January 12, 1932 – Oliver Wendall Holmes, Jr. Retires from the U.S. Supreme Court

Oliver Wendell Holmes, Jr. was born in Boston in 1841. He graduated from Harvard, served in the Civil War (wounded three times), and then returned to Harvard for law school.

Daguerreotype showing Holmes in his uniform, 1861

Daguerreotype showing Holmes in his uniform, 1861

After graduating, he entered private practice. Then he returned to Harvard once again, this time to teach constitutional law. He also published a treatise, The Common Law. He served twenty years on the Massachusetts Supreme Court. In 1902, President Theodore Roosevelt nominated Holmes to the Supreme Court, a position for which he was confirmed without objection two days later.

In the year of his appointment to the United States Supreme Court

In the year of his appointment to the United States Supreme Court

Holmes served as Associate Justice from 1902 to 1932, and in 25 of his 29 years on the Court, never missed a session. Today, he is one of the most widely cited United States Supreme Court justices in history, particularly for his “clear and present danger” opinion for the unanimous Court in the 1919 case of Schenck v. United States. He retired from the Court at the age of 90 years on this day in history.

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The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America by Thomas Healy is a very thought-provoking account of how Justice Holmes altered his position on freedom of speech to pave the way for the more liberal interpretation of the First Amendment we now regard as canonical. In the short period between his decisions in Schenck v. United States, Frohwerk v. United States, and Debs v. United States, and his decision in Abrams v. United States, Holmes changed his mind and changed the law.

It’s an interesting and important story for several reasons. One is the view it provides of the rather astounding effect that one Supreme Court Justice can have on the law of the entire country.  Holmes’s famous dissents arguing for an expanded view of First Amendment freedoms were not as well-written as those of Brandeis, to name but one other advocate who wrote more clearly, but it was Holmes, with his far-reaching influence and “force of personality” that affected the public consciousness, and, as Healy writes, “gave the movement its legitimacy and inspiration.” 

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A second reason this story fascinates is the documentation of just how and why Holmes was influenced by his friends – a group of young intellectuals who came under government suspicion because of their backgrounds and liberal tendencies rather than because of any danger – either from intent or from effect – of their speech.

Finally, there are the compelling philosophical issues about the First Amendment itself over which Holmes struggled:  where should the line be drawn for freedom of speech?  If the country is at war, must “all rights of the individual… become subordinated to the national rights in the struggle for national life” as one critic argued?  Should war make a difference?  If so, why? What if the war itself is unjust?  And what about the difference between the intent of speech and its effect?  Is it fair to ignore one or the other?  

So what exactly happened between Schenck, decided March 3, 1919, and Abrams, decided November 10, 1919? This entertaining book by Healy answers that question.

Holmes was not initially in favor of toleration of other opinions. He didn’t believe in “natural rights.” (He had just recently written, “…there can be no legal right as against the authority that makes the law on which the right depends.” Kawananokoa v. Polyblank.) Also in 1907, his opinion for Patterson v. Colorado enshrined into law a “Blackstonian” view of free speech, which insisted that the purpose of the First Amendment “was to prevent all such ‘previous restraints’ upon publications as had been practiced by other governments, but not to prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” (After publication, however, as the author commented, “all bets were off.”)

But Holmes had a number of very close friends – young, mostly Jewish intellectuals, a couple of whom he considered to be like his sons. Included among them were Harold Laski, Felix Frankfurter, Zechariah Chafee, and Louis Brandeis. These men had much more liberal ideas than Holmes on a wide array of subjects, including free speech, and they plied him with books to show him how their thinking had evolved. He happily read them, and engaged in debate with his friends, but resisted change.

Justice Felix Frankfurter

Justice Felix Frankfurter

However, after World War I, the mood in the country took a turn for the worse. A “Red Scare” following the Russian Revolution swept America. Congress passed the Espionage Act in June 1917 and the Sedition Act in the spring of 1918. U.S. officials, led by the Attorney General and a young J. Edgar Hoover, who in 1919 was put in charge of the “Radical Division” at the F.B.I., eagerly stoked the flames, embarking on witch hunts for anyone deemed “suspicious”. The Washington Post, reflecting the mood of the nation, wrote, “Too long the government pursued the policy of waiting until some overt act was committed before talking steps against the anarchists…” And as the author pointed out:

Many of these [suspect] people, it was said, were teaching at universities, where they could corrupt the minds of the young. Many others were immigrants, particularly of Jewish ancestry. And for those unfortunate individuals who were both university professors and Jewish immigrants, well, the presumption of guilt was nearly automatic.”

Laski, Frankfurter, and Chafee were professors at Harvard, and Brandeis was on the Supreme Court. Brandeis enjoyed relative immunity compared to the others, who soon found their careers in jeopardy. This was probably the best thing that happened to free speech. As Healy observes after Laski came under fire:

For now what had been merely an abstract question for Holmes over the past year was, suddenly, concrete and personal. The face of free speech was no longer Eugene Debs, the dangerous socialist agitator. It was his good friend Harold Laski, and Holmes’s views shifted accordingly – and dramatically.”

Harold Joseph Laski in 1946.

Harold Joseph Laski in 1946.

It wasn’t just a case of Holmes liking these men and therefore feeling disposed to advocate on their behalf. He knew they posed no threat to the country, and that their ideas were not threatening but stimulating, and grounded in centuries of philosophical and legal debate. He argued in Abrams not only that one needn’t worry because “bad” opinions would suffer accordingly in a free marketplace of ideas. He went farther, disavowing the idea that free speech is inapplicable during times of war, reemphasizing the “clear and present danger” criterion he had first articulated in Schenck. He had come to see the raft of cases brought under the Sedition and Espionage Acts as part of the government’s effort to impose uniformity of belief, and he opposed that effort. In yet another dissent, he wrote:

…if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”

He still felt that “persecution for the expression of opinions seems…perfectly logical.” But now he added – as John Stuart Mill had maintained in On Liberty, a book recommended to him by Laski – that opening up beliefs to refutation will only strengthen them if in fact they cannot be proven to be unfounded.

Evaluation: This is a highly interesting story and well-told, except, that is, for the prologue and first chapter. I thought the book would have been enhanced by omitting those two portions. Also, the author somewhat bizarrely and irrelevantly, as far as I could tell, decided to add information about Holmes’ love life. I saw no possible reason for it to be included.

Rating: 4/5

Published by Metropolitan Books, 2013

Book Review of “The Nine: Inside the Secret World of the Supreme Court” by Jeffrey Toobin

Books about constitutional law and court cases can be abstruse or fascinating, and this book definitely falls into the latter camp. Toobin does a terrific job of weaving the stories of the personalities of the recent Supreme Court into a review of the decisions they have handled. In particular, he focuses on cases challenging Roe v. Wade, affirmative action, gay rights, executive privilege, and other issues that now divide the country.

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Toobin maintains that the Constitution’s flexibility allows ideology to trump precedent. He avers:

…when it comes to the incendiary matters that come before the Court, what matters is not the quality of arguments but the identity of the Justices.”

Therefore, he concludes,

…one factor only will determine the future of the Supreme Court: the outcome of presidential elections.”

He explains how and why each of the recent Justices got the presidential nomination, and what the appointments have meant for the Court and the Country.

It is downright scary to hear Toobin’s story of how the far right, through such organizations as the Federalist Society, successfully pushed its agenda onto the Court, even before the more active intervention of monied groups today. Sandra Day O’Connor’s abhorrence of the direction taken by the Republican party helped push her to the left of where she started out. As a result, she took a key role in tipping decisions 5-4 toward the more liberal end of the spectrum. When she left the Court to take care of her ailing husband, the only person remaining who was even close to the “middle” was Anthony Kennedy.

Toobin has wonderful anecdotes to share about the justices, although he clearly knows the most about those who have been there the longest. And he didn’t seem to have many insights into the character of Clarence Thomas at the time of this book’s writing. But the information he does have on the justices is riveting, and Toobin’s writing is clear, sharp, and consistently entertaining.

Verdict: Read this book!

Rating: 4/5

Published by Doubleday, an imprint of The Doubleday Broadway Publishing Group, a division of Random House, Inc., 2007

December 12, 2000 – The Supreme Court Decides Bush v. Gore

After the ballots were counted in the 2000 presidential election, Al Gore was leading George W. Bush in the popular vote, and Gore was also leading in the electoral college vote. But the Florida vote was so close (Bush leading, but with a margin of less than 0.5 percent) that Florida law required a machine recount. The machine recount narrowed Bush’s lead to 327 votes out of almost six million votes cast. Gore then requested a manual recount in four Florida counties, where there were widespread complaints of voting machine malfunction, such as “hanging chads” and “dimpled chads.” Florida law required a manual recount to be completed within seven days, leading three of the counties to request more time.

President-elect George W. Bush meets with Vice President Al Gore at Gore's official residence in Washington, Dec. 19, 2000. (Credit: AP/J. Scott Applewhite)

President-elect George W. Bush meets with Vice President Al Gore at Gore’s official residence in Washington, Dec. 19, 2000. (Credit: AP/J. Scott Applewhite)

Florida’s Republican Secretary of State, Katherine Harris, refused. Gore fired a lawsuit, and after a flurry of legal claims and counterclaims, the U.S. Supreme Court agreed to review the case expeditiously.

The Court observed:

The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §1, cl. 2, of the United States Constitution and failing to comply with 3 U.S.C. § 5 and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.”

On December 12, 2000, the Supreme Court, in a 5-4 “per curiam” (non-specially authored) decision, Bush v. Gore (531 U.S. 98, 2000), ruled that the Florida Supreme Court’s recount order was unconstitutional because it granted more protection to some ballots than to others, violating the Fourteenth Amendment’s Equal Protection Clause. The Court declared that the order contained standardless and unequal processes to divine the “intent of the voter” that were above and beyond the settled processes required by Florida election law.

George W. Bush became the de facto winner of the presidential contest. The five justices in the majority were all Republican appointees. In his dissent, Justice John Paul Stevens wrote:

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

I respectfully dissent.”

Associate Justice of the Supreme Court of the United States John Paul Stevens

Associate Justice of the Supreme Court of the United States John Paul Stevens

The nation took the lesson to heart. In the 2016 presidential election, the ability to name justices to the Supreme Court became a major factor for voters in deciding between the two candidates.

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

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

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

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

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

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

Thurgood Marshall in 1957

Thurgood Marshall in 1957

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

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

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

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

Justice Hugo Black

Justice Hugo Black

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

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

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

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

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

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

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

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

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

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

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

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

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

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

However, he stated:

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

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

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

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

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

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

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

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

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

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

Justice Anthony Kennedy

Justice Anthony Kennedy

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

Dana Milbank, writing for the Washington Post, opined:

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

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

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

 

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

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

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

Associate Justice Clarence Thomas in September 29, 2009

Associate Justice Clarence Thomas in September 29, 2009

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

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

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

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

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

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

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

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

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

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

Justice Thomas

Justice Thomas

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

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

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

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