The Supreme Court, part 2

From 1990 until 1992 and from 2001-03, he was the Sullivan & Cromwell Research Professor; from 1994-97 the E. James Kelly Research Professor; and from 1999-2001 the Class of 1963 Research Professor. He has held visiting appointments at New York Law School, William & Mary School of Law, Brooklyn Law School, Arizona College of Law, the London School of Economics and Political Science, and Harvard Law School. He has been a Guggenheim Fellow, and twice a senior fellow of the National Endowment for the Humanities. He is a fellow of the American Academy of Arts & Sciences, a fellow of the Society of American Historians, and a member of the American Law Institute. He received the Roger and Madeleine Traynor Faculty Achievement Award in 2008.

White’s 14 published books have won numerous honors and awards. These include final listing for the Pulitzer Prize in history, the Silver Gavel Award from the American Bar Association, the James Willard Hurst Prize from the Law & Society Association, the Littleton-Griswold Prize from the American Historical Association, the Scribes Award and the Association of American Law Schools’ Triennial Coif Award. White’s books have garnered 15 such honors and awards since 1976.

White was editor of the Studies in Legal History series for the North Carolina Press from 1980-85, and advisor on law manuscripts for Oxford University Press from 1986-96. He was on the editorial board of the Virginia Quarterly Review from 1980-2002. He has served on the Commission for Undergraduate Education in Law and the Humanities, and has taught summer humanities seminars for lawyers and judges under the auspices of the National Endowment for the Humanities.

White has delivered several endowed lectures, including the inaugural John Marshall Lecture, sponsored by the Boston Bar Association; the inaugural Jerome Hall Lecture at Hastings College of Law; the Swinford Lecture, sponsored by the University of Kentucky School of Law and the Kentucky Bar Association; the Keck Lecture at Amherst College, the Rosenthal Lectures at Northwestern University School of Law; the Neesima Lectures at Doshisha University, Japan; the Fulton Lecture at the University of Chicago School of Law and the Knowlton Distinguished Lecture at the University of South Carolina School of Law. His most recent lecture was the 2010 Hendricks Law and History Lecture at Washington & Lee Law School.

White’s 1996 book, Creating the National Pastime: Baseball Transforms Itself, 1903-1953, reflects his life-long participation and interest in athletics. He lettered in four sports in college, formerly coached the Charlottesville High School girls soccer team, and has won a number of state- and citywide tournaments in doubles squash.

Dr. White became a member of the UVA faculty in 1972 having clerked for Chief Justice Warren of the Supreme Court. He was twice a Senior Fellow of the National Endowment for the Humanities, a Guggenheim Fellow, a Fellow at the Society of American Historians and a member of the American Law Institute. Professor White is the author of 14 books and numerous articles on law and legal history. He has won an impressive number of awards and honors including a final listing for a Pulitzer Prize in History. His many books include History and the Constitution, Collected Essays, The Constitution and the New Deal and The Marshall Court and Cultural Change, 1815 to 1835. Welcome again, Professor White.

Edward White: Thanks.

Jan Paynter: Professor, last time we were discussing the original structuring of the Supreme Court as referenced by Article III of the Constitution. We were talking about the duties and responsibilities of the original justices and most particularly the appointment by John Adams of John Marshall to be our fourth Supreme Court Justice and this in turn led—leading to the landmark case Marbury v. Madison in 1803 which first allowed the Court to overturn a law passed by Congress if it was deemed to violate the Constitution. Thus we introduced the role of the High Court into judicial review for the first time in our history. We talked about the subsequent back and forth, the contentious arguments which took place between Jefferson and Adams over the relative importance of the Federalist versus the Republican point of view. Define for us again if you would, Professor, the distinction between federalism and republicanism as it was understood in the late 18th, early 19th century.

Edward White: Well, the distinction starts with Washington’s administration. In the last phases of Washington’s administration, Alexander Hamilton and Jefferson emerge as spokespersons for different theories of the relationship of the federal government to the states. Hamilton basically taking the position that there should be a strong, aggressive federal government with a fair amount of control over state affairs. Jefferson taking the position that state autonomy was more important. And these political divisions eventually surface in the form of different political parties so that by the time that John Adams becomes president and for the duration of Adams’ presidency, Jefferson is in effect a leader of the opposition and then in the 1800 election Jefferson challenges Adams and he actually describes a political party that he heads as the Republicans. Adams is running as a Federalist. It’s a close election, it’s thrown into the House of Representatives and Jefferson wins. That means for the first time in American history that we actually have a partisan change in American politics so the Adams administration leaves town, Jefferson administration takes over and before Adams does he makes a number of appointments to the federal judiciary including John Marshall to the Supreme Court. So when Jefferson begins his administration, the division between Federalists and Republicans is in place.

Jan Paynter: Okay. As we saw last time with the Federalists prevailing over Jefferson, we were discussing this sort of pamphleteering and the bristling of the back and forth issues and the controversy that ensued. Tell us a little bit about the ways in which information was disseminated to the public at that time.

Edward White: One has to remember in this period that although there are newspapers and although newspapers circulate, the communication—modes of communication are limited. It takes a long time to get from one section of a country to another and so another way in which Americans—and of course there’s also no other sources of information. We don’t have television, we don’t have radio. So another way in which Americans get information is through local pamphleteering and what emerges in the period against the backdrop of partisan conflict are anonymous basically printers, people who own printing presses who then become—we would think of them as the equivalent of bloggers today, they’re issuing pamphlets on a variety of issues and they usually don’t sign them by their names. They usually sign them—they usually make illusions to classical, they’ll call them Tasitus or some figure from the classical period. And this pamphleteering is going on for almost the entire time in which Marshall is—when the Marshall Court is organized. That is between 1801 when Marshall starts and 1835 when he retires. There is constant pamphleteering critical of the Court, critical of the administration that goes on.

Jan Paynter: Now when you were mentioning references to Tasitus, would this presume that the people looking at the pamphlets were learned? Was that a privileged number of people therefore that were reading them?

Edward White: Yes, of course. Many people in the country can’t read at all.

Jan Paynter: Right.

Edward White: The educational system is fairly limited so these messages are circulated to elites but then they’re disseminated from elites to others. So the people will read the pamphlets and talk about the issues and that’s how other people in the population will become aware of them.

Jan Paynter: One of the things that I thought was very interesting—interesting in reading your book, you talked about the fact that at this time there were no written briefs. Decisions that were made by the Court were oral and therefore people didn’t necessarily hear a great deal about the decisions of the Court.

Edward White: Well, first as to the briefs, the Court did not have a requirement that lawyers who argued before it submit written briefs. They would often submit a one page summary of their argument.

Jan Paynter: I see.

Edward White: But even that wasn’t required. So one of the differences between the modern court and the Marshall Court is that the justices are taking notes while the lawyers argue and part of the reason they’re taking notes is because the lawyers are presenting them with sources for their opinions which they’re not getting in any other fashion. Now as to the dissemination of the Court’s opinions, there is a reporter for the Court. Originally this is a private entrepreneur who just decides that he will report and publish the Court’s opinions and try to make some money off it. Beginning in 1815, the Court gets an appropriation for a salaried reporter and from then on the reporter is paid. The reporter is charged with taking opinions that are in draft from the justices, written, handwritten, and editing them providing additional support, footnotes and so on, and then publishing them in reports that bear his name. So Henry Wheaton is the reporter for some of the Marshall period. The reports come out as Wheaton’s Reports. They don’t come out contemporaneous with the actual release of the opinion. The Court meets in a period, limited period from January to March and they hand down opinions. Sometimes the text of those opinions will appear in newspapers but more commonly the text will not be reported and it will not come out until many months later when the U.S. opinions are published and the people who read those opinions are a very limited number of people.

Jan Paynter: Okay. I see. It’s fascinating that a reporter would be involved in this process. I can’t imagine that today. You mentioned another thing after we filmed yesterday—last time about the fact that the justices really had very little weight of precedent before them, that they were freer than almost any other period after that to make law. There are obviously advantages and disadvantages to this from the point of view of a justice, the justices on the Court. Do you feel today, for instance, that our justices are somewhat overly constrained by the weight of precedent, what’s your feeling about that?

Edward White: There are just more—many more published decisions of the Court. In the Marshall Court period you don’t—you have—first of all you don’t have a long history of court decisions but you also don’t have a lot of published decisions so many cases the Marshall Court decides are raising issues for the first time. Of course the modern court has a long history of precedent.

Jan Paynter: Exactly so.

Edward White: The current court is self conscious about precedent. Indeed it’s now become fairly common for in cases where the Court is overruling a previous decision, Citizens United is an example, the case involved campaign finance, corporations’ ability to have unlimited expenditures. The Court’s justices take some time in that case to say why they’re overruling a precedent and how much weight they give to precedent. Marshall Court justices don’t do this at all.

Jan Paynter: Interesting. So the Marshall Court we know results in a somewhat larger footprint with respect to the powers of the Court and the federal government is the guardian of the law. The subsequent court, the Taney Court, how did Justice Taney react to the Marshall Court? Did he share Marshall’s views, did he diverge?

Edward White: Well, first of all he certainly doesn’t share Marshall’s views on the major issues, constitutional issues of the period. Marshall is an advocate of federal power, Taney is a strong advocate of state power. The Taney court from almost the beginning is affected by the relationship between slavery and westward expansion. This is the period—Taney’s on the Court from the 1830s to the 1860s. He’s still on the Court when the Civil War breaks out. His appointment was in 1837. That period is a period in which there is considerable westward population movement and which it’s discovered that slavery has the potential to flourish in the Trans-Appalachian and Trans-Mississippi West or at least in some sections. So the issue of how much power the federal government or the states will have with respect to slavery—remember there are lots of federal territories in this period. The United States has purchased a lot of land, a lot the area is held as a federal territory before states are created out of it and they’re the Union. The federal government takes the position it can outlaw slavery in the federal territories. It’s also understood that states control whether they want to have slavery or not once they become states of the Union. So there are a number of issues swirling around this. There’s also the problem of fugitive slaves and the Taney Court gets involved in all these issues. And so an issue that the Marshall Court’s generation managed to avoid, that is the future of slavery, is central for the Taney Court.

Jan Paynter: Yes, I’m guessing the Marshall Court did not get too much involved in civil rights issues and I know the Taney Court, at least from what I’ve read, Justice Taney believed that for instance the infamous Dred Scott decision that’s familiar to most of us, that this would help avert civil war to some degree and in fact it seemed to do precisely the opposite and shut down debate on the power of Congress to ban slavery. So what kinds of decisions subsequent to Dred Scott with respect to civil rights came up which were momentous?

Edward White: Well, the Taney Court assumed that if they could craft a definitive solution to the constitutional issues affecting slavery that that would, as you say, that would sort of stop the agitation. Dred Scott had just the opposite effect. The Republican Party in 1860 campaigned against Dred Scott and took the position that it was going to be opposed to any slavery in any further federal territories. The result eventually was civil war. Certain southern states that had a deep investment in slavery felt threatened, believed that the future political history of the country was going to be going against them because the population centers were in the north. As more states came into the Union, the balance between slave and free states was going to be disrupted. They thought the next effort would be eventually to put pressure on the South to abolish slavery. So we have the Civil War and then of course in the aftermath of the Civil War we have a Republican dominated Congress that institutes reconstruction and it’s at that point when we have the 13th, 14th and 15th Amendments and we have a new set of—using your language—a new set of constitutional liberties and rights. And then that sets the stage for a reorientation of American constitutional jurisprudence with a much greater emphasis on civil rights.

Jan Paynter: I was fascinated to read that in 1875 Congress actually passed a Civil Rights Act forbidding racial discrimination in public accommodations. The Supreme Court struck it down on the basis the power—had no power to regulate private discrimination. That was rather startlingly early and then obviously we kind of went back and forth in terms of this issue. We later have Plessy v. Ferguson and the famously the separate but equal ruling. Talk more about, if you would Professor, about the role of the 14th Amendment in shaping the High Court’s decision at this time.

Edward White: Well, remember the 14th Amendment is the product—is a product of a Congress that is deeply opposed to the South and anxious to impose a more egalitarian and libertarian regime in the South, is supportive of racial minorities to a limited extent. But then what happens is after the period about 10 years, just about the time of the passage of the Civil Rights Act, which is still very much influenced by reconstruction Congress, there’s kind of an effort to get past the Civil War, to welcome southern states back into the Union and the understanding is that the reintegration of the South is going to be done at the expense of liberties for African-Americans. So construction of the 14th Amendment not to apply in the Civil Rights Act, not to apply to private discrimination is part of that sort of tacit understanding. And this goes on well into the 20th century. It goes on into the 1920s. We still have enforced segregation as the dominate policy on all branches of the government in the 1930s.

Jan Paynter: How did the so-called Doctrine of Incorporation and applying the Bill of Rights to the states affect justices and decisions on the Court at the time?

Edward White: Well, it’s a very important move because the original text of the Constitution does not anticipate that the states are restricted by things such as due process rights. It is necessary to have the 14th Amendment with its own due process clause, with its equal protection clause and then the next question for justices is, does this mean that due process as opposed—as enforced against the states includes the original Bill of Rights guarantees and eventually the Court concludes that it includes some of them. Well, that’s very important because most of the restrictions of civil liberties take place at the state level rather than the federal level.

Jan Paynter: I see. Looking at the—moving ahead in time to the New Deal period in Roosevelt’s Court, just—I found this kind of interesting. Who are the Four Horsemen and the Three Musketeers on the Court? Obviously at this time you have much more—it seems a structure of polarization, conservative versus so-called liberal and swing votes that then prevails as the courts go forward and seems to be the basic makeup of the courts. Would you say that during the Roosevelt period this solidified a bit more and –so tell us about that if you would.

Edward White: No, the designation of justices as liberals and conservatives comes very late really in the commentary on the Court. Justices are not designated in that fashion until the 1930s and the designations come in the popular media. And they center around a controversy that emerges on the Hughes Court, how receptive are the justices going to be to New Deal legislation which enhances the power of the federal government and also to social welfare legislation at the state level? And so you get what is called—the terms the Four Horsemen and the Three Musketeers are journalistic terms to signify the attitude of some justices on the Hughes Court toward this—these issues. The Four Horsemen the Four Horsemen of the Apocalypse that is to say, portrayed as reactionaries who are resisting constitutional change, Justices Southerland, Van Devanter, McReynolds and Butler. And then you have three justices that are portrayed as sympathetic to the New Deal and to constitutional change, Brandeis, Stone and Cardozo. And then you have two other justices, Hughes and Roberts, who are given the label swing justices. Now these labels are vast oversimplifications. They neither capture the individual justices’ attitude nor are they—they are limited to a very small sample of cases. But they become kind of popular epithets and from then on the Court Justices are described and continue to be described–the Roberts Court Justices are described as “conservatives” or “liberals” even though those labels are vast oversimplifications.

Jan Paynter: So this was really in some ways as you said in the 30s with Roosevelt’s court period, the beginning of kind of hype and press labeling so—but not at all according to the reality of how the justices made decisions.

Edward White: It’s the beginning of an image of justices as political figures. It’s not that they were never thought of as partisan, they were. I mean, the commentary in the Marshall Court suggested people think the court is partisan. But the idea the justices are sort of no different in a way from Congressmen in their attitudes and that you can take constitutional cases and describe them in political terms is a 20th century phenomenon.

Jan Paynter: When I was reading Jeffrey Rosen’s book, a rather useful book on the Supreme Court, one of the things they mentioned in the overview is that in general terms, and obviously this is very general, from the Civil War to the New Deal era we moved more, as we talked about before the program, from a concern to—of—with property rights admiralty law to civil rights. Do you think this is a fair characterization of the graduate shift of the Court preoccupations in cases?

Edward White: Yes. I think that what he’s describing is a change from what I would call Republican to Democratic constitutional theory. In Republican constitutional theory the judiciary is a guardian of individual rights against the state and most of those rights are defined in terms of property rights. So the critical cases for that period are where states try to use the police power to restrict property rights. The move to Democratic constitutionalism suggests that majoritarian rule is important and the relationship between the United States as a democracy and freedom of expression for example is a critical way to define the United States from Hitler’s Germany and fascist Italy and communist Russia. So free speech particularly becomes a central concern for the Court in the 1930s and 40s. Property becomes less of a concern because the Court, that Court is more supportive of legislation that restricts some property rights.

Jan Paynter: Well, it’s interesting you bring up free speech. There’s a recent case which I believe the Supreme Court is going to take involving a Topeka, Kansas situation with a father of a Marine who was killed in Iraq and he is in a pitch battle really with a church out there because they tend to picket during funerals. This has been much in the news lately. And his argument of course is privacy issues and the church’s issue is free speech. And I—it’d be interesting to see—I know this started in October when the Court takes it and how they decide.

Edward White: Well, this actually—I don’t think this case, although it’s an unfortunate case but I don’t think this case is as difficult as it may be portrayed. It is clear that you can hold a rally and express your views on a public street. If that happens to be adjacent to where a funeral is taking place, that may be unfortunate but you can do it. There is a doctrine in free speech jurisprudence called public forum doctrine. That means essentially that there are designated areas where citizens can express their views and they tend to be public areas, streets and parks for example, and although the government can sometimes regulate these areas—for example, they can ask for a permit to speak in a park or they can say, ‘You can only speak in certain hours of the day’. Other than that, there’s not much control and they particularly cannot regulate the content of what is being said. So if these protestors stood outside the area where there was a funeral taking place and chanted, even if the chantings were highly offensive to the family holding the funeral or maybe even disruptive of the funeral, that speech is probably protected. Now if it tends to aggravate a breach of the peace or something that’s another matter. But if you just basically express your views, even though they may not be attractive ones, in a public forum, then—then there typically can’t be regulated.

Jan Paynter: Ah, so likely then that the justices, if they take the case, would rule in favor of free speech and the church.

Edward White: Unless—there may be some facts in the case that suggest that the protestors actually invaded the private property…

Jan Paynter: Oh, I see.

Edward White: …on which the funeral was taking place. That would be a different matter.

Jan Paynter: But failing that…

Edward White: Failing that—even though—again, even though these are offensive comments and clearly were directed at the family involved because their—it was the funeral of a person who had served in the military and so even though it’s clear that they would cause some distress, absent—the ability to show this was intention infliction of emotional distress…

Jan Paynter: Okay.

Edward White: I think the speech is probably protected.

Jan Paynter: I want to thank you for agreeing to be with us again today. I want to thank you at home for joining in on our discussion. We have posted a number of books on our website which relates to present and past programs at Politics Matters as well as interesting websites, columnists and blogs for—on both sides of the aisles for you to look at. Our website address is politicsmatters.org. We’d like to hear from you with all questions and concerns. For upcoming programs on Politics Matters you can email us at info@politicsmatters.org. Thank you. Until next time and thank you again Professor White, I’m Jan Paynter and politics matters.