopf, 2015. Audiobook published unabridged on 12 CDs (14 1/2 listening hours) by Random House Audio, an imprint of the Penguin Random House Audio Publishing Group, 2014

A Few Notes on the Audio Production: The narrator, Dominic Hoffman, is nothing short of sensational. He has a couple of mispronunciations (e.g., Estes Kefauver), but I can’t really complain because his overall performance is so outstanding.

March 31, 1981 – First Patent Issued for Genetically Engineered Life Form; Upheld by SCOTUS

Ananda Mohan Chakrabarty was born in India in 1938 and moved to the U.S. with his wife after completing his Ph.D. in biochemistry. (His wife also had a Ph.D. in biochemistry.) Initially the couple worked at the University of Illinois Urbana-Champaign (UIC), and it was there that Chakrabarty developed an interest in the bacteria pseudomonas. After six years, the couple moved to upstate New York where Chakrabarty took a job at General Electric.

During the course of Dr. Chakrabarty’s research at GE, he and an associate genetically engineered a new, stable type of pseudomonas capable of breaking down crude oil. Dr. Chakrabarty sought a patent on this process pursuant to Title 35 U.S.C. Section 101, which provided patents for people who invented or discovered “any” new and useful “manufacture” or “composition of matter.”

The request was rejected by a patent examiner and affirmed by the Patent Office Board of Appeals, stating that living things were not patentable under Section 101. This decision was reversed by the Court of Customs and Patent Appeals, which concluded that the fact that micro-organisms were alive was without legal significance for purposes of the patent law.

Sidney A. Diamond, Commissioner of Patents and Trademarks, appealed to the Supreme Court. The Supreme Court case, Diamond v. Chakrabarty, 447 U.S. 303 (1980), was argued on March 17, 1980 and decided on June 16, 1980.

The patent was granted by the USPTO on March 31, 1981, this day in history. The court held that forms of life can be patented if they are the outcome of “human ingenuity and research” and not “nature’s handiwork.”

Chief Justice Warren E. Burger, delivering the opinion of the Court in a five-to-four decision, added:

Nor does the fact that genetic technology was unforeseen when Congress enacted § 101 require the conclusion that micro-organisms cannot qualify as patentable subject matter until Congress expressly authorizes such protection. The unambiguous language of § 101 fairly embraces respondent’s invention. Arguments against patentability under § 101, based on potential hazards that may be generated by genetic research, should be addressed to the Congress and the Executive, not to the Judiciary.”

The ruling was of immense importance for the growth of biotechnology companies, clearing the way for patents to be issued also on genetically-engineered mice and other animals.

Ananda Mohan Chakrabarty in 2009

Upon his death on July 10, 2020, the UIC posted an obituary noting:

Chakrabarty’s fame as the name on the first patent for a recombinant microbe led to a second career as an expert and lecturer on legal issues of patenting and intellectual property rights of biological significance. He sat on many American and international committees and taught in workshops for American and international judges on these matters. For his achievements in genetic engineering technology, he was awarded the prestigious civilian Padma Shri by the government of India in 2007.”

March 10, 1919 – Supreme Court Decides Debs v. United States

Eugene Victor “Gene” Debs, born on November 5, 1855 in Terre Haute, Indiana, was an American socialist who ran five times for President of the United States, the last time from a prison cell.

Debs started working on railroads at age 14, and eventually founded the American Railway Union (ARU), leading it in the Pullman Strike of 1894. President Grover Cleveland used the US Army to break the strike. As a leader of the ARU, Debs was convicted of federal charges for defying a court injunction against the strike and served six months in prison.

Historian Lawrence Wittner reports:

As Debs brooded on these events, he concluded that, although industry-wide unions were vital, they could not win their battles for economic and social justice while giant corporations dominated the government. In Europe, workers were forming labor and socialist parties. Why not in America? At the beginning of 1897, in an open letter to the remnants of the American Railway Union, he wrote: ‘I am for Socialism because I am for humanity. We have been cursed with the reign of gold long enough.’”

Debs emerged from jail committed to socialism, and was a founding member of the Social Democracy of America (1897), the Social Democratic Party of America (1898), and the Socialist Party of America (1901).

Eugene V. Debs in 1897

Eugene V. Debs in 1897

Debs ran as a Socialist candidate for President of the United States in 1900 (earning 0.63% of the popular vote), 1904 (2.98%), 1908 (2.83%), 1912 (5.99%), and 1920 (3.41%). A charismatic speaker, Debs drew many to the Socialist Party. At its peak in 1912, Socialists held 1,200 public offices in 340 American cities, including 79 mayors in 24 states.

Campaign poster from his 1912 Presidential campaign, featuring Debs and Vice Presidential candidate Emil Seidel

Campaign poster from his 1912 Presidential campaign, featuring Debs and Vice Presidential candidate Emil Seidel

But with the declaration of war in April 1917, the fortunes of the party changed. The Socialists had declared their “unalterable opposition to the war” and Congress responded by passing the Espionage Act of 1917 to prosecute Socialist Party leaders. The Act was intended to prohibit interference with military operations or recruitment, to prevent insubordination in the military, and to prevent the support of U.S. enemies during wartime.

As Wittner recounts, the federal government began prosecuting Socialist Party leaders, and the postmaster general banned virtually every Socialist newspaper, magazine, or other publication from the mails. Socialist Party headquarters around the nation were raided, their records seized, and their officers tried and imprisoned.

1918 Canton, Ohio Rally

1918 Canton, Ohio Rally

Debs was outraged, and on June 16, 1918 in Canton, Ohio, he delivered a famous speech in which he pointed out that “[w]ars throughout history have been waged for conquest and plunder.” Even worse, as he charged:

The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and all to lose—especially their lives.”

He also noted, ironically:

It is extremely dangerous to exercise the constitutional right of free speech in a country fighting to make democracy safe in the world.”

Less than two weeks later, Debs was indicted by a federal grand jury for violating the Espionage Act, and sentenced to ten years in prison. The indictment against Debs ran 139 pages. It listed ten counts corresponding to ten of the twelve offenses enumerated in the amended Espionage Law. As David Sterling pointed out in “In Defense of Debs: The Lawyers and the Espionage Act Case.” Indiana Magazine of History 83, no. 1 (1987): 17-42, online here), “there were no specific citations taken from the Canton address; instead, after each count the whole speech was reprinted.” Sterling added that theoretically, if Debs had been convicted on all counts, he could have been sentenced to two hundred years in prison and fined $100,000. (Be sure to read Sterling’s detailed account of the tactics and arguments of the defense in the trial.)

The case reached the Supreme Court as Debs v. United States, 249 U.S. 211 (1919), and two months later on this day in history, Justice Oliver Wendell Holmes, Jr., writing for a unanimous court, affirmed the conviction of Debs for obstructing the nation’s recruitment and enlistment services.

On December 23, 1921, President Warren G. Harding commuted Debs’ sentence to time served, effective Christmas Day. He did not issue a pardon.

Debs leaving the federal penitentiary in Atlanta on Christmas Day 1921, following commutation of his sentence

Debs leaving the federal penitentiary in Atlanta on Christmas Day 1921, following commutation of his sentence

When Debs was released from the Atlanta Penitentiary, the other prisoners sent him off with “a roar of cheers” and a crowd of 50,000 greeted his return to Terre Haute to the accompaniment of band music.

Debs spent his remaining years trying to recover his health which was severely undermined by prison confinement. In late 1926, he died of heart failure at the age of 70.

You can watch a video of Mark Ruffalo delivering an excerpt of Debs’ speech of June 16, 1918 here:

Debs v. United States, 249 U.S. 211 (1919)