Today in Legal History: The Switch in Time that Saved Nine: Roosevelt Announces Court Packing Plan, February 5, 1937

By 1937, President Franklin Delano Roosevelt (FDR) was becoming increasingly frustrated after the Supreme Court struck down several pieces of “New Deal” legislation intended to alleviate the worst problems of the depression.  FDR felt the best response was simply to make the current Supreme Court majority into a minority.  There is no constitutional provision for how many justices can sit at one time.

The court packing plan involved adding a justice for every justice over the age of 70 ½, which at the time meant six justices (Supreme Court Justices cannot be forced to retire).  Roosevelt announced the plan in one of his fireside chats.  This created an outcry and was met with resistance by Congress and the press.

Shortly after the court packing plan was announced, the Supreme Court unexpectedly changed voting patterns in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) and then again, in Carter v. Carter Coal Co, 298 U.S. 238 (1936).  This change became known as the “switch in time that saved nine.”

More information is available at:

  • FDR’s Fireside Chat
  • Nine Men; a Political History of the Supreme Court from 1790 to 1955 Fred Rodell (1955) (Law Library 4th Floor @ KF8748.R63)
  • The Supreme Court and the Presidency Robert Scigliano (1971) (Law Library 4th Floor @ KF8748.S34)

 

Today in Legal History: First session of first Supreme Court

The first session of the U.S. Supreme Court met on February 1st, 1790. President George Washington’s inaugural nominations were John Jay (Chief Justice), John Rutledge, William Cushing, John Blair, Robert Harrison, and James Wilson. The Court got off to a faltering start. Robert Harrison refused the nomination, John Jay was abroad attending diplomatic duties during much of his tenure, John Blair’s attendance at court was sporadic because of poor health, and finally John Rutledge, managed to sabotage his nomination to succeed John Jay as Chief Justice with an importune speech that cost him the support of many in Washington’s administration. The fact that he never attended a formal day of court probably didn’t do his nomination any favors either. The inaugural session of the Court was held at the Royal Exchange Building in New York. Unfortunately only Jay, Wilson and Cushing managed to show up. The new Court was hamstrung until Blair arrived the next day, thereby establishing the quorum necessary for conducting business. No cases were heard during that first session, it primarily involved admitting attorneys to practice before it. The inaugural session of the Supreme Court ended on February 10th, 1790. The new Supreme Court continued on its wobbly trajectory until John Marshall became Chief Justice and Marbury v. Madison was decided in 1803, establishing the Court’s power.

For more information, check out:


 

Today In Legal History: Roe v. Wade Decided

On January 22, 1973, the Supreme Court issued one of the most famous and controversial legal decisions of our era.  Justice Harry Blackmun authored the majority opinion in Roe v. Wade, which legalized abortion.  At the time, news of the decision was pushed off the front page of many newspapers when former President Lyndon B. Johnson died on the same day.  President Nixon had appointed Blackmun only three years before, thinking he would be a “quiet, safe choice.”  The Roe v. Wade decision, however, threw Blackmun into the limelight, where he was alternately adored or hated.

In his recent biography of Blackmun, Tinsley E. Yarbrough focuses on Blackmun’s concerns for “outsiders,” an attitude fueled in part by his own self-doubt and feelings of inadequacy, having grown up with a regularly unemployed father and anxious mother, in the humbler area of St. Paul, MN.  Reflecting on his initial days at the Court, Blackmun later confessed desperately wondering if he was qualified to grace the position.

More information is available at:

  • History.com
  • Tinsley E. Yarbrough, Harry A. Blackmun: The Outsider Justice, Law Library 4th floor @ KF8745.B555Y37 2008.
  • Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision, Law Library 4th floor @ KF228.R59W47 2005.
  • Marian Faux, Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal, Law Library 4th floor @ KF228.R59F38 1988.

 

Today in Legal History: US v. E.C. Knight Decided

January 21, 1895. The Sherman Anti-Trust Act was passed by Congress in 1890 to stop large monopolies from controlling commerce.  The justification for the Sherman Act was the Commerce Clause.  In US v. E.C. Knight, 156 U.S. 1 (1895) the ability of the Sherman Act was heavily curtailed.  The Supreme Court made a distinction between commerce and manufacturing.  If the manufacturing was done within a single state, the Commerce Clause did not apply.  Until the Clayton Act in 1916, sugar and other processing monopolies like the one in US v. E.C. Knight could not be controlled by federal powers.


 

Today in Legal History: Thurgood Marshall becomes First Black Supreme Court Justice

Thoroughgood “Thurgood” Marshall started work as Associate Justice of the Supreme Court on October 2nd, 1967. Marshall had been nominated by Lyndon Johnson after a distinguished career in civil rights, including arguing the landmark Brown v. Board of Education in 1954 for the NAACP. As a child, Marshall had attended a segregated school that sentenced children to read the Constitution as punishment. By the time Marshall left that school, he had the Constitution memorized. After his retirement in 1991, Marshall was replaced by Clarence Thomas. Marshall died in 1993.

For more information, check out:
• Martin Calabro, Great Courtroom Lawyers (4th Floor, KF372.C35 1996)
• Mark V. Tushnet, Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (4th Floor, KF8745.M34T87 1997)
• Juan Williams, Thurgood Marshall: American Revolutionary (4th Floor, KF8745.M34W55 1998)


 

Chemerinsky visiting SU Law on April 19

Erwin Chemerinsky is visiting SU Law as part of the Influential Voices lecture series. Chemerinsky is the dean of UC-Irvine Law School and is also a familiar name to law students because he wrote the textbook used in many constitutional law courses across the nation as well as the popular companion Constitutional Law: Principles and Policies, which we have in our law library (LAW-Reserve (KF4550.C427 2015).

Chemerinsky is presenting his new book The Case Against the Supreme Court on Tuesday, April 19 in Sullivan Hall Room C5 at Noon. A book signing and reception will follow.

The Case Against the Supreme Court is Chemerinsky’s eighth book. Released prior to the passing of Justice Antonin Scalia, in this book Chemerinsky argues for term limits and a reassessment of the institution. He is very critical of the Court and uses many examples to point out the how the justices are fallible and the Court’s opinions are often flawed.

 

Want to catch up on Chemerinsky before the big event, check out these books in our library:

Enhancing Government: Federalism for the 21st Century
Available at SU Law Library LAW-4th Floor (KF4600.C48 2008)

The Conservative Assault on the Constitution
Available at SU Law Library LAW-4th Floor (KF4550.C426 2010)

If you’re interested in Constitutional Law, you should also check out our LibGuide on the topic!


 

50 Years Ago: Miranda v. Arizona

Fifty years ago, the United States Supreme Court heard and decided the case Miranda v. Arizona. Today, “Miranda rights” and “Mirandizing” are parts of the country’s legal lexicon. The issues in the case involved custodial interrogations and a criminal defendant’s Fifth Amendment right against self-incrimination. The U.S. Courts website has a “Facts and Case Summary” page that discusses the four cases consolidated into the Miranda decision and the essentials of the Court’s decision. It also mentions that even though his original conviction was overturned, Miranda was subsequently tried, convicted and sentenced to 20-30 years in prison.


 

Supreme Court Nomination Process

It does not happen often but the President will soon be nominating a candidate to be the next U.S. Supreme Court Justice. This often contentious process is described in a research guide available from the Georgetown Law Library. The guide details not only the process, but the history of nominations and citations and (sometimes) links to source documents.


 

Judge Bork’s Supreme Court Nomination Rejected, October 23rd, 1987

With the resignation of Supreme Court Justice Lewis Powell, President Ronald Reagan hoped to place a prominent conservative jurist on the bench. From the outset, his choice of Judge Robert Bork of the U.S. Court of Appeals, D.C. Circuit was controversial. As U.S. Solicitor General, he fired special Watergate Prosecutor Archibald Cox on President Nixon’s orders in 1973. The event became known as the “Saturday Night Massacre”

Prominent liberal legislators and activists engaged in a vigorous opposition campaign. In a famous speech that later became known as “Bork’s America, “ Senator Ted Kennedy said “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.” President Reagan and conservative supporters considered the speech slanderous but they failed to manage a timely and effective response. Judge Bork’s nomination was rejected by a vote of 42-58.

To learn more:
• Ethan Bronner Battle for Justice: How the Bork Nomination Shook America (Norton 1989) LAW-Culp Collection (3rd Floor-Range 3A) KF8742.B74 1989
• Michael Pertschuk The People Rising: The Campaign Against the Bork Nomination (Thunder Mouth Press 1989) LAW-Culp Collection (3rd Floor-Range 3A) KF8742.P337 1989
• Mark Gitenstein Matter of Principle: An Insider’s Account of America’s Rejection of Robert Bork’s Nomination to the Supreme Court LAW-4th Floor KF8742.G57 1992


 

Today in Legal History: Sandra Day O’Connor Joins the Supreme Court

Sandra Day O’Connor Joins the Supreme Court, September 25, 1981

On September 25, 1981, Sandra Day O’Connor joined the Bench.  She had been nominated by Ronald Reagan, and was the first woman ever to become a Justice.  O’Connor would become a very important swing vote on many decisions, such as Lawrence v. Texas and Bush v. Gore.  She retired in 2005, her seat taken by Samuel Alito.

For more information, check out the following resources:

  • Sandra Day O’Connor, The Majesty of the Law: Reflections by a Supreme Court Justice, Law Library 4th Floor @ KF 8742.O274 2003
  • Joan Biskupic, Sandra Day O’Connor: How the First Woman on the Supreme Court Became its Most Influential Member, Law Library 4th floor @ KF8745.O25B57 2005
  • http://www.oyez.org/justices/sandra_day_oconnor Sandra Day O’Connor, Out of Order: Stories From the History of the Supreme Court
  • Robert Zelnick, Swing Dance: Justice O’Connor and the Michigan Muddle LAW-4th Floor    KF8742.Z44 2004