Chief Justice Roberts emphasizes Supreme Court’s independence

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Chief Justice Roberts emphasizes Supreme Court’s independence

Speaking at the University of Minnesota Law School in Minneapolis on Tuesday afternoon, Chief Justice John Roberts took a few minutes to address the “contentious events in Washington of recent weeks.”

“I will not criticize the political branches,” Roberts began, choosing instead to “emphasize how the judicial branch is—how it must be—very different.” Unlike public officials, members of the judicial branch “do not speak for the people, but we speak for the Constitution.”

“Our role is very clear,” Roberts maintained: “We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them.”

To do this job, Roberts stressed, “obviously requires independence from the political branches.” As exemplars of cases requiring independence, he cited school-desegregation case Brown v. Board of Education, free-speech case West Virginia State Board of Education v. Barnette and Youngstown Sheet & Tube Company v. Sawyer, a case on the limits of presidential authority during war.

“The court has from time to time erred and erred greatly,” Roberts admitted, “but when it has, it has been because the court yielded to political pressure,” as in Korematsu v. United States, upholding the internment of Americans of Japanese descent during World War II.

In addition to judicial independence, Roberts stressed collegiality, “which he described as a “shared commitment to a genuine exchange of ideas and views through each step of the decision process. We need to know at each step that we are in this together.”

A “concrete expression of that collegiality” is found “in a tradition that has prevailed for over a century.” Before taking the bench for oral argument or entering the conference room to discuss cases, the justices shake each other’s hands.

Roberts did not mention Justice Brett Kavanaugh by name, but Roberts did quote his newest colleague as saying that “we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.”

“I want to assure all of you,” Roberts said in closing, “that we will continue to do that to the best of our abilities whether times are calm or contentious.”

Following these remarks, Roberts spoke as planned with Professor Robert Stein, former dean of the law school. Among other topics, Roberts restated his opposition to television coverage of oral arguments, even as he acknowledged potential benefits. In response to one student following up on Roberts’ earlier statement about not speaking for the people, Roberts clarified that he meant that the court’s role is to support viewpoints not necessarily held by the majority.

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Ask the author: Our Constitution says we must take this risk

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Ask the author: Our Constitution says we must take this risk

The following is a series of questions prompted by the publication of Justin Driver’s “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind” (Pantheon Books, 2018). As Driver observes, “cultural anxieties that pervade the larger society often flash where law and education converge.” And indeed, decisions arising from schools – in which the Supreme Court has both spurred and forestalled social changes – have involved free speech, due process, criminal procedure, racial and sex equality, and religion.

* * *

Welcome, Justin, and thank you for taking the time to participate in this question-and-answer exchange for our readers.

Question: Before getting into specific cases and controversies, can you give an overview of the book?

Driver: The book examines the intersection of two distinctively American institutions: the public school and the Supreme Court. For a long season, many observers believed that these two institutions should have nothing to do with each other. But a panoramic view of this terrain now establishes that, without exploring the extensive interaction of the public school and the Supreme Court, it is impossible to grasp the full meaning of either quintessentially American institution. At its core, the book argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history. In the course of defending that claim, I challenge received wisdom on prominent cases and attempt to elevate relatively obscure cases into our constitutional canon. The book also highlights the many personal ordeals that students and their families have endured while defending constitutional rights. Although the book trains its focus principally on students’ constitutional rights, my examination of this particular field also aims to upend broader conceptions of the Supreme Court’s role in American society. Most broadly, I argue that when we disagree over what the Constitution means in public schools, we engage in an argument that is fundamentally about what sort of nation we want the United States to be.

Question: You write of Justice John Marshall Harlan’s famous solo dissent in Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of Louisiana’s segregated railcars, that “the deeply flawed, repugnant reasoning contained in that opinion renders it the single most overrated opinion ever written by a Supreme Court justice and—not incidentally—the most misunderstood.”

During Justice Brett Kavanaugh’s confirmation hearing, Harlan’s dissent was praised as an example of judicial independence in the face of popular opinion. Can you clarify why it’s “overrated”?

Driver: Harlan’s Plessy dissent claims so many admirers in the modern era largely because people cite an isolated fragment from the opinion. Read in its entirety, though, it espouses unabashedly white supremacist and anti-Asian attitudes. In one breathtaking passage, Harlan wrote that, even if railcars were racially integrated, such a development would in no way jeopardize the superior status of whites. “The white race deems itself to be the dominant race in this country,” he contended. “And so it is, in prestige, in achievements, in education, in wealth, and in power.” Further, Harlan emphasized what he deemed the Louisiana statute’s fundamental absurdity: It excluded black passengers from white railcars when “a Chinaman can ride in the same passenger coach with white citizens,” even though members of “the Chinese race” are “so different from our own that we do not permit those belonging to it to become citizens of the United States.” Although Harlan famously wrote that “[i]n respect of civil rights, all citizens are equal before the law,” contemporaneous readers would have understood that “civil rights” had a limited meaning and was distinct from “social rights.” Whereas “civil rights” connoted the ability to enter valid contracts and similar concepts, “social rights” connoted interracial sex and all other forms of interracial interactions that might lead to such contact. Harlan dissented in Plessy because he viewed integrated railcars as involving civil rights, rather than social rights — not because of some prophetic commitment to racial equality. Harlan’s tepid commitment to challenging racism can be gleaned from his unanimous opinion for the Supreme Court in Cumming v. Richmond County Board of Education, a case that was decided only three years after Plessy. In Cumming, Harlan upheld a school board’s decision to close the area’s public high school for black students but keep open the high school for white students. These underappreciated aspects of Harlan’s legacy reveal he was hardly the avatar of modern racial attitudes that some colorblind constitutionalists claim him to be.

Question: At the confirmation hearing, senators on both sides seemed to agree with Kavanaugh’s praise of Brown v. Board of Education, which declared that racially segregated schools violated the 14th Amendment’s equal protection clause, as “the greatest moment in Supreme Court history.”

This drew my attention to your claim that “Brown receives near-universal veneration today in no small part because different readers ascribe radically different meanings to the decision.” Can you elaborate?

Driver: While every justice on the current Supreme Court doubtless pledges allegiance to Brown, they simultaneously turn to salute in competing directions. These divergent interpretations of Brown have repeatedly created controversy since its inception, most recently in the 2007 clash in Parents Involved in Community Schools v. Seattle School District No. 1. After Brown, questions lingered regarding what the opinion required of educators. Did it merely eliminate state laws that either mandated or permitted school segregation? Or did it also require states to take affirmative steps to guarantee school integration? What applicability, if any, did Brown have on education in the North — where laws requiring school segregation had at least officially been abandoned before Brown but schools nonetheless remained racially identifiable? Although many white southerners initially contended that the Supreme Court had erred in Brown, once it became apparent that the court would not reverse course, the decision’s opponents effectively aimed to minimize desegregation and convert the opinion into a principle requiring constitutional colorblindness. These strategies eventually attained considerable success not least because the court, after issuing Brown in 1954, abandoned efforts to develop a meaningful desegregation jurisprudence for roughly 15 years.

Question: You write that approbation of Brown’s unanimity “appears to rest on a severely exaggerated understanding of the Supreme Court’s ability to stifle opponents by speaking with one voice.” Can you explain? Isn’t unanimity better than division for the perceived legitimacy of the court?

Driver: Many observers have asserted that the Supreme Court’s unanimity was essential in Brown because a dissenting opinion would have stoked southern opposition. As subsequent events would demonstrate, however, southerners did not need any encouragement from the Supreme Court to resist Brown in a maximal form. In 1956, for example, 19 U.S. senators and approximately 80 congressmen joined forces to issue a document called the Southern Manifesto denouncing Brown as wrongly decided. Anti-Brown forces eventually coalesced around a rallying cry holding that they would accept racial integration exactly “never!” Importantly, it seems quite plausible that Chief Justice Earl Warren, had he not felt compelled to placate Justice Stanley Reed — the last holdout for Jim Crow — could have written a more muscular opinion in Brown. Whatever modest gain Warren realized from Brown’s unanimity in the form of squelched dissent, in other words, could have been counterbalanced — and perhaps even outweighed — by the attendant loss of watering down the opinion’s condemnation of Jim Crow. Thus, rather than continuing to champion Warren’s behind-the-scenes maneuvering in Brown uncritically, one might more appropriately view those actions as well-intentioned but ultimately misguided.

Question: Your title (like mine) comes from the Supreme Court’s 1968 opinion in Tinker v. Des Moines Independent Community School District. There Justice Abe Fortas wrote, “It can hardly be argued that … students … shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

You suggest that this phrase “not only became a staple of judicial opinions but even entered the larger national culture.” What’s the importance of this phrase, which comes from what you describe as “the Supreme Court’s most consequential student rights opinion in its entire history”?

Driver: If Tinker were memorable only for containing that sentence, the opinion would nevertheless rank high on the list of the Supreme Court’s momentous defenses of students’ constitutional rights. But Tinker also held great significance beyond that lone sentence. By linking the opinion to a broad notion of citizenship, Fortas emphasized that it would be particularly unwise for a society that values uninhibited public debate to permit schools to suppress views, as today’s students will soon assume responsibility for maintaining tomorrow’s civic discourse. Some of the most essential learning that occurs in schools happens not only during teacher-led classroom instruction, but during “personal intercommunication among the students,” interactions that Fortas affirmed as embodying “an inevitable … [and] an important part of the educational process.” Some observers have perceived Tinker’s outcome as foreordained. But from the viewpoint of the 1960s, it seemed quite plausible that the Supreme Court could have reached precisely the opposite outcome. Fortas himself viewed the matter as thorny: When Tinker initially arrived at the court, Fortas wrote, “this is a tough case” on a law clerk memorandum outlining the students’ petition for certiorari. Fortas eventually voted to deny the students’ petition, a stance that (if not overcome by his colleagues) would have permitted the school officials’ suppression of student speech to remain intact after their victory at the circuit-court level. Even at oral argument, Fortas’ comments to the students’ lawyer revealed at least some unease at the prospect of holding that the Des Moines educators’ actions violated the Constitution: “This gets the Supreme Court of the United States pretty deep in the trenches of ordinary day to day [school] discipline.” Nevertheless, Tinker represented a major innovation in the recognition of students’ constitutional rights, and its resonant language established the fundamental terms of debate when the Supreme Court weighed the meaning of various constitutional rights in the nation’s public schools.

Question: What was Justice Ruth Bader Ginsburg’s role in Safford Unified School District v. Redding, a 2009 case that, you write, “undeniably marked a crucial moment in this arena of student rights, as it represented the first—and to date the only—time that the Supreme Court has held that school officials violated the Fourth Amendment’s prohibition on unreasonable searches”?

Driver: During oral argument in Redding, in which the court considered the constitutionality of a strip search of an eighth-grade girl, some courtroom observers noted that Ginsburg appeared on the verge of exasperation with her colleagues — all males at the time — because their questioning seemed to betray a failure to grasp the search’s humiliating effect. Two weeks later, Ginsburg atypically made on-the-record statements to a reporter about the pending case. “They have never been a 13-year-old girl,” Ginsburg said of her fellow justices. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.” After the court issued an 8-1 decision invalidating the search, several commentators credited Ginsburg’s comments with helping to transform the case’s outcome. Immediately on the decision’s heels, when an interviewer asked Ginsburg whether the court’s deliberations in Redding benefited from having a woman present, she answered in the affirmative, largely reiterating her previous comments. “I think [the inclusion of a woman] makes people stop and think, Maybe a 13-year-old girl is different from a 13-year-old boy in terms of how humiliating it is to be seen undressed,” Ginsburg said.

Ginsburg’s repeated references to Savana Redding’s tender emotional state — which Ginsburg construed as a dual product of age and sex — doubtless exert a formidable grip on the instincts and perhaps even the emotions of many readers. On this view, 13-year-old boys — unlike their female counterparts — are simply not sensitive about their bodies, or much of anything else for that matter. But consider for a moment what work is done, precisely, by emphasizing that the strip search occurred when Redding was 13 — an age that, as Ginsburg correctly noted, often falls right around the onset of puberty. That age is surely a particularly awkward time for many adolescents, but does it materially alter the Fourth Amendment analysis in any way? Furthermore, Ginsburg’s position that strip searches are uniquely objectionable to female students also demands scrutiny. Very few male students, it seems safe to posit, would be indifferent to the experience of school officials requiring them to disrobe in a search for contraband. Boys, perhaps now more than ever, are hardly impervious to feeling inadequate about their physiques. When Ginsburg was a pioneering attorney in the legal fight against sex discrimination during the 1970s, she admirably conceived of herself as combating laws that locked men and women into stereotyped positions. It seems regrettable that Ginsburg’s public commentary on Redding has perpetuated hoary gender stereotypes — accentuating girls’ vulnerability and boys’ resilience — that should be unnecessary to condemn the outrageous strip search at issue in that case.

Question: Of Parents Involved in Community Schools v. Seattle School District No. 1, in which the Supreme Court invalidated school integration programs in Louisville and Seattle, you write that Justice Anthony Kennedy’s solo opinion “merits examination for its jurisprudential innovation and because—given that four justices agreed with his conclusion, and a different four justices agreed with a portion of his reasoning—lower courts have accepted it as articulating Parents Involved’s governing standard.”

What do you see happening in this area of law now that Kennedy has retired?

Driver: Kennedy carved out an unusual middle ground in Parents Involved. Along with the contingent led by Chief Justice John Roberts, Kennedy articulated a deep aversion to government programs that classify individual students according to race for student-placement purposes. Kennedy’s expression of this idea highlighted notions of what might be termed “racial libertarianism.” Kennedy parted company with the justices who voted to invalidate the programs, however, by creatively disentangling two concepts that had traditionally been lumped together, as he contended that opposing racial classifications did not necessarily entail embracing constitutional colorblindness. Indeed, Kennedy explicitly distanced his position from Harlan’s elevation of the colorblind model in Plessy. “[A]s an aspiration,” Kennedy wrote, “Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.” Along with the contingent led by Justice Stephen Breyer, moreover, Kennedy endorsed the notion that racial integration in schools constitutes a worthy, even a venerable goal. “This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children,” Kennedy argued. “A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.” With his writing in Parents Involved as a major first step, Kennedy ultimately became the latest in a series of improbable saviors of affirmative action with his recent opinion in Fisher v. University of Texas at Austin (Fisher II). But it seems eminently probable that his successor will take a more hardline view of race-conscious admissions practices in higher education. Kavanaugh’s racial rhetoric as an attorney embraced colorblind constitutionalism and signaled unmistakable hostility to affirmative action.

Question: One of the court’s religion cases involving public schools was Santa Fe Independent School District v. Doe, which addressed the practice of student prayer before high school football games. In an amicus brief for two congressmen in support of the school district, Kavanaugh, then an attorney in private practice, wrote that schools could not be required to “actively prohibit” students from praying in school-provided platforms that allowed other, nonreligious messages. Ultimately, as you explain, the court disagreed, reasoning that “the high school’s elaborate involvement with the prayer transformed the pregame message into the government’s religious expression (which the Establishment Clause prohibits), rather than an individual student’s religious expression (which the Free Speech and Free Exercise Clause protect).”

How do you think Kavanaugh might approach cases involving religion and schools as a justice?

Driver: I fear that Kavanaugh’s elevation to the Supreme Court could raise the temperature in an area that has been relatively quiet over the last decade or so. Religion in public schools has been a perennial hot-button issue, but a variety of factors have recently combined to create a quiet détente in this area. First, the federal judiciary has clarified that students need not shed their religious identities at the schoolhouse gate — by both permitting public schools to observe a moment of silence at the beginning of classes and upholding student-led extracurricular clubs with a religious focus. Second, the meteoric rise of homeschooling — an option exercised largely by families for religious purposes — has eliminated a significant source of constitutional conflict. Many devout families who in prior generations would have sent their children to public schools now select homeschooling, and that transformation has succeeded in curtailing a host of potential claims contesting public schools’ curricula under the free exercise clause. Third, the Supreme Court validated the constitutionality of tuition vouchers for use at private schools, regardless of whether they are affiliated with a religious tradition. Fourth and perhaps most importantly, the Supreme Court has done an enviable job of helping to ensure that public schools are not the site of officially sanctioned religious proselytizing. Disconcertingly, Kavanaugh’s amicus brief in Santa Fe, which defended the school board’s position, suggests that the public school could once again become a hotly contested battleground over the proper place of religion in American society.

Question: In the October 2016 term, the Supreme Court granted but did not ultimately decide Gloucester County School Board v. G.G., the case of a transgender student who wanted to be able to use the school bathroom consistent with his gender identity. You write that “it seems improbable that … the institution will be able to avoid resolving [the student’s] central legal question for long.” “If the issue does soon return to the Court,” you continue, “it could quite plausibly pose a question not in the statutory and regulatory domain but in the constitutional domain.”

Could you elaborate on this last point about the statutory/regulatory and constitutional domains?

Driver: In assessing G.G.’s case, the U.S. Court of Appeals for the 4th Circuit initially rested its decision on the Obama administration’s interpretation of regulations regarding Title IX of the Education Amendments Act of 1972. This statute prohibits discrimination “on the basis of sex” for educational entities that receive money from the federal government. While Title IX contains regulations that permit sex-segregated bathrooms, the Obama administration instructed schools generally to treat trans students in accordance with their gender identities for purposes of those regulations. Following the Trump administration’s withdrawal of the prior administration’s interpretation, the Supreme Court remanded the case to the lower courts, in part because the institution prefers to avoid weighing in on legal questions that involve moving targets. Given the altered statutory landscape, the Constitution’s 14th Amendment could well be the next domain for this issue. Days after the Trump administration rescinded the prior guidance, a district court judge in Pennsylvania relied upon the equal protection clause to invalidate a rule that prohibited three transgender students from accessing restrooms congruent with their gender identities. Permitting transgender students to use only the various single-occupancy bathrooms located around the school did not, according to Judge Mark Hornak, satisfy transgender students’ rights under the 14th Amendment. “[D]iscrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes,” Hornak explained. “The Plaintiffs are the only students who are not allowed to use the common restrooms consistent with their gender identities.”

Question: The above question aside, what do you see as the next major intersection between the Supreme Court and the schoolhouse gate?

Driver: No legal issue sits higher atop the long list of needed educational reforms than eliminating corporal punishment against students — the sole remaining group that governmental actors are permitted to strike with impunity. The Supreme Court should revisit its decision in Ingraham v. Wright and establish that the Eighth Amendment, properly understood, prohibits educators in public schools from inflicting corporal punishment on students. Whatever Ingraham’s constitutional legitimacy in 1977, the last four decades leave no doubt that wooden paddles have no business on the behinds of public school students. Although the overwhelming number of states permitted corporal punishment during the 1970s, that number has dwindled to fewer than 20 today, and even many jurisdictions within those states have jettisoned the practice. Little evidence suggests, however, that the remaining jurisdictions that have elected to retain this archaic custom will soon decide to cease striking students of their own volition. That public educators continue beating students today — well into the 21st century — is nothing less than an abomination. So, my greatest hope for this book is that it may play some small role in encouraging the Supreme Court to abandon Ingraham v. Wright.

Perhaps my greatest fear in this area, however, is that the Supreme Court may reverse its decision in Plyler v. Doe. That decision prohibited public schools from banning children of unauthorized immigrants and thereby protected access to education for a particularly vulnerable subset of American society. Roberts, when he was a young attorney working in the Reagan Justice Department, coauthored a memorandum suggesting that Plyler v. Doe was incorrectly decided. If he continues to hold that view, Roberts may lead his colleagues in an effort to permit jurisdictions to cast out undocumented citizens from the nation’s public schools. That decision would, I believe, have calamitous consequences for our constitutional order.

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This week at the court

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This week at the court

The Supreme Court released additional orders from the October 12 conference on Monday. The court did not grant any new cases.

The justices will meet next for their October 26 conference. The calendar for the November sitting, which will begin on Monday, October 29, is available on the court’s website.

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A look back at Justice Hugo Black’s first day on the bench

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A look back at Justice Hugo Black’s first day on the bench

Protesters repeatedly interrupted Justice Brett Kavanaugh’s confirmation hearing in September, but the new justice’s first day on the bench this morning passed without disruption.

At least one justice had a more eventful inaugural experience.

On October 4, 1937, Justice Hugo Black’s first day, “two vigorous protests to his legal right to sit were laid before the other justices and himself,” as reported in the New York Times. In contrast to disruptions to Supreme Court proceedings in 2015 – in which protesters were removed and warned by Chief Justice John Roberts of criminal charges — Chief Justice Charles Evans Hughes engaged with both men, who tried to make verbal legal arguments, were allowed to remain in the courtroom, and spoke afterward with reporters.

Patrick Henry Kelly, a lawyer, first approached the bench and introduced himself after Hughes welcomed Black and asked if there were any bar admissions.

Hughes quickly cut him off, asking, “Are you here to present a candidate for admission to the bar?”

When Kelly said he wasn’t, Hughes called him “out of order,” and an attendant escorted him to his seat.

Kelly interrupted again shortly thereafter, announcing “a question of personal privilege.” This time Hughes asked him, “Is it in writing?”

“I put it in writing in a letter to each of the justices,” Kelly answered.

“If it is in writing, it will be considered,” Hughes replied.

This is when Albert Levitt – a former U.S. assistant attorney general, elaborately identified in the Times as a “soldier of fortune, preacher, professor, corporation lawyer, Federal judge and utility ‘baiter’” – rose to speak. He said he wanted to file a brief asking the court to order Black to show cause for being permitted to serve as a justice. Hughes told Levitt to submit the brief to the clerk of the court.

Kelly then made his third announcement, holding a piece of paper he claimed was his motion.

“Very well, you may submit it to the clerk; it will be considered by the Court,” Hughes said.

Throughout these exchanges, “Mr. Black the new justice sat back in his big leather chair. His lips were set tightly together and his hands clasped over the rich black silk robe which he wore for the first time.”

Kelly and Levitt’s written arguments involved the clause of the Constitution that states: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.”

As explained by Todd B. Tatelman in a 2009 report by the Congressional Research Service, “The Emoluments Clause: History, Law, and Precedents,” Black had been a senator when Congress raised the pension amount for justices retiring over age 70.

Justice Willis Van Devanter, over 70 and among the “Four Horsemen” whose rulings striking down New Deal legislation contributed to President Franklin Roosevelt’s court-packing plan, soon retired.

Opponents to Black argued that the nominee, who had been elected to serve as a senator until March 4, 1939, could not in 1937 constitutionally serve as a justice after Congress had so recently increased the justices’ pensions.

His supporters argued that Black, then only 51, would not receive any pension benefits until long after his senatorial term would have expired.

According to Tatelman, the Supreme Court ultimately disposed of Levitt’s case, Ex parte Levitt, in a per curiam opinion “stating that the plaintiffs’ interest was insufficient as all they could demonstrate was that they were citizens and members of the Supreme Court bar.”

Black’s nomination had been contentious from the beginning. Turner Catledge reported for the New York Times on August 13, the day after Roosevelt picked Black, that the nomination “dropped like salt into the political wounds already rubbed raw by the court issue” and other conflicts.

Two senators insisted that Black’s nomination be referred to the Senate Judiciary Committee. Catledge wrote that the “Senate’s rule of courtesy by which executive appointees from its membership are confirmed promptly and unanimously was thus abrogated for the first time since L.Q.C. Lamar of Mississippi was nominated to the court in 1888.” (Lamar was nominated on December 6, 1887 and confirmed on January 16, 1888.)

Nevertheless, Black was confirmed by a 63-16 vote only days later, on August 17, 1937.

As Virginia Van Der Veer detailed in an 1968 issue of American Heritage, rumors about Black’s past membership in the Ku Klux Klan had circulated after his nomination, but only in September did a series of articles by Ray Sprigle of the Pittsburgh Post-Gazette present evidence that broke open the story.

On October 1, Black went on national radio to give an 11-minute speech in which he admitted to having once joined the Klan but condemned the “concerted campaign” against him. Van Der Veer wrote that “newspapers opposed to the President almost universally criticized the speech,” but Roosevelt called the speech “a grand job [that] did the trick” for convincing “the man in the street.”

Three days later, Black took the bench. Upon Black’s retirement in September 1971, after 34 years as a justice, Robert Semple in the New York Times described Black as having been “firmly within the ‘liberal’ wing of the Court, particularly on cases involving freedom of expression and religion,” and as having “joined the majority in the landmark cases of the 1950’s and 1960’s in which the Court broadened racial desegregation in the schools and in public accommodations.”

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This week at the court

Read more of this story here from SCOTUSblog by Andrew Hamm.

This week at the court

The Supreme Court released orders from the October 5 conference on Tuesday; the court called for the views of the U.S. solicitor general in First Solar Inc. v. Mineworkers’ Pension Scheme.

On Tuesday, Justice Brett Kavanaugh took the bench for his first oral arguments. The justices heard oral argument in Stokeling v. United States and United States v. Stitt.

On Wednesday, the justices will hear oral argument in Nielsen v. Preap and Air and Liquid Systems Corp. v. DeVries.

On Friday, the justices will meet for their October 12 conference.

The calendar for the October sitting is available on the court’s website.

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Justice Breyer promotes value of literature in divisive times at The Atlantic Festival

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Justice Breyer promotes value of literature in divisive times at The Atlantic Festival

The same morning senators reviewed an FBI report investigating allegations of sexual assault against Supreme Court nominee Judge Brett Kavanaugh, Justice Stephen Breyer, speaking at The Atlantic Festival in Washington, said he would “stay away as far as I can from any particular controversy.”

Instead, Breyer, on stage with Michael Kahn, the artistic director of the Shakespeare Theatre Company, extolled the value of poetry and literature, especially in the works of William Shakespeare.

“If you’re a judge,” Breyer said, “you’ve got to know how other people than you live.” “Shakespeare has every possible person,” Breyer added, “and the people who are there have all of their emotions, desires, hopes, thoughts, more than they realize they have themselves, and he expresses them through poetry.”

For this reason, Breyer said, he advises college students interested in the law to study the humanities: “You only have one life, that’s the one you’ll know, and maybe some family and your friends, but if you study literature, learn a foreign language, read a little history, read Shakespeare, you will get to know people who’ve had lives that you would never otherwise know about.”

This helps Breyer as a justice. “If you deal on a court where people think quite different things,” he said, “you better listen, and you better understand that they are coming perhaps from a slightly different place but we have the same problems, the same effort to resolve those problems, … and we will talk this through and we will try to get as close to unanimity as we can, and that requires listening.”

Justices, including Breyer, regularly appear in the Shakespeare Theatre’s mock trials. These events address legal questions presented by plays running at the theatre, as a way of “explor[ing] the connection of classical theatre and modern-day law.”

For example, in 2015, Breyer and Justice Ruth Bader Ginsburg, along with three other judges, heard argument about whether the “Family Court of La Mancha had erred in its determination that knight errant Alonso Quixana – also known as Don Quixote – was mentally incompetent and required a guardian.”

Breyer and Ginsburg have also performed in Shakespeare’s plays. Breyer once played the ghost in “Hamlet.” Ginsburg, appearing in “Henry VI,” delivered the famous line: “The first thing we do, let’s kill all the lawyers.”

Asked what Shakespeare thinks about lawyers, Breyer answered that, just as he does for a person sharpening a sword, or keeping a farm, or living in the woods, Shakespeare “sees their humanity, whatever they are doing, and begins to understand the pros and cons of their jobs.”

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