Live at the National Constitution Center

Great Justices: Founders, Dissenters, and Prophets

June 15, 2021

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Jeffrey Rosen moderates a conversation looking back at some of America’s greatest Supreme Court justices in history, including Chief Justice John Marshall, one of the founders of constitutional law; Justice John Marshall Harlan, famous for his dissent in Plessy v. Ferguson in which he argued against the doctrine of “separate but equal;” and others—from Justice Benjamin Curtis to Justice Antonin Scalia. Rosen was joined by Robert Strauss, author of the new book John Marshall: The Final Founder; Peter Canellos, editor at Politico and author of the new book The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero; and Elizabeth Slattery, a lawyer at the Pacific Legal Foundation and co-host of Dissed, a podcast about important dissents.

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This episode was produced by Jackie McDermott, Tanaya Tauber, John Guerra, and Lana Ulrich. It was engineered by Greg Scheckler.

PARTICIPANTS

Peter Canellos is the managing editor for enterprise at POLITICO, where he formerly served as the executive editor. He is the editor of The Last Lion: The Fall and Rise of Ted Kennedy, and the author of the new book The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero. Prior to coming to POLITICO, he served as the editor of The Boston Globe's Editorial Page.

Elizabeth Slattery is a senior legal fellow and deputy director of Pacific Legal Foundation’s Center for the Separation of Powers. She is also the co-host of the podcast Dissed, exploring the Supreme Court’s important dissents. As creator and former host of another popular podcast about the Supreme Court, she captivated listeners around the world with her interviews and trivia segments. Slattery previously worked at The Heritage Foundation. 

Robert Strauss is a historian and adjunct professor in the department of English. Strauss served as a reporter for Sports Illustrated, a feature writer for the Philadelphia Daily News, and a news and sports producer for KYW-TV in Philadelphia. He is the author of Worst. President. Ever: James Buchanan, the POTUS Rating Game, and the Legacy of the Least of the Lesser Presidents and most recently, John Marshall: The Final Founder.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
 

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jackie McDermott: [00:00:00] Welcome to live at the National Constitution Center. The podcast sharing live constitutional conversations and debates hosted by the National Constitution Center. I'm Jackie McDermott, the show's producer.

This episode looks back at some of America's greatest Supreme court Justices, including John Marshall, the fourth and longest serving chief Justice of the Supreme court and a founder of American constitutional law, as well as Justice John Marshall Harlan author of a famous dissenting opinion in Plessy versus Ferguson, and which he argued against the separate but equal doctrine and others.

National Constitution Center, President Jeffrey Rosen discuss these fascinating figures with three panelists, Robert Strauss, author of the new book, John Marshall: The Final Founder, Peter Canellos, author of the new book, The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero. And Elizabeth Slattery, a lawyer at the Pacific Legal Foundation who hosts the podcast Dissed about important dissents. This panel was streamed live on June 10th, 2021. Here's Jeff's to get the conversation started.

Jeffrey Rosen: [00:01:04] Thank you so much for joining Peter Canellos, Elizabeth Slattery and Robert Strauss. Peter, let's begin with you in your new pathbreaking biography of John Marshall Harlan. You tell a story of a rem- remarkable correspondence between John Marshall Harlan and Robert Carlin, where Robert warns John of the words "Do, do take care."

Tell us about what those words were, what's this relationship, why it's significant you've, you've resurrected it. And that's really very important to your notion of Harlan's outlook and how it helps us understand one of Harlan's greatest to sense, Plessy versus Ferguson.

Peter Canellos: [00:01:44] Thank you, Jeff. And I want to say it's an honor to be at the National Constitution Center as a regular visitor, and I'm pleased that you have a Harlan exhibit there [laughs] as well. The relationship between Robert Harlan and John Marshall Harlan was something that was known in their lifetimes. Some newspapers in the Black community and racing press reported that they were half-brothers, but it has not been known since then the role that Robert Harlan played in helping [Don 00:02:19] politically and helping to keep him viable as a candidate for the Supreme court.

Robert worked behind the scenes to make sure that John was trusted as a man from Kentucky as a man who came from a slave owning family. Robert grew up enslaved and John's house and was rumored to be the son of John's father. But he quickly became wealthy in his early 30s from the gold rush.

And went on to have this amazing life where he funded black-owned businesses in Cincinnati. He traveled to Europe to become a horse racing, pioneer, internationally, you know, bringing American mounts to challenge British racers and the sport of Kings. He then came back after the civil war to the United States and became a major civil rights leader in Ohio.

So he had credibility at this crucial moment in 1876 and 1877, when Hayes is becoming president Hayes has promised that he wants to put a southerner on the Supreme court, but much of Congress is still controlled by the so-called radical Republicans. Republicans who were very mindful of protecting black rights. And they were very distrustful of John Marshall Harlan. So Robert, in a series of gestures, one of which was the letter that you referenced, where he was quoting, what he called an old colored man who belonged to your father, who would always say, "Do, do take care."

And the reason I think that's significant is because he's sort of citing a family link, try to persuade on not to do something that he felt would be politically injurious to him and hurt his chances of getting on the Supreme court.

The reason this relationship is significant is because Justice Harlan went on to become the sole voice for decades fighting strongly against the court's retrenchment on the defense of the post civil war amendments, defense of rights of African-Americans starting with the civil rights cases of 1883, which took away the [right 00:04:28] Inns and restaurants and transportation continuing on in cases like Giles V. Harris, which involved voting rights, the Barrett of the Kentucky, which involved education, but most prominently in Plessy V. Ferguson, which endorsed the separate but equal doctrine.

Harlan was a forceful voice for black rights. We are only realizing now because of the digitization of, of African American newspapers of the area, just how prominent Harlan descends to were in the black community. They weren't really noticed at all in the white community, but they were very prominent in the black community and his Plessy descends, but we had many memorable lines in it. "The constitution is color-blind neither knows or otherwise classes among citizens. Humblest is the pier of the most powerful. There is no cast here." It's become a kind of iconic statement of the purpose behind the law and what quality means in the United States. And in John Marshall Harlan's mind, I think this was very much connected to his father and his own background, which, which worshiped John Marshall as Robert is going to talk about. And were, were strong supporters of a national destiny, their kind of national power and destiny that John Marshall supported. That's how Harlan got his name.

But I also think that it reflected a personal sensitivity to the plight of African Americans and that Robert Harlan is, is the answer to why he saw things than his colleague.

Jeffrey Rosen: [00:05:44] Fascinating, thank you for introducing those powerful themes. So compellingly Elizabeth, you have discussed many great dissents on the Dissed podcast including those of Justice Antonin Scalia. And I wonder if you could pick one or two of your favorite Scalia, dissents, maybe Morrison Allston, of course. And tell us about whether you see any connection between anything in Justice Scalia's biography is as well as of course his judicial philosophy and what led him to dissent in Morrison.

Elizabeth Slatt...: [00:06:21] Sure. Thanks so much for having me. It's a delight to be back at the National Constitution Center, even if it's virtually this time. And I just want to say, you know, about John Marshall Harlan, he is truly an American icon and I, I hope that more people will learn about him. You know, maybe it's because I'm also from Kentucky or maybe it's my professional interest in dissents. And he is of course the great dissenter but I have such an affinity for him. So I, I can't wait to hear more from Peter tonight.

But turning to who I think who I consider to be the modern, great dissenter a new Justice Harlan would be Antonin Scalia. And, you know, he of course was the king of originalism and also the separation of powers. And I think that's demonstrated very well in terms of separation of powers with his masterful powerful descend in Morrison against Olson, which was only in his second full term as a Justice on the Supreme court. But it's perhaps his most influential dissent. This was a case challenging the constitutionality of the independent counsel statute, which authorized the creation of an independent counsel who could lead investigations into executive branch officials.

Ken Starr, and the whitewater scandal comes to mind. Congress gave the independe- independent counsel tenure protection, so that person could only be fired for good cause despite being a member of the executive branch. In a majority opinion by chief Justice Rehnquist the court upheld his good cause removal restriction because the Justices determined that it did not unduly interfere with the exercise of executive power, but Scalia saw it a different way. And he dissented in classic Scalia fashion. It's full of wonderful lines, underscoring the importance of the structural separation of powers and, you know, just to, to quote a few lines he wrote, "In the dictatorships of the modern world, bill of rights are a dime a dozen. What makes ours work is a governmental structure." That structure was designed to prevent an excessive governmental power, which is always the first threat to Liberty from coalescing.

And he on to talk about the fact that the, the court says that the independent counsel does not exercise purely executive power. Scalia saw it differently. And he says that "This is in effect in many executive who's given jurisdiction over. It may be a small area, but an important area." And of course this, this leads into perhaps the most famous line among lawyers of a Scalia dissent uh, him saying that "Frequently Frequently issues of the separation of powers will come to the court clad, so to speak in sheep's clothing. But this Wolf comes as a Wolf." He, he thought that the, the violation of the separation of powers here was so clear.

And I think what's truly remarkable about this dissent is that though it was, you know, a solo dissent just for himself, his view ultimately won out Congress, let the independent counsel statute expire. His, his view went on to influence the way that the, the current Supreme court has approach cases involving who controls the federal bureaucracy. And I think Scalia ended up winning the hearts and minds of Americans as well.

And, you know, we continue to see cases like this you know, there's even been another one this term before the Supreme court involving you know, who, who really is in charge of our federal bureaucracy.

Jeffrey Rosen: [00:09:50] Thank you so much for that. Thank you for quoting the comes of the Wolf lines so well, and for introducing us to the great dissenter Justice Scalia. We now turn to chief Justice Marshall and in your new book about John Marshall, Robert Strauss, you call him the Zelig of the founding period. You say he showed up and all sorts of unexpected places and should be considered a kind of founder himself because he completed the founding our project of creating a strong and United nation a single way to people. What, you also began very movingly by talking about how your, your dad got you excited about history. And you talk about John Marshall's father inspiring him to read Alexander Pope and, and moral essays. And then of course, George Washington was this sort of second father at valley forge and created his nationalist outlook. So tell us what it was you think in Marshall's biography that created this nationalist outlook and how it contributed to an important opinion that you highlight Fletcher versus Peck.

Robert Strauss: [00:10:55] Well, one of the things I think about when, when I called him the Zelig, I mean, so this is, you don't know who Zelig was, he was a character in a Woody Allen movie. It shows up in photographs of all you know, famous people from famous times. And, and you know because we're here at the constitution center, we think of Marshall in his 34 years is Supreme court, chief Justice. But prior to that, he really was everywhere, I mean he was secretary of state. He was a Congressman, he was a Virginia legislator. He was a lawyer, he was, but he was also a great party giver.

And he was, as my mother would have called him a character, you know. You know, when Miranda had seen a Marshall biography instead of a Hamilton biography, he could have done the musical marshal instead with exclamation points. But [inaudible 00:12:20] I think one of the things that Marshall did as a person, and then I guess uh, as a leader, he swore the Supreme court, when he was finally appointed as a tabula rasa, in other words, that previous Supreme court, chief Justice didn't do very much. So we're bringing many cases. I mean, for, for God's sakes, we, we didn't have much of a country to have cases against.

So when he, when he got there, he also had a political bent because he was sort of the last Federalist. I know Hamilton was around and still doing stuff. And there were other people who call themselves Federalists, but mostly the Federalist party was dying out and he was in opposition to the thoughts of the democratic Republicans. In fact, he was like, it's like... There, there, there are Democrats who hate when somebody from the other side calls it, the Democrat party, you know, like it's sort of seize the prison. 'Cause it's really not, you know, that's what they call it.

So the Democrat Republicans were mostly called Republicans, but Marshall went out of his way to call them Democrats to anger them. 'Cause he, he, he didn't get I- his political bent was different, but also to connect them to the revolution in France and you know, that they would come out if they came to power, would, would start something like that.

So his, his bent though, he, I guess he, he decided that the country had to be uh, have, uh, a central central government because, because, uh, without it Frey easily, easily, it wasn't, it wasn't very long. It was only 1800. You know, this is a horrible lecture, 1800 that really divided the country in much worse than anybody would say now. And Marshall, like I said, took it upon himself to have a series of decisions over the years that would, that would link anything he felt constitutionally he could to make it a unified country.

He had the he also did th- did little things like he made his early on and at any rate, man, his fellow Justices saying the same hotel when they were in Washington, he had to, his decisions were all unanimous. They were quite unanimous, but they, but there were no, there were no, ea- early on, there were no dissents. He, he wanted it to seem like it was a unified thing. And it was, if the vote went for you this time, it going to go for him the next time.

And so we're all going to look like we're together, which would give the, the central court more I dunno, not power, but, but, but [pinash 00:15:04], I suppose at any rate that Fletcher versus Tech which ca- the, the, the decision came about 19- excuse me, 1810, but the, the case went back to 1795.

And, and, and I think also Marshall was, was judicious and picking whatever case he wanted to pick to make whatever point he wanted to make. I- I- it comes out of a a dubious set of circumstances anyway. Georgia took it upon itself to make some money and divide what they called the Yazoo lands. There, Yazoo Indians owned tens of thousands of square miles that became Alabama and Mississippi more or less. They divided up into four parts and they sold each part for $500,000 to developers. Well, that's sort of nothing, even then it was like a penny, an acre or something like that in any case.

So the, so then go back and forth in the legislature. And eventually the, the people don't like it in Georgia and they vote the legislature out. So the new legislature comes in and has like a new one and validates the Yazoo lands act or whatever, whatever they call it down there.

There were these two guys Fletcher and Peck who had worked with Fletcher, bought some land from Peck and Peck had bought some land from the in the original lands. He, he then uh, so a- anyway, the new legislature had validates this thing. Fletcher wa- wants to have his, his his land from, that bought from Peck. He says, there's, there's a simply goes back and forth. And eventually it gets to, it gets to the Supreme court and Marshall invalidates the, [laughs] invalidates the second law. They 'cause, 'cause they said, "You can't, you can't have this new law and then invalidate contracts." And contracts are sacrosanct in, in the constitution he felt, and especially between individuals in states. And this was the first time the State was invalidated by the Supreme.

Jeffrey Rosen: [00:16:21] Okay, thanks for emphasizing the sources of Marshall's nationalist vision for explaining Fletcher and reminding us that Marshall really did make unanimity a priority. He dissented seldom only once in a constitutional case. And of course the dissent rates went up dramatically, especially after the 1920s when the judiciary act was passed, but it was a much more of an emphasis on unanimity than it is now. P- Peter can also though Harlan is most famous for his dissenting opinions in involving equal protection and race, such as Plessy in the civil rights cases. You also note that he dissented in cases involving economic Liberty ISI night, the polic case, which struck down the income tax, the Lochner case, which struck down a maximum hour laws, tell us about those dissents and what in his biography led him to those positions.

Peter Canellos: [00:17:16] The thing that's extraordinary there. And I had while I had heard about those cases, I had not fully appreciated until looking more closely in, into Justice Harlan's career, was the extent to which the Supreme court played a role in extending the inequalities of the gilded age. The political will existed in the early 1890s around the time of the panic of 1893, to take some steps to improve the basic situation of workers on the ground. The Sherman antitrust act was passed. An income tax, which had been used to fund the civil war, but then canceled and tariffs were used to fund the, the federal government came to be viewed as regressive. The tariffs were came to the uterus regressive because essentially the same premium was paid for poor people and rich people if tariffs are being applied to basic goods.

So there was an income tax that was passed. Then later on, you started to see states legislating for health and safety in situations where immigrant workers were in the terrible industrial situations with, you know, machines chopping off people's hands and mill owners requiring people to work seven days a week and things like that.

But the Supreme court for ideological reasons that really seemed very loosely tied to the constitution, took the steps to herb, these actions, they declared the Sherman antitrust act unconstitutional in DC Knight case. It did start to back off of that after five or 10 years, but it took about 20 years to sort of clear the way for antitrust prosecution.

The polic case was a disaster because it required a constitutional amendment to overturn it. And for 18 years there was no income tax and a lot of anger on in the country about the way that the government's funded. The Lochner case which invented sort of a right of contract as a way of preventing labor regulations, you know, was used to prevent things like minimum wages at a time when people were really, really hurting.

Harlan dissented in all of those cases, along with the race cases. And he did so in his own sort of inevitable, forceful style. I think that what connected him to the, to that was some of the same values that go back to the original John Marshall, that go back to his time growing up in pre-civil war, Kentucky. As we know, Kentuckians feared the civil war more than perhaps anybody because they realized their State would be a battleground. And they realized that it would, it would tear that State down the middle and, and Harlan felt that intensely.

And I think that he like Henry Clay, who was a mentor to him, like the [curtains 00:21:06] and Breckenridge was and other leaders of Kentucky. If he came to identify with a national vision and felt like the solution to problems had to come at the national level and saw the dangers of excessive states right. And so I think that he put himself in a position where he was deferential to the democratic processes, deferential to Congress, believed in democracy, his ability to solve problems. And that led him to be a dissenter in the economic cases, as well as some of the race cases, there is a line you can draw up attain deference shown to the legislature in the civil rights cases of 1883 in his dissent and the deference shown to the legislature in the later economic.

So part of Harlan's reputation, I think rests on the idea that during the time of the Fuller court, Melville Fuller's court, the Supreme court didn't serve the country very well on, on race and economics. And Harlan was really the sole voice. And in some of the economic cases, not the sole voice, but the leading voice who were calling them out. And, and today in all of these cases, they've all been overruled or supplanted Harlan's views are the law of the land now.

Jeffrey Rosen: [00:21:20] So fascinating. It's such a, a illuminating way of drawing a line between deference to the legislatures in the race and economic cases his deference to Congress in the tax case has been vindicated. Akil Lamar was on last week talking about his great new book and, and he just showed how Mar- Marshall was channeling Hamilton's brief in the tax cases. And as a matter of original understanding, he was absolutely correct to descend from the decision striking down the income tax and use of thoughtfully trace that Hamiltonian vision to to a deference, to legislatures in race and economics. Absolutely resonate.

Elizabeth, you recently gave me one of the best homework assignments I've ever had, which is to read the entire Dred Scott decision, the majority decision on the concurrences and the dissent. So we can talk about it on your great podcast. And I'd never done that before although I've taught Dred Scott many times. And reading in particular Justice McLean, and Justice Curtis's descends, was in a revelation. And as we talked about on the show, I was so struck to see McLean recognizing explicitly that Madison refused to admit into the constitution, the idea that there could be property in man. And Frederick Douglas learned that at the publication of Madison's notes, instead it changed his conception of themselves as a man, as a citizen.

And then there's, Curtis's famous dissent. And rather than tell you what I learned from it, I'd love to hear what you think of a Curtis's dissent and Dred Scott, and then inspire all of our listeners to do the really great exercise of actually reading the entire decision.

Elizabeth Slatt...: [00:22:55] Yes, I was. So please, you know, to hear how delighted you were to read, to have an opportunity to to read all of the opinions, because it seemed like every Justice on the Supreme court had something to say in the, in the Dred Scott Case. They had sort of returned to the practice of issuing seriatim opinions, which chief Justice John Marshall had, had, had fought against and, you know, had inspired unanimity among his colleagues uh, during his tenure.

So Justice Curtis's dissent in Dred Scott is I think the best way to sum it up in one word is that it's, it's humble. He shows such humility. You know, so the, the majority Justice, chief Justice Taney says that you know, African-Americans can not be citizens of the United States, whether they're free or not, they can not be citizens. And then he goes on to say that Congress cannot ban slavery in the territories and that the Missouri compromise was unconstitutional.

And Curtis just takes down each of these parts one by one. First of all, he says, as, as, as a factual matter, Taney is just wrong about the meaning of the, the constitution. You know, he, he says, he shows that at least five of the original states recognized free blacks as citizens. So Taney is simply wrong that the constitution was not, was not written and, and it could not benefit free blacks in our country. And then he goes on to say, "You know, the court should not be deciding this issue of the Missouri compromise at all. This is dicta. The court has said it has no jurisdiction you know, ov- over the matter. And so it, it shouldn't reach the issue of the Missouri compromise."

But he says, "Since the court I- has decided it you know, here's what I think." He says, "The constitution doesn't clearly say one way or the other, whether Congress may or may not ban slavery in the territory. So the court shouldn't reach the issue. We should let the political branches decide." And, you know, I think a charitable, a very charitable reading of chief Justice Taney's opinion or his motivations was that he was hoping to settle the matter of slavery. As, as president Buchanan would say settle the matter for the country and, and move along." clearly that backfired. And I think that the humility that, that Justice Curtis showed you know, what the rest of the Justice would have been well-served to, to show that same humility.

And you know, many people are familiar with, with Curtis's dissent, but not many people know that he resigned shortly after. And I think he's the only Justice in history to resign in protest. And so what happened was, he gave his dissent to a newspaper to publish it. And he says, he thought that that chief Justice Taney had already, you know, allowed the publication of, of his opinion whether or not that's true, we don't need to get into, but chief Justice Taney was not pleased. And he said about revising his opinion to try to address more of Curtis's points.

And he tells the clerk of the court not to allow Curtis access to the revised opinion. And there's this frosty exchange of letters, Taney accuses, Curtis of not being gentlemanly, the horror and requesting the opinion for partisan and political purposes. Curtis says, "He's entitled to see it. And the public is entitled to see this opinion." And ultimately, you know, I- it was of course eventually published all of them were, and everyone could see you know, the, the shallow sophistry as one contemporary newspaper called the, The Chief Justice's Opinion.

But this led Justice Curtis to resign just a few months later. And he cited his lack of confidence in the court and a lack of willingness among the Justices to cooperate. And, you know, you have to wonder I- if our country would have been better, better served if Benjamin Curtis would have remained on the Supreme court longer.

Jeffrey Rosen: [00:26:48] That's just amazing what a important backstory to tell. It's remarkable that even having had advance notice, Taney still couldn't respond to Curtis's powerful arguments that five states, as you said, recognize the rights of free African-Americans and that State court decisions including of North Carolina of all places had recognized those rights. And you strongly show us how important the political backstory was and the value of reading dissents.

So Robert Strauss, 'cause you've written about Buchanan as the worst president ever. If you want to add anything more to the incredible interactions between Taney and Buchanan at Buchanan's inauguration, when Buchanan on his inauguration day endorsed Dred Scott and basically said the Supreme court is about to solve the question and it issued the decision two days later. And then back to Marshall that we can't talk about him without his most famous decision, of course, which is Marbury. And there are many ways to tell the story of Marbury. And so, so tell our friends what you want them to know about Marbury versus Madison.

Robert Strauss: [00:27:49] Well, I love the Kentucky, so well-represented here in the, in the, and, I- in both talking and, and Elizabeth here. One of the things about Marshall was a, was a big advocate of Kentucky becoming a safe because his father had moved there and and were it to become a state, it wouldn't just be an adjunct of Virginia who be its own thing. And his father would, he felt, would prosper more. So he pushed that in the Virginia legislature.

We have to remember how important Virginia was in the early part of this country in the 1790 census, the first census it's still has 21% of the people in the United States, lived in Virginia. So when you know that all the founding fathers or whatever, you know, Madison, Washington, Jefferson on row Marshall, Patrick, Henry and so on, came from Virginia. Well, that was because it was the most important State. We, we've actually, you know, I gave this as a country has gone from a Virginia, the centric state to a New York centric country, excuse me, and now a California centric country in a certain way.

Not that the populations moved along with them, but, but sort of the sensibility of the country. So Marshall though was the, was the outlier among the Virginia popular leaders because he, he was a Federalist and they were, they, they viewed Virginia as such an important State that if we had to, we could make it on our own. Patrick [inaudible 00:30:59] was big on that. And even Jefferson sort of exceed to it, no, not that he, not that he was a secessionist, but, but there was this feeling that Virgin was all important.

Which is important in Marbury versus Madison because, because Marshall being a Federalist and being second cousin and sworn enemy to Thomas Jefferson, I, I also think all these people re- related and me think how easy it was to become a founding father since Stephen 1790, there were only 800,000 white men over 16, which were the only candidates for being the founding fathers back then. I, I appreciate we've gone other than that, frankly. But so it wasn't that hard become the top of your pyramid there.

In, in any case Marbury ga- versus Madison comes out of the what at the end of, at the end of the Adams administration, the, the, the election went on full February and March 4th was the, was the Republicans were going to take over and they were going to take over everything. They were going to take over the presidency and the two uh, houses of Congress. But uh, but there was the, the, it's called the midnight judges at the very end Adams approved many studies judgeships or [quasi 00:32:27] judge shifts as Marbury's was, was, which was only a B aid Justice is a piece in Washington DC. Now you've got to remember Washington that about who 1000 people, you know 5,000 people, some small number. And there was several people like Marbury. Well, Marbury didn't get his commission on time.

There were, there were 40, 50 commissions of various federal judges. Now remember also you know, the, the I, I wish I had soccer Propecia for all the hair pulling that, that liberals had when Amy Barrack was was finally approved. Then now there's a six to three conservative split.

Well, in 1500 or 1801, when Jefferson took over, he was president, he had Congress, but every single judge, every single federal judge in the country was a Federalist, 'cause there were only Federalists presidents supporting them, they excuse me, appointing them.

So this was, this was a problem that Jefferson and Madison finally saw, but do nothing about it. But so the one thing they did do is they passed the judiciary act that would, [laughs] that would delay the next Supreme court term till February of 1803. So the Supreme court didn't need for basically the first two years of Jefferson's term, but Marshall was looking out and he saw this case that he could do something about, and it was Marbury versus Madison.

Marbury was an operator. He was a guy who like, would get jobs collecting taxes or, or all of these things, you know any, any clamped on the Federalist party. Not because he believed in anything to Federalist State except give them jobs. So one of the things he did was he found, he, he got a commission for finding the site of then, the, the US Navy building in Washington.

So, but, you know, he wanted this commission because the federal was, he saw the Federal was going out of power and he better get this one, you know, as, as Justice, as a peace. And says that it's uh, "It, it, it should go right to the Supreme court," which Marshall in the end sends to. Now what's interesting about the whole Marbury versus Madison thing and said, "Who was the one signing the commissions at the last minute for Adams? Is secretary of State." Who was the secretary of state, John Marshall.

So, you know, for those of you out there that think there's like a there's collusion between the branches, well, Marshall was at the same time, secretary of state and Supreme court, Chief Justice. You can imagine John Roberts walking over to the white house one day and Biden saying, "You know, I don't like the guy I got in here, you know, would you, would you mind doing a couple of extra things for me go up and sell some peace treaties or something anyway?"

So one of the things that Marshall just found how to do, and I guess it really wasn't something that was going on in courts in Europe. Instead, he would take this, like I say, this case find something in it that he could sort of parcel out to the other side. He was good at that. He was, he would, he would, he would give something to the other side and then he decided what he wanted to decide.

So we're in this case where [laughs] where it's sort of been recused in the first place, but with a part of, part of the, part of the pleadings in the case were held in a in a hotel lobby because the one of those Supreme court Justices [had gal 00:36:08] couldn't make it to the Supreme, to the basement of the the co- Senate building where the, where the trial would normally be. And so Marshall decided to, you know, do the Mohammed to the mountain moment. And he brought the case to this, to the hotel lobby where the, the gal man could, could make attended to the first floor.

In any case, the, the what Marshall does is he gives the Republicans a little sock and he says, "I can't do, I can tell Madison what to do if he doesn't want to get this commission to Marbury. Well, that's his business. It's not something that the Supreme court can decide. It's not in my purview to, to go into normal run of executive branch things. But what I can tell you is that the whole thing violates the Justice, excuse me, the Judiciary act of 1789." You can't just eliminate this position. And it's a convoluted argument, which, which is hard to get into.

Jeffrey Rosen: [00:35:01] That's, I think that gives us a good, good sense of that.

Robert Strauss: [00:35:03] Yeah.

Jeffrey Rosen: [00:35:04] I wanted to basically introduce it, but that's, that sounds great.

Robert Strauss: [00:35:06] Yeah.

Jeffrey Rosen: [00:35:06] And it's good to know about how Marshall really did engage in the kind of twistfications as Jefferson put it, that would allow him to take away with one when he gave him another. But that, that sounds wonderful. Peter, I really want you to put on the table as much as you can from your, your book, which is so pathbreaking, there are still major descends. We haven't talked about including in the civil rights cases of 1883 and the Berea College case.

But what, what else do you want to know about those cases and about Harlan? And one of our questioners asks in the chat, a good question. What do you make of Harlan's statements about Chinese immigrants and Plessy, Harlan's anti-Chinese statements but tell us as much as you can about Harlan's outlook and how they influenced his positions in those pathbreaking decisions.

Peter Canellos: [00:35:49] The Civil rights case of 1883 was unlike Plessy which sort of passed unnoticed in the white community. The civil rights cases of 1883 was a matter of intense national scrutiny, national attention, extremely high profile case. You know, the rafters were packed during the discussion, things like that. Harlan until then had been a very quiet Justice. He'd been on the court for six years and he had sort of played the role of junior member Morrison Waite, was the Chief Justice and Harlan somewhat deferred to him and defer to the general idea that, you know, dissent was not always the best thing for the court's reputation.

And then suddenly in the civil rights cases of 1883 something, something clicked in him. Something changed in him. He was older, he was on the verge of turning 50. His beloved eldest daughter who had taught in a school where black children the children of freed slaves were taught industrial skills died in her mid 20s of typhoid fever. And he, he swore that every day for the rest of his life would be spent vindicating her memory.

He obviously had the standing relationship with Robert Harlan. And so he made a fateful decision that in this high profile case, by far the most high profile case that had happened during his tenure on the court, he was gonna break as a lone dissenter. And not only did he want to register his disapproval, but he wanted to come up with an entirely different sort of jurisprudence of the 13th and 14th and 15th amendments, the post-war amendments to the constitution. 'Cause there's a story that he was sitting upstairs in his study, agonizing over this decision and his wife had, and, and he had sort of writer's block and his, his wife's, wife had a great idea. Harlan used to collect memorabilia from American history. And one of the things that he had collected was the ink stand that Justice Taney had used in writing the Dred Scott opinion.

And you talk about a lot of influences on Harlan. Dred Scott was a big one because again, he was in Kentucky 1858. You know, that was the moment that it became inevitable, the civil war was coming. It was a devastating blow. And he, and he saw how the Supreme court can really get it wrong and really hurt things. So his wife puts the ink stand gently next to his, next to his yeah, scratched his desk next to where he's writing. And by her account, suddenly the ink started flowing and it started going.

So his opinion there, unlike Plessy V. Ferguson Plessy V. Ferguson was sort of a angry distilled statement of values. His dissent to the civil rights cases of 1883 was a giant treatise on the law. And by comparison Justice Bradley's majority opinion, which was not quite the abomination that Justice Brown's decision and Plessy V. Ferguson would be. That was just a simple that, well, there's no, there's no State action in these businesses. So the post-war amendments were intended to regulate States, therefore, no civil rights act at all.

So Harlan then painstakingly shows how in common law things like Inns and restaurants and transportation have been considered arms of the state because they provide services that are essential to commerce. It speculates uh, that the bill could be sustained under the commerce clause, which is what actually happens 80 years later in the heart of Atlanta case in 1965. He then talks about, you know, the ability to the, the, the federal government's ability to legislate, to enact the post-war amendments, which has explicitly written into the 14th amendment. But this is this is a large opinion that talks very seriously about what these post-war amendments mean.

When I first started studying it, the reputation was that, you know, it was a little bit all over the place and, you know, Justice Bradley had a good point. What I came away feeling is that there's a tremendous coldness in Justice Bradley's opinion. This is the opinion that said there comes a moment when people must stop being special favorites under the law and take the role of mere citizen. And you know, Harlan shot back that "It's scarcely fair to describe African-Americans [laughs] as the special favorite of the law."

And [inaudible 00:43:05] this of the proudly opinion is very striking. And Harlan's opinion any, in episodic ways anticipates much of the 20th century jurisprudence surrounding the, the 14th amendment, especially. So that was Harlan's experience of the civil rights cases of 1883. The Chinese cases, this is uh, a comment was made. There was a law review article done about 25 years ago by a w- a wonderful professor named Gabriel Chin who insisted to stay. And he read my book and he's blurred my book, and I know him and everything he insisted to stay.

And he, and he said in that opinion that he never meant to say Harlan was more anti-Chinese than other Justices, just that he was not the hero to the Chinese, that he was to African-American. There's a line in the Plessy dissent where he says, "There's another race so different from our own that we exclude them from the country." And then goes on to say, "But they, he's fine. Speaking of the Chinese race. The then he makes the point, which is a very valid and important legal point that the Chinese race was allowed in the white cars in the separate but equal doctrine in, in Louisiana, the, in the, under the Louisiana separate car act.

So he was making a valid point that here is Louisiana saying, "Separating blacks and whites, it's all equal, fair, and square." He's actually trying to say, "No, no. The purpose here is to separate blacks. It's not to put race in their own car, to separate blacks." And that's the point he's making about the Chinese. But with that sort of lead in of saying, there's a race that's so different from our own that we exclude them. I think some people can read it as saying that he was agreeing with the decision to exclude them.

And there's a body of evi- of evidence of counter evidence of Harlan having once to send a very strongly in a, in a horrible case where the Supreme court refused to defend the civil rights of Chinese people in a case where a gang of white said, like, "Chase Chinese workers onto a barge." And people were drowning. And it was in the, you know, Harlan was the only one standing up for the civil rights, Chinese in that case.

Later in the insular cases, he's the only one stating that without any reservation, Filipinos and Hawaiians deserve full constitutional rights. So the notion that he had a special, you know problem with Asians or with Chinese, I think this is, is quite [suited 00:45:35] and, and it's quite unfair to say that he was he was anti-Chinese.

There are some cases and some you know, evidence that he was not a hero to the Chinese that he wouldn't feel the way he was to the African-Americans. And I think, I think that is a point that, that Jack Chan and I agree on, but, but not he had some special unusual [inaudible 00:45:56].

Jeffrey Rosen: [00:43:14] Thank you very much for all that, for drawing that connection. Also between Dred Scott and the civil rights cases, Harlan writing from Taney's inkwell and Harlan named for chief justice, Marshall, there is a powerful symmetry.

Elizabeth you've been hosting Dissed. You've talked about a lot of great dissents. What's your favorite dissent among the ones that we haven't talked about and what is the difference between dissents and majority opinions in terms of whether great justices.

In other words, Marshall was great and he wrote mostly majority opinions, Harlan and Scalia are more famous for their, their If, if you wanna be great as a better to be in the majority, or just not?

Elizabeth Slatt...: [00:43:58] I guess, if you want to win in the short term, it's better to be in the majority. So, you know, just on unanimous cases, unanimous outcomes versus, you know, the value of dissents. You know, if you look back at the court that John Marshall inherited, you know, it was called by John Jay, an institution that lacked energy, weight, and dignity, and Marshall truly is the man who made the Supreme court as Richard Brookhiser his great book argues.

And I, I think part of the success of of, of Marshall's project to build up the Supreme court, part of that, oh, you know, wa- was drawn from the legitimacy of unanimous opinions. Now that's not to say that, you know, five, four opinions today, six, three opinions, or, you know, even eight, one opinions lack legitimacy. But I think in the, in the early, in the early days of our country to ensure that the judiciary would be taken seriously you know, it, it, it lacked, you know, the essential feature to, to execute its judgements.

You know, as, as Hamilton road in, in Federal '78, the ju- judiciary has neither force nor will only judgment. So it relied on, on the other branches to to enforce its rulings and, and on the American people to to follow those rulings. So I think that Marshall's intentional practice of adopting the style of delivering, oh, an opinion of the court instead of Siri Adam opinions was very intentional and, and helps to bolster that legitimacy.

That said, you know, I think dissents are clearly very powerful. As, as Peter was saying about justice Harlan's dissent in foreshadowing, what, what could come for the later civil rights act you know, basically writing a roadmap to say, you could use the commerce power since you can't use the 14th amendment. I think that that shows how important dissents can be. You know, justices have different, different reasons and in every instance for why they may why they may dissent you know, justice Ginsburg famously called on the legislature to act in a descent in the Lilly Ledbetter case, which Congress did. And, and, and he did her, her advice.

Sometimes they're just trying to persuade the other justices or persuade future justices to, you know, to follow to follow their, their course. And, you know, sometimes they're just simply, so the judge can sleep with a clear conscience and, and state their case. And so I, I think that dissents are very important, but, you know, unanimous opinions are, are great too.

And we we've been seeing recently you know, Chief justice Roberts a, a, has said that he, he thinks that unanimous opinions are important. And I think, you know, sort of contrasting with John Marshall, he used unanimous opinions to solidify the court's power, but I think John Roberts uses them, hopes for them for the opposite, in the opposite way to try to downplay the court's influence and reduce the spotlight on, on the court.

And so, you know, we, we often see, you know until this morning we had a couple of weeks worth of somewhat boring, unanimous opinions where the justices were all, you know, arm in arm, singing kumbaya and agreeing. Although we are getting down to the last few weeks of this term and where there a number of a hotly debated cases coming up. So I think that the unanimity of this, this term may be ending shortly. [laughs].

Jeffrey Rosen: [00:47:32] It may, indeed we just recorded today. Is we, the people podcast about this morning's decision, which not boring work lower profile, surprising ideological as you say, the, the best is yet to come. Robert Strauss, the last word in this excellent discussion is to you. There I am. Well, I wonder what you think about. Elizabeth, it's really interesting point that chief justice Marshall's goal was to use unanimity to shore up the legitimacy of the court.

Chief justice Roberts, she says, wants to disrupt the legitimacy by downplaying the courts power. And, you know, tell us how Chief justice Roberts did it. And he persuaded his colleagues to live together in the same boarding house. They discuss cases over a hug set of Madeira. Was it his vision, his personality, his temperament, or some combination that allowed him to be the most successful Chief Justice in American history.

Elizabeth Slatt...: [00:48:21] I think for a second, every it's like Washington, he was the guy who, you know, Washington was the guy who made the, the decisions on how it would be to be president. And everybody said, "Oh, well, okay, this is the way we're going to do it." Marshall was, was a persuasive guy. He was a guy who had been around. He'd been, he'd been a diplomat even in Europe.

So I think he, I think he had a a diverse backgrounds and a willingness to compromise within his court system. He didn't want to compromise, as Elizabeth said in, in this idea of unanimity, but you have, because there's, the Supreme court could have a you know uh, it was, it was the third of three until he came about. And, and, and for I don't know, I don't know how you can say who's, who's more important or not, but it certainly gave the Supreme court legitimacy. And that's what, that was his big goal. I think.

Jeffrey Rosen: [00:49:20] Thank you so much for that uh, concise and illuminating, uh, analysis of of, of how Marshall achieved his goal of unanimity and for wrapping up a really wonderful discussion exactly on time, which a really wonderful discussion exactly on time, which is always our goal exactly on time, which is always our goal here at the NCC. Um, thank you so much, Peter Canellos, uh, uh, Elizabeth Slattery, Robert Strauss for a great discussion.

Friends, thank you for joining. Please check out. Peter's new book on John Marshall Harlan Robert's new book on John Marshall and Elizabeth Slattery's wonderful podcast guest. Thanks again to all. And see you soon.

Jackie McDermott: [00:50:06] [singing] This episode was produced by me, Jackie McDermott, along with Tanaya Tauber, John Guerra and Lana Ulrich. It was engineered by Greg Scheckler. Join us live by registering for upcoming online programs  at constitutioncenter.org/debate. You can join these programs for free from your home computer laptop or any mobile device.

By joining live, you can check out the resources shared during the program, and you can submit your constitutional questions to the panelists throughout the conversation.

Check out past programs in our media library at constitutioncenter.org/constitution, including an episode featuring a panelist from this program, Robert Strauss discussing his book Worst President Ever. Or if you'd like to learn more about Chief Justice, John Marshall check out our 2019 program, The Man Who Made the Supreme Court. Featuring the author of a John Marshall biography by that name a claim historian Richard Brookhiser.

A link to these programs and more can be found in our show notes as always, please rate, review and subscribe to live at the National Constitution Center on apple podcasts, or follow us on Spotify and join us back here next week. On behalf of the National Constitution Center. I'm Jackie McDermott.

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