May 10, 1886 – Supreme Court Decides Yick Wo v. Hopkins

In the landmark case of Yick Wo v. Hopkins (118 US 356, 1886), the Supreme Court unanimously struck down legislation designed to close Chinese-operated laundries in San Francisco. It was notable as the first case to employ the “equal protection” clause of the 14th Amendment, prohibiting states from denying any person equal protection of the law.

Yick Wo was a laundry owned by Lee Yick, a Chinese immigrant. In 1880 San Francisco passed legislation requiring all laundries in wooden buildings to get approval of the Board of Supervisors for a license. Although workers of Chinese descent operated 89 percent of the city’s laundries, every single Chinese laundry owner applying was denied a permit. Moreover, both Lee Yick and Wo Lee (whose appeal was also considered as part of this case) were arrested for refusing to pay a fine for operating without the permit, and they were imprisoned by the city’s sheriff, Peter Hopkins. (C-Span’s reporting of the case relates that Sheriff Hopkins was responsible for arresting over 150 Chinese persons for not meeting the board of approval’s laundry regulations.)

Yick and Lee each sued for a writ of habeas corpus, arguing the fine and discriminatory enforcement of the ordinance violated their rights under the Equal Protection Clause of the Fourteenth Amendment. The case made its way to the US Supreme Court after losing in the Supreme Court of California and the Circuit Court of the United States for the District of California. Those courts determined that the law as neutral on its face, thus denying claims for Wo and Lee.

When the case reached the US Supreme Court, Justice T. Stanley Matthews, writing for a unanimous Court, ruled that despite the impartial wording of the law, its biased enforcement violated the Equal Protection Clause.

Justice T. Stanley Matthews, Associate Justice 1881-1889

According to the Court, even if a law is impartial on its face, “if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” The kind of biased enforcement experienced by the plaintiffs, the Court concluded, amounted to “a practical denial by the State of that equal protection of the law” and therefore violated the provision of the Fourteenth Amendment.

It should also be noted that Matthews’ opinion added:

The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”

April 10, 1869 – Congress Increased Number of Supreme Court Justices to Nine

Per the Constitution Annotated site compiled by the Library of Congress:

Congress first enacted legislation to structure the Supreme Court in the Judiciary Act of 1789. Under the 1789 act, the Court comprised one Chief Justice and five Associate Justices. Congress enacted legislation to change the size of the Court multiple times during the nineteenth century. In 1801, Congress reduced the size of the Court to five Justices. The 1801 statute did not eliminate an occupied seat on the Court; instead, it provided that the change would take effect ‘after the next vacancy’. Congress repealed the 1801 law before any vacancy occurred, leaving the size of the Court at six Justices.

. . .

At its largest, during the Civil War, the Court had ten Justices, with the addition of the tenth seat on the Court coinciding with the establishment of the Tenth Circuit. In 1866, Congress reduced the size of the Court to seven Justices, a change widely viewed as one of the Reconstruction Congress’s restrictions on President Andrew Johnson.”

The Judiciary Act of 1869 (41st Congress, Sess. 1, ch. 22, 16 Stat. 44), formally “An Act to amend the Judicial System of the United States” and sometimes called the Circuit Judges Act of 1869, increased the size of the Supreme Court to nine justices and established separate judgeships for the U.S. circuit courts, allotting each Supreme Court justice one of the nine circuits in which that justice had to attend at least one term in each of the circuit’s districts every two years. It also included the first provision allowing judges to retire without losing their salary.

In early 1869 there were eight men on the bench. As the History Channel online reports: “Congress routinely changed the number of justices to achieve its own partisan political goals, resulting in as few as five Supreme Court justices required by law under John Adams to as many as 10 under Abraham Lincoln.”

As the Federal Judicial Center (FJC) recounts:

The first version of the act [proposed by Illinois Senator Lyman Trumbull] was approved by Congress at the close of the session in March 1869 but fell victim to a pocket veto from outgoing President Andrew Johnson. After the new Congress convened a day later, the Senate quickly reintroduced and passed the measure. The House of Representatives then amended the bill to permit the retirement of federal judges appointed during good behavior. Justices and judges who reached the age of seventy and had served at least ten years could retire and receive their current salary for the remainder of their lives.”

According to Stanley I. Kutler, writing for The Journal of Southern History, Vol 32, No 1 (Feb 1966) in “Reconstruction and the Supreme Court: The Numbers Game Reconsidered” (online here), “The increase of one Supreme Court member provoked absolutely no controversy, Republicans and Democrats alike conceding the need.”

The bill’s progress, however, bogged down in the Senate over the circuit-court reform. Apparently “partisan descendants of Jefferson” felt it was desirable for members of the Supreme Court to deal with people and law on the local level. Some senators also resisted the idea of expanding federal power with an increase of ten federal jurists.

Lyman Trumbull, Chair of the Senate Judiciary Committee 1861-1873

Trumbull argued however that the establishment of circuit judgeships was made necessary by the increased workload of the federal courts in the wake of the Civil War. The docket of the Supreme Court was two to three years behind schedule. The appointment of circuit judges would better enable the Supreme Court justices to focus on cases before the Court. Trumbull and his fellow Republicans also hoped that the appointment of circuit judges would provide a more uniform administration of federal justice, particularly in the South, where federal authority only recently had been reestablished.

In addition, by virtue of the act allowing all federal judges to retire with full salary after serving for at least 10 years, provided they had turned 70, it provided an incentive for older judges to leave their courts before their deaths. The salary of the circuit court judgeships created was set at $5,000 a year. In addition, the act stipulated that federal judges (including Supreme Court justices) who had served for ten years or more and who was at least 70 would receive a pension upon their retirement. ($5,000 in 1869 would be approximately $110,600 in 2023 dollars.)

March 16, 1810 – Supreme Court Decides Fletcher v. Peck, Expanding Parameters of Judicial Review

The state of Georgia claimed sovereignty over a large tract of land (some 35-40 million acres) known as “Yazoo,” most of which was occupied by native tribes (but far be it from white settlers to recognize their claims.) In any event, in 1794, Georgia passed the Yazoo Land Act and sold most of these same lands to four companies. The companies then quickly sold the property off to to private speculators at a very low price.

Map showing the four initial Yazoo Act land deals

Shortly thereafter, it came out that most of the legislators voting for the Yazoo Land Act had been bribed or owned stakes in the businesses purchasing the property. After several lawmakers were voted out of office in response to these revelations of corruption, the new legislature in 1795 declared the earlier grants void, basically maintaining that the sales had legally never happened. Such a declaration flew in the face of one of the few early constitutional restrictions on state power, namely the Contracts Clause of Article I, Section 10 prohibiting states from passing any “law impairing the obligation of contracts.” Meanwhile, as reported on the website Big Think, all extant copies of the original act were collected and burned at high noon on the grounds of the state capitol under construction, then in Louisville. One copy escaped destruction — the one sent to President Washington.

Several years after the legislature revoked the land grants, John Peck, a speculator from Massachusetts, purchased some of the land in question and subsequently sold it to Robert Fletcher, a colleague from New Hampshire. Fletcher sued Peck for breach of contract, alleging that Peck had falsely represented that he had good title to the land. Peck defended the suit by arguing that the Georgia legislature had violated the Contracts Clause by improperly interfering with the original land grant contract. Since the law was invalid, he claimed, he had held good title to the land and had every right to sell it to Fletcher.

In Fletcher v. Peck (10 U.S. 87, 1810), in a unanimous decision for Peck written by Chief Justice John Marshall, the Court found the legislature’s repeal of the law unconstitutional under Article I, Section 10, Clause I. They concluded the sale between Fletcher and Peck was a binding contract, which under the Contract Clause cannot be invalidated even if it were illegally secured. 

As the Federal Judicial Center maintains, the decision in Fletcher v. Peck expanded the parameters of judicial review, as it marked the first time the Supreme Court struck down a state law as unconstitutional, establishing the principle that federal laws were supreme over state laws. The case also firmly established that a legal contract could not be nullified by a later law, which became an important tenet of contract law.

John Marshall by Henry Inman, 1832

There was a further consequence. Journalist Frank Jacobs points out:

Without the scandal, Georgia might conceivably have managed to hold on to its western lands. This hypothetical Greater Georgia, running from the Atlantic to the Mississippi, would have comprised most or all of the current states of Mississippi and Alabama. That would make it one of America’s most populous states, its 20 million inhabitants, on par with Florida and New York and surpassed only by Texas (30 million) and California (40 million).”

March 8, 1971 – Supreme Court Decides Griggs v. Duke Power Co.

Griggs v. Duke Power Co. (401 U.S. 424,1971) was a class action suit filed by Willie Griggs on behalf of several fellow African-American employees, against his employer Duke Power Company.

An NAACP analysis of the case explains that Duke Power had a long history of segregating employees by race.  At the Steam Station, the best jobs were reserved for whites.  African-Americans were relegated to the labor department, where the highest-paid worker earned less than the lowest-paid employee in the other four departments where only whites worked. 

Duke had a policy that required employees who wanted to outside the labor department had to attain a minimum score on two separate aptitude tests in addition to having a high school education. The testing and diploma criteria disqualified African-Americans at a substantially higher rate than whites, and Duke Power never established that they successfully measured ability to do the jobs in question. 

Griggs claimed that Duke’s policy violated Title VII of the Civil Rights Act of 1964, which made it illegal for employers to discriminate on the basis of race. On appeal from a district court’s dismissal of the claim, the Court of Appeals found no discriminatory practices. The Supreme Court granted certiorari.

Jack Greenberg, who succeeded Thurgood Marshall as President and Director-Counsel of the NAACP Legal Defense and Educational Fund (LDF), represented the African-American employees.  Another critical member of the litigation team was Julius Chambers, who later became LDF’s third Director-Counsel.

Jack Greenberg, NAACP director-counsel of the Legal Defense and Educational fund, is seen at a news conference, Oct. 31, 1969, in New York. (AP Photo/Allen Green)

In a groundbreaking decision, the Supreme Court ruled against Duke Power.  It held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”  Chief Justice Warren Burger delivered the Court’s opinion that employers can use intelligence tests only if “they are demonstrably a reasonable measure of job performance.”  

Neither the high school graduation requirement nor the two aptitude tests was directed or intended to measure an employee’s ability to learn or perform a particular job or category of jobs within the company. Duke’s requirements prevented a disproportionate number of African-American employees from being hired by, and advancing to higher-paying departments within, the company. The Court concluded that the actual purpose of these requirements was to safeguard Duke’s long-standing policy of giving job preferences to its white employees.

As the NAACP explained, for this case the Supreme Court embraced a powerful legal tool – now known as the “disparate impact” framework – that has proved essential in the fight to eradicate arbitrary and artificial barriers to equal employment opportunity for all individuals, regardless of their race.

You can access audio of the oral arguments for this case here.

February 15, 1790 – John Rutledge Begins Serving as Associate Justice of the US Supreme Court

John Rutledge, born in Charleston, South Carolina on September 17, 1739, is considered to be an American Founding Father. He served as one of the original associate justices of the Supreme Court and the second chief justice of the United States. Additionally, he served as the first president of South Carolina and later as its first governor after the Declaration of Independence was signed.

Rutledge went to London to study law, returning after three years to practice in the colonies. Oyez reports that his talent as a public speaker and the prestigious reputation of his family contributed to his early success as an attorney. The British governor appointed him as South Carolina’s attorney general, which added to Rutledge’s influence, both at home and with the British government. He was in favor of reconciliation with Britain up until the British Navy invaded and captured Charleston in 1780.

Painting of John Rutledge by Robert Hinckley (based on a painting by John Trumbull), via Wikipedia

Initially George Washington considered choosing Rutledge for the first Chief Justice of the US Supreme Court, but passed him by for John Jay. Instead, he appointed him as senior associate justice, a role Rutledge began serving on this day in history.

In 1795, upon hearing word that John Jay was retiring, Rutledge wrote to Washington, offering himself for the position. Washington accepted, and Rutledge served as the interim Chief Justice, pending approval by the Senate. John Jay, meanwhile, was charged with writing a treaty that resolved new tension between the US and England. A copy of the treaty leaked to the papers, and many colonial leaders were outraged at its perceived submissive tone. Rutledge was asked to speak publicly about his opinions on this treaty, and he went so far as to say “dearly as [I] love Washington, [I] would rather see him dead than to see him sign the Treaty.”

This statement pretty much was the death knell for Rutledge’s approval by the Senate, and his appointment was not confirmed. Upon hearing news of the Senate’s rejection, Rutledge threw himself into the bay. His attempt at suicide failed when two slaves saw him drowning and saved him. He died in July of 1800 and was buried in the graveyard next to the place he gave the speech that ended his career.

October 14, 1911 – Death of SCOTUS Justice John Marshall Harlan & Review of “The Great Dissenter: The Story of John Marshall Harlan America’s Judicial Hero” by Peter S. Canellos

Author and journalist Peter Canellos has chosen an excellent moment for a biography of the Supreme Court jurist John Marshall Harlan, whose intellectual evolution and eventual dedication to civil rights is not only inspirational, but more relevant than ever.

The author’s aim is to describe how Harlan went from being a slave-owner in Kentucky to one of the greatest advocates of minority rights of all time during his service on the U.S. Supreme Court. As the author writes:

Among powerful white officials, one person’s voice rang out. He reminded the nation that the post-Civil War amendments to the Constitution promised equal protection under the law. He advocated eloquently for Black rights, along with the health and safety of immigrant industrial workers and the rights of people in places such as Puerto Rico, Hawaii, and the Philippines, which were ruled by the United States in a time of imperialism.”

One relatively unknown aspect of Harlan’s background is the fact that a Black man and former slave, Robert Harlan, was brought up in Harlan’s house and treated like a brother. There is speculation that Robert was in fact a half-brother of John Marshall Harlan. Robert’s story is also covered by this book, with the author weaving back and forth between the lives of the two men.

Harlan served on the Supreme Court for thirty-four years, from 1877 to 1911. He was appointed to the court by President Rutherford B. Hayes “as a kind of human olive branch to the South,” since the rest of the court was made up of privileged Northerners. Harlan was the only one of the court to have graduated from law school. He was also, as mentioned above, a former slave owner, notwithstanding the unusual status afforded to Robert Harlan.

Thus it is most interesting to see how Harlan come to occupy his position as a liberal bastion among his peers. Notable were his dissents on three infamous civil liberties cases that came before the Court: Plessy v. Ferguson (1896), Lochner v. New York (1905), and The Civil Rights Cases (1883).

The author writes: “In case after case, he laid out a framework for what would become the twentieth-century civil rights movement.”

Canellos evinces a fine understanding of the legal issues at stake, which he explains clearly for lay readers. But Harlan’s own words, quoted liberally within the book, are also clear as well as inspirational:

For example, in “The Civil Rights Cases of 1883,” Harlan wrote:

I cannot resist the conclusion that the substance and spirit of the recent amendments to the Constitution [the 13th, 14th, and 15th] have been sacrificed by a subtle and ingenious verbal criticism. It is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law are the soul.”

Thus, he argued that the majority of the Court was ignoring the plain meaning and intent of the newest amendments, and that their position revealed racial double standards.

As the Court later found in United States v. Carolene Products Co., 304 U.S. 144 (1938), stated in the famous Footnote Four:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

The country however, in Harlan’s time, as the author observes, looked to the Court’s majority who gave them security in and protection for their right to discriminate.

Frederick Douglass later wrote of Harlan:

…I was wont to console myself with what seemed to many a transcendental idea, that one man with God is a majority; that if such a man does not represent what is, he does represent what ought to be, and what ultimately will be.”

This is an excellent description of the importance of John Marshall Harlan, his moral integrity, and of his continuing relevance today.

This double biography – of John and Robert Harlan – will introduce to most readers two unique characters whose stories are fascinating, and representative of the state of the union at the time. It is a book well worth reading!

Rating: 5/5

Published by Simon & Schuster, 2021

October 8, 1888 – Melville Fuller Begins Serving as 8th Chief Justice of the US Supreme Court

Melville Fuller, born in 1833 in Augusta, Maine, was a staunch conservative who supported states’ rights and limited federal power.

Fuller campained for Stephen A. Douglas in the 1860 presidential election, and as a member of the House of Representatives from Illinois, he opposed the policies of President Lincoln. He declined three separate appointments offered by President Grover Cleveland before accepting the nomination to succeed Morrison Waite as chief justice. His rulings often faced criticism in the decades during and after Fuller’s tenure, and many were later overruled or abrogated.

Fuller’s majority opinion in Pollock v. Farmers’ Loan & Trust Co. (1895) ruled a federal income tax to be unconstitutional; the Sixteenth Amendment later superseded the decision. Fuller’s opinion in United States v. E. C. Knight Co. (1895) narrowly interpreted Congress’s authority under the Commerce Clause, limiting the reach of the Sherman Act and making government prosecution of antitrust cases more difficult. In Lochner v. New York (1905), Fuller agreed with the majority that the Constitution forbade states from enforcing wage-and-hour restrictions on businesses, contending that the Due Process Clause prevents government infringement on one’s liberty to control one’s property and business affairs. Fuller joined the majority in the now-reviled case of Plessy v. Ferguson (1896), in which the Court articulated the doctrine of separate but equal and upheld Jim Crow laws. He argued in the Insular Cases that residents of the territories are entitled to constitutional rights, but he dissented when, in United States v. Wong Kim Ark (1898), the majority ruled in favor of birthright citizenship.

Fuller served twenty-two years as chief justice, remaining in the center chair until his death in 1910.

Christine Cromie, in her thesis “The Evolution of United States Supreme Court Jurisprudence under the Leadership of Chief Justices Melville Fuller and Edward White from 1888 to 1911,” [(History & Classics Undergraduate Theses 34, 2019) online here observed that:

Throughout his time as Chief Justice from 1888-1910, eleven new justices joined the bench and Fuller maintained good relations with all his colleagues. Historian James Ely, in his article ‘Melville W. Fuller Reconsidered’ discusses Fuller’s demeanor on the bench and his interpersonal relations with his colleagues and fellow Justices, acknowledging that Fuller was a masterful social leader who, ‘harnessed the talents of his independent-minded associates and prevented destructive personal feuds from damaging a collegial working environment. To this end, Fuller inaugurated the practice of requiring each Justice to shake hands with other Justices each morning before Conferences.’ Fuller worked to achieve cohesion on the Court among fellow Justices and the practice emphasized the mutual respect between colleagues.”

Collegiality aside, however, Melville Fuller’s descendant,Robert G. Fuller, Junior, believed that Justice Fuller’s decision to uphold racial segregation in Plessy v. Ferguson was a stain on his family’s legal honor. Nevertheless, Robert spent $40,000 to erect a statue of Justice Fuller in front of the Kennebec County Courthouse in 2013.

In 2021, Kennebec County, Maine commissioners voted unanimously to remove a statue of Fuller from public land, aiming to dissociate the county from racial segregation.

October 5, 1751 – Birth of James Iredell, Associate Justice of the 1st US Supreme Court

James Iredell, born and raised in England, immigrated with his family to North Carolina in 1768. At age 17, Iredell was appointed to a sinecure as King George III’s comptroller of customs in the village of Edenton. At the same time, he studied law under Samuel Johnston, a local lawyer and the future first United States Senator from North Carolina. Iredell quickly earned his license, and began to practice law, developing a client base in both North Carolina and Virginia.

While initially loyal to the King, by late 1775 he had committed himself to the cause of independence. As Oyez reports:

He first served on a commission that would revise and present a body of statutes to present to the North Carolina legislature for adoption. In 1777, Iredell drafted a bill establishing the state’s new court system, including a legislatively elected three-judge Superior Court to serve as the state’s high court. For the next dozen years, Iredell served the state in a variety of public positions, first as one of the first Superior Court judges, then as the state’s second Attorney General.”

In 1781, Iredell returned to private work, but also championed the establishment of an independent appellate court with no original jurisdiction. He also served as commissioner to revise and compile the legislative acts of the state, served as an original trustee of the University of North Carolina, and led the fight in North Carolina to ratify the new US Constitution.

Iredell owned slaves throughout his life. During the arguments for and against adopting the US Constitution, he had argued that while “the interests of humanity” would be advanced through abolition, that slave trade existed too long “for the honor and humanity of those concerned in it.” He also believed the ratification of the Constitution would provide a pathway for abolition in the long-term, and that, unless they were beholden to the Constitution, states such as South Carolina and Georgia would never pursue the path of abolition. Therefore, “‘though at a distant period,’ the provisions for the abolition of the slave trade would ‘set an example of humanity.” (Citation here.)

James Iredell, via The Collection of the Supreme Court of the United States (Artist: C. Gregory Stapko)

In 1790, when Robert Hanson Harrison declined to take a seat on the first Supreme Court, President Washington decided to nominate Iredell as a gesture of appreciation of the persistence of that state’s Federalists in achieving ratification. With the staunch support of his brother-in-law, U.S. Senator Samuel Johnston, Iredell’s nomination overcame the reticence of northern senators. On May 12, 1790, at just 38 years of age, James Iredell became Associate Justice of the Supreme Court of the United States.

Justice Iredell penned only 12 decisions in the nine years he sat on the bench. Oyez writes that his lasting impact as a jurist might lie in his two dissenting opinions that drew stark lines in the sand for where the powers of the judiciary end. In Chisholm v. Georgia (2 US 419, 1793), Iredell was the lone dissent, insisting that no provision of the Constitution allowed individuals to sue states in federal court where there was no federal concern. His view proved to be the precursor to the Eleventh Amendment.

In another dissent in Calder v. Bull (3 US 386, 1798) , Justice Iredell authored the first Supreme Court opinion rejecting the use of “natural law” in striking down a legislative act. Iredell’s opinion held that only those actions of a state that explicitly violated a textual provision of the Constitution could be declared void. He opined:

The principles of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject; and all the court could properly say, in such an event, would be, that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”

Justice Iredell’s opinion in Calder helped establish the principle of judicial review five years before it was tested in Marbury v. Madison (5 US 137, 1803). The Supreme Court has followed Iredell’s approach throughout its subsequent history.

It is believed that the rigors of traveling the circuits proved too much for his health, and he died on October 20, 1799, at the age of 48.

Review of “The Supermajority: The Year the Supreme Court Divided America” by Michael Waldman

This book is replete with interesting and important information about the history and functioning of the US Supreme Court. It all leads up to Waldman’s contention that “Over three days in June 2022, the Supreme Court changed America.” It did so by overturning Roe v. Wade, putting all privacy rights at risk; by radically loosening curbs on guns; and by hobbling the ability of government agencies to act to protect public health and safety and the environment.

The Court, Waldman points out, was able to do this because of a “supermajority” of six very conservative justices, all appointed by Republican presidents, and of whom five were picked by a president who took office after losing the popular vote (but winning in the Electoral College). Furthermore, he argues, as have others, that while John Roberts is nominally the Chief Justice, the Court is dominated by Clarence Thomas.

The author explains the concept of “originalism,” the judicial philosophy that the conservatives claim to be guided by. They see their job, he avers, as going back in time to ask what the Founders meant to determine what Americans in 2022 should do. This means, however, that the Court “would only recognize rights … recognized by the white men of the 1700s and 1800s.” [Court Justices elide over the fact that Jefferson himself wrote, in 1816, that it was “absurd” to believe that “preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves; and that we, in like manner, can make laws, and impose burthens on future generations, which they will have no right to alter: in fine that the earth belongs to the dead, & not the living . . .” (Letter from Thomas Jefferson to William Plumer, then Governor of New Hampshire, July 21, 1816.)]

The strict originalism adhered to by the current Court, Waldman observes, is patently absurd:

The framers were from a different time – thank heavens! Many owned slaves, or abhorred democracy. Nearly all disdained women’s equality. Most Americans lived isolated in villages and farms. Why should their views govern in 2022?”

In truth, he suggests, “today’s justices are not conservative because they are originalists; they are originalists because it is conservative. They fly a flag of convenience.”

Waldman writes that the Dred Scott decision, now widely regarded as the worst decision in the Court’s history, “was in fact the first major originalist opinion.” The Founders only granted rights to white people in the country (and at that, only to white, property-owning men). The current Court seems intent on honoring that sordid history. (Waldman points out that Lincoln was a counter-originalist, believing that the country should look to the words of the Declaration of Independence, rather than to those of the Constitution, for guidance for what the governing principles of the country *should* be. The Constitution, Waldman clarifies, was “a careful compromise” and one that avoided the issue of slavery as much as possible in order to form a union out of disparate states sharply divided on the issue. Lincoln, by contrast, claimed the country was founded in 1776, the date of the Declaration, not 1787, the date of the Constitution.)

Alas, the Court for much of its history hewed to the words of the Constitution, not the Declaration, and by the 19th Century was “fully entrenched as a tribune for privilege and the status quo.” It wasn’t until 1938 that the Court, in a footnote to a case, United States v. Carolene Products Company involving adulterated milk, directed scrutiny to laws that had a deleterious effect on “particular religious, or national, or racial minorities” disadvantaged in a majoritarian system. Justice Harlan Stone pointed out that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” That is, because these groups are not only subject to prejudices, but usually lack efficacy in challenging the political process, they require extra protection in a democracy.

Justice Harlan Fiske Stone

One claim often made supporting originalism is that law is supposedly *neutral*, applying to everyone in an equal manner. However, when prejudices have been enshrined structurally and systemically, “neutrality” is a fatuous excuse to maintain the status quo and power structures as is. This philosophy totally ignores the dicta of the Carolene Products case, maintaining that whatever protections for minorities were established subsequent to the time of the Constitution should not apply. Thus, for example, Justice Kavanaugh, concurring in the 2022 Dobbs v. Jackson Women’s Health Organization et al. case that overturned Roe v. Wade, wrote that the Supreme Court must be “neutral” on the subject of abortion. But as the minority dissent maintained: “Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today.”

Any evolution in concepts of liberty and equality are ignored by the stringent originalism of the current Court, which decided to eliminate federal protections and send the issue back to the states. In the states, however, as Waldman observes, gerrymandering has produced unrepresentative legislative maps and a skewed Congress; the vitiation of the Voting Rights Act by the 2013 decision in Shelby County v. Holder, which has interfered with the ability of minorities to vote; and the 2010 Citizens United decision allowing boatloads of dark money to influence the political process, tipping the scales in favor of a despotic group of white Christian Nationalists intent on abrogating the rights of the kinds of minorities referenced by Carolene Products. Thus, as Waldman holds, “At times we need strong national standards because states are abusing the rights of their people.”

Waldman concludes, “That a small group of people has seized so much power and wields it so abruptly, energetically, and unwisely, poses a crisis for American democracy.” What can be done? Waldman reviews a number of steps that *could* be taken, although the odds are stacked against success. But the US Supreme Court has shown itself to be a *threat* to American democracy. This concern, Waldman says, should be at the center of our politics. As Wendy Weiser and Madiba Dennie recently wrote for the Brennan Center:

The fate of democracy in America depends on urgent intervention. The next two years are critical. To live up to the country’s proclaimed ideals, we must both fend off the current attacks and establish strong national guardrails so America does not succumb to resurgent antidemocratic and racist schemes. Efforts to outrun or out-organize vote suppression, gerrymandering, and election sabotage can last for only so long. Ultimately, it is Congress’s responsibility to protect against vote suppression and democratic backsliding. . . . The future of democracy in multiracial America depends on sustained public pressure by people who will not give up on equal representation.”

Evaluation: Michael A. Waldman is an American attorney and presidential speechwriter and political advisor, who is currently serving as the president of the Brennan Center for Justice at NYU School of Law, a nonprofit and nonpartisan law and policy institute. He is articulate and informed, and more passionately committed to justice for all than – apparently – is the majority of the current U.S. Supreme Court. I think this book should be required reading.

Rating: 5/5

Published by Simon & Schuster, 2023

August 3, 1791 – US Supreme Court Decides its First Case, West v. Barnes

West v. Barnes, 2 U.S. 401, was the first US Supreme Court decision and the earliest case calling for oral argument.

Although the Supreme Court first assembled in February, 1790, its early sessions were devoted to organizational proceedings.

This case was brought to the court by virtue of the US Constitutional provision (Article III, Section 2), permitting federal courts to hear diversity cases. (Diversity jurisdiction is a form of subject-matter jurisdiction that gives U.S. federal courts the power to hear lawsuits that do not involve a federal question but “to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.” Congress first exercised that power and granted federal trial circuit courts diversity jurisdiction in the Judiciary Act of 1789. Diversity jurisdiction is currently codified at 28 U.S.C. § 1332.)

William West was a farmer from Rhode Island. He owed a mortgage on his farm from a failed molasses deal in 1763 to the Jenckes family from Providence. He made payments on the mortgage for twenty years, and in 1785 asked the state for permission to conduct a lottery to help pay off the remainder. Due to his service during the Revolution, the state granted him permission. Much of the proceeds were paid in paper currency instead of gold or silver. West tendered payment in the paper currency as allowed by state statute, “lodging” the funds with a state judge to be collected within ten days.

David L. Barnes, a Jenckes heir living in Massachusetts, brought suit in federal court based on diversity jurisdiction asserting that gold or silver payment was required, and refusing the paper currency.

A miniature portrait of Barnes (c. 1789), via Wikipedia

West represented himself pro se in the circuit court in June 1791 before Chief Justice John Jay, Associate Justice William Cushing, and Henry Marchant. They rejected his arguments. West then pursued appeal to the Supreme Court on a writ of error, attempting to comply with all statutory directions. West was unable to make the onerous journey to Philadelphia to represent himself, so he engaged William Bradford, Jr., Pennsylvania’s attorney general, to represent him.

On appeal, Barnes focused on the procedural irregularities. Barnes asserted that the writ had been signed and sealed only by the clerk of the circuit court in Rhode Island instead of by the U.S. Supreme Court clerk, which he claimed as necessary. (The irregularity in this instance was in part a function of the difficulty of travel in those days.)

The Court decided the case unanimously on procedural grounds, on August 3, 1791, this day in history, holding that a writ of error (an appeal) must be issued within ten days by the Clerk of the Supreme Court of the United States as required by federal statute, and not by a lower court located closer to the plaintiff in Rhode Island.

Each of the five justices issued a seriatim opinion regarding the writ of error. Several of the justices expressed their reservations about the federal statute and suggested alternatives for filing within the ten-day statutory period, but nevertheless each justice refused to expand the meaning of the statute believing that only Congress had the power to do so.

Justice James Iredell was upset by the governing statute and wrote to President Washington to change the law, which allowed only the clerk of the Supreme Court to issue writs of error. The Process and Compensation Act of 1792 altered the law to prevent such hardships for future litigants.

Full text of the case is here.