Andrew Burns

AP U.S. Government and Politics

Mrs. Erickson

April 13, 2009

The Supreme Court: The Empire of Men

The ancient Roman historian Livy wrote long ago that prosperous and glorious times

were to be observed whenever ―imperia legum potentiora fuerunt quam hominum‖ (―the rule of

law was stronger than that of men‖) (qtd. in Sellers 69), a quote which James Harrington

paraphrased as an ―empire of laws, and not of men‖ (18). More than a century later, American

Revolutionary and future president John Adams used similar terminology when examining the

status of the American colonies within the kingdom of Great Britain, writing: ―[t]hey [the British]

define a republic to be a government of laws, and not of men. If this definition be just, the British

constitution is nothing more nor less than a republic‖ (Adams 82). But, though the British and

American governments might generally be considered governments of law, the Supreme Court is

most certainly an empire of men, men with great ambition, great vision, and great influence.

While the evolution of the Supreme Court has been marked by oscillating political proclivities,

in every era, the body has adhered steadfastly to its unspoken motto that ―quod principibus

placuerunt, legis habet vigorem.‖ (―What pleases the rulers has the force of law.‖) With such

power comes great responsibility, not only to respect the Constitution, for to show disrespect is

abominable; but the responsibility to know what is proper, for what is improper is abhorrent; and

what is prudent, for what is imprudent is reckless; and what is neither, for to be neither is to most

certainly ―shock the conscience.‖ It is thus my purpose to briefly examine the ―emperors‖ of this

great body, explore the body’s genius and evaluate its impact on America.

It is best that this examination begin from the beginning. Though many assert that the

Supreme Court was but a feeble branch before the Marshall Court, it is only proper that the

decisions of the preceding courts be examined. The first ―emperor,‖ if I may so stylize it, was

Justice John Jay. When Washington began to fill the federal judiciary, he gave Jay the choice of

any federal judgeship he liked. Jay responded that he would appreciate being the Chief Justice of

the Supreme Court, a position that Washington promptly granted him. Only two cases of any

note arose from the Jay Court: Ware v. Hylton and Chisholm v. Georgia. The first, which

happened to feature John Marshall arguing on behalf Hylton, involved Congress’s treaty powers

(Carson 170). A British creditor, John Tyndale Ware, sued citizens of Virginia, most

prominently Richmond merchant Daniel Hylton, over debts contracted prior to the Revolutionary

War. Hylton, through Marshall, argued that Ware no longer had any right to the debt because

Virginia had seized the debts as belonging to enemy creditors under a 1777 sequestration law

and that Hylton had already made partial payment to the state, the owner of the confiscated debt,

thus discharging him of any obligation to Ware. In response, Ware pointed to the Treaty of

Definitive Peace of 1783, the treaty ending the war with Britain (Butler 6; Robarge 13). He

argued that the Treaty and ratification thereof by Article IV of the Constitution rendered the

treaty the ―supreme law of the land,‖ superseding any state laws to the contrary. In a four to one

decision, the Court agreed with Ware, ruling that the Federal Government’s treaty-making power

trumped any legislation, past or future, that conflicted with it (Butler 7). Chisholm v. Georgia

dealt with sovereign immunity of states under the Constitution and precipitated a new

amendment to the Constitution. Alexander Chisholm, executor of the estate of Robert Farquhar

attempted to sue the state of Georgia in the Supreme Court over payments due to him for the

goods that Farquhar had supplied Georgia during the Revolutionary War. In this unusual case,

the United States Attorney General Edmund Randolph argued Chisholm’s case and Georgia

refused to send representation, asserting sovereign immunity. In another four to one decision, the

Court held that Article III, Section 2 of the Constitution abrogated states’ sovereign immunity

recognized under common law. As such, the Court essentially granted its imprimatur to private

actions against states (Urofsky 267; Carson 170-1). The Chisholm decision created such a rancor

that only two years after the ruling the Eleventh Amendment was added to the Constitution to

restrict such private suits against states (Urofsky 267-8).

The next Court dynasty, the Rutledge Court, though extremely brief, expanded the

Court’s constitutional authority to issues of citizenship and created the doctrine of two

citizenships with Talbot v. Janson. Ballard, a Virginian, renounced his Virginia state citizenship

in accordance with Virginia’s expatriation act and traveled to the French West Indies. Talbot,

also from Virginia, likewise traveled to the French colonies. While serving under a French

commission, the pair captured a Dutch brigantine owned by Jansen. Since the United States had

passed the Neutrality Act of 1794, Jansen was entitled to sue Ballard and Talbot for restitution,

which he did successfully. On appeal to the Supreme Court, Ballard argued that his renunciation

of his Virginia citizenship was sufficient for expatriation from the United States and that his

claim of French citizenship was sufficient to remove him from any obligations that might

encumber him as an American (Urofsky 389). Talbot also argued that just by leaving the United

States and claiming French citizenship, he was likewise unencumbered. The court disagreed and

ruled unanimously in favor of Jansen. In their opinions, the Justices generally agreed that a

citizen is entitled to expatriate himself, so long as he shows intention to do so with an overt act,

such as removal from the country and continued residence in a foreign land (Michigan Law

Review 234). With regard to Ballard, the Justices ruled that relinquishing one’s state citizenship

does nothing to relinquish one’s national citizenship and since Ballard seemed to have no

intention of doing so, he was still in fact an American citizen—Americans possess two

citizenships. Furthermore, in the case of both Ballard and Talbot, the court reasoned that since

the relinquishment of citizenship was motivated solely to commit an act otherwise illegal under

U.S. law, i.e. capturing the ship of a friendly nation, it was invalid (Sergeant 319). Talbot is

important because it is one of the first instances of the Court grappling with the issue of state,

national and foreign citizenship.

Following the tenure of Rutledge, Oliver Ellsworth ascended to the Chief Justiceship of

the Supreme Court. With a puny four year tenure, the Ellsworth Court is often overshadowed by

its successor. Nevertheless, the court amassed significant ―territory‖ during its short existence.

First among these was Hylton v. United States, the first case in which the Court recognized its

power of judicial review, a power it would exercise nearly a decade later. The Hylton case grew

out of the Carriage Tax Act of 1794, a federal duty passed to raise revenue for expanding the

United States’ defensive capacity as tensions with Great Britain grew (Marcus 358). Hylton sued

the United States, arguing that Article I, Section 9 prohibited the government from enacting what

he called an unapportioned ―direct‖ tax. The Court disagreed, holding that no tax could be direct

unless it was amenable to apportionment. The Court reasoned that while the apportionment of

property tax rates between the states was perfectly reasonable, the apportionment of carriage

taxes would leave some states burdened with outrageous carriage rates and others with virtually

no tax at all. Justice Chase went further, saying that only two direct taxes existed under the

Constitution: capitations and property taxes, and that the carriage tax was merely a type of duty

(Carson 178). This landmark case is significant in establishing a broad standard for federal

taxation powers, a standard that would stand untouched for a hundred years until Pollock. The

second Ellsworth case of any notability is that of Calder v. Bull. Calder claimed a piece of land

that had been left to Bull in a disputed will. A probate court found the will to be invalid; however,

the legislature ordered a judicial rehearing after which the will was upheld. Calder appealed to

the Supreme Court, arguing that the legislature’s actions constituted an ex post facto violation. In

a unanimous decision, the court rejected Calder’s argument. Justice Chase argued that the federal

prohibition of ex post facto laws only prohibited retroactive criminal penalties. The Court felt

that while retroactive criminal laws were always unjust, retroactive civil laws could be

acceptable. In response to fears that reading the clause as only applying to criminal cases might

lead legislatures to simply create laws expropriating one persons property to give to another

(York 147), Chase claimed that certain unenumerated ―vital principles‖ existed among members

of a society that would prohibit a gross abuse of the legislative authority (Siegan 98). That the

issue of ex post facto law has not been adjudicated since makes Calder one of the Ellsworth

Court’s most significant legacies.

Alas, we reach the famed Marshall Court, a Court of immense length, spanning 34 years.

The Marshall Court is quite well known, not only for its lengthiness, but for its landmark

decisions, particularly that of Marbury v. Madison, the case solidifying the Court’s power to

determine the constitutionality of federal legislation. As with most interesting and landmark

issues, the case began with political tension. After his defeat by Jefferson, John Adams

scrambled to solidify Federalist doctrine, a doctrine that was slowly crumbling under the assault

of the triumphant Jeffersonian Democrats. He made numerous appointments, and filled the

federal judiciary, including the Supreme Court, with Federalists or Federalist sympathizers,

among these being John Marshall. William Marbury was also among the numerous nominations,

chosen by Adams to be justice of the peace in Washington and receiving senate confirmation in

the last days of the Adams administration. The new Jefferson Administration failed to deliver his

commission and refused to deliver the commission after numerous petitions to the secretary of

state. A year into the Jefferson Administration, Marbury filed an original action in the Supreme

Court seeking a writ of mandamus to compel Secretary of State Madison to deliver his

commission. Caught in a legal and ethical quagmire of political interests (Marshall had been the

former secretary of state), Marshall sought to find a solution. It is this solution that makes the

case so significant. In a unanimous decision, the Court decided that it was incapable of issuing

the writ for lack of jurisdiction, that the Judiciary Act of 1789 that gave it the jurisdiction was in

direct conflict with Article III of Constitution, and that said act is unconstitutional. Interestingly

enough, the new ―emperor‖ of the Supreme Court prefaced his decision with the familiar words:

―The Government of the United States has been emphatically termed a government of laws, and

not of men.‖ Of course I must agree that it is true that the government of the United States is a

government of laws, but it is quite amusing to see the head of the ―Empire‖ declaring it so.

The Marshall Court was not simply about expanding the Court’s metaphorical

landholdings, but expanding the power of the federal government as a whole. Fletcher v. Peck,

another landmark decision extended the Supreme Court’s powers of judicial review to the state

level. In 1795 the Georgia legislature sold large swaths of land in a transaction that was revealed

to have involved a massive bribery of the legislature. After the unethical legislature was booted

from office and a new legislature was installed, the body voted to rescind the original grant.

Unfortunately, some of the land had already been purchased and such a rescission placed these

landholdings in jeopardy. The Court ruled unanimously that the rescission was unconstitutional

and void and that the landholdings and title of the third-party purchasers was valid. The Court

concluded that to allow the state of Georgia to rescind the charter violated the contract signed by

the innocent third-party purchasers (Snowiss 126-7). Contract law was a significant issue of the

Marshall Court with many landmark decisions including Dartmouth College v. Woodward. In

McCulloch v. Maryland, the Marshall Court affirmed the absolute supremacy of the federal

government over state governments. The case revolved around a one to two percent tax

Maryland imposed on the issuance of notes by banks ―without authority from the state.‖ One

such bank, The Bank of the United States, was chartered by an Act of Congress, was owned in

part by the United States, and had issued notes without paying the tax. A Maryland court

penalized the Bank’s cashier, McCulloch, for failure to pay taxes—McCulloch appealed the

decision to the Supreme Court, arguing that since the bank was federally incorporated it was not

subject to Maryland’s bank taxes. The Court agreed with McCulloch and reversed the state

court’s decision. In his majority opinion, Marshall argued that all national governments have

powers that are essential for governance and that among these is the maintenance of a monetary

policy with banks as the primary instruments. Therefore, even if the Constitution doesn’t

specifically grant Congress the authority to create a national bank, it is an ―implied power.‖ The

Court also found that the Bank of the United States was not subject to taxation by a state

government because ―the power to tax involves the power to destroy‖ and the states have no

authority to destroy a federal institution let alone regulate it (Currie 160-8). The Court continued

its emphasis on federal supremacy in Gibbons v. Ogden, allowing the federal government to

grant steamboat licenses by virtue of its commerce powers even if they conflicted with state law.

In concluding the Marshall Court era, Baron v. Baltimore is essential for understanding

the philosophy and zeitgeist near the end of Marshall’s tenure. The case arose when Barron

brought a claim that the City of Baltimore had deprived him of his property without due process

as per the Fifth Amendment. Barron had owned a wharf, but the city’s street-paving and stream –

diverting operations caused deposits of sand and gravel to form around it, preventing the

approach of vessels and depriving Barron of income. The Court disagreed, ruling that the Fifth

Amendment, as part of the Federal Bill of Rights, was ―intended solely as a limitation on the

exercise of power by the government of the United States, and is not applicable to the

legislatures of the States‖ (Abraham 123-4). Though Gitlow v. New York essentially overturned

the decision, the fact still remains that one cannot bring a claim against a state based on an

Amendment in the Bill of Rights without applying it to the states via the Fourteenth Amendment

(Abraham 123).

It would be several decades before the Court would gain a memorable chief justice. That

notwithstanding, it is essential that those Courts and some of their decisions be evaluated as well.

For a time, the death of Marshall ended the era of federal expansionism. The empire was content

to render decisions on social and economic issues of the day. Following Marshall, Andrew

Jackson appointed Roger Taney as the Chief Justice of the United States. The Taney Court has

been viewed with substantial distaste for a single decision it rendered. Its first landmark case was

the monopoly case of Charles River Bridge v. Warren Bridge. In 1785 the Massachusetts

legislature granted the Charles River Bridge Company the right to construct a bridge between

Charlestown and Boston, along with the right to collect tolls for a period of forty years which

was subsequently extended to seventy years. In 1828, some Charlestown merchants received a

charter to construct the Warren Bridge very near the older Charles River Bridge. The owners of

the Charles River Bridge Company, enraged as they saw tolls once collected by them going to

the new Warren Bridge, accused the legislature of violating its contractual obligation by allowing

the new bridge to be built too close its bridge, a violation of Section 10, Article I of the

Constitution. In a departure from Dartmouth, the Taney Court ruled that no contractual

impairment existed. It declared that contracts must be construed strictly—the four corners

doctrine: only things written within the four corners of the contract are binding. It rejected the

concept of implied contractual rights, weakening the contract clauses restraint on state police

power (Stephenson 260-1). The Taney Court is not remembered for the Bridges cases, however,

but for the far more public, more divisive case of Scott v. Sandford. Of such great importance is

this case that it is useful for us to examine the events leading up to it in order to fully grasp its

significance. In 1846, Dred Scott filed a suit against the widow of his former master in the State

Circuit Court in St. Louis, arguing that his former master, Dr. Emerson, had transported him to

Illinois, and then into the Louisiana territory, and thereby, under the Northwest Territory

Ordinance of 1787 and under the Missouri Compromise Act, he had become free. In 1850, the

Court ruled in his favor, but on appeal, the State Supreme Court ruled that under Missouri law,

he returned to his former status of slavery the moment he returned to Missouri, previous status

notwithstanding. In 1853, an anti-slavery lawyer from St. Louis filed in the United States Circuit

Court, a suit for trespass on Scott’s behalf. For the case to have validity in federal court a sale

was orchestrated by Mrs. Emerson to her brother, John F. A. Sanford of New York. The Circuit

Court subsequently found against Scott. Then, on a writ of error, the case was taken to the

Supreme Court (Warren 3). In a six to two decision, the Court ruled that the issue of citizenship

was immaterial because blacks could never be citizens of the United States and that Congress

lacked the power to exclude slavery from the Territories (Warren 22-3). Outrage ensued as

abolitionists condemn the Court’s ruling. It is quite likely that the Taney decision contributed to

a large degree to the eventual outbreak of Civil War. The Taney Court marked a considerable

departure from Marshall. Whereas Marshall saw the federal government as all powerful, Taney

saw it as equal if not subservient to state interests.

Following Taney’s death in 1864, Lincoln saw fit to appoint former Republican Senator

and Secretary of the Treasury Salmon P. Chase as Chief Justice. On top of presiding over

Andrew Johnson’s impeachment trial in 1868, Chase oversaw some Reconstruction Cases and

attempted to mend the ―empire’s‖ Taney-damaged image. The most important case heard before

the Chase Court was that of Texas v. White, a case that gave legal authority to the Civil War

victory. During the war, the secessionist government of Texas had sold U.S. bonds after passing

an ordinance repealing a requirement that the governor of Texas endorse the bonds before

redeeming them. A suit was filed in the Supreme Court by the state of Texas to recover the

bonds that had been transferred to White among others. The case hinged on whether Texas was

in fact a state of the United States given its secession during the Civil War. In a five to three

decision, the Court ruled that Texas had never left the Union and that no state can unilaterally

secede from the Union, pointing to Article 4’s guarantee of a ―Republican Form of

Government.‖ According to the Court, the United States is ―an indestructible Union, composed

of indestructible States,‖ effectively quashing any arguments for secession. Other than this case,

and a case involving the government’s authority over legal tender, the Chase Court was

uneventful.

The Chase ―empire‖ gave way to the Waite Court, a much more active Court charged

with clarifying the Reconstruction Amendments, a task which many might argue it did poorly.

In the landmark case of United States v. Cruikshank, the Waite Court continued in the footsteps

of Baron. After a disputed Louisiana election, a white mob attacked and killed around sixty

blacks. Indictments were issued against eight defendants under an Enforcement Law provision

criminalizing the banding together of persons for the purpose of denying others their

constitutionally protected rights. The mob members appealed the indictments and the case landed

before the Supreme Court. In a five to four decision, the Court ruled that the indictments were

wrong in their assertion that the mob members had violated the victims’ constitutional right to

peaceably assemble. It reasoned that although the First Amendment secured the right from

infringement by Congress, it did not create the right. Individuals ―must look to the States‖ to

provide the protection to enjoy the right. It also ruled that though race might have been the main

cause of the hostility, evidence was insufficient to link the victims’ race as the underlying cause

for the infringement on their right to vote. The case essential made it extremely difficult if not

impossible to obtain constitutionally acceptable indictments and convictions in defense of voting

rights (Stephenson 108). In the collection of five consolidated cases known as the Civil Rights

Cases, the Supreme Court looked to clarify the federal government’s ability to enforce civil

rights legislation, particularly, the Civil Rights Act of 1875. In a seven to one decision, the Court

ruled that the section of the act criminalizing racial discrimination in privately owned places was

unconstitutional. The Court reasoned that while the Fourteenth Amendment prohibited

discriminatory state action, Congress had no authority to prevent discrimination by private

individuals (Stephenson 108). I must insist that before deeming Waite bigoted, it should be noted

that Waite was not so much hostile toward the claimants as he was fearful of the Fourteenth

Amendment being used disproportionately to centralize power (Stephenson 109). The same fear

still exists as reasoning similar to that employed in the Civil Rights Cases was used as recently as

2000 to strike down the Violence Against Women Act.

Upon Waite’s death in 1888, Grover Cleveland nominated Melville Fuller as ―emperor‖

of the increasingly powerful Court. The Fuller Court is remarkable for its narrow commerce

clause and tax rulings. In an effort to fight ―evil trusts‖ the Sherman Anti-Trust Act was passed

in 1890. The government charged E.C. Knight Company, with four others, of violating the Act

by attempting to control the price of sugar in the United States and with monopolizing the

manufacture and sale of refined sugar—the company appealed the charges. In United States v.

E.C. Knight Company, the Court ruled that Congress lacked the power to directly suppress

monopolies where the alleged monopoly does not cross state borders. It determined that the

parties acted with the object of private gain, not control of interstate or foreign commerce

(Menez et al. 16-7). The trust-busters exploded at this ruling while industrial giants reaped

benefits from it for the next forty years. The famous Fuller tax case that, unfortunately, brought

about the Sixteenth Amendment, was the afore-hinted Pollock v. Farmers’ Loan & Trust Co. In

1894, Congress passed the William-Gorman Tariff act in response to farmers’ calls for a more

progressive taxation system. The law levied a two percent tax on certain income over $4,000.

When New York-based Farmers’ Loan & Trust Company announced it would not only pay the

tax, but also provide the Treasury Department with the names of all the people for whom the

company was acting Charles Pollock of Massachusetts sued the company to enjoin it from

paying the tax. After losing in the lower courts, it appealed to the Supreme Court. In a complete

reversal of the Hylton and Springer decision, the Court ruled that a tax on income from property

constituted a direct tax and required apportionment. Since the Act did not provide for

apportionment, the Court ruled it unconstitutional (Painter 126-8). Outrage from populists

bubbled over and the Sixteenth Amendment was ratified in 1913.

Fuller’s reign ended with his death in 1910 and he was succeeded to the ―throne‖ by

Associate Justice Edward Douglas White. White is noted for having served on the side of the

Confederacy during the Civil War. The White Court oversaw the peak and collapse of the

Progressive era and dealt with cases arising thereof. Perhaps the most significant case argued

before the White Court was Standard Oil v. United States. The United States charged Standard

Oil of New Jersey under the Sherman Anti-trust Act of operating an enormous trust while

artificially fixing prices. Standard Oil disputed this characterization and appealed up to the

Supreme Court. White was eager to use this case to solidify his ―rule of reason‖ doctrine for

monopolies. In an eight to one decision, the Court ruled the Stanford Oil trust be dissolved.

White argued that the Sherman Act could not and should not be read literally for every contract

restrained trade. Instead, White argued that the Court ought to follow the principle that

―reasonable contracts [those of no egregious nature] cannot be embraced within the provisions of

the statute [Sherman Act].‖ Since the Standard Oil trust was so enormous as to be unreasonable,

the Sherman Act embraced the contract and invalidated it. The ―rule of reason‖ expanded the

Courts power, because by virtue of its position, it was the sole arbiter of reasonableness (Urofsky

521). Another significant case from White’s tenure stemmed from a product of the Progressive

Era, the Adamson Act, which guarantee an eight-hour work day for railroad workers. While

union workers were delighted with the new piece of Wilsonian legislation, railroad owners were

not and the case came before the Supreme Court as Wilson v. New. Writing for the majority,

White affirmed that Congress had the power under the Commerce Clause to pass laws regulating

working hours—White skirted around whether this ultimately abridged the freedom of contract

by point to the temporary nature of the law, but still affirmed that Congress could at any time

make wage laws (Shoemaker 203-4). Incidentally, the eight hour work day became the universal

standard in the United States.

Former president William Howard Taft donned the Chief Justice crown for the Roaring

Twenties, a period of numerous decisions most of them anti-regulatory and pro-capitalist.

Among these decisions, some stand out as particularly important in the evolution of American

law. Adkins v. Children’s Hospital is one of those cases. In 1918 Congress passed the Minimum

Wage Act which provided for the creation of a Minimum Wage Board for the District of

Columbia. The Act authorized the board to set minimum wages for women and minors. The

Children’s Hospital employed several women at less than the prescribed minimum wage and

action by the Minimum Wage Board caused the women to lose their jobs. The women brought a

suit against the hospital to enjoin the enforcement of the minimum wage legislation as a violation

of the due process clause of the Fifth Amendment. The Court agreed with the women, ruling that

the right to contract is a liberty protected by the Fifth Amendment. As such, Congress can make

no laws restricting the absolute freedom of contract. The price-fixing nature of the Minimum

Wage Board allowed it to invalidate contracts for employees if the employers payed below a set

minimum wage (Menez et al. 214). Thus the law was deemed unconstitutional. The era’s

important First Amendment case was Gitlow v. New York. In 1902 New York passed the

Criminal Anarchy act which made it a crime to advocate the forcible overthrow of organized

government. In 1921, Benjamin Gitlow was convicted under law for publishing 16,000

pamphlets entitled ―The Left Wing Manifesto‖ in which he urged the establishment of a

Communist government. Gitlow appealed his conviction to the Supreme Court. The Court

affirmed his conviction, holding that while the First Amendment applies to the states, the first

time this had been admitted by the Court, the Court felt that if the speech ―involve[s] a danger of

substantive evil‖ it could be restricted and criminalized. This new substantive evil test joined the

clear-and-present danger test as methods of judging if speech is protected (Eastland 12).

When Taft retired from the Court, Charles Evans Hughes was appointed by Herbert

Hoover to lead the Court. Before examining any of the landmark Hughes Court cases, we must

distinguish between the pre-Court packing Hughes and the post-Court packing Hughes. The pre-

Court packing favored decisions like that arrived at in Schechter Poultry Corp. v. United States.

In response to the Great Depression, FDR pushed through a massive piece of legislation called

the National Industrial Recovery Act. A.L.A. Schecter Poultry Corp. was convicted in the U.S.

District Court for the Eastern District of New York for violating the ―Live Poultry Code‖

established by executive order under the NIRA. Although the court sustained sixteen of the

convictions it reversed two for involving an unconstitutional use of congressional power.

Schecter appealed his convictions to the Supreme Court. The Court dealt the NIRA a double

whammy. In a unanimous decision the Court ruled that NIRA was too broad, left the president

too much discretion, and involved an unconstitutional delegation of legislative power to the

president (Menez et al. 35). The post-Court packing Hughes Court, frightened that the president

would use his powers to flood the court with New Deal proponents, yielded to the New Deal

policy in nearly every decision. In 1935, Congress passed the National Labor board of Relations

Act. That Board subsequently found that Jones and Laughlin Steel Corporation had violated the

act by engaging in unfair labor practices, like discriminating against Union members and

interfering with self-organization. The Labor Relations Board tried to enforce the provisions of

the act but Jones and Laughlin Steel failed to comply. When the Circuit Court of Appeals refused

to enforce the board’s orders, pursuant to previous Supreme Court decisions, the Labor board

appealed to the Supreme Court. Surprisingly or not, the emperor had no pants and the Court

―forgot‖ a half-century worth of legal precedence, ruling, five to four, that the Commerce clause

allowed Congress to regulate labor relations (Menez et al. 63). Sadly, the Hughes Court made

decisions not out of respect for the law but for fear of punishment from the president.

Hughes’ retirement in 1941 allowed FDR to elevate New Deal-philic Harlan F. Stone to

Chief Justice. Unfortunately for Stone, a cerebral hemorrhage struck him dead after only five

years in his new position. Lucky for FDR, the Stone Court’s most significant ruling, Ex parte

Quirin, occurred before the U.S. adopted the Geneva Conventions. Quirin established the

president’s authority to create war tribunals to try war criminals, in this case German saboteurs.

After Stone dropped dead on the imperial throne, the body was metaphorically removed

and Fredrick Moore Vinison perched himself upon the tattered chair, but not for long, as a heart

attack struck him down after about seven years. He presided over the most divided court ever,

split between Hugo Black, the literalist Justice, and Felix Frankfurter, the Justice who saw

imaginary things in the Constitution. One major case during his tenure witnessed a slight role

back of the extraordinary New Deal presidential powers. With the United States involved in

Korea, the Truman administration attempted to avoid inflationary pressures through the creation

of a Wage Stabilization Board. The effort failed and the United Steel Workers of America

rejected board proposals. Fearful that the steelworkers would demand greater price increases

than the government could afford, Truman ordered his Secretary of Commerce, Charles Sawyer,

to seize the entire steel industry. Youngstown Sheet & Tube quickly filed a suit in federal court

seeking to enjoin the government from seizing its property. The case came before the Supreme

Court as Youngstown Sheet & Tube Co. v. Sawyer. In a six to three the decision, the Court ruled

that Truman’s executive order authorizing the seizure of steel mills was an unconstitutional

exercise of power and ordered that Truman return the mills immediately to the their rightful

owners (Hall 116-8). Other than refusing to grant a stay of execution for the Rosenbergs, nothing

else significant happened during this time period. It was only upon his death, with the docket

featuring Brown v. the Board of Education, that the Justices’ diadems burned red again.

(Now that we approach the modern era with humor.)

Dead of a heart attack, Vinison was no longer of use to the Court. Dwight D. Eisenhower,

hoping to move the Court to a more conservative position selected the ―Republican‖ governor of

California as the new Chief Justice. Big mistake. Warren did a big switcharoo after being

installed and became one of the most activist judges in history, expanding the territorial claims of

the Court to unprecedented and often frightening levels. Let us take a look at some of the

interesting cases that typified the reign of Warren. Estelle Griswold, the Executive Director of

Planned Parenthood, and her bestest friend Dr. C. Lee Buxton opened a birth control clinic in

New Haven, Connecticut, perfectly aware of the 1879 state law prohibiting the sale or use of

contraceptive products. They were soooo astonished when they were arrested, found guilty and

fined $100. They appealed the decision all the way the Justices royal palace. The Court looked at

the case then at the Constitution then at the case then at the Constitution and they found

something new. Scribbled below the Fourth Amendment in an ink which only very learned

liberal Justices could see they found ―penumbras, formed by emanations.‖ They also found the

―right to privacy‖ and began deciphering the ―right to an abortion‖ and ―right to sodomy.‖ Hugo

Black nearly had a heart attack when he saw the Justices holding magnifying glasses up to the

Constitution but found that only he and Stewart were unable to see the magic language. They

cried for a long time. The Court ruled that the state law was unconstitutional and, reluctantly, the

state returned the $100. Some believe that the Justices were suffering from temporary insanity

caused by rendering an earlier nonsensical verdict in Sherbert v. Verner. In that case, a woman

who worked in South Carolina suddenly became a Seventh-day Adventist. When her employer

decided to increase the number of work days from five to six, Sherbert refused to come to work,

and shockingly, was fired. Having been fired, she applied for unemployment insurance and the

Economic Security Commission denied her request, a decision the State Court upheld. So she

cried her way up to the Supreme Court and asked: Why can’t I suddenly change my religion and

repeatedly refuse to show up for work? The Supreme Court said, that isn’t fair. Look at how that

mean Verner and ESC trampled all over the establishment clause. Clearly we should apply strict

scrutiny and force companies to inconvenience themselves and lose money to accommodate

unusual religions. So the Supreme Court held that the denial of her unemployment claim

represented a substantial burden and violated a hidden passage within the First Amendment

allowing individuals to get unemployment when they convert to inconvenient religions (Radan et

al. 62-3). Again, only the learned liberal Justices saw this hidden passage.

In 1968, Warren feared that his advanced age might hinder his judgment...hmmm…and

Nixon appointed Warren E. Burger to guide the ―Empire.‖ Burger, a self-styled strict

constructionist, was always surprised when people accused his court of being too liberal. It

appears that Burger was often drugged by the loony Thurgood Marshall. In all likelihood, Burger

was a decent justice that got stuck with lots of rotten apples. For proof, let’s turn to Solem v.

Helm. Mr. Helm had a problem. He was addicted to committing crimes. In the short period

between 1964 and 1983, he had chalked up seven felonies, the last of which involved writing a

check under a fictitious account name. South Dakota got fed up with Helm’s costly criminal

activity and, after his seventh conviction, sentenced him to a mandatory life sentence without

parole. Helm cried: Why are you putting me in jail for so long? I promise I won’t commit any

more felonies (wink, wink). No one was listening to his sobs so Helm sued the South Dakota

Penitentiary warden for inflicting a ―cruel and unusual‖ punishment upon him. As his attorney

argued before the Supreme Court, the learned liberals lapped up the talk of unfairness. They

looked in their trusty Constitution under the Eighth Amendment and in tiny, microscopic letters,

Justice Powell discovered that the founding fathers were in favor of letting criminals amass long

rap sheets, loved it when hardened thieves committed one felony after another. Justice Marshall

was about to call the South Dakota law racist until he realized the petitioner was white. But even

the learned liberals couldn’t find anything under the Eighth Amendment prohibiting a state from

exercising its police powers to keep hardened thieves off the streets so Marshall took out a very

thin pen and scribbled ―Nor any sentence that we don’t like‖ at the end of the Eighth

Amendment. After the Court overturned Helm’s conviction, Marshall shipped copies of the new

Eighth Amendment to all the learned liberals in his Rolodex (Melusky and Presto 249). Burger

and the other dissenters simply shook their heads. But that was when Burger was much older. In

his ―youth‖ such sense was not with him. In Roe v. Wade, he and six other Justices took

hallucinogens and discovered the right to an abortion hidden in a secret vault within the due

process clause. Petitioner Roe was very upset that she could not have an abortion in Texas and

sued the state, represented by Henry Wade. The case ultimately reached the Supreme Court and

the Justices were left to ponder the Griswold case, the penumbras, and that finicky due process

clause. By this time, the baby was already had, a circumstance that would typically moot the

plaintiffs standing, but the Emperors were not concerned with what was correct, only what they

wanted. Inside the due process clause’s secret vault, Blackmun found a small door leading to a

much smaller anteroom labeled ―privacy‖ wherein a tiny scrap of paper hidden for centuries

declared abortion a fundamental right. White and Rehnquist scrambled in vain to find this secret

vault but it alluded all but the learned liberals, and of course Burger who had been drugged by

Marshall (Hall 179-87). Abortion proponents hailed the decision as the dawn of a new era while

abortion opponents viewed it as the Day of Reckoning. A good percentage of the population still

remains unable to access the secret vault.

And now we arrive at the last Emperor for whose Court we may ―objectively‖ analyze—

that Justice with the fashionable robe William Rehnquist. It appears most of Rehnquist’s time as

Chief Justice was spent narrowing the wacky decisions of his predecessors and preventing

Congress from inventing powers not granted by the Constitution. Presiding over a ―conservative‖

Court, Rehnquist directed the Empire away from Warren’s cliff of relativism. Needless to say,

being only just recently departed one could deem any one of the fashion king’s Court’s decisions

as landmark and worth of note. Still, I see two that stand out as defining the Rehnquist era. Little

Alfonso Lopez, Jr., a 12th

grade student at a Texas high school, carried a concealed weapon into

his high school and was charged with violating the Gun-Free School Zones Act of 1990.

Congress, fairly used to using the Commerce Clause as a catch-all for federal meddling, was

shocked when Lopez, now convicted, appealed to the Court of Appeals and succeeded in

reversing said conviction by arguing that protecting schools from guns had nothing to do with

interstate commerce. Really. What about if you have a gun at the border between two states next

to a school and you shoot a goofy Congressman in the other state? Clearly that is commerce, for

isn’t the bullet worth at least a few cents? (Joking.) In a reversal of precedence spanning back to

the notorious post-Court packing Hughes Court, the Supreme Court affirmed the Appeals

Court’s finding that Congress had exceeded its power in using the Commerce clause to justify a

law banning guns near schools (Hudson 59-61). Ginsburg fell off her seat and accidentally

squished one of the murderers she helped to free after learning that the verdict would be five to

four. Souter just cried as Scalia danced. Thomas sat in the corner and wrote a one sentence

concurring opinion. In all seriousness though, the Rehnquist Court, like many of the Courts that

came before, generally adhered to stare decisis, such as in Planned Parenthood v. Casey. In that

case, Planned Parenthood sued the state of Pennsylvania, represented by Casey, over a

Pennsylvania State law requiring spousal and parental notification prior to obtaining an abortion.

Though at this time, only two of the Justices were active supporters of Roe—Blackmun and

Stevens—the Court nevertheless relied on it when determining that the requirement of spousal

notification posed an undue burden on married women seeking an abortion and violated the

Fourteenth Amendment’s due process clause, the clause with the hidden vault and the anteroom

(Hall 238).

As I hope I have demonstrated in this carefully written, somewhat brief analysis of the

history of the Supreme Court, the Court is an Empire of Men. In most of the cases of really any

importance, the Justices rely not so much on the law as they do on their creative interpretations,

skillful tap dancing, etc. And in those rare cases that the law is applied impartially, the Justices

are ridiculed for cruelty and harshness. Nevertheless, each era the Supreme Court has

undoubtedly left an impression of the psyche of American jurisprudence it is always a healthy

thing to examine these impressions from time to time.

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