October 11, 1872 – Birth of Harlan F. Stone, 12th Chief Justice of the Supreme Court

Harlan Fiske Stone, born on this day in Chesterfield, New Hampshire, graduated from Columbia Law School in 1898. From 1899 to 1902 he taught law at Columbia Law School, becoming a professor in 1902 and the dean in 1910, a position he held until 1923. Columbia reports that as a teacher and as dean, Stone was known for taking a great interest in his students, who called themselves “Stone-Agers” in his honor. In 1946, the year of Stone’s death, the Columbia Law School faculty established the Harlan Fiske Stone Scholars. These scholarships are awarded each year in recognition of academic achievement by students in each of the three J.D. classes and in the LL.M. Program. That same year, the Harlan Fiske Stone professorship in constitutional law was established.

Harlan Fiske Stone, Chief Justice of the United States

From 1924 to 1925 he served as U.S. Attorney General under President Calvin Coolidge, with whom he had attended Amherst College.

In 1925, Coolidge nominated Stone to succeed retiring Associate Justice Joseph McKenna, and Stone won Senate confirmation with little opposition. On the Taft Court, Stone joined with Justices Holmes and Brandeis in calling for judicial restraint and deference to the legislative will. On the Hughes Court, Stone and Justices Brandeis and Cardozo formed a liberal bloc called the Three Musketeers that generally voted to uphold the constitutionality of the New Deal.

(“The Three Musketeers” were opposed by “the four horsemen,” consisting of Justices James Clark McReynolds, George Sutherland, Willis Van Devanter, and Pierce Butler.) Chief Justice Charles Evans Hughes and Justice Owen J. Roberts controlled the balance.)

By 1941 most of the others on the court were gone, with only Stone and Roberts remaining.

Stone’s support of the New Deal was no doubt instrumental in leading to his nomination as Chief Justice by FDR in June, 1941, following the retirement of Chief Justice Charles Evans Hughes. Stone, aged 69, was quickly confirmed by the United States Senate sworn in on July 3. He remained in this post until his sudden death in 1946; his was one of the shortest terms of any Chief Justice. He was also the only justice to have occupied all nine seniority positions on the bench, having started out as the most junior Associate Justice, working his way to most senior Associate Justice, and then to Chief Justice.

Stone’s tenure as Chief Justice was not without controversy. He upheld the President’s power to try Nazi saboteurs captured on American soil by military tribunals in Ex parte Quirin, 317 U.S. 1 (1942). The court’s handling of this case has been the subject of scrutiny and controversy. One scholar, for example, argues that irrespective of congressional authorization, such extra-Judicial prosecution encroaches upon quintessential Article III functions and thereby violates the separation of powers.

Additionally, as Chief Justice, Stone described the Nuremberg court as “a fraud” to Germans and a “high-grade lynching party,” even though his colleague and successor as Associate Justice, Robert H. Jackson, served as the chief U.S. prosecutor.

According to William Rehnquist in a 2004 speech:

Stone’s biographer, Alpheus T. Mason, sums up Stone’s views of Jackson’s service this way: ‘For Stone, Justice Jackson’s participation in the Nuremberg Trials combined three major sources of irritation: disapproval in principle of non-judicial work, strong objection to the trials on legal and political grounds, the inconvenience and increased burden of work entailed. Even if the Chief Justice had wholly approved the trials themselves, he would have disapproved Jackson’s role in them. If he had felt differently about the task in which Jackson was engaged, he might have been somewhat less annoyed by his colleague’s absence.'”

It is worth noting, (again per Rehnquist):

One of Stone’s complaints was that he first learned of Jackson’s acceptance of the role of prosecutor when it was announced by President Truman. One would think that Jackson would have at least consulted Stone before accepting the job; not that Stone had any authority to forbid his taking it, but that advance notice would have made it more palatable to Stone even though he still disagreed.”

Just imagine if he had learned of the appointment by tweet….

Stone’s death came after he was suddenly stricken while in an open session of the Supreme Court. Justice Hugo Black called the Court into a brief recess, and physicians were summoned. Stone died of a cerebral hemorrhage on April 22, 1946 at his Washington D.C. home. He is buried at Rock Creek Cemetery in Washington, D.C., along with three other justices buried there (Willis Van Devanter, John Marshall Harlan, and Stephen Johnson Field).

August 19, 1981 – Sandra Day O’Connor Nominated to the Supreme Court

Sandra Day O’Connor, the first woman to serve on the Supreme Court of the United States, was born in El Paso, Texas on March 26, 1930. At sixteen, she was admitted to Stanford University, where she earned a bachelor’s degree in economics. In 1950 she was admitted to Stanford Law, completing the course in just two years instead of the usual three. She graduated third in her class, with one of the students ahead of her being fellow future justice, William H. Rehnquist. As Oyez reports:

Despite her impeccable qualifications, Sandra Day O’Connor struggled to find employment in the legal field due to a heavy bias against women as attorneys. She began her legal career working for the county attorney of San Mateo for free, after turning down a paid position as a legal secretary. Once she proved herself as an asset, she got a job as the deputy county attorney.”

Moving to Arizona with her husband, in 1965 she began working as the Assistant Attorney General. In 1969, she was appointed to the Arizona State Senate to fill a vacated seat. In 1970, she kept that seat when she was elected to the State Senate for a full term as a Republican. She was reelected to that position twice, even serving as the first female majority leader in any state senate.

In 1975 she won the election for a seat in the Superior Court of Maricopa County, and was appointed to the Arizona Supreme Court of Appeals four years later. She worked in the state supreme court for only two years before President Ronald Reagan nominated her on this day in 1981 to become the first female justice to serve on the United States Supreme Court. She was unanimously approved by the Senate.

As she later told NPR:

I was working in my office on the Arizona Court of Appeals. I was at the court in my chambers when the telephone rang. And it was the White House calling for me, and I was told that the president was waiting to speak to me. That was quite a shock, but I accepted the phone call, and it was President Reagan, and he said, ‘Sandra?’ ‘Yes, Mr. President?’ ‘Sandra, I’d like to announce your nomination to the U.S. Supreme Court tomorrow. Is that all right with you?’ Well, now, that’s kind of a shock, wouldn’t you say?”

Sandra Day O’Connor is sworn in as an associate justice by Chief Justice Warren Burger on Sept. 25, 1981. Holding two family Bibles is husband John Jay O’Connor.
Michael Evans/AP

Two years after O’Connor joined the Court, The New York Times published an editorial which mentioned the “nine men” of the “SCOTUS,” or Supreme Court of the United States. O’Connor responded with a letter to the editor reminding the Times that the Court was no longer composed of nine men and referred to herself as FWOTSC (First Woman On The Supreme Court).

Over the course of her two decades on the court, the conservative justice became known as a somewhat unpredictable voter. She was known for being a majority builder whenever possible, but also for being a swing vote in the divisive cases. In cases lacking a consensus, she wrote as narrow a decision as possible. She retired from the bench in 2006 to care for her husband, who was diagnosed with Alzheimer’s disease.

On August 12, 2009, she was awarded the Presidential Medal of Freedom by President Barack Obama.

July 22, 1937 – U.S. Senate Rejects FDR’s Court-Packing Plan

On February 5, 1937, President Franklin Delano Roosevelt unveiled the Judicial Procedures Reform Bill of 1937, which proposed adding one new judge to the federal judicial system for every active judge over the age of seventy. The result would create fifty new judgeships, including up to six new Supreme Court justices.

Roosevelt had been frustrated with the US Supreme Court’s treatment of some of his economic reforms. During his first term, the Supreme Court had struck down several New Deal measures intended to bolster economic recovery during the Great Depression. The President’s plan would allow him to appoint new judges friendly to his administration, although FDR couched it in terms suggesting that he was trying to streamline the Court system and ease its caseload.

President Franklin Delano Roosevelt

President Franklin Delano Roosevelt

The plan caused an uproar from legislators, bar associations, and the public. The Senate Judiciary Committee held hearings on the bill, and subsequently failed to report it favorably out of committee.

On February 8, 1937, the Senate Judiciary Committee met to consider President Roosevelt's request to increase membership on the Supreme Court.  Library of Congress, Prints and Photographs Division, Washington, D.C.

On February 8, 1937, the Senate Judiciary Committee met to consider President Roosevelt’s request to increase membership on the Supreme Court.  Library of Congress, Prints and Photographs Division, Washington, D.C.

The full Senate began debating the measure in July, and on this day in history – July 22, 1937 – the U.S. Senate rejected the proposed plan by a vote of 70-20. 

Nevertheless, FDR managed to get what he wanted eventually by serving twelve years in office, which enabled him to appoint eight justices to the Court.

You can listen to FDR’s “fireside chat” on March 9, 1937 in which he discusses the court packing proposal, here.

July 11, 1964 – Murder of Lemuel Penn, African American U.S. Army Veteran, in Georgia for Driving While Black

Lemeul Penn, born September 19, 1915, was the Assistant Superintendent of Washington, D.C. public schools, a decorated veteran of World War II, a Lieutenant Colonel in the United States Army Reserve, and the father of three young children. He was murdered at age 48 on this day in history by members of the Ku Klux Klan, nine days after passage of the Civil Rights Act.

Lemuel Penn

Penn was driving home, together with two other black Reserve officers, to Washington, D.C. from Fort Benning, Georgia where they had been training. They were spotted by three white members of a violent KKK group called the Black Shirts in Athens, Georgia, who noticed the D.C. plates on the car. One of the killers apparently said: “That must be one of President Johnson’s boys” and decided to follow the car. He added: “I’m going to kill me a nigger.”

Just before the highway crossed the Broad River, the Klansmen’s car pulled alongside the car of the three black men. Two of the group raised their shotguns and fired.

Penn was killed. The three white men were identified as the ones who chased the trio of Army reservists. The two shooters were tried in state superior court but found not guilty by an all-white jury.

The federal government then successfully prosecuted the men for violations under the new Civil Rights Act of 1964, passed just nine days before Penn’s murder. The case was instrumental in the creation of a Justice Department task force whose work culminated in the Civil Rights Act of 1968.

The case was appealed to the Supreme Court in United States v. Guest (383 U.S. 745, 1966)

The appellees, six private individuals, had been indicted under 18 U.S.C. § 241 “for conspiring to deprive Negro citizens in the vicinity of Athens, Georgia, of the free exercise and enjoyment of rights secured to them by the Constitution and laws of the United States, viz., the right to use state facilities without discrimination on the basis of race, the right freely to engage in interstate travel, and the right to equal enjoyment of privately owned places of public accommodation, now guaranteed by Title II of the Civil Rights Act of 1964.”

The defendants moved to dismiss the indictment, arguing that it did not involve rights which are attributes of national citizenship, to which it deemed § 241 solely applicable, and dismissed the indictment. The prosecution appealed, arguing that the indictment alleged, in part, a denial of rights under the Equal Protection Clause of the Fourteenth Amendment.

Justice Potter Stewart

The Supreme Court held, in an 8-1 opinion authored by Justice Potter Stewart, that protection of the 14th Amendment extended to citizens who suffer rights deprivations at the hands of private conspiracies, where there is minimal state participation in the conspiracy. The Court also held that there is Constitutional right to travel from state to state. If the predominate purpose of the conspiracy is to prevent the exercise of the right of travel, or to oppress a person of that right, as was the case here, then whether or not motivated by racial discrimination, the conspiracy becomes a proper object of federal law under which the indictment was brought. Therefore, the federal indictment was based on an offense under the laws of the United States.

June 21, 1915 – The Supreme Court Decides Guinn v. United States

The 1870 ratification of the Fifteenth Amendment to the United States Constitution barred each state from denying the right to vote on the basis of “race, color, or previous condition of servitude.” In response, several Southern states established constitutional provisions designed to disenfranchise African-American voters without explicitly violating the Fifteenth Amendment.

One of these techniques was the “grandfather clause.” As an online law and legal reference library explains:

There were many varieties of this kind of law, which said that people who had been voting before a certain date–or whose grandfathers had been voting before that date–did not have to register; they were simply allowed to vote. That way, registration rules could be made very complicated, or voter registration could be limited to a short, inconvenient time.”

BlackPast, an African American history site, details how developments in Oklahoma disenfranchised blacks:

Oklahoma’s original 1907 Constitution allowed men of all races to vote. Within one year of statehood, however, the legislature amended the original State Constitution to provide for a literacy test, e.g., the ability to read and write any section of the Constitution of the State of Oklahoma. That provision exempted two classes of individuals and their descendants from the requirement:  1) male citizens who were born on or before January 1, 1866 were entitled to vote; and 2) male descendants of people who at that time resided in a foreign nation were also allowed to vote. This provision allowed white U.S. citizens, as well as European immigrants and their descendants, to cast ballots. The provision also stipulated that a lineal descendant of males in these categories shall not be denied the right to register and vote because of their inability to read and write.  The effect of the state constitutional provision was to prevent former male slaves and their descendants from voting since the vast majority of black males could not vote on January 1, 1866.”

An NPR article on Guinn v. U.S. notes that although African-Americans typically lacked the financial resources to file suit, the NAACP, founded in 1909, persuaded a U.S. attorney to challenge Oklahoma’s grandfather clause, which had been enacted in 1910.

In its unanimous opinion delivered by Chief Justice Edward Douglass White Jr. on June 21, 1915, the Supreme Court ruled in Guinn v. U.S. (238 U.S. 347, 1915) that Oklahoma’s grandfather clause – having been written in a way to serve “no rational purpose” other than to deny African American citizens the right to vote — violated the Fifteenth Amendment to the U.S. Constitution. The convictions of Oklahoma election officials Frank Guinn and J.J. Beal were thus upheld.

Justice Edward Douglass White

However, Justice White unfortunately added:

No time need be spent on the question of the validity of the literacy test, considered alone, since, as we have seen, its establishment was but the exercise by the State of a lawful power vested in it not subject to our supervision, and, indeed, its validity is admitted.”

Having received this “okay” from the court to come up with other ways to take away the vote from blacks, the Oklahoma Legislature met in special session to grandfather in the grandfather clause. The new law said those who had been registered in 1914 — whites under the old system — were automatically registered to vote, while African-Americans could only register between April 30 and May 11, 1916, or forever be disenfranchised.

The Supreme Court struck down this law as well, but not until 23 years later in Lane v. Wilson, 307 U.S. 268 (1939). U.S. Supreme Court Justice Felix Frankfurter, writing for the court, observed that the new 1916 law “was obviously directed towards the consequences of the decision in Guinn v. United States, supra.”

Frankfurter thought there was “no escape from the conclusion that the means chosen as substitutes for the invalidated ‘grandfather clause’ were themselves invalid under the Fifteenth Amendment. They operated unfairly against the very class on whose behalf the protection of the Constitution was here successfully invoked.”

Justice Felix Frankfurter

Voter suppression has continued of course. As the Brennan Center, which chronicles efforts to suppress the vote, argues, over the last 20 years, states have put barriers in front of the ballot box — imposing strict voter ID laws, cutting voting times, restricting registration, gerrymandering, and purging voter rolls. These efforts received a boost when the Supreme Court, in Shelby County v. Holder weakened the Voting Rights Act in 2013, and have kept significant numbers of eligible voters from the polls, hitting all Americans, but placing special burdens on racial minorities, poor people, and young and old voters.

With the surge of Democratic voters in the 2020 elections, Republican legislatures around the country have stepped up their repressive measures. The Brennan Center reports that overall, lawmakers introduced at least 389 restrictive bills in 48 states in the 2021 legislative sessions.

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 policy 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 (25 F Cas 55 August 31, 1807) 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. (648 F. 3d 1235) 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.”

In May, 2020, as reported by the Washington Post, Trump told reporters:

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

Finally, in September 2020,

President Trump capped his fruitless four-year journey to abolish and replace the Affordable Care Act by signing an executive order . . . that aims to enshrine the law’s most popular feature while pivoting away from a broader effort to overhaul the nation’s health insurance system.”

Somewhat amusingly, Trump added:

The historic action I’m taking today includes the first-ever executive order to affirm it is the official policy of the United States government to protect patients with preexisting conditions,’ Trump said, despite the fact such protections are already enshrined in law. ‘We’re making that official. We’re putting it down in a stamp, because our opponents, the Democrats, like to constantly talk about it.’”