March 3, 1817 – Congress Provides for Reports of Supreme Court Decisions

As Harvard Law Professor Richard J. Lazarus pointed out in “The (Non)Finality of Supreme Court Opinions,” 128 Harvard Law Review 540, 2014:

According to the Supreme Court, “[o]nly the bound volumes of the United States Reports contain the final, official text of [the Court’s] opinions.” Those volumes are published several years after the original opinion announcements. For instance, the Court handed down its final merits decisions of the October Term 2007 on June 26, 2008. The last volume of the corresponding set of United States Reports, including those final decisions, was not published until five years later. [citations omitted]”

But at least the process is now routinized. In the early years of the Court, not all rulings were reported, and those that were would be re-created from the notes the Reporter took, plus any notes the Justice provided or that other attorneys provided. Moreover, without official records, the reporter could take liberties in his interpretation. Lazarus observed, “The potential for divergence between the Court’s orally announced ruling and the reporter’s subsequent written opinion was great. . . . “

Alexander J. Dallas, 1st Supreme Court Reporter

Law Professor Edward A. Hartnett, writing in “A Matter of Judgment, Not a Matter of Opinion,” NYU Law Review, Vol. 74:123, 1999, points out:

[The reporters] exercised their discretion in deciding what Court opinions or portions thereof to publish. The opinions that did appear in the unofficial reporters were often inaccurate due to delay and expense in reporting. Such failings may have been ‘inherent in a system dedicated to the preservation of opinions… often extemporaneously delivered from only the most rudimentary notes.’ [citing Craig Joyce, “The Rise of the Supreme Court Reporter An Institutional Perspective on Marshall Court Ascendancy, 83 Mich. L Rev. 1291, 1304-05, 1312 (1985), in discussing the work of Reporters Alexander Dallas and William Cranch]”

Professor Hartnett avers that the reliability of the reporting of Supreme Court opinions improved after the appointment of Henry Wheaton as the official reporter. As part of an effort to improve speed and accuracy, the Justices promised Wheaton “any written opinions they might prepare, or notes they might make in connection with their oral opinions.'” Nevertheless, Wheaton still used editorial discretion in deciding which opinions to publish and which to omit, and his volumes did not enjoy wide circulation.

William Cranch, 2nd Supreme Court Reporter

Congress attempted to remedy the problem by the passage of an Act at ch.63, §1, 3 Stat. 376 on this date in history, March 3, 1817. The “Act to provide for reports of the decisions of the Supreme Court” not only stipulated that a reporter would be appointed and paid an annual compensation, but added:

The said compensation shall not be paid unless the said reporter shall print and publish, or cause to be printed and published, the decisions of said court, made during the time he shall act as such reporter, within six months after such decisions shall be made, and shall deliver eighty copies of the decisions, so printed and published, to the Secretary of State, without any expense to the United States, and which copies shall be distributed as follows, to wit….”

(A long list ensues, at the completion of which the Act states that “the residue of said copies shall be deposited in, and become part of, the library of Congress.”)

Henry Wheaton, 3rd Supreme Court Reporter

The current version of the law relating to SCOTUS decision reporting can be found at 28 U.S. Code § 411 – Supreme Court reports; printing, binding, and distribution:

(a) The decisions of the Supreme Court of the United States shall be printed, bound, and distributed in the preliminary prints and bound volumes of the United States Reports as soon as practicable after rendition, to be charged to the proper appropriation for the judiciary. The number and distribution of the copies shall be under the control of the Joint Committee on Printing.
(b) Reports printed prior to June 12, 1926, shall not be furnished the Secretary of the Army, the Secretary of the Navy, or the Secretary of the Air Force.
(c) The Director of the Government Publishing Office, or other printer designated by the Supreme Court of the United States, upon request, shall furnish to the Superintendent of Documents the reports required to be distributed under the provisions of this section.”

December 27, 1771 – Birth of William Johnson, Jr., Associate Justice of the Supreme Court

On December 27, 1771 – this day in history – William Johnson, Jr. was born in Charleston, South Carolina. He attended Princeton College and returned to Charleston to study law. After being tutored by General Charles Cotesworth Pinckney, he gained admission to the State Bar and also entered politics as a Jeffersonian Republican. Johnson was elected to the State Legislature for successive terms in 1794, 1796, and 1798. By the last term he had become Speaker of the State House of Representatives.

In 1799, he was elevated to the South Carolina Court of General Sessions and Common Pleas. Three years later, President Thomas Jefferson had his first chance to appoint an associate justice to the Court and named William Johnson, only thirty-two, a staunch Republican on the South Carolina Supreme Court.  The United States Senate confirmed him on May 7, 1804 as the first Supreme Court member who was not a Federalist. 

Official portrait of Supreme Court Justice William Johnson

Oyez writes:

Johnson was an owner of slaves who opposed abolition while also opposing inhumane treatment of Africans.”

Yet, according to Joel Richard Paul, writing in Without Precedent: John Marshall and His Times:

While he acknowledged that slavery was a ‘national evil,’ he rejected the argument that the slave trade was condemned by international law. ‘However revolting to humanity’ this was, Johnson believed that slaves were no different from any other commercial cargo under the law of nations.”

In a case he heard riding circuit in Georgia about several captured slave trading ships, he found that a U.S. court could not enforce laws banning the slave trade against foreign slavers, and the slave traders were entitled to the return of their property. Professor Paul writes, “Justice Johnson’s opinion flew in the face of Congress’s declaration that same year that the slave trade was ‘piracy’ under international law punishable by death.” (p. 355)

[Johnson’s circuit court opinion is reproduced in Carol Necole Brown, “Casting Lots” The Illusion of Justice and Accountability in Property Allocation,” Buffalo Law Review 53, no. 65 (Winter 2005): 130-140, online here.]  

But there is more. The ships and its slaves were claimed by Spain, Portugal, and the captain of a U.S. revenue cutter that hauled the ships in, and who now wanted a bounty. Some of the kidnapped Africans had died and some had escaped, so it was unclear which slaves belonged [sic] to which country. The District Court Judge first hearing the case had determined that 63 should go to Spain, 142 to Portugal, and the remaining 7 would be freed in the United States.

When the case came to the appeals court and was heard by Justice Johnson, he changed the allocation to Spain and Portugal and decided sixteen slaves should be freed to the United States. Furthermore, since the identity of the slaves was unclear, he proposed they draw lots to determine who would go free. As Professor Paul observes, “It would have been unthinkable that any jurist would hazard the freedom of a white man in a raffle, but Johnson had no such scruples when it came to Africans.” (p. 355)

In any event, the lottery didn’t matter; a corrupt Congressman arranged to take the freed Africans, and sent them to work on his own sugar plantation.

During his twenty-nine years on the bench, Justice William Johnson wrote 112 majority opinions, trailing only Chief Justice John Marshall and Justice Joseph Story in speaking for the Court.

Jefferson indeed had an ally in Johnson; they complained back and forth to each other about Chief Justice John Marshall. See for example this letter from Jefferson to Johnson, and this scholarly commentary on Johnson’s tenure, “The Life and Judicial Work of Justice William Johnson, Jr.” by Oliver Schroeder, Jr. (95 U. Penn. Law Review 2, 1946), online here.

Johnson died in New York City on August 4, 1834 following surgery on his jaw. He was buried at St. Philip’s Episcopal Church Cemetery in Charleston.

November 10, 1806 – Henry Brockholst Livingston Receives Recess Appointment to U.S. Supreme Court from President Thomas Jefferson

Henry Livingston, a forebear of both Presidents Bush, was born in New York City in 1757. He graduated from the College of New Jersey (now Princeton) and served in the American Revolution.

He was a private secretary to John Jay, then the U.S. Minister to Spain from 1779 to 1782.

After the war, Livingston read law and was admitted to the bar in 1783. He was in private practice in New York City from 1783 to 1802.

At one time is was part of team of three lawyers in a murder defense that also included Alexander Hamilton and Aaron Burr.

Henry Brockholst Livingston

From 1802 to 1807, Livingston served as a justice of the Supreme Court of New York. Two years later, on November 10, 1806 – this day in history – Livingston received a recess appointment to the Supreme Court of the United States from Thomas Jefferson, to a seat vacated by Associate Justice William Paterson. Paterson died in 1806 from injuries suffered in a coach accident.

Livingston was formally nominated on December 15, 1806, and confirmed by the U.S. Senate on December 17, 1806. He served on the Supreme Court from then until his death in 1823.

As Joel Richard Paul writes in Without Precedent: John Marshall and His Times, p. 298:

Republicans assumed he [Livingston] would be a tough opponent for Marshall, but his warm, open personality mirrored Marshall’s own affability. The two got along famously, and over his long tenure, Livingston dissented from Marshall’s opinions only eight times out of more than four hundred cases.”

September 1, 1807 – Chief Justice John Marshall Acquits Aaron Burr of Treason

Thomas Jefferson bore a grudge against Aaron Burr for running against him in the 1800 presidential election as well as opposing him on other matters. Jefferson also feared Burr might challenge Jefferson’s chosen successor, James Madison. He decided to get Burr out of the way and settle his scores against him at the same time. The charge of treason was a convenient method for Jefferson to get rid of Burr (in a definitive way, since the punishment for treason was death by hanging). Accusations against Burr were provided by General James Wilkinson, who even Jefferson knew was “notoriously unreliable” and who was a spy on the payroll of Spain. Nevertheless, Jefferson addressed Congress in January of 1807 declaring Burr “guilty of treason” by virtue of Wilkinson’s allegations and ordering his arrest.

The case of United States v. Aaron Burr commenced that summer in Richmond, with Supreme Court Chief Justice John Marshall presiding.

Portrait of Burr, undated (early 1800s)

Joel Richard Paul, in his history Without Precedent: John Marshall and His Times, noted that Jefferson “was not interested in the truth about Burr.” Jefferson not only publicly voiced his confidence that Burr was guilty but sent instructions to the prosecutors on how to conduct the trial. He also included a stack of signed pardons for anyone willing to testify against Burr.

But the prosecutors had little to work with: the “witnesses” they presented gave muddled and contradictory testimony, and Wilkinson’s “evidence” was proven to have been fabricated. Moreover, there was the small matter that the Constitution required that treason be defined by an “overt act” by the accused. Alas, there wasn’t any.

General James Wilkinson

Chief Justice Marshall didn’t have to intervene much to protect the defendant, since the case against Burr was so obviously without merit. Nevertheless, when he directed the jury to acquit Burr of treason in September 1, 1807, the press launched vicious attacks on Marshall. Enraged Republicans accused Marshall of playing party politics and siding with a traitor against the U.S. President. Marshall knew this risk was inherent in his verdict, writing in his opinion:

That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. . . . But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace. That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should, on each side, press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is, perhaps, a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.”

Jefferson fumed for years over Marshall’s “twistifications” in Burr’s trial. (Paul, op cit., p. 295)

June 28, 2012 – SCOTUS Upholds the Constitutionality of the Affordable Care Act

In March 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act, commonly known as ACA. It immediately faced challenges from conservatives, and objections made it to the Supreme Court. On this day in history, however, the Supreme Court upheld the law in a 5-4 decision (with Chief Justice Roberts joining the liberals on the Court), ruling in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. that the requirement that most Americans obtain insurance or pay a penalty was authorized by Congress’s power to levy taxes.

The Supreme Court was also asked to address the provision of the act that provided for expanding Medicaid eligibility to 133% of poverty level and provided federal funding to states for this expansion. It directed that states that did not expand eligibility would lose all of their Medicaid funding. The Court decided in a 7–2 vote that states could not be coerced to expand their Medicaid offerings. However, the Court did find that if a state chose to expand coverage, it must accept all of the federal regulations attached to that expansion. States cannot pick and choose how they expand.

President Obama addressed the nation following the decision, averring that the Court “reaffirmed a fundamental principle that here in America — in the wealthiest nation on Earth – no illness or accident should lead to any family’s financial ruin.”

He added:

Still, I know the debate over this law has been divisive.  I respect the very real concerns that millions of Americans have shared.  And I know a lot of coverage through this health care debate has focused on what it means politically. 

Well, it should be pretty clear by now that I didn’t do this because it was good politics.  I did it because I believed it was good for the country.  I did it because I believed it was good for the American people.”

You can read all of his remarks here.

When President Trump took office on January 20, 2017, he appeared to be determined to reverse every program enacted by Obama. The very day President Trump was sworn in he signed an executive order instructing administration officials “to waive, defer, grant exemptions from, or delay” implementing parts of the Affordable Care Act, while Congress got ready to repeal and replace President Obama’s signature health law.

After the Republican Congress could not agree on how to dismantle the ACA, Trump and his administration, as NPR reported, “shifted to a piecemeal approach as they tried to take apart the ACA.”

As of May, 2020, as reported by the Washington Post, Trump was still trying to toss out all of the Affordable Care Act, even as some in his administration . . . privately argued parts of the law should be preserved amid a pandemic. Trump told reporters however:

We want to terminate health care under Obamacare . . . Obamacare, we run it really well. . . . But running it great, it’s still lousy health care.”

March 20, 1816 – Supreme Court Decides Martin v. Hunter’s Lessee

Martin v. Hunter’s Lessee (14 US 304, 1816) was a landmark United States Supreme Court case decided on March 20, 1816. It was the first case to assert ultimate Supreme Court authority over state courts in civil matters of federal law.

During the American Revolution, Virginia passed laws allowing the state to seize property of those loyal to Britain. In 1781, Denny Martin, a British subject, inherited land from his uncle, Lord Fairfax, a Loyalist. The following year, the Virginia legislature voided the land grant and transferred the land back to Virginia. Virginia granted a portion of this land to David Hunter. But a federal treaty – the Treaty of Peace of 1783 between the United States of America and Great Britain – dictated that Lord Fairfax, a citizen of Virginia until his death, was entitled to the property. 

Thus, as the online Law Encyclopedia explains:

. . . by virtue of the ‘seal of the commonwealth of Virginia,’ David Hunter owned the land. But by virtue of the Treaty of Paris (1783) and Jay’s Treaty (1794), national treaties that protected Loyalist holdings, the Fairfax heir–Thomas Bryan Martin–owned the land.”

In 1812, Thomas Martin brought suit to establish his claim to the land. The case, known as Fairfax’s Devisee v. Hunter’s Lessee, (11 U.S. 603) was decided by the Supreme Court, which found in favor of Martin and the Fairfax family. Chief Justice Marshall recused himself, since he had purchased much of Martin’s property and so was personally vested in the outcome of the case. The author of the decision was Justice Joseph Story, who found against the state of Virginia. He held that the Treaty of Paris had restored Martin’s title, and that, pursuant to Article VI of the Constitution, treaties were “the supreme law of the land.”

The State of Virginia was infuriated, and the state courts refused to do the legal work necessary to pass the land over to Martin. They said they were under no obligation to obey the Supreme Court.

Once more, Martin brought suit, this time in Martin v. Hunter’s Lessee. Marshall again recused himself, and Story wrote the decision.

The new case framed two of the most important questions for the new constitutional system: Is federal law, including federal treaties, supreme over state law? Is the Supreme Court supreme over the state courts?

Daguerreotype of Supreme Court justice Joseph Story, 1844

The US Supreme Court held that the answers to both of those questions was yes. Justice Story declared in his opinion:

The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’”

He argued that the people had decided to “prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation . . .”

Furthermore, he pointed out that the sixth article of the Constitution provided that:

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. [emphasis added]”

Story also made a definitive case for the Supreme Court’s appellate jurisdiction over the state courts pursuant to section 25 of the Judiciary Act of 1789.

Joel Richard Paul, writing in Without Precedent: John Marshall and His Times wrote:

Of more than one thousand opinions issued by the Marshall Court, Martin is among the most significant . . . . While Justice Joseph Story signed the majority opinion, there is strong reason to suspect Marshall had a hand in drafting it. . . . the underlying principles of the decision embody the core of Marshall’s own beliefs about the nature of the Union and the role of treaties in domestic law.” (p. 335)

Today, Paul opines, “Martin remains a cornerstone of the Union.

Review of “Without Precedent: John Marshall and His Times” by Joel Richard Paul

This is yet another book that, while focused primarily on John Marshall, compares the legacies Marshall with his political rival, Thomas Jefferson. Both men made essential contributions to the early republic. And like every other historian I have read, in this author’s assessment, Marshall was the better man.

Joel Richard Paul studied at Amherst College, the London School of Economics, Harvard Law School, and the Fletcher School of Law and Diplomacy. He teaches international economic law, foreign relations, and constitutional law at the University of California Hastings Law School, serving as the Associate Dean at the time of publication. He provides an astute analysis of John Marshall’s greatest cases, and does not hesitate to point out instances when Marshall “was no purer than his contemporaries.” Yet he clearly finds much to admire about John Marshall.

As he notes in his introduction:

None of the founding generation of American leaders had a greater impact on the American Constitution than John Marshall, and no one did more than Marshall to preserve the delicate unity of the fledgling republic.”

This was done by a man whose only formal education was one year of grammar school and six weeks of law school! Yet this self-taught man went on to exhibit not only a wide-ranging erudition but a sense of honesty and decency that won over even those who began as his opponents. (The exception of course was the intractable Jefferson, who saw Marshall as standing in the path of Jefferson’s control of all branches of government.) Marshall’s special forte was the art of compromise, which he employed both as a diplomat in France, and on the court which he led for thirty-four years, longer than any other chief justice. More critically, he single-handedly established the court’s importance and supremacy in American life.

Marshall was born on September 24, 1755 in Germantown, Virginia, the eldest of fifteen children. His mother was a first cousin of Thomas Jefferson’s mother but the families were not close. Because of a scandal involving Marshall’s maternal grandmother, the Marshall side of the family was disinherited, and Jefferson’s family got most of the wealth. As Paul observes:

As a result, Thomas Jefferson grew up at Tuckahoe with five hundred slaves. There he enjoyed enormous privilege and wealth. His cousin John Marshall and his fourteen siblings grew up on the frontier working the stony soil on their father’s modest farm.”

Paul avers that Marshall grew up without resentment; rather, he moved fluidly between classes and had the confidence to believe he could elevate his station. Unlike Jefferson, who grew up with education, advantages, and was groomed for leadership, Marshall had to rely on determination and self-invention. His upbringing also provided him with more compassion than Jefferson, and a more generous and humane nature. Paul opined:

Though Marshall belonged to the party of elites, he practiced republicanism in his everyday life. By contrast, Jefferson preached democracy but lived more like the European aristocrats he despised.(p. 235)”

Jefferson, in Marshall’s view, as Paul contends, “lacked genuine empathy and embodied precisely the kind of elitism that he attacked in theory. He could never be trusted to act in the interests of the nation.”

When President John Adams nominated Marshall to be Chief Justice right before he ceded the presidency to Thomas Jefferson, “the Supreme Court was regarded as nothing more than a constitutional afterthought.”

Jefferson and the Republican Congress wanted to emasculate the judiciary, and took numerous steps (only some of which were successful) to do so. But by the time Marshall’s tenure ended in 1835, he had “elevated the dignity of the Supreme Court as the final arbiter of the Constitution’s meaning.”

Importantly, Marshall was able to win over the other justices on the court, even those appointed by Jefferson specifically to oppose Marshall. Paul posits that Marshall’s collegiality as well as “sheer personality and intellect” won over “even the most resolute colleague.”

How he did this – and sometimes he acted less than exemplary in his efforts to outwit the attacks on judicial independence and rule of law by Thomas Jefferson and later Andrew Jackson – is the subject of Paul’s book. Paul tells the story mostly through an explication of the cases that came before the court, because the fact was that many of them represented competing visions of power between Jefferson and Marshall.

Thomas Jefferson

I was especially surprised to learn about Marshall’s sneaky manipulation in seminal cases like Marbury vs. Madison, but I believe, as Marshall seems to have done, that the end justified the means. In any event, Marshall was no less sneaky and manipulative than Jefferson, but Marshall, in my view, was more often on “the side of the angels.”

Paul informs us that prior to Marshall’s tenure, each justice issued his own individual opinion seriatim. Marshall thought that the Court’s authority would be more persuasive and the law more clarified if he could forge a single decision on behalf of the entire Court. Thus, during his thirty-four years as chief justice, Marshall personally wrote 547 opinions. Of these, 511 were unanimous.

It is important to note the irony that Marshall, a “founding father,” rejected a strict construction of the Constitution and insisted on interpreting it as a living document that responded to the needs and demands of a growing nation.

Marshall made a number of courageous decisions that inspired a great deal of enmity in his detractors, such as clearing Aaron Burr of treason charges in 1807. This charges were pushed forward by President Jefferson for the principal reason that Burr was a powerful political enemy. But the penalty for treason was death, and there was a total lack of evidence against Burr.

Portrait of Burr, undated (early 1800s)

While Paul is generally willing to expose Marshall’s warts, he gives him a pass when it comes to slavery. Paul writes:

Marshall was not free of racial prejudice, and he did enjoy the comforts that his household slaves provided to him. Marshall’s attitude toward African Americans was paternalistic. He viewed his slaves as family members who needed his guidance and support. . . . It appears that Marshall treated his slaves humanely, and on at least one occasion, he paid for a doctor to care for a slave woman who was ill.”

In his conclusion he repeats the assertion that Marshall had a “generous and humane relationship with his slaves” (p. 437).

[This seems to me to be a quite specious argument. Can you be “humane” toward someone you hold in ownership, house in your basement, trade like baseball cards at a cattle market, and buy and sell at your whim? Okay so maybe you don’t use a whip and don’t use rape – should that be touted as laudatory? I would accept “less horrible” perhaps, but not “humane.”]

Paul Finkelman, writing in Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard, 2018) contends that biographers are reluctant to tarnish the picture of “our greatest chief justice.” But Marshall’s relationship with slavery was an important influence on his jurisprudence and therefore deserves closer scrutiny.

Marshall accumulated more than 150 slaves in his lifetime, while also giving around seventy slaves to two of his sons. When he died, Marshall did not arrange to free any of his slaves, unlike some other prominent Virginians in his time, including George Washington. No evidence remains as to how he actually treated his slaves.

But we can learn something from his jurisprudence, Finkelman argues. It was “hostile to free blacks and surprisingly lenient to people who violated the federal laws banning the African slave trade.” (Finkelman at 34) For Marshall serving on the court, Finkelman argues, “slaves were another form of property subject to litigation….”

Finkelman cites John Marshall in his “Memorial: To the General Assembly of Virginia,” December 13, 1831, available in Papers of Marshall, 12:127 contending that free blacks in Virginia were worthless, ignorant, and lazy, and that they were “pests” that should be removed from the state.” (Finkelman at 51)

It is truly tragic that Marshall felt this way, for he might have made a difference. As Marshall said in his opinion exonerating Burr, and acknowledging the unpopularity of the ruling:

That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. . . . But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace. That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should, on each side, press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is, perhaps, a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.”

Evaluation: I love reading histories of John Marshall – how can anyone with an interest in the law and in this country not find fascinating the court cases that shaped all subsequent jurisprudence as well as the relationship among the three branches of government? The fact that relationship is now imperiled is all the more reason to study how and why these struggles were worked out in the past, and to what effect.

Rating: 4/5

Published by Riverhead Books, 2018

February 28, 1807 – Thomas Todd Nominated to the U.S. Supreme Court

Thomas Todd, born in 1765, was an American attorney who became an Associate Justice of the U.S. Supreme Court. Raised in the Colony of Virginia, he studied law and later participated in the founding of Kentucky, where he served as a clerk, judge, and justice.

U.S. Supreme Court Justice Thomas Todd

As Joel Richard Paul writes in Without Precedent: John Marshall and His Times, p. 298:

Though Jefferson opposed expanding the size of the federal judiciary when [John] Adams did it, he relished the opportunity to name a third justice and persuaded Congress to add a seventh justice to the Supreme Court. In 1807, he named Thomas Todd, forty-two, another reliable Republican, who was chief justice of the highest court in Kentucky. Justice Todd, like [John] Marshall, grew up on the Virginia frontier, and he, too, [like the other Jefferson appointees] was quickly seduced by Marshall’s genial manner. In two decades on the court, Todd dissented only once from the chief justice.”

Frank H. Easterbrook, when he was Professor of Law at the University of Chicago in 1983 (he later was nominated to the U.S. Court of Appeals for the Seventh Circuit), in his article “The Most Insignificant Justice: Further Evidence,” 50 University of Chicago Law Review 481 (1983), claimed that Thomas Todd was the most insignificant justice ever to serve on the Supreme Court as of that date. His argument, albeit written tongue-in-cheek, is backed up by quite a bit of data.

June 1, 1931 – U.S. Supreme Court Decides Near v. Minnesota re Freedom of the Press

Near v. Minnesota (283 U.S. 697, 1931) was a case involving freedom of the press that was paid for out of the pocket of Colonel Robert McCormick, editor and publisher of the Chicago Tribune. In this landmark ruling, the Court struck down a state law allowing prior restraint (government censorship in advance) as unconstitutional. In so finding, the Court applied the First Amendment’s protection of press freedom to the actions of state governments through the doctrine of incorporation.

McCormick subsidized the case in aid of J.M. Near, the publisher of the Minnesota Saturday Press, a scandal sheet which started in 1927. The paper attacked local officials, charging that they were complicit with gangsters, practically every one of which, Near’s paper maintained, was “a JEW.” Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law allowing such action against periodicals. The Minnesota statute (Chapter 285 of the Session Laws of Minnesota for the year 1925) provided that any person “engaged in the business” of regularly publishing or circulating an “obscene, lewd, and lascivious” or a “malicious, scandalous and defamatory” newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance.

Near – the appellant and the sole owner and proprietor of the publication in question, admitted the publication of the articles in the issues described in the complaint. But he denied that they were malicious, scandalous or defamatory as alleged. He expressly invoked the protection of the due process clause of the Fourteenth Amendment.

Col. Robert McCormick, editor and publisher of the Chicago Tribune, in an undated photo. (Chicago Herald and Examiner)

Robert McCormick was known for being rather irrationally anti-semitic, but this wasn’t why he felt compelled to bring this case to the Supreme Court. Rather, as a newspaper publisher he had a vested interest in freedom of the press. McCormick wrote afterward:

I immediately realized that the principle (of prior restraint) would put every newspaper at the mercy of any corruptible judge.”

During the case, McCormick’s attorney argued to the Supreme Court that defaming the government is “an inalienable privilege of national citizenship.”

The Tribune, looking back on the case, observed that “precisely because Near’s ideas were morally indefensible, his was the perfect case for making a point about freedom of the press, a cause dear to McCormick’s heart.”

McCormick and his attorney Weymouth Kirkland “felt strongly that if a crank didn’t have a right to publish goofy ideas, then freedom of the press was meaningless. If not, who is to say what differentiates honest criticism from malicious libel?”

During oral arguments, Justice Louis Brandeis asked about the conflict between the Minnesota law and a newspaper’s role as a government watchdog and noted:

It is difficult to see how one is to have a free press and the protection it affords a democratic community without the privilege this act seems to limit.”

Chief Justice Charles Evans Hughes, writing for the Court and joined by Justices Holmes, Brandeis, Stone, Roberts,found that the Minnesota statute comprised “the essence of censorship,” stating:

This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not unique, and raises questions of grave importance transcending the local interests involved in the particular action.”

Charles Evans Hughes, Chief Justice of the U.S. Supreme Court

He observed further:

The question is whether a statute authorizing such proceedings in restraint of publication is consistent with the conception of the liberty of the press as historically conceived and guaranteed. . . . The struggle in England, directed against the legislative power of the licenser, resulted in renunciation of the censorship of the press. The liberty deemed to be established was thus described by Blackstone:

‘The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.’”

He concluded:

If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence, there is no limit to what may be prohibited. . . .

For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication.

Judgment reversed”

In 1971, the Supreme Court, in New York Times Co. v. United States (403 U.S. 713) drew upon Hughes’ opinion in deciding that the government’s justification for trying to withhold the Pentagon Papers was, in essence, censorship.

And there were other repercussions as well. The Tribune reported:

For its part, the Tribune resolved not to be late to the game the next time evidence of presidential mischief was available. In 1974, Richard Nixon was forced to release transcripts of taped conversations in his Oval Office.

Dispatching its corporate jet and a production team to Washington, the Tribune got the transcripts into print hours before the government put them on sale.

Tribune readers got an early view of why Nixon desperately wanted to keep the public from reading the transcripts.

The transcripts witness Nixon saying: “The arts you know — they’re Jews — they’re left-wing.” He called the judge who tried the Nixon operatives for breaking into a Democratic Party office a “wop.”

The Tribune Editorial Board took Nixon to the woodshed for those grossly un-presidential utterances, under a headline, “Listen, Mr. Nixon …”

Less than three months later, Nixon resigned.”

Chicago Tribune Headlines

April 12, 1937 – The Supreme Court Decides NLRB v. Jones & Laughlin Steel

In NLRB v Jones & Laughlin Steel Corp, 301 U.S. 1 (1937), the U.S. Supreme Court upheld the National Labor Relations Act of 1935, commonly referred to as the Wagner Act. Jones & Laughlin Steel Co. was at that time the country’s fourth largest steel producer. The Jones & Laughlin dispute involved ten steelworkers who had been fired from one of the company’s mills for trying to organize a union.

The question before the Court was whether labor-management disputes were directly related to the flow of interstate commerce and so could be regulated by the national government.

Congress claimed authority to pass the Wagner Act under its power to regulate interstate commerce, enumerated in Article I of the Constitution. Jones & Laughlin challenged the law, arguing that the act was an attempt to regulate all industry, “thus invading the reserved powers of the States over their local concerns.” This went beyond the commerce power of Congress, they asserted. As Chief Justice Charles Evans Hughes wrote about the position of Jones & Laughlin, the company argued “the Act is not a true regulation of such commerce or of matters which directly affect it, but, on the contrary, has the fundamental object of placing under the compulsory supervision of the federal government all industrial labor relations within the nation.”

Charles Evans Hughes, Chief Justice of the U.S. Supreme Court

In his opinion, Justice Hughes observed first that “[t]he distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our federal form of government.” The Court held that “[a]lthough activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential, or appropriate, to protect that commerce from burdens and obstructions, Congress has the power to exercise that control.”

In the instant case, the Court noted that “[t]he relation to interstate commerce of the manufacturing enterprise . . . was such that a stoppage of its operations by industrial strife would have an immediate, direct and paralyzing effect upon interstate commerce. Therefore, Congress had constitutional authority, for the protection of interstate commerce, to safeguard the right of the employees in the manufacturing plant to self-organization and free choice of their representatives for collective bargaining.”

Specifically, the National Labor Relations Act of July 5, 1935 empowered the National Labor Relations Board to prevent any person from engaging in unfair labor practices “affecting commerce.” According to Sec. 7. [§ 157]:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].”

Thus the Court held in part that “The Act imposes upon the employer the duty of conferring and negotiating with the authorized representatives of the employees for the purpose of settling a labor dispute. . . . .”

Moreover, it found that “The provision of the National Labor Relations Act, § 10(c), authorizing the Board to require the reinstatement of employees found to have been discharged because of their union activity or for the purpose of discouraging membership in the union, is valid.”

The Oyez website points out that Justice Hughes carefully limited the opinion to exclude situations in which an activity had such an inconsequential or remote impact on interstate commerce that it exclusively impacted local matters. 

In his dissent, however, Justice James C. McReynolds cited the lack of actual demonstrated effect on interstate commerce and questioned Congress’s enhanced power under the Commerce Clause. 

Chris Schmidt, writing for the Chicago-Kent College of Law SCOTUS blog, maintains:

The decision was a landmark ruling on the meaning of the Commerce Clause. Its reasoning granted far more authority to Congress to regulate economic relations than the Court had previously allowed. It was also a major victory for industrial and factory workers across the country. The Wagner Act helped usher in a new era of labor relations, one in which union power, backed by the authority of the federal government, entered into negotiations with industry on far more equal footing than before.”

But unions have been taking blows from other directions, most recently with the Supreme Court decision on June 27, 2018 in the case Janus v. AFSCME (No. 16-1466). By a 5-to-4 vote, with the more conservative justices in the majority, the court ruled that government workers who choose not to join unions may not be required to help pay for collective bargaining. The court overruled 41 years of precedent in deciding that requiring employees to pay fees violates their First Amendment rights.