Tag Archives: Supreme Court

On Reproductive Rights, Justice Jackson, & Skinner— at Georgetown & on C-SPAN

On June 1, the 80^th anniversary of the U.S. Supreme Court’s landmark decision in Skinner v. Oklahoma, I participated in a panel at Georgetown University Law Center on “The Unknown History of Reproductive Rights & Eugenics: From Skinner to Roe.”

In Skinner, the Supreme Court unanimously declared unconstitutional an Oklahoma law that provided for the sterilization of some thrice-convicted “habitual criminals.” Jack Skinner, a state prison inmate, won a decision that protected his reproductive capability and autonomy. The decision became an important starting point for constitutional law doctrines that protect individuals from government regulations and penalties in the areas of contraception, abortion, private intimacy, and other fundamental rights.

The panel is available on C-SPAN. My lecture, about Justice Robert H. Jackson’s concurring opinion in the case, other aspects of his judicial work, and his work as U.S. chief prosecutor at Nuremberg, begins at time counter reading 21:20.

https://www.c-span.org/video/?520685-1/history-reproductive-rights

Charles A. Reich (1928-2019)

Leave a reply

I am truly sad to report that former Yale law professor Charles Reich died last Saturday at age 91. He was a brilliant mind, a beautiful writer, a wise teacher, a sharp lawyer, a kind soul, and a dear friend and hero to many.

Here’s an obituary article in today’s NYT: https://www.nytimes.com/2019/06/17/books/charles-reich-dead.html.

Much will and much should be written about Charles Reich, his work, and his influence. Writers will emphasize The Greening of America, surely and properly—these are its closing paragraphs, a permanent creed of hope:

We have all known the loneliness, the emptiness, the plastic isolation of contemporary America. Our forebears came thousands of miles for the promise of a better life. Now there is a new promise. Shall we not seize it? Shall we not be pioneers once more, since luck and fortune have given us a vision of hope?

The extraordinary thing about this new consciousness is that it has emerged out of the wasteland of the Corporate State, like flowers pushing up through the concrete pavement. Whatever it touches it beautifies and renews, and every barrier falls before it.

We have been dulled and blinded to the injustice and ugliness of slums, but the new consciousness sees them as just that — injustice and ugliness —as if they had been there to see all along. We have all been persuaded that giant organizations are necessary, but it sees that they are absurd, as if the absurdity had always been obvious and apparent. We have all been induced to give up our dreams of adventure and romance in favor of the escalator of success, but it says that the escalator is a sham and the dream is real.

And these things, buried, hidden, and disowned in so many of us, are shouted out loud, believed in, affirmed by a growing multitude of young people who seem too healthy, intelligent and alive to be wholly insane, who appear, in their collective strength, capable of making it happen. For one almost convinced that it was necessary to accept ugliness and evil, that it was necessary to be a miser of dreams, it is an invitation to cry or laugh. For one who thought the world was irretrievably encased in metal and plastic and sterile stone, it seems a veritable greening of America.

They also will highlight his article “The New Property,” and how it led to the Supreme Court’s landmark decision in Goldberg v. Kelly.

There’s much, much more.

See each of Charles Reich’s books.

See everything that Charles wrote about the U.S. Supreme Court, including what he wrote about Justice Hugo L. Black, for whom Charles clerked during October Term 1953, the term in which the Court decided Brown v. Board of Education.

See the twenty-four (at least) deep and lyrical law review articles that Charles published between 1962 and 2010,

See this fine Twitter thread by Professor Karen Tani: https://twitter.com/kmtani/status/1140983478416052225.

Here is a blog where Charles Reich wrote and posted some things in the past couple of years: https://www.charlesareich.com/blog-1?fbclid=IwAR2ZHBkLCrS6DlJEEPLzdZb2RsUDM_ecjLtxfLIIUro8xfKz1d2wvAayO_o. In the “Observatory” section, see his great photos of his friend Justice William O. Douglas hiking alongside the C&O Canal, and a super photo of them sharing a look, a canteen, and smiles.

I recall some advice that Charles gave me about law professor scholarship (and really it is advice about literature, which Charles knew well, and which he believed that any serious writing should try to be.) He said that it is important to find worthy topics and do the very best that you can, with all that you know and with all that you can learn, from inside yourself, to write about them. I asked him what his topic had been, especially when he was getting started. He recalled spending a summer, I think it was the one after his first year of teaching, sitting in the Yale law library, working at a table covered with many books, writing “about America.”

He did it very, very well – he saw America, he loved it, and he improved it.

Barnette at 75

Leave a reply

Thursday, June 14, 2018, will mark the 75th anniversary of the decision by the Supreme Court of the United States, embodied in Justice Robert H. Jackson’s opinion for the Court, in West Virginia State Board of Education v. Barnette.

The Barnette decision, rendered amid the commendable patriotism that characterized the United States home front during that dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah’s Witnesses. In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag. For that refusal, they were expelled from school. Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, by a vote of 6-3, that the flag salute and pledge requirements violated the children’s First Amendment rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

A leading hero of the Barnette case, in addition to the children, their parents and their lawyer, was the Chief Justice of the United States, Harlan Fiske Stone. In June 1940, when Stone was an Associate Justice and U.S. involvement in the war in Europe was impending, he had dissented powerfully but alone from the Court’s decision to uphold Pennsylvania’s flag salute requirement. (At that time, Robert Jackson, who was U.S. Attorney General and a Supreme Court nominee, reported to President Roosevelt and the Cabinet on the anti-alien, anti-“fifth column” hysteria that was sweeping the country. Jackson criticized the Supreme Court for joining in that hysteria by ruling against Jehovah’s Witnesses in the Pennsylvania case.)

By June 1943, Stone had been appointed Chief Justice; new Associate Justices, including Jackson, had joined the Court; and a majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.

Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court’s opinion in Barnette. Although all of it bears reading (and regular rereading), some words to consider particularly closely are Jackson’s summary paragraphs:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

In the views of many, Barnette is a high point in U.S. Supreme Court history and one of Justice Robert Jackson’s very finest judicial opinions.

It was, in the United States in 1943, just a coincidence that the Supreme Court decided Barnette on “Flag Day.” In history, that coincidence is an added dimension of the decision’s teaching power.

* * *

Some links—

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
a 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;
a 2012 Jackson List post, “Arguing Barnette”—click here; and
a 2010 Jackson List post, “The Newest Barnette Sister”—click here.

—————–

This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/. To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Richard Goodwin, Husband of…

Leave a reply

A brilliant man, Richard N. Goodwin, died on Sunday at age 86. He was, famously, an aide, speechwriter, and policy assistant to Presidents John F. Kennedy and Lyndon B. Johnson, then a manager of Senator Eugene McCarthy’s 1968 New Hampshire primary campaign, and then an aide to Senator Robert F. Kennedy.

Earlier, Goodwin had been a top Harvard Law School student and then a law clerk at the U.S. Supreme Court to Justice Felix Frankfurter.

Goodwin also wrote noted, important books, and a play.

He also had a family. He had sons, and he was married for more than forty years to historian Doris Kearns Goodwin.

The Boston Globe, in its obituary headline yesterday, described Richard Goodwin as a “Kennedy speechwriter and husband to Doris Kearns Goodwin.” On reading that, I thought that the second half of it was odd—Dick Goodwin was a giant in his own right, not someone whose greatness since 1963 or across the span of his life was defined by his wife’s name, prominence, and accomplishments.

On further thought, I like it. In terms of name recognition and public visibility, at least in recent decades, Doris Kearns Goodwin outranked Richard Goodwin. By that measure, the Globe headline simply has things right.

I also like it as a measure of social progress. Think of all the women who, in years past, whatever their own accomplishments, got tagged in headlines and elsewhere as Mrs. Someone or Wife of Whomever. Think of all the men who were lifted to top billings, above their female partners, by reflexive gender privilege.

The Goodwin headline reminds us that none of that was right, and in that way it is a small sign that, in this regard at least, times are better. Every person is a life of its content. And each person might be partnered with another who brings added, and sometimes lots of added, value.

RIP and thank you for your great life, Mr. Goodwin.

President Reagan Against Political Gerrymandering

Leave a reply

I received yesterday the new memoir by Harold Burson, The Business of Persuasion. Now in his tenth decade, Harold is a giant in the field of public relations, co-founder of the global firm Burson-Marsteller, formerly an Armed Forces Radio Network reporter during 1945-46 at the international Nuremberg trial of the principal Nazi war criminals, a truly wise man, and, I’m very lucky to say, my friend.

I have only begun to read the book. So far it’s smooth and smart, filled with great stories and clear, profound life-lessons. Harold calls these his “Takeaways,” and he very helpfully itemizes these keys to success at the end of each chapter.

When I finish reading Harold’s book—which will be soon, because, as he writes in a first chapter Takeway, daily reading of good material is both a pleasure and wise—I plan to write more about it.

I’m writing now about a Chapter One nugget because it’s striking and timely.

As Harold Burson recounts, he was an important adviser and friend to President Ronald Reagan, especially in his post-presidency years.

October 10, 1984: Hugh Downs, Harold Burson, Jack Anderson, and President Reagan, at the White House launch of the Young Astronauts program

In 1989, Harold advised President Reagan, newly-retired and beginning to give talks to various audiences, to include in his speeches some bipartisan messages.

Reagan liked the advice. He then described two issues that had concerned him for a long time.

One was the Twenty-Second Amendment to the U.S. Constitution. Since the 1950s, it has limited presidents to two terms. Reagan, having been there, thought it was terrible that the Constitution makes every reelected president a lame duck. He preferred to trust the possibility of third terms to presidents’ sound personal decision making, and also to voters. He noted that he was glad that President Franklin Roosevelt had been able to run for a third term in 1940. (Reagan voted for him then, as he had in 1932 and 1936 and would again in 1944—F.D.R. was one of Reagan’s great heroes.)

The second concern that President Reagan voiced to Harold Burson was about the politicized methods that State legislative majorities use to draw the boundaries of Congressional districts. Reagan said, in substance—Burson is careful to note that he puts in quotation marks the substance, reconstructed from documents and memory, of what a person said, not his verbatim words—that

“[r]ather than leaving it to the politics of whichever party controls a state’s legislature, each state should have an independent nonpartisan commission whose sole responsibility is redistricting based on census results.” [Reagan] condemned gerrymandering; there should be geographic integrity in setting the boundaries of congressional districts. (p. 22)

Harold Burson agreed with the logic of President Reagan’s bipartisan—which is to say, really, his nonpartisan—position, and obviously I do too.

The U.S. Supreme Court currently is deciding the constitutionality of partisan gerrymandering in state legislative districts. The case, Gill v. Whitford, was argued last week, and the Court’s decision is expected in coming months. For information on the case, including briefs and a link to oral argument audio, visit this SCOTUSblog page:

Gill v. Whitford

The issue that concerned President Reagan, partisan gerrymandering of Congressional districts, is formally different from Gill v. Whitford’s focus on partisan gerrymandering of state legislative districts. But the issues raise substantively the same question—the district line-drawers are one and the same state legislators, holding majority power, legislating boundaries so as to maximize their party’s advantage beyond its candidates’ abilities to win votes at the polls.

As the Supreme Court considers Gill v. Whitford, I hope that it will heed President Reagan’s wisdom—if it’s not too late to “file” another “amicus brief” in the case, maybe this can count as his.

I’m grateful to Harold Burson for bringing it to our attention.

And you should buy and read his book!

Lecture, “Justice Jackson and His Brethren”

Leave a reply

Here’s video of the lecture that I gave at Chautauqua Institution on July 28, 2017.

This was the final lecture in Chautauqua’s week of lectures on the general theme, “The Supreme Court: At a Tipping Point?” Other lecturers during the week were Linda Greenhouse, Annette Gordon-Reed, Peter Onuf, Jeffrey Rosen, Akhil Reed Amar, Rev. Eugene Robinson, and Theodore B. Olson.

For the Chautauquan Daily’s lecture preview article, click here.

And here’s video of the my Q&A with audience members following the lecture:

A Word Against Smearing Supreme Court Justices

Leave a reply

Gabe Roth of the advocacy group Fix the Court published an Op-Ed essay, “The Supreme Court Is Being Hypocritical,” in today’s New York Times. He points to factual circumstances in various cases that the U.S. Supreme Court has decided recently or is considering. He argues that these facts and the concerns they raise (in his mind) apply not just to the litigants in those cases, but to the Justices too.

Mr. Roth calls these cases the Court’s “self-referential docket,” but really he’s criticizing what he sees as the Justices’ failures to reference themselves. He wants the Justices to see ethical issues in their own behaviors and, in response, to promulgate new rules to address them, and to behave in ways that he thinks would be ethically better.

Alas, his list of particulars is flawed. To wit:

Yes, Elena Kagan was Solicitor General of the U.S. before her appointment to the Court. But she did not “surely” have significant involvement as S.G. in Affordable Care Act cases. In fact, it is well-documented that she avoided them, perhaps because her judicial appointment was already impending when those cases began.

Yes, Justices and their family members do own stocks (as many, many people do, directly or at least indirectly). But the ideas that Justice Stephen Breyer or Chief Justice John Roberts—each rich beyond the point of having financial needs or concerns, by the way—cast votes in Supreme Court cases so as to raise their stock share prices is just outrageous. And so is the idea that Breyer, Roberts, or Justice Samuel Alito, or any justice, will cast a vote in a pending insider trading case so as to move financial markets in the justice’s favor.

Yes, the Supreme Court has not recently taken a case to review the constitutionality of a law banning certain protests on the plaza in front of the Court building. And yes, the Court in 2014 unanimously invalidated a state law barring protesters within 35 feet of abortion clinics (McCullen v. Coakley). But Roth’s implication that judicial self-interest explains these differing legal outcomes oversimplifies matters, vastly—as reading various Supreme Court and lower court decisions on these and other “buffer zone”/speech restriction laws will quickly demonstrate.

Yes, Justice Sandra Day O’Connor wrote for the Court, when it upheld Missouri’s age 70 mandatory retirement rule for its judges, that “physical and mental capacity sometimes diminish with age.” (No kidding.) And yes, Justice Antonin Scalia died last winter just before his 80^th birthday, and Justice Anthony Kennedy recently celebrated his 80^th. And Roth’s point? The idea that any Justices is forgetting his or her age and not monitoring his or her capacities is absurd. The implication that Justice Scalia had become too infirm to serve, or that any Justice now is, is insulting because it is refuted by their performances on the bench, which occur in public and then are preserved on audio tape, and in their written opinions.

Mr. Roth’s bad examples only weaken his meritorious arguments. Yes, the Court/the Justices could do much more to advance Court transparency and thus public appreciation for its performance. For instance, filming oral arguments and then making those films publicly available, routinely but perhaps after an interval of time, would improve public education without affecting much how the Court does its work.

It only sets back public discourse, and it probably makes the Justices less receptive to sound reform proposals, to claim falsely that the Court is broken.

“He’s Been Shot. HELP Him!”

3 Replies

I assume that when a police officer comes upon an injured, and especially a gravely injured, person, the officer typically calls for medical help (EMS) and then, while waiting for its arrival, provides whatever first aid and comfort the officer can.

This seems not to be happening in instances where the person has been injured by the police—and to be specific, where the person has been shot by the police. This New York Times story chronicles a number of incidents, captured on publicly-released video, where recent police shootings have been followed by groups of officers standing around, just looking at the shot, often dying, person.

Many things might cause this inaction. At the threshold, some situations and settings might be actively dangerous—a shot person is not automatically safe to approach or to touch. Some officers, especially shooters, might also be in a kind of shock, frozen in the moment. Some officers, not knowing much first aid, might feel unqualified to do anything. Some shooting victims are, possibly, so obviously “gone” that nothing will aid them. But some police inaction might be based in callousness, and in failures of trainers and commanders to encourage, direct and build human empathy.

We—society, and every police chief, and every individual officer—need to fix this. Policing, properly done, is about law enforcement. But it also is about caring for the community, and each person among us. We recognize this in our constitutional law: the Fourth Amendment prohibits unreasonable searches and seizures, including touching and handling persons, but it is objectively reasonable for police officers to engage in searches and seizures when they are trying to help an injured person. (See Chief Justice Roberts’s 2006 opinion for the unanimous Supreme Court in Brigham City v. Stuart.)

Yes, it can be constitutionally reasonable for the police to seize a person by, for valid reasons, shooting him or her—that is the lawful use of deadly force. But even after a lawful seizure of a person, the government may not arbitrarily cause suffering. (Think of a convicted criminal lawfully incarcerated. The government has seized him. But it may not then torture him or, without reason, deny him basic attention, care and sustenance.)

I have never come upon a shooting victim. But I have seen injuries, and I have been injured—as you have too. As a bystander, I’ve tried to help—to perform modest first aid, to speak words of comfort, to stay at the side of the person in pain. As a victim, I’ve received the first aid, the kind words, the held hand, and I’ve been grateful. It seems a basic thing that makes our world decent.

Our cops—our community caretakers—should jump in to care for injured people as much, as often, as reflexively, as they jump into situations to enforce our laws. I believe that this instinct is already in most cops as people, or it was. It should be reignited, trained, encouraged, rewarded, applauded.

Every victim of violence is a person whom the police have, commendably, sworn to protect.

Robert B. von Mehren (1922-2016)

Leave a reply

Robert Brandt von Mehren, one of New York’s and the nation’s leading lawyers, especially in the field of arbitration, died on May 5^th at age 93. He was a retired partner in the Debevoise & Plimpton law firm, a Manhattan and Martha’s Vineyard resident, and a man of brilliance and, I found, charm and kindness.

In recent years, I spoke and emailed a few times with Mr. von Mehren as I was researching and writing an essay, “No College, No Prior Clerkship,” on James M. Marsh, Justice Robert H. Jackson’s 1947-1949 law clerk at the U.S. Supreme Court. (Click here for an abstract of the essay, and click here to buy the new book, Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices, in which my essay appears along with many strong pieces and a range of fascinating material.)

I contacted Mr. von Mehren because he was a cameo player in the process by which Justice Jackson hired Jim Marsh.

In 1946, von Mehren was clerking for Judge Learned Hand at the United States Court of Appeals for the Second Circuit. Prior to that, as a Harvard Law School student, von Mehren compiled a tremendous academic record, including serving as president of the Harvard Law Review. Unbeknownst to von Mehren, someone—probably Jackson’s incumbent law clerk, Murray Gartner, himself a former Harvard Law Review president—had flagged von Mehren for Jackson’s consideration to be Gartner’s successor as Jackson’s law clerk. Jackson was (properly) very impressed with von Mehren’s credentials, but in the end Jackson ranked von Mehren second to Marsh and hired him.

This all was news, and interesting, to Mr. von Mehren. He told me that he never applied to or interviewed with Jackson.

It all worked out. Justice Stanley Reed hired von Mehren to be his law clerk in that Supreme Court year (October Term 1947). As Reed’s clerk, von Mehren got to see Justice Jackson and all of the Justices of that era (Vinson, Black, Frankfurter, Douglas, Murphy, Rutledge and Burton were the others) in action. And von Mehren got to know and like Jackson’s clerk, Jim Marsh.

Von Mehren during his clerkship

with Justice Reed

Von Mehren’s path was a notable rise from remote beginnings. He and his identical twin brother Arthur were born in Albert Lea, a city in southern Minnesota, in August 1922. The boys grew up fluent in English, of course, and in Danish and Norwegian (hat tip: Daniel R. Coquillette). (Ninety-two years later, I could hear a trace of that—Robert pronounced his name “fun-MAY-won” in a soft European accent).

In high school, Robert won a scholarship to Yale University, from which he graduated summa cum laude. At Harvard Law School, he graduated magna cum laude. After clerking for the great Judge Hand and for the very capable Justice Reed, he became associated with Debevoise, his professional home for most of his career. (Luckily, because it’s more and worthy information, his law firm webpage is still “up”—click here.)

(And Arthur? He attended Harvard University and then, with Robert, Harvard Law School. He also earned a Harvard Ph.D. in Government, joined the Harvard Law School faculty, and became one of its giants—click here for one memorial and here for one obituary following his death in 2006.)

For more on Robert von Mehren’s accomplished and full life, click here and here.

May he rest in peace.

President Bush’s 1990 Appointment of Justice David Souter

Leave a reply

A blog post by Anton Piatigorsky caught my eye. It repeats, in part, the fairly widespread belief that when Justice William J. Brennan, a leading, long-serving liberal justice, retired from the Supreme Court in 1990, President George H.W. Bush looked to replace Brennan with a stealth arch-conservative. Former Governor John Sununu, from New Hampshire and then Bush’s White House chief of staff, has said as much. And, the belief continues, the eventual Bush nominee, then-Judge David Souter, also of New Hampshire, turned out to be a huge disappointment if not a traitor to how he presented himself to the president and why he (Souter) was nominated.

I don’t think that holds up. For example, I don’t think that President Bush ever said that that’s what he sought in Souter. I also don’t think that there is evidence that that is the vetting and assessment of Souter that occurred at the president’s level.

What Bush was seeking was, by all accounts, a problem-free, no paper trail, quality, Republican-type nominee—who, yes, as a replacement for Justice Brennan, almost by definition had the potential to shift the Supreme Court rightward.

Tinsley Yarborough describes in his biography of Justice Souter (click here) how Sen. Warren Rudman of New Hampshire, Souter’s old boss and close friend and also a friend to Sununu and President Bush, was Souter’s principal recommender and really the cause of his nomination. Sen. Rudman was a Republican but not of the slash/burn type; in fact, in many instances he was quite moderate and non-partisan.

As Yarborough recounts, Rudman suggested the Souter nomination to Sununu and Bush and it all rolled quickly from there, including that no one ever vetted Souter for or had a basis to determine that he would be the determined anti-Brennan. Based on the historical record (such as we can see it), while many on the farther right were disappointed in the jurist that Justice Souter turned out to be, I’m skeptical that President Bush is or that the late Senator Rudman was in that group. And I’m very skeptical that they would have a basis, given how Souter was vetted and picked, to feel that way.

In picking Justice Souter, President Bush went for huge smarts, relevant experience and no paper trail. He wanted a problem-free nominee and he got him. Bush never asked litmus test questions—which Souter would have refused to answer anyway.

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this: