December 5, 1960 – The U.S. Supreme Court Decides Boynton v. Virginia

On December 20, 1958, Bruce Boynton, a black senior at Howard Law School, left D.C. for Montgomery, Alabama (in order eventually to reach Selma) to spend the Christmas holidays. He took a Trailways bus, which was operated by Virginia Stage Lines. During a stop at a Trailways bus station in Richmond, Virginia, Boynton went to a restaurant next to the terminal for a meal. The restaurant was segregated and had a separate section for blacks. But that section was crowded, so Boynton sat in the white section. The waitress would not serve him, and called the assistant manager, who “instructed” Boynton to move. When he refused, a police officer arrived to arrest him. Handcuffed and hauled off on a misdemeanor trespass charge, he spent the night in jail.

Boynton was charged with trespass based on § 18-225 of the Code of Virginia of 1950, as amended (1958), making it a misdemeanor, punishable by up to thirty days in jail and a $100 fine, “without authority of law… [to] remain upon the lands or premises of another after having been forbidden to do so by the … lessee, custodian, or person lawfully in charge of such land….. “

The case came up for trial on January 6, 1959, before a judge of the Richmond Police Court, who found Boynton guilty.

Boynton was not only a law student but came from a family of civil rights activists: his parents, Sam and Amelia Boynton, devoted themselves to obtaining voting rights for all Americans.

Boynton appealed on the grounds that his conviction infringed his rights under the Interstate Commerce Act, the Commerce Clause of the Constitution, and the Fourteenth Amendment. The appeals court, however, upheld the lower court’s verdict and sentence. The Virginia Supreme Court of Appeals refused a writ of error to review the action of the appeals Court, “being of opinion that the said judgment is plainly right…. “

Thurgood Marshall in 1957

Thurgood Marshall in 1957

On September 15, 1959, Boynton filed a petition for certiorari in the United States Supreme Court. His lead lawyer was Thurgood Marshall, who one day would become the first black associate justice on the nation’s highest court. The Court, in the opinion Boynton v. Virginia, 364 U.S. 454 (1960) written by Justice Hugo Black, stated that:

The basic question presented in this case is whether an interstate bus passenger is denied a federal statutory or constitutional right when a restaurant in a bus terminal used by the carrier along its route discriminates in serving food to the passenger solely because of his color.”

The Court maintained that “[n]otwithstanding the fact that the petition for certiorari presented only the constitutional questions this Court will consider the statutory issue, which involves essentially the same problem — racial discrimination in interstate commerce.”

This was an interesting approach since there was a legitimate question about the relationship between the restaurant and the bus terminal, and “the evidence on this record does not show that the bus company owns or actively operates or directly controls the bus terminal or the restaurant in it.”

Justice Hugo Black

Justice Hugo Black

In the majority’s view, the lack of evidence of control was immaterial:

“. . . the fact that § 203(a)(19) says that the protections of the motor carrier provisions of the Act extend to “include” facilities so operated or controlled by no means should be interpreted to exempt motor carriers from their statutory duty under § 216(d) not to discriminate should they choose to provide their interstate passengers with services that are an integral part of transportation through the use of facilities they neither own, control nor operate. The protections afforded by the Act against discriminatory transportation services are not so narrowly limited. . . . And so here, without regard to contracts, if the bus carrier has volunteered to make terminal and restaurant facilities and services available to its interstate passengers as a regular part of their transportation, and the terminal and restaurant have acquiesced and cooperated in this undertaking, the terminal and restaurant must perform these services without discriminations prohibited by the Act. In the performance of these services under such conditions, the terminal and restaurant stand in the place of the bus company in the performance of its transportation obligations. . . . Although the courts below made no findings of fact, we think the evidence in this case shows such a relationship and situation here.”

Rather, the Court argued, Virginia’s law contravened federal law, holding:

Under § 216(d) of the Interstate Commerce Act, which forbids any interstate common carrier by motor vehicle to subject any person to unjust discrimination, petitioner had a federal right to remain in the white portion of the restaurant, he was therefore ‘under authority of law,’ and it was error to affirm his conviction.”

Thus the Supreme Court reversed the decision of lower courts by a vote of 7-2. Justices Charles Evans Whittaker and Tom Campbell Clark joined in a dissent.

Boynton’s father Sam died in 1963, having lived long enough to see his son’s Richmond court challenge succeed. Amelia continued to work for civil rights, becoming a national celebrity. She was a key figure in the 1965 Selma to Montgomery marches and was awarded the Martin Luther King, Jr., Freedom Medal in 1990.

Aug. 18, 2011 photo of Bruce Boynton and his mother, civil rights icon Amelia Boynton on her 100th birthday

Aug. 18, 2011 photo of Bruce Boynton and his mother, civil rights icon Amelia Boynton on her 100th birthday

When Amelia Boynton died at the age of 110, First lady Michelle Obama sent her family a letter of condolence shortly after her passing, describing the legendary civil rights leader as “one of the quiet heroes who made America what it is today.” So was her son.

November 19, 1877 – The U.S. Supreme Court Decides Beecher v. Wetherby

In Beecher v. Wetherby, 95 U.S. 517 (24 L.Ed. 440, 1877), the Court revealed its notions of ethnocentrism and racism in a decision written by Associate Justice Stephen J. Field.

The Court was ruling on a matter (an action of replevin) related to claims of land title in Wisconsin contested by Native tribes. Justice Field first acknowledges:

It is true that, for many years before Wisconsin became a State, that tribe occupied various portions of her territory, and roamed over nearly the whole of it.”

But alas, he continued, “… the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose.”

However, he stated:

It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.”

Furthermore, “the right which the Indians held was only that of occupancy” and their rights to retain possession would be respected only as long as the government decided it would be:

Congress undoubtedly expected that at no distant day the State would be settled by white people, and the semi-barbarous condition of the Indian tribes would give place to the higher civilization of our race . . . “

Justice Field was appointed to the Supreme Court in 1863 by President Abraham Lincoln, supposedly to achieve both regional balance (he was a Westerner) and political balance (he was a Democrat, albeit a Unionist one).

Justice Stephen Johnson Field, in office March 10, 1863 - December 1, 1897

Justice Stephen Johnson Field, in office March 10, 1863 – December 1, 1897

Unfortunately Justice Field often makes lists of “top five worst Supreme Court Justices.” He is particularly known for his racism. He dissented in the 1880 landmark case Strauder v. West Virginia, in which the majority opinion held that a state law barring blacks from jury service violated the Equal Protection Clause of the Fourteenth Amendment. He joined the infamous case Plessy v. Ferguson that found a state law is within constitutional boundaries imposing racial segregation, basing the decision on the “separate-but-equal” doctrine. He also expressed racist anti-Chinese-American rhetoric (continuing a pattern he began in California courts), most notably in his majority opinion in the Chinese Exclusion Case, Chae Chan Ping v. United States, and in his dissent in Chew Heong v. United States.

November 11, 1987 – Anthony Kennedy Nominated to the U.S. Supreme Court

Anthony Kennedy was born in Sacramento, California, and attended Stanford University, graduating from there in 1958 and from Harvard Law School in 1961. In 1976, President Gerald Ford appointed Kennedy to the United States Court of Appeals for the Ninth Circuit, where he served for twelve years. While on that Court he also served on the Board of Directors of the Federal Judicial Center.

On this day in history, Anthony Kennedy was nominated by President Ronald Reagan to the U.S. Supreme Court, and the Senate confirmed the appointment on February 3, 1988. He took the oath of office on February 18, 1988.

Justice Anthony Kennedy

Justice Anthony Kennedy

Following the death of Antonin Scalia in February 2016, Kennedy became the most senior Associate Justice on the court. He has also been the swing vote on many of the Court’s 5-4 decisions.

Dana Milbank, writing for the Washington Post, opined:

He’s no King Solomon, but Kennedy, the perpetual swing vote, may be the dominant lawgiver of his day. Unlike Alito and Clarence Thomas (and, to a lesser extent, Chief Justice John Roberts), he recognizes the importance of public consensus on cultural issues, such as the growing acceptance of gay marriage. On abortion, which chronically divides Americans, Kennedy has avoided destabilizing change.”

In New York Magazine, Ed Kilgore wrote in June, 2016:

Kennedy’s power as the king of a divided Court was aptly summarized by conservative writer John Podhoretz, who tweeted: “Everybody’s upset about Brexit, but basically the United States is now being governed by one 80 year old man.” [Kennedy turned 80 in July 2016.]

 

You can see a list of Kennedy’s memorable opinions here.

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October 23, 1991 – Clarence Thomas Sworn in as Supreme Court Associate Justice

On this day in history, Clarence Thomas was sworn in by Justice Byron White as the 106th Justice of the Supreme Court. Chief Justice William Rehnquist was to have sworn in Thomas during a ceremony initially scheduled for October 21, but the ceremony was postponed until October 23 because of the death of Rehnquist’s wife. In a great historical irony, Thomas was filling the seat vacated by Thurgood Marshall.

Associate Justice Clarence Thomas in September 29, 2009

Associate Justice Clarence Thomas in September 29, 2009

Clarence Thomas was born near Savannah, Georgia on June 23, 1948. He received a J.D. from Yale Law School in 1974. He served in a number of legal and political positions, and was nominated to the Court by President H.W. Bush.

As Associate Justice, Thomas has an interesting reputation on the Court.

For example, as of February 22, 2014, eight years had elapsed since Thomas asked a single question during a Supreme Court oral argument. Legal analyst Jeffrey Toobin opined:

His behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.”

This reluctance to speak in public, as well as his tendency to concur with Antonin Scalia in a great many cases, has earned Thomas the sobriquet “Antonin Scalia’s sock puppet.”

Possibly of greater significance where these two justices are concerned, the “New York Times” revealed that Thomas, along with Antonin Scalia, had accepted invitations to “retreats” sponsored by conservative billionaire Charles Koch for political strategizing. Nevertheless, neither of those justices recused themselves in the case of Citizens United v. Federal Election Commission (558 US 310,2010). According to The Center for Public Integrity:

The Citizens United ruling, released in January 2010, tossed out the corporate and union ban on making independent expenditures and financing electioneering communications. It gave corporations and unions the green light to spend unlimited sums on ads and other political tools, calling for the election or defeat of individual candidates.”

Mr. Koch and his brother, David Koch, were among the main beneficiaries of the Supreme Court’s decision in the Citizens United case, which valorized these huge amounts of spending as an exercise in “free speech.”

As for Thomas’s jurisprudence, Jeffrey Toobin observes about Thomas:

For better or worse, Thomas has made important contributions to the jurisprudence of the Supreme Court. He has imported once outré conservative ideas, about such issues as gun rights under the Second Amendment and deregulation of political campaigns, into the mainstream.”

Justice Thomas

Justice Thomas

His position on affirmative action, comparing its effects to those of slavery and segregation, have made liberals cringe (and no doubt have Thurgood Marshall rolling over somewhere).

Nevertheless, as Akhil Amar, a liberal professor at Yale Law School, averred, “Thomas’s views are now being followed by a majority of the Court in case after case.”

Tom Goldstein, the publisher and co-founder of SCOTUS blog, wrote: “I disagree profoundly with Justice Thomas’s views on many questions, but if you believe that Supreme Court decision-making should be a contest of ideas rather than power, so that the measure of a justice’s greatness is his contribution to new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest justice.”

On February 13, 2016, Antonin Scalia died in his sleep at the age of 79. His death may have been behind Justice Clarence Thomas’ decision to ask a question from the bench for the first time in 10 years. That same month, Thomas startled court watchers when he suddenly spoke up asking a line of questions concerning the Second Amendment.

September 1, 1948 – William Coleman Begins Work as the as First African-American Law Supreme Court Clerk

William Thaddeus Coleman, Jr. was born in 1920 into a Pennsylvania family that encouraged education, hard work, and social activism. He excelled in school, but always had to combat prejudice. He recalled (Annette John-Hall, “William T. Coleman, Jr.—Lawyer, Social Activist,” Philadelphia Inquirer, May 16, 2004):

I finished tops in my class at Roosevelt [Junior High School]. I made what I thought was a good speech and my teacher said, “You’ll make somebody a good chauffeur.” I won’t tell you what I told her, but I was suspended for saying it. My mother and father had to tell her, “You don’t talk to a Coleman kid that way.”

In high school, he wanted to join the all-white swim team of his Pennsylvania high school, which disbanded rather than allow a black person on the team. The day he graduated, they posted a notice that they were starting up the team again.

Coleman didn’t get discouraged. He enrolled at U. of Pennsylvania, majoring in political science and economics, graduating summa cum laude in 1941. He then went to Harvard Law School, one of only four minority students in his class, and made the Harvard Law Review.

In 1941, Coleman’s high grades (he was second in his first-year class)won him a position on  the staff of the Harvard Law Review. Coleman (second from bottom left) was only the third black man to serve on the Law Review

In 1941, Coleman’s high grades (he was second in his first-year class )won him a position on the staff of the Harvard Law Review. Coleman (second from bottom left) was only the third black man to serve on the Law Review

He interrupted his studies to enlist in the army in 1942, encountering the fierce racism of the South during basic training.

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He returned to Harvard and graduated magna cum laude in 1946. He won a clerkship to the U.S. Third Circuit Court of Appeals in 1947, and in December of that same year, a former Harvard Law School professor wrote a letter to Felix Frankfurter recommending Coleman as a Supreme Court Law Clerk. Frankfurter accepted the recommendation without even requiring an interview.

Frankfurter received letters from a number of people a number of people praising the appointment and its breaking of the racial barrier. He responded:

Mr. William T. Coleman was named as one of my law clerks for next year precisely for the same reason that others have been named in the past, namely high professional competence and character. You are kind to write me, but I do not think a man deserves any praise for doing what is right and abstaining from the wrong.”

During the October 1948 Supreme Court term, Coleman shared clerking duties with fellow Harvard graduate Elliot Richardson. Together they began spending one hour a day reading Shakespeare or poetry during their lunch breaks.

During October Term 1948, Coleman shared his clerking duties with fellow Harvard Law School graduate Elliot Richard- son (right)

During October Term 1948, Coleman shared his clerking duties with fellow Harvard Law School graduate Elliot Richard- son (right)

A Frankfurter clerkship meant becoming a lifetime member of the Frankfurter family. Coleman later recalled that “from the day we came to the day he died, Felix Frankfurter was the nearest thing to a father or a brother that I had outside of my own family.”

In a post-clerkship letter recommending Coleman, Frankfurter drew upon the words of his own hero to further praise his former clerk: “What I can say of you with great confidence is what was Justice Holmes’ ultimate praise of a man: ‘I bet on him.’ I bet on you, whatever choice you may make, and whatever the Fates may have in store for you.’”

Justice Felix Frankfurter

Justice Felix Frankfurter

Nevertheless, as Todd Peppers reported in “William Thaddeus Coleman, Jr.: Breaking the Color Barrier at the U.S. Supreme Court,” J. of Supreme Court History 10/2008, 33(3): 353-370, 364:

Armed with letters of recommendation from Justice Frankfurter, Coleman returned to his hometown of Philadelphia and quickly discovered that prospective employers were not color-blind. ‘I tried like hell to get a job in Philadelphia and no local law firm would hire me.’ Most of Philadelphia’s law firms refused to give Coleman an interview.”

Coleman finally found a job in New York City, commuting each day to and from Philadelphia. After three years, the Philadelphia firm of Dilworth Paxson accepted him at the insistence of wealthy client Walter Annenberg. Coleman remained with the firm until his 1975 appointment as Secretary of Transportation in the cabinet of President Gerald Ford. Coleman was sworn in by his long-time friend and now Associate Supreme Court Justice Thurgood Marshall. After President Ford’s defeat in the 1980 presidential election, Coleman joined the Washington office of the law firm O’Melveny & Myers.

William Coleman

William Coleman

During his career, Coleman argued nineteen cases before the Supreme Court, only occasionally taking on civil rights work. But some of that work was as a consultant to Thurgood Marshall in preparing the Supreme Court case Brown v. Board of Education.

Coleman has received a large list of awards from a wide range of organizations including the Presidential Medal of Freedom, awarded to him by President Clinton in 1995, who recalled of Coleman:

For four decades in the courtroom, the boardroom, the halls of power, Bill Coleman has put his brilliant legal intellect in service to our country. He was the first African-American accepted on the Harvard Law Review, the first to serve as a clerk on the United States Supreme Court, the first to serve in the President’s Cabinet—the second to serve in the President’s Cabinet, and the first to reach the pinnacle of the corporate bar. As Secretary of Transportation to President Ford, he helped to open the doors of opportunity to thousands of black entrepreneurs. As a corporate director, he broke the color barrier in the Nation’s executive suites. Today, as chairman of the board of the NAACP Legal Defense and Education Fund, he continues the fight.

I have known Bill Coleman for a long time. I had the honor and pleasure of being his son’s roommate for a year in law school. I think it is fair to say that the first time we saw each other, he never dreamed that I would be here and he would be there. [Laughter] But I can honestly say, if you are looking for an example of constancy, consistency, disciplined devotion to the things that make this country a great place, you have no further to look than William Coleman, Jr.”

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July 6, 1835 – Death of Chief Justice John Marshall

On this day in history, John Marshall died, two months before he would have turned eighty. Of Marshall, John Quincy Adams wrote in his diary:

He was one of the most eminent men that this country has ever produced. . . . Marshall has cemented the Union which the crafty and quixotic democracy of Jefferson had a perpetual tendency to dissolve. Jefferson hated and dreaded him. . . . Marshall, by the ascendency of his genius, by the amenity of his department and by the imperturbable command of his temper, has given a permanent and systematic character to the decisions of the Court, and settled many great constitutional questions favorably to the continuance of the Union.”

Chief Justice John Marshall

Chief Justice John Marshall

During Marshall’s tenure as Chief Justice, the Supreme Court handed down 1,180 decisions over thirty-five years, with Justice Marshall writing 549 of them. As Harlow Giles Unger noted of the output of the Court in his biography of Marshall:

Many formed the foundation of American constitutional law. They established the Supreme Court as supreme arbiter of the Constitution and American laws and the federal judiciary as the third coequal branch of the federal government with the executive and legislative branches.”

June 5, 1916 – Louis Brandeis Takes His Seat on the U.S. Supreme Court

On this day in history, one hundred years ago, Louis Brandeis, nominated to the Supreme Court by President Woodrow Wilson on January 28, 1916, finally took his seat after an unsavory political fight fueled by anti-Semitism conflated with charges of alleged “radicalism”. In fact, Brandeis’ appointment was so bitterly contested that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination.

Yet it was hard to make convincing arguments against him. Brandeis was indisputably brilliant, having entered Harvard Law School in 1875 at the age of 18 without a formal college degree.

Brandeis as a student ca. 1876.

Brandeis as a student ca. 1876.

Despite having developed vision problems he nevertheless received excellent marks (he achieved the highest grade point average in the history of the school, a record that stood for eight decades). Nevertheless, Brandeis almost didn’t graduate. He was still only twenty, and according to University policy, “no degree [of Bachelor of Laws] will be conferred until the candidate shall have attained the age of twenty-one years.” In the end, the Board of Trustees made a special exemption allowing Brandeis to receive his degree. He then spent an additional year at the law school doing postgraduate work.

Within a year of graduation, Brandeis accepted an offer by his Harvard classmate, Samuel D. Warren, to set up a law firm in Boston. While waiting for the law firm to gain clients, he was appointed law clerk to Horace Gray, Chief Justice of the Massachusetts Supreme Court. Brandeis was admitted to the Massachusetts bar without taking an examination, which, he later wrote to his brother, was “contrary to all principle and precedent.” He still worked for his firm, however, which became quite successful.

Samuel D. Warren, ca. 1875

Samuel D. Warren, ca. 1875

Between 1888 and 1890, Brandeis and Warren wrote three scholarly articles published in the Harvard Law Review. The third, “The Right to Privacy,” was the most influential, with legal scholar Roscoe Pound saying it accomplished “nothing less than adding a chapter to our law.” In it Brandeis enunciated the view he later echoed in the 1928 Supreme Court case of Olmstead v. United States (277 U.S. 438), in which he argued that the makers of the Constitution, as evidence of their effort “to protect Americans in their beliefs, their thoughts, their emotions and their sensations … conferred, as against the Government, the right to be let alone – – the most comprehensive of rights and the right most valued by civilized men.”

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By 1890 Brandeis was financially able to serve without pay in various public causes. Notably, in 1908, he represented the State of Oregon before the U.S. Supreme Court in Muller v. Oregon (208 U.S. 412), a landmark case defending an Oregon law establishing wages and hours for women laborers. In that case, he introduced what came to be known as the “Brandeis brief.” As the Brandeis University website dedicated to “The Louis D. Brandeis Legacy Fund for Social Justice” defines it:

[It] went far beyond legal precedent to consider the various economic and social factors which led the legislature to pass the law. Many lawyers followed the Brandeis brief and presented relevant scientific evidence and expert opinion dealing with the great social problems of the day mirrored in judicial litigation.”

After Brandeis was finally confirmed to sit on the U.S. Supreme Court in 1916, he served with distinction until February 13, 1939, when he retired, dying only two years later.

Justice Brandeis

Justice Brandeis

In celebration of the centenary of Brandeis’ nomination to the Court, the Harvard Law Library prepared an exhibit as a tribute to Brandeis’ “significant and lasting relationship with HLS.” Be sure and check out the wonderful images selected for the online version of this exhibit, here. (One of which you see below. You can view it at a higher resolution on the website.)

This draft page from Ruthenberg v. Michigan illustrates Brandeis’ process when crafting a Supreme Court opinion. Former clerk, Paul Freund explained “An opinion developed like a coral reef; it might go through dozens of revisions and accretions.” Brandeis Papers, Harvard Law School, Box 44, Folder 6

This draft page from Ruthenberg v. Michigan illustrates Brandeis’ process when crafting a Supreme Court opinion. Former clerk, Paul Freund explained “An opinion developed like a coral reef; it might go through dozens of revisions and accretions.” Brandeis Papers, Harvard Law School, Box 44, Folder 6