All posts by Chris Schmidt

On This Day in Supreme Court History—January 26, 1898

On this day in 1898, Justice Joseph McKenna took his oath of office to serve on the Supreme Court.

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President William McKinley nominated McKenna to the Court on December 16, 1897, to fill the seat of Justice Stephen J. Field, who had retired. McKenna was serving as President McKinley’s Attorney General at the time. The Senate confirmed him that same day by a voice vote, over the opposition of lawmakers, newspaper editors, and two federal judges, all of whom believed him unfit for the position.

In a ceremony of the members of the Court, Chief Justice Melville Weston Fuller administered the statutory oath to Justice McKenna in the robing room,.

Then, at noon, the Chief Justice and the associate justices took their seats on the bench. The clerk read Justice McKenna’s commission while McKenna stood. Everybody in the chamber rose and McKenna read the judicial oath. The clerk presented McKenna an open Bible. According to the Buffalo Enquirer, “upon its page [McKenna] imprinted a kiss that could be heard over half the courtroom.”

The court marshal escorted Justice McKenna behind a curtain behind the bench, and the new associate justice appeared at the left of the Chief Justice.

The Buffalo Enquirer account continued:

As he ascended the steps leading to the platform, his hand was warmly clasped by Justice [Edward Douglass] White, who occupied the adjoining chair, and he was formally welcomed to his seat. All the other justices faced the new member and bowed to him, but none shook hands.

The Court then turned to the business of the day.

McKenna would serve on the Court until his retirement in 1925.

 

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

 

 

Martin Luther King Jr., the Law, and the Courts

In honor of Martin Luther King Jr Day, we are reposting this essay by ISCOTUS Co-Director Christopher W. Schmidt.

Among the most important of Martin Luther King, Jr.’s contributions to American history were his commentaries on the relationship between the law and social justice.

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King’s views toward the law can be divided into two categories: law as obstacle and law as opportunity.

Law as an Obstacle to Racial Justice

Much of the civil rights movement was a struggle against law: against racially discriminatory laws or racially neutral laws that segregationists used to attack civil rights activism.

Southern police arrested civil rights protesters—including, on multiple occasions, King—for violating practically every criminal code provision: disturbing the peace, marching without a permit, violating picketing or boycott laws, trespassing, engaging in criminal libel and conspiracy. The NAACP was prosecuted in Alabama and elsewhere for refusing to disclose its membership rolls as required by state law. Several southern states went after civil rights attorneys for legal ethics violations. Montgomery used minor traffic ordinance violations as a way to undermine the carpools used during the Montgomery Bus Boycotts. Alabama prosecuted King on charges of tax evasion.

King often struggled to explain why he believed civil rights activists were justified in breaking certain laws—even some laws that on their face said nothing about race—while also condemning segregationists for their defiance of Brown and other federal civil rights requirements. He famously tackled this question in his 1963 Letter from Birmingham Jail, where he differentiated just and unjust laws. “A just law,” he wrote, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.” Since segregation laws fall squarely in the later category, “I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.”

A more challenging situation, King continued, involves a law that “is just on its face and unjust in its application.” It was this kind of law that landed King in his Birmingham jail cell, since he had been arrested for parading without a permit. “Now, there is nothing wrong with an ordinance which requires a permit for a parade,” he explained, “but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”

In this particular case, King might have won in the court of public opinion and certainly in the court of history, but he lost in the highest court of the land. When the Supreme Court finally decided to hear an appeal of the conviction of civil rights protesters for violating a state court injunction ordering them to refrain from demonstrating, the Court ruled 5-4 against the civil rights protesters. King and his cause generally fared well before the Supreme Court, but this case was one of a handful of exceptions. Justice Stewart, writing for the Court, reprimanded the protesters in Walker v. Birmingham:

This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.

For King, unjust laws—and the courts that enforced them—were obstacles in the cause of racial justice.

Law as an Opportunity for Advancing Racial Justice

And then there were the laws that King and other civil rights activists wanted: school desegregation orders; non-discrimination requirements for restaurants, hotels, and private employers; voting rights protections. King’s attitude toward these kinds of civil rights laws is also quite interesting.

King understood court decisions and legal reform as a central component of broader political and social struggle. Although he certainly saw the importance of courtroom decisions and legislation, when he talked about the power of law, he tended to focus on the difficult work required to give life to basic legal principles. Judicial and legislative breakthroughs were not just moments for celebration. They were calls to action.

King’s sometimes tense relationship with civil rights lawyers helped shape his attitude toward the law. From the start of his civil rights career, King recognized his debt to the civil rights lawyers. In December 1955, on the eve of the Montgomery bus boycott that first brought him to the nation’s attention, he gave a passionate speech in which he framed boycotters’ cause as building on the long work of civil rights lawyers, particularly the dramatic NAACP victory in Brown the year before. “If we are wrong,” he declared, “the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.” Furthermore, civil rights lawyers played a critical role in the eventual triumph of the boycott. The boycott was teetering on the brink of failure, faced with a potentially crippling legal challenge to the carpool system on which the boycotters relied, when news arrived that the Supreme Court had struck down the segregated bus system as unconstitutional.

Yet King also sought to distance himself from the NAACP and its litigation-based tactics. There was an element of inter-organizational rivalry at play here—King’s SCLC competed with the NAACP for attention and funds. There was also an element of a generational divide at play, as King became more closely aligned with the younger element of the movement that was committed to direct-action protest and lashed out against the legalistic tactics favored by the older civil rights activists.

The work of lawyers was important, King stressed, but it must not dominate the energy of the movement. Direct-action protest was both an extension of, and an alternative to, the NAACP’s project of school desegregation litigation, which by the late 1950s had largely stalled in the face of obstructionist legal maneuverings. A new wave of civil rights protest emerged, sparked by the student lunch counter protests of 1960 and motivated in large part by frustration with the slowness of legal reform. To understand what drove African Americans to take to the streets to demand their rights, King explained, “[o]ne must understand the pendulum swing between the elation that arose when the [school desegregation] edict was handed down and the despair that followed the failure to bring it to life.” He critiqued what he saw as an overly idealistic vision of the law that the NAACP lawyers relied upon in making their case for Brown. “When the United States Supreme Court handed down its historic desegregation decision in 1954, many of us, perhaps naively, thought that great and sweeping school integration would ensue.”

Injustice might find expression in unjust laws, but King emphasized that the roots of injustice are deeper. For King, the law by itself was limited in its ability to affect hearts and minds; to truly uproot entrenched patterns of inequality, one must acknowledge the limits of legal reform. African Americans “must not get involved in legalism [and] needless fights in lower courts,” King warned, for that was “exactly what the white man wants the Negro to do. Then he can draw out the fight.” This was the harsh lesson of Brown and massive resistance. “Our job now is implementation. . . . We must move on to mass action . . . in every community in the South, keeping in mind that civil disobedience to local laws is civil obedience to national laws.”

One of King’s contributions to the struggle for racial equality was his passionate skepticism toward the efficacy of legal change when it was unaccompanied by organized social action.

ISCOTUS Co-Director Christopher W. Schmidt is Professor of Law and Associate Dean for Faculty Development at IIT Chicago-Kent College of Law. His book, The Sit-Ins: Protest and Legal Change in the Civil Rights Era, is about to be published by the University of Chicago Press.

This Day in Supreme Court History—November 30, 1804

On this day in 1804, the United States Senate created a committee tasked with preparing rules to govern the first impeachment trial of a Supreme Court justice. The previous March, the House of Representatives had voted to impeach Justice Samuel Chase. Chase had been appointed to the Court by George Washington in 1796 and had established a reputation for his staunch, outspoken commitment to the Federalist Party. This gained him the enmity of the Jeffersonian Republicans, who in 1800 had won the presidency and gained control of Congress.

Samuel Chase

Chase had been particularly vocal in criticizing the Republican repeal of the Judiciary Act of 1801. The repeal abolished a number of newly created federal courts, along with the judgeships Federalists had secured prior to losing power.  Chase told a Baltimore grand jury in May 1803 that the repeal would “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.”

At the urging of President Jefferson, Representative John Randolph of Virginia initiated impeachment proceedings against Chase. On March 12, 1804, the House approved eight articles of impeachment against the justice. Among them was the charge that Chase was “continually promoting his political agenda on the bench,” and thereby “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.”

The House also charged him with “refusing to dismiss biased jurors,” and “excluding or limiting defense witnesses in two politically sensitive cases.” These charges stemmed from two trials over which Chase presided. One was the 1800 treason trial of John Fries, in which Chase had delivered a written opinion that defined treason as a matter of law, without hearing the lawyers’ arguments. Fries’ attorneys withdrew from the case because, claiming that Chase’s conduct had tainted the jury pool, rendering a fair trial impossible. Fries was easily convicted. The other was the 1800 trial of James Callender, who had been indicted under the Sedition Act for publishing a book in which he accused John Adams of being a British sympathizer and a monarchist. The Sedition Act, which a Federalist Congress passed in 1798, made it a crime to bring the president or Congress “into contempt or disrepute.” The House impeachment charge alleged that Chase had acted in a way to ensure Callender’s indictment and that Chase also failed to exclude a biased juror.

The Senate ultimately acquitted Chase of all eight charges on March 1, 1805. None of the articles of impeachment came close to getting the two-thirds majority needed for conviction. His victory is widely believed to be a critical foundation for the principle that the federal judiciary should be insulated—to a large extent—from the partisan machinations of the legislative and executive branches.

Chase went on to serve the rest of his life on the Court. He died in 1811.

 

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and ISCOTUS Co-Director Professor Christopher Schmidt.

This Day in Supreme Court History—November 5, 1987

On this day in 1987, President Ronald Reagan’s nominee to the Supreme Court, Douglas H. Ginsburg, admitted to using marijuana while he was a student at Cornell University and as a professor at Harvard Law School. Ginsburg’s admission would end his chance to occupy the seat that had opened when Justice Lewis Powell had announced his retirement the previous June.

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Ginsburg had been a Supreme Court nominee for just nine days. President Reagan nominated him after the Senate rejected Reagan’s initial nominee for Powell’s seat, Judge Robert H. Bork. At the time of his nomination, Ginsburg was a judge on the United States Court of Appeals for the District of Columbia Circuit.

Nina Totenberg of NPR first broke the news of Ginsburg’s marijuana use. Several of the nominee’s former colleagues from Harvard Law, where he taught from 1975 to 1983, disclosed to the press that they had witnessed Ginsburg smoking marijuana during his time on the faculty. Ginsburg admitted to the allegations later that day. “It was a mistake,” he stated in a press conference, “and I regret it.”

The revelation was especially controversial because of the Reagan Administration’s aggressive “War on Drugs” campaign. When Reagan nominated Ginsburg, he presented him as someone who would be tough on crime. “No one has rights when criminals are allowed to prey on society,” Reagan stated in announcing Ginsburg’s nomination. “Judge Ginsburg understands that.”

Just two days after Totenberg’s revelation and the nominee’s admission, Ginsburg withdrew his name from consideration. On November 11, President Reagan nominated Justice Anthony M. Kennedy, who received unanimous approval in the Senate on February 3, 1988.

 

This post was drafted by ISCOTUS Fellow Elisabeth Hieber and edited by ISCOTUS Fellow Bridget Flynn, both Chicago-Kent Class of 2019. It was overseen by ISCOTUS Co-Director Professor Christopher Schmidt.

On This Day in Supreme Court History—October 7, 1935

On this day in 1935, the Supreme Court moved into its current home on First Street in Washington, D.C.

“After years of moving about and occupying ‘borrowed’ quarters,” read one news account of the day, “the Supreme Court at last has a home of its own—a home which reflects the dignity and prestige of the nation’s highest judicial body.” “Neglected High Court Rises to Magnificence,” ran the headline in the Washington Post.

One detail many commentators noted when the Court opened were the tired old chairs the justices still used when hearing cases. “In the subdued grandeur of the new chamber, the old chairs, ranged behind the bench, seem a bit out of place,” noted one reporter. “Six of them are heavy leather affairs, tufted and bulging; the others also are leather but they are not so heavy nor are they tufted.” Asked whether he wanted a new chair, Justice Benjamin Cardozo referred to his respect for judicial precedent: “If Justice Holmes sat in this chair for twenty years, I can sit in it for a while.”
Although the courtroom was considerably larger than its previous space in the Capitol, the audience seating capacity had increased only marginally. The justices had insisted on maintaining a feeling of intimacy to the room and, according to one reporter, they did not want “to turn the chamber into an auditorium.”
The completion of the new home for the Court was largely the work of William Howard Taft, the ex-president who was appointed Chief Justice in 1921. From the time he arrived on the Court, Taft lobbied Congress for new chambers. In its early years, the location of the Supreme Court had bounced around before settling into a room in the basement of the Capitol (interrupted for a time after French troops set fire to their chambers, along with much of the rest of the Capitol building, during the War of 1812) and then, beginning in 1860, to new chambers upstairs in the Capitol, where the Court remained until 1935. But Taft felt the facilities inadequate. There was little work space for the justices, so most of them worked out of their home offices. Even before Congress had approved a relocation plan, Taft privately reached out to the famous New York architect Cass Gilbert to design the new building. In 1928, Congress created a building commission for the new Court, with Taft as its chair. The following year Congress apportioned $9.7 million to construct the new Supreme Court across the street from the Capitol.
Taft’s instructions to Gilbert were that the building be “enduring and easy to keep clean.” In preparing to design the new Supreme Court, Gilbert traveled to Athens, where he studied the Parthenon. Taft saw ground broken on the new Court building in early 1930, but he died that spring, soon after he stepped down from the Court. Construction ran through the spring of 1935.

The day after the new Court opened, the Wall Street Journal’s ran an editorial titled “Democracy’s Test” that spoke to the particular circumstances of 1935 but still resonate today:
The new white marble building built for the United States Supreme Court, experts say, should last a thousand years. It is fitting that the present should be the opening term in that building because issues are to be argued and decided that may well be looked upon as democracy’s test. In the new court room history is to be made; the world will look to our Supreme Court to give an emphatic negative to Mussolini’s statement that democracy is a worn-out theory

For more on the Supreme Court building, check out the descriptions on the official Supreme Court website or take the Oyez virtual tour.

This post was written by ISCOTUS co-director Christopher Schmidt, with research assistance by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and editorial assistance by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019 .

A Look Ahead at the Week at the Supreme Court

Monday marks the start of a new term at the Supreme Court. By all accounts, this looks to be a major term for the justices, stocked full of high-profile cases; Justice Ginsburg has already declared it to be “momentous.”  

The term kicks off Monday morning with arguments in three consolidated cases: Epic Systems Corporation v. Lewis, Ernst & Young v. Morris, and National Labor Relations Board v. Murphy Oil USA. These cases present the question of whether an agreement that requires an employer-employee disputes be resolved through individual—not class or collective—arbitration is enforceable. The National Labor Relations Act guarantees employees the right to engage in “concerted activities” in pursuit of their “mutual aid or protection.” But the Federal Arbitration Act states that arbitration provisions “must be enforced.” The Court has ruled that this provision “will yield only when it has been overridden by a contrary congressional command in another federal statute.” The employers in these cases argue that the NLRA has no such command because it does not refer to class proceedings and its history provides no evidence that Congress intended  the NLRA to override arbitration agreements. The employees counter that the NLRA renders the arbitration agreements illegal and therefore unenforceable.

Later on Monday, the Court will hear re-arguments in Sessions v. Dimaya. Sessions presents the issue of whether the definition of “aggravated felonies” under the Immigration and Nationality Act (INA) is unconstitutionally vague.  Under the INA, a non-citizen who is found guilty of an aggravated felony is subject to deportation. The Immigration and Nationality Act defines “aggravated felonies” broadly, including a “crime of violence.” James Dimaya was convicted of residential burglary, which a judge determined was a “crime of violence” and thus an “aggravated felony” under the INA.

Sessions  is one of two immigration cases that the Court scheduled for reargument this week. National Law Journal discusses the possible motives the Court had for scheduling reargument in this case and in Jennings v. Rodriguez (discussed below), and the particular challenges re-arguments pose for lawyers.

On Tuesday morning, the Court hears one of the most highly anticipated cases of the term, Gill v. Whitford, a redistricting case. For a detailed discussion of Gill, look at the ISCOTUS oral argument preview.  Also worth visiting is FiveThirtyEight’s recent podcast on the case.

Also scheduled for Tuesday is re-argument in Jennings v. Rodriguez. The case presents the issue of whether a noncitizen in custody must receive a bond hearings and possible release if custody lasts six months. The case is likely to impact the effectiveness of an executive order that President Trump issued in January that called for ending the “catch and release” of immigrants facing deportation. The Court is likely to discuss two previous cases that possibly contradict each other: Zadvydas v. Davis from 2001, and Demore v. Kim from 2003.  In Zadvydas, the Court held that judicial review of detention decisions is necessary. In Demore, the Court invoked plenary power and held that there must not be judicial review of a provision of the immigration statute that requires detention of immigrants who are awaiting deportation because of a crime. This case also presents the question of whether courts must afford immigrants bond hearings every six months, automatically. SCOTUSblog has an excellent summary of the issues in Jennings.

On Wednesday the Court hears District of Columbia v. Wesby, a case stemming from the 2008 trespassing arrest of a group of people who were having a party in an unoccupied house. Police officers went to the house after neighbors reported the raucous partying and “illegal activities” and arrested twenty-one people on trespass charges. After making the arrests, police talked to the homeowner, who said he had not given anyone permission to enter the house. The case considers whether the officers had probable cause to make the arrests. The defendants argue that the officers did not because they had no evidence that the partiers knew or should have known they were trespassing. The Court will also decide whether the officers were entitled to qualified immunity. The Washington Post delves into the goings on that wild night and the procedural history of the case, which includes a divided appellate court that upheld a judgment requiring the officers to pay almost $1 million.

The Court concludes the week’s oral arguments with Class v. United States. This case presents the issue of whether a guilty plea results in the waiver of a defendant’s right to challenge the constitutionality of the statute under which he was convicted. Capitol police arrested Rodney Class in 2013 on charges of violating a federal law that prohibits possession of readily accessible firearms on Capitol grounds. Class, who represented himself in court, filed motions challenging the statute as violating the Second Amendment but then agreed to plead guilty. He argues that he did not expressly waive his constitutional claims when he made his guilty plea, and that the Court should implement a default rule that such issues are available on appeal in the absence of an express waiver. SCOTUSblog has a detailed argument preview.

 

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS co-director Christopher Schmidt.

This Day in Supreme Court History—September 29, 1958

On this day in 1958, the Supreme Court issued its opinion in Cooper v. Aaron, a case involving efforts to desegregate schools in Little Rock, Arkansas. The situation in Little Rock had escalated from a local struggle over whether black children would be allowed to attend a previously all-white high school into a national constitutional crisis involving fundamental questions about the supremacy of the Supreme Court on questions of constitutional interpretation and the authority of the federal government over the states.

Local officials in Little Rock had initially indicated a willingness to accept the Supreme Court’s 1954 ruling in Brown v. Board of Education, which struck down state-mandated racial segregation in schools. State-level politicians, led by Arkansas Governor Orval Faubus, decided to follow the path being taken by most other states in the South and mobilized in opposition to Brown. The Arkansas state legislature amended the state constitution with language denouncing Brown and asserting the right of the state to defy its requirements. The legislature then passed a law that allowed parents to opt out of sending their children to integrated schools. The day before Little Rock was to begin its desegregation process in the fall of 1957, Faubus ordered the National Guard to surround Central High School, saying “blood would run in the streets” if black students tried to enter the school.

William Cooper and other members of the Little Rock school board then went to federal court asking for a suspension of the board’s own integration plan. The federal judge ruled in the school board’s favor. Thurgood Marshall and his team of lawyers at the NAACP’s Legal Defense Fund appealed the decision to the Eighth Circuit, which overturned the lower court ruling. Nine African American students—known to history as the Little Rock Nine—would attend Central High School during the 1957-58 school year under the protection of U.S. army troops. Cooper then appealed the case to the Supreme Court, which convened in a special session in the summer of 1958 to hear the case before the next school year began. (Listen to the oral arguments here.)

On September 12, a day after the completion of oral arguments at the Supreme Court and just days before the new school year was scheduled to begin in Little Rock, the Court unanimously ruled that there would be no more delays and that Little Rock had to continue ahead with its desegregation plan.

Governor Faubus responded by ordering closed all four high schools in Little Rock. The measure was necessary, he explained, “in order to avoid the impending violence and disorder which would occur, and to preserve the peace of the community.” The schools would remain closed for almost a year.

The Supreme Court’s reasoning came later in the month. On September 29, the Court released a unanimous opinion to which each of the nine justices signed his name—an unprecedented step designed to emphasize the unity of the Court, which included two justices who had come to the Court after Brown.

Much of the opinion—which was largely drafted by Justice William Brennan—focuses on the particular issues involved with the desegregation of the Little Rock schools. The opinion reiterates the justices’ commitment the interpretation of the Fourteenth Amendment that the Court had committed itself in Brown. But the concluding section of the opinion turns to the larger issue of the case, offering the Court’s refutation of “the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case.”  This section of the opinion offers a remarkable mixture of uncontroversial constitutional truisms and bold, novel assertions of judicial authority. The Court noted that under Article VI of the Constitution, the Constitution is the “supreme law of the land.” The Court also approvingly referenced the words of  Chief Justice John Marshall’s famous 1803 ruling in Marbury v. Madison, in which he declared, “It is emphatically the province and duty of the judicial department to say what the law is.” Building from all these relatively uncontroversial pieces of constitutional text and Supreme Court doctrine, the Court concluded that Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.” The move the Court made here is worth noting. The Court blended the principle of constitutional supremacy and the idea that the Court’s primary role is legal interpretation to craft a claim for judicial interpretive supremacy. It is not just the Constitution that is supreme, but the Court’s interpretation of the Constitution that is supreme. At the time, most saw this bold assertion on the part of the Court as justified in the context of the struggle to implement Brown. But these lines from Cooper had–and still have–their critics, who wonder whether the Court may have gone too far in proclaiming itself the supreme interpreter of a document that proclaims itself to be the voice of We the People.

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Christopher Schmidt.

Teaching About the Supreme Court

Although the beginning of the Supreme Court’s October Term 2017 is still over a month away, at many law schools, the fall semester is up and running. Here at Chicago-Kent, I’m teaching a course I developed several years ago called “Supreme Court Review.” It’s a terrific course to teach. The subject matter—the past, present, and future of the Supreme Court of the United States—is utterly fascinating. One of the pleasures of the course is that it gives me an opportunity to join the students in an exploration of this mysterious, occasionally even downright strange, yet profoundly consequential institution. Another reason I enjoy teaching the course is that I structure it so that its content changes so much year to year.

The basic organization of the course is always the same. I dedicate the first few—classeswhich are weekly two-hour sessions—to looking at the history of the Supreme Court, its internal operations, and the current roster of justices. (This year, I’m using David M. O’Brien’s Storm Center: The Supreme Court in American Politics—a cornucopia of information, much of it quite entertaining, on the Court—along with a collection of articles on the Court and profiles of individual justices.) The middle part of the course looks back to the last Term of the Court, picking out a handful of the most important cases decided and dedicating an entire class to a deep dive into each decision, often supplemented with audio clips from oral argument and (once they become available in October) audio from opinion announcements. The last third of the course looks at the new Term that, by then, has begun. So in that part of the course we read lower court opinions, briefs, and, when the timing is right, listen to recently uploaded oral arguments in the cases.

It’s a fun, and often unpredictable, ride from start to finish. Last year, for example, there was a terrific collection of cases from the prior Term (including major decisions involving affirmative action, abortion, police searches, and executive power), but there was a rather less interesting upcoming docket. So alongside upcoming cases, we talked about the appointments process (we were in the middle of the Garland blockade strategy of congressional Republicans) and, following the election, the potential impact of President Trump on the Court. This year we have a quite different situation. While last Term was something of a sleeper, the upcoming Term is shaping up to be a blockbuster. So I’ve condensed the middle part of the course and given more space to the last part, when we follow cases that are currently being briefed and argued. I’m looking forward to joining the class on deep dives into the upcoming Supreme Court cases on partisan gerrymandering, Trump’s travel ban, cell phones and privacy, gay rights and religious liberty, among others.

This Day in Supreme Court History—August 24, 1814

On this day in 1814 the Supreme Court was torched by British troops. The United States was at war with Britain in what became known as the War of 1812.

At the time, the Supreme Court chamber was on the first floor of the north wing of the Capitol building. It had been located here, along with the House of Representatives, the Senate, and the Library of Congress, since 1810.The chamber, which Benjamin Henry Latrobe had designed as part of his north wing reconstruction in 1808-1810, was considered an architectural masterpiece because of its semicircular shape and its unusual ceiling of nine lobed vaults.

It was around 8 p.m. on August 24, 1814, and the sun was setting when British troops, fresh from defeating the American militia in Bladensburg, Maryland, reached Washington D.C. The town was partly deserted as many residents fled on foot or horseback upon hearing that the British were coming. The Supreme Court’s law clerks had taken with them important documents, including the Declaration of Independence. By invading Washington, the British forces were seeking to humiliate the Americans and extract revenge for the American torching of the Canadian city of York (now known as Toronto).

British Troops gathered furniture from nearby rooms to create a bonfire in the Supreme Court chamber. They put gunpowder paste on the wood around the doors and windows of the building’s main rooms before igniting them. Within minutes of the troops’ entering the Capitol, flames were shooting from the building’s windows and roof. The British went on to burn various other government buildings, including the executive mansion.

French Minister Louis Serurier watched the Capitol building burn from his temporary residence at the Octagon House. He remarked, “I have never beheld a spectacle more terrible and at the same time more magnificent.”

A severe storm the next day, along with Latrobe’s use of fireproof materials such as sheet iron, marble, sandstone, zinc and copper, prevented the Capitol building from being completely destroyed. It would not be until 1819 that the justices would return to a restored Court chamber. They would hear cases here until 1860, when the Court moved to new chambers upstairs in the Capitol. In 1935 the Court relocated to its current building, across the street from the Capitol.  

This Day in Supreme Court History—August 8, 1793

On this day in 1793, the Supreme Court sent a letter to President George Washington denying his request for the Court’s opinion regarding certain legal issues pertaining to the nation’s relations with France. This letter set a critical precedent for the newly created Court, which the justices have never abandoned: the Court will only issue opinions in cases involving legal disputes between adversarial parties; it will not issue “advisory” opinions.

In requesting legal guidance from the Court, President Washington was following a long line of Anglo-American precedent. Judges of the highest courts in England would offer advisory opinions when the monarch or the House of Lords requested they do so. In America, several state constitutions gave the governor or legislature the right to seek advisory opinions from their states’ supreme courts. Prior to the 1793 letter, Chief Justice John Jay have given Washington his opinion on various legal issues.

Thus there was nothing particularly unusual when, on July 18, 1793, Secretary of State Thomas Jefferson wrote a letter to the Supreme Court in which he explained that the President would like to get the Court’s views on pressing legal issues related to international affairs. The French were at war with Great Britain and Spain, rapidly increased the number and complexity of questions about what actions by the United States abided by its Proclamation of Neutrality. The opinion of the justices “would secure us against errors dangerous to the peace of the US. and their authority ensure the respect of all parties.” He enclosed a list of 29 questions. The first question was: “Do the treaties between the U.S. & France give to France or her citizens a right, when at war with a power with whom the U.S. are at peace, to fit out originally in & from the ports of the U.S., vessels armed for war, with or without commission?”

On July 20, four of the six justices responded that they would need more time to decide the matter. Two of the justices were out of town at the time, and the other were reluctant to decide such an important matter without the full Court. When the Court was able to convene five of its six members, the justices drafted their now famous letter. It read as follows:

Sir

We have considered the previous Question stated in a Letter written to us by your Direction, by the Secretary of State, on the 18th of last month.

The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your Judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the United States. We have the Honor to be, with perfect Respect, Sir, your most obedient and most h’ble servants”