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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I am fabulous. How are you?
J. Aughenbaugh: Good cause. We get to actually talk about a Fred today. I think this is the first time we've talked about a Fred on this podcast.
N. Rodgers: Is it?
J. Aughenbaugh: Am I wrong?
N. Rodgers: Nobody else is named Fred? I find that hardly. I bet if we go back to one of the lists of one of the groups where there were a bunch of chairs or something, there's probably a Fred.
J. Aughenbaugh: Department secretaries.
N. Rodgers: Department secretaries so there's probably a Fred.
J. Aughenbaugh: A Frederick.
N. Rodgers: In this instance, there's a Frederick.
J. Aughenbaugh: Yes. Today, listeners, we're going to be talking about the Vinson Court era. We are continuing our series of Supreme Court eras named after Chief Justice Fred M. Vinson.
N. Rodgers: Frederick Moore Vinson.
J. Aughenbaugh: That's right. He served 1946-1953. He replaced Harlan Fiske Stone.
N. Rodgers: Another short, Fiske Stone was five and he's seven.
J. Aughenbaugh: That's right.
N. Rodgers: This is another relatively short leadership role. He died young, didn't he? He was not very old.
J. Aughenbaugh: Yeah. He was 63-years-old, 63-years-old when he died.
N. Rodgers: Do you think justice, I would think would be hard on a person.
J. Aughenbaugh: Oh, yeah.
N. Rodgers: I'm not trying to be ugly, but J Rob looks older. You can tell. Similarly, that's what happens with presidents. Obama was a young guy when he became president, and when he got out, he was all gray and I was like, dude, you're thinking hard.
J. Aughenbaugh: I just think of three successive presidents in our lifetime. Bill Clinton, Bush 43, and Barack Obama. Each of those three were youngish as presidents, and all three of them by the time they left office, they looked seriously old. It's almost like they skipped over middle age.
N. Rodgers: Right. Then with Biden and Trump, they started old.
J. Aughenbaugh: Oh, well, yeah.
N. Rodgers: You're like, dude, you're going to be a skeleton, a cadaver by the time you're done here.
J. Aughenbaugh: Yeah.
N. Rodgers: Tough jobs.
J. Aughenbaugh: Yeah. There are very few Supreme Court chief Justices who look anywhere close to as good as they did when they started.
N. Rodgers: Hard job.
J. Aughenbaugh: Yeah. Hard job. The Vinson Court, another transition court, a lot of its docket was centered on post World War II, Cold War, Korean war, we're going to get into some of those disputes. It was also a court that was badly fractured ideologically between the judicial restraint of Felix Frankfurter and his Elk versus the civil rights activism of justices Douglas and Black.
N. Rodgers: Well, it's a big transition period in the United States. That's when we start to become a world power.
J. Aughenbaugh: Yes.
N. Rodgers: Before that, we really weren't considered a world power, we were like, Oh, yeah, in the United States. That's how we got mentioned in world politics. I don't think Germany thought we would come into the war the way we did and do what we did the way we did, because I just don't think they thought we were a world power the way Germany and England and Russia were and all of a sudden, we're, here we are.
J. Aughenbaugh: Well, there was a big question when World War II ended, which was was the United States going to retreat like it did after World War I?
N. Rodgers: Are we going to be a part of anything or we were just going to say, Heck with you guys, this is a mess.
J. Aughenbaugh: This is the second time we've bailed out Europe.
N. Rodgers: We're not going to keep doing this, and apparently, we decided, No, we're going to stay in it.
J. Aughenbaugh: Yeah, we're going to stay in it. But many of the dissents of the Vinson Court would lay the groundwork for major rulings during the next court era.
N. Rodgers: Which is why you always say to people, read the dissent.
J. Aughenbaugh: Yes.
N. Rodgers: Because they will come back to haunt you in some way or visit you in some way. Not necessarily haunt.
J. Aughenbaugh: Yes. Who was Frederick Moore Vinson? Well, he was born in 1890. He's one of the few Americans who have served in all three branches of the US federal government.
N. Rodgers: Wait. Where was he born?
J. Aughenbaugh: Oh, he was born in Kentucky.
N. Rodgers: We're getting out of the Northeast for this?
J. Aughenbaugh: For this one, yeah.
N. Rodgers: Because a lot of them were born in Connecticut, Ohio really.
J. Aughenbaugh: Yeah.
N. Rodgers: Up in central or in Northeast.
J. Aughenbaugh: If you think about it, the next four Chief Justices were born outside of the Interstate 95 corridor. Vinson, Kentucky, Earl Warren, California, Warren Berger, Minnesota, and William Rehnquist, Wisconsin, but spent most of his pre court life in Arizona.
N. Rodgers: Okay.
J. Aughenbaugh: Yeah. But Fred Vinson as I mentioned, served in all three branches of the federal government. He served as a US representative from '24-'28, 1924-1928, and then again, 1930-1938. He served on the Federal Appeals Court for the District of Columbia from '38-'43, and he was Secretary of the Treasury for about a year and a half.
N. Rodgers: Okay. He's all branches.
J. Aughenbaugh: All branches. Again, a little unusual compared to today where most of them, okay, a little bit of executive branch experience.
N. Rodgers: Almost no elected.
J. Aughenbaugh: They're not elected.
N. Rodgers: Have any of the members of the court been one?
J. Aughenbaugh: The current court?
N. Rodgers: Current court.
J. Aughenbaugh: None of them have been elected.
N. Rodgers: Okay.
J. Aughenbaugh: None of them have been elected officials. The last one was Sandra Day O'Connor.
N. Rodgers: I was going to say, was it Sandra Day?
J. Aughenbaugh: Yeah. Sandy. Like I know her personally.
N. Rodgers: Yeah, I call her Sandra Day, even though Sandra Day O'Connor is her name, and it's affectionate, by the way, I just adore her.
J. Aughenbaugh: Yeah.
N. Rodgers: Who didn't adore her? In many ways, she opened a lot of doors.
J. Aughenbaugh: She opened a lot of doors.
N. Rodgers: But she also did the tumble of election system. There's something about that that changes how you view the constitution, how you view lawmaking. If you get through something like that and you've been elected to something, there's a whole different expectation that you have about how the people should be represented.
J. Aughenbaugh: Well, also, because you have been elected, particularly if you've been elected to a legislative body, you recognize even if you're in the majority party, if you want to get something done, you're going to have to compromise. That's a different, if you will, set of skills than if you've never served on a multi member elected body. We lose that. We lost that on the current Supreme Court. But we'll talk about that when we get to the Roberts Court. Fred Vinson born in Louisa, Kentucky, I had to look that up, universally known as Fred. Nobody called him Frederick. His dad was a county jailer. Yes.
N. Rodgers: He's involved in legal stuff from birth.
J. Aughenbaugh: From birth. Family did not have a lot of money. He worked odd jobs when he was in school.
N. Rodgers: Put himself through school.
J. Aughenbaugh: Yes.
N. Rodgers: Did he serve in World War I?
J. Aughenbaugh: Yes, he did.
N. Rodgers: We're also seeing some veterans.
J. Aughenbaugh: Yes, quite a few veterans.
N. Rodgers: Enter the judicial which will also have an effect on how they view the world. Having been to war changes a person, I'm given to understand that. I have never been to war, and I am grateful for that. But I believe that it changes you a little bit.
J. Aughenbaugh: He went to Center College, and he also graduated from Center College College of Law, which now no longer exists. Basically entered private practice back in his hometown. His first election that he won was to the office of city attorney for Louisa County.
N. Rodgers: What?
J. Aughenbaugh: Yes. He served in World War I, then afterwards, he served as a Commonwealth's attorney. Then got elected to the House of Representatives in 1924, lost his re-election after his second term in '28, but he ran again in 1930 and he won he served in Congress until 1937. He became close to a Missouri senator when he was in the house. That Missouri senator was Harry S. Truman. Truman and his friends convinced FDR in 1937 to appoint Fred Vinson to the DC Circuit Court of Appeals. Yes.
N. Rodgers: Which is now a stepping stone to the Supreme Court.
J. Aughenbaugh: Yes.
N. Rodgers: That's one of the gauntlets that a lot of people run to get there.
J. Aughenbaugh: Yes. He then did something unusual. You don't see this with a lot of federal judges today, he resigned his appellate court position in 1943, so he could become the director of the Office of Economic Stabilization. This is the office during World War II that was designed to make sure that the United States war effort had all of the weapons, clothing, supplies needed for the war.
N. Rodgers: If the private sector had to stop making things so that you could make no nylons for ladies so that we can to make Nylon host so that we can make parachutes for young men to jump into France, then that's how that had to be.
J. Aughenbaugh: Yeah. After Truman succeeded Roosevelt as president, when Roosevelt died in 1945, Truman made Vinson his Secretary of the Treasury. It was Vinson who negotiated the payment of the loan between Great Britain and the United States, very favorable conditions to Great Britain, by the way, which had been devastated by World War II, and he presided over the creation of what eventually became the World Bank and the international monetary fund, the infamous IMF. Yes.
N. Rodgers: Okay.
J. Aughenbaugh: Yeah.
N. Rodgers: I didn't realize that the World Bank had a real name.
J. Aughenbaugh: Yes.
N. Rodgers: International Bank for Reconstruction and Development.
J. Aughenbaugh: Yes.
N. Rodgers: I did not realize that, I kid you not. I was this many years old. Until I saw your notes, I was like, wait, the World Bank has a real name. Sometimes we should do an episode on the World Bank clearly. If I didn't even know it has a real name, I can't imagine what else I don't know about it.
J. Aughenbaugh: If we do an episode on the World Bank, Nia, we need to do one of the rare, if you will, multi person guest episodes. We need to bring in both Judy Twigg and Chris Saladino to discuss the World Bank. But nevertheless, after Harlan Fiske Stone died in 1946, Truman shocked many in DC by appointing Fred Vinson. The reason why there was shock was that it was widely known in DC, in the federal government, if you will, circles, that Roosevelt had promised the chief justice position to Robert Jackson.
N. Rodgers: Of Nuremberg Trial Fame.
J. Aughenbaugh: That's right. The promise was what was required to get Robert Jackson to serve on the Supreme Court. Because Jackson was only interested in being chief justice and Roosevelt said, Well, we don't have a vacancy for you now, I want to put you on the court, but I promise, next vacancy, I will make you chief justice. When Truman picked Fred Vinson instead, Robert Jackson went public and said that some of his colleagues did not want him to be chief justice and lobbied President Truman to not pick him. Yes.
N. Rodgers: What? Wow.
J. Aughenbaugh: Yeah, Jackson committed the cardinal sin as a Supreme Court justice, he aired a whole bunch of the Supreme Court's dirty laundry.
N. Rodgers: No. You don't do that.
J. Aughenbaugh: Yeah, you don't do that.
N. Rodgers: Seriously, even in their memoirs, they're like, Oh, we got along and it was great.
J. Aughenbaugh: Yes.
N. Rodgers: Because they don't talk crap about each other. Not really.
J. Aughenbaugh: No.
N. Rodgers: You remember that book? Well, no, of course, you do because you assign it. The Brethren?
J. Aughenbaugh: Yes.
N. Rodgers: With the whole, there is an enormous amount of crap that goes on between these people and some really ugly episodes and none of it gets discussed outside of the court. If clerks talk, they get fired.
J. Aughenbaugh: Yes. They all sign a confidentiality agreement.
N. Rodgers: It's tighter than the NDAs you have to sign in order to marry Jeff Bezos. It's a serious, we're not playing with this. You're not going to tell anybody anything about what happens here. What happens in the court is worse than Vegas.
J. Aughenbaugh: Yeah.
N. Rodgers: It's whatever the most secret thing in Vegas is, that's how the court is.
J. Aughenbaugh: When I do research listeners for these podcast episodes, inevitably, I come across something I didn't know before that just utterly fascinates me, and I should have known this.
J. Aughenbaugh: Fred Vinson is the last Chief Justice to be nominated by a Democratic president.
N. Rodgers: Whoa. Mathematically, that's a little terrifying. There's a way that works. It can fire the Supreme Court.
J. Aughenbaugh: Eisenhower picked Earl Warren. Nixon picked Warren Burger. Reagan picked Renquist, and Busch 43 picked John Roberts.
N. Rodgers: They're interesting.
J. Aughenbaugh: When Vincent took office, the court consisted of him, Burton. Harold Hitz Burton was appointed to the court in 1945 by Truman. I love that name.
N. Rodgers: Harold Hitz Burton.
J. Aughenbaugh: Vincent Burton and then seven FDR appointees. Hugo Black, Stan Red, Frankfurter, Douglas, Frank Murphy, Robert Jackson, and Wiley Rutledge. I don't know why he said it that way because Rutledge was from Iowa. Anyways.
N. Rodgers: Not Southern.
J. Aughenbaugh: Rutledge and Murphy die in 2049. Truman gets to appoint Tom Clark from Texas and Sherman Minton from Indiana. Then Vincent dies in September of 2053, and that led Dwight Eisenhower to honor a campaign promise to California governor Earl Warren to be Chief Justice.
N. Rodgers: Side note. Something I didn't know, although I learned lots during these episodes. But something I didn't know specifically about that, was that Eisenhower appoints Earl Warren during a recess appointment?
J. Aughenbaugh: Yes, it was a recess appointment.
N. Rodgers: Which is the backdoor way to get somebody that you know is going to be opposed by the Senate. That's I'll do it in the recess.
J. Aughenbaugh: It's become much more controversial while it was a practice, but back then it was not all that unusual. But nevertheless, we ought to do, sorry, listeners.
N. Rodgers: We should do an episode for recess appointments because they're fascinating. Politics around recess appointments.
J. Aughenbaugh: Or just little known clauses in the US Constitution, the recess appointment clause is fascinating, Because it's a purely functional clause, Nia, It was the framers recognizing early on in our country's history that Congress frequently would not be in session.
J. Aughenbaugh: You can't expect the federal government to stop doing its work because the legislative body is not in session. if you have a vacancy in the executive branch and an important position or in the case of the courts, you're going to wait around for Congress to go ahead and return to session in three or four months? No, you allow a president to recess appoint somebody. then, basically, the Congress has an opportunity to take a vote on that person when they return to session, it's completely functional. But if you are partisan, you can game the system by waiting for who to adjourn for a break. Congress is why we have recent controversies about the recess appointment clause.
N. Rodgers: Because what they're trying to do is game the system. That's they think that once somebody's in, it's a lot harder harder to oust them. Inertia really is a strong force in the universe. You try getting off the couch after you've been sitting there for five hours. Inertia is tough. What's the judicial philosophy of the court?
J. Aughenbaugh: The Vency Court was much like the Harlan Fiston Court. It was divided into two camps. You had a progressive camp led by justices Douglas and Black. Then you had a more modern conservative camp led by Justices Jackson and Frankfurter,
N. Rodgers: Even though Jackson doesn't get this chief, he doesn't quit?
J. Aughenbaugh: No, he doesn't quit.
N. Rodgers: In fairness to him he died he wanted to. He probably was pretty annoyed and he probably wanted to, but he didn't quit.
J. Aughenbaugh: He dies in office.
N. Rodgers: Because he could have gone away in a huff, he could have you promised him. He could have quit, but he didn't.
J. Aughenbaugh: Where you really see the division was not about economic legislation. Because the Supreme Court had already had its come to God meeting. They had already changed their mind. They had already gone ahead and said, Oh, Congress, let us bless you. You may use the Commerce Clause pretty much any damn way if you want to.
N. Rodgers: To do anything. Go ahead. But in Canada. Just call it the Commerce Clause.
J. Aughenbaugh: But where you really see division is on civil rights issues, we're going to explore that a little bit.
N. Rodgers: Well, and this is a pretty tough era for that 46-53. You're now seeing heavy duty Jim Crow, and you're also seeing black men who came back from World War from fighting in World War II, being Limited in their rights and saying, "Well, what the heck was I doing then when I was over there why do I have more rights in France than I do here." There's some real unrest. Reasonably so.
J. Aughenbaugh: The one thing you could probably say about Fred Vinson is he really eased the tensions between these two blocks on the court,
N. Rodgers: Oh, so he was a good administrator?
J. Aughenbaugh: He was a much better well, let's face it.
N. Rodgers: Low Bar. [LAUGHTER] just saying.
J. Aughenbaugh: Again, Harley Fish Stone, in many ways, is a good example of the old adage. Just because you're good at a front line job as a government, official does not mean you're going to be a good manager. Just because you're a really good police detective doesn't mean you're going to be a good sergeant,
N. Rodgers: Or the Peter principal. You can actually rise above your ability to do the thing.
J. Aughenbaugh: That's right, just because I'm a good teacher, perhaps, I'll let that decide.
N. Rodgers: Doesn't mean you should be chair of the department?
J. Aughenbaugh: That's doesn't mean that I should become president of VCU. Nobody wants that.
N. Rodgers: Nobody wants that including Aggie. What a terrible job. If you've seen Dr. Rao lately, he looks older, too. I'm telling you, those jobs age people.
J. Aughenbaugh: Let's face it, because we don't know, visually record these episodes, Yes, I'm losing hair. The GT is much grayer now than when we started recording this podcast before the pandemic.
N. Rodgers: Somebody said to me the other day, or you can update the pictures on the lib guide and I was like, Heck no. You're like, way better than we do now. That's all aside. Vincent turns out to be a pretty decent human manager. Getting people to come to agreement. What are the sessions when they complain to each other about what they're going to do and vote?
J. Aughenbaugh: Conference.
N. Rodgers: His conference sessions go better?
J. Aughenbaugh: Conference sessions go better. Again, listeners, you're talking about some heavyweights intellectually.
N. Rodgers: Who's going to argue with the four Black Douglas Jackson and Frankfurter? Thanks, no. I'll just sit over here quietly. Me and Frank Murphy, we'll be sitting over here in the corner, not upsetting anybody. We're going to hang out with Wiley.
J. Aughenbaugh: Well, me and Wiley are going to be off, taking a coffee break. You guys rush out when you're done arguing,
N. Rodgers: Not I'm trying to be ugly to those guys, 'cause they're smart, too. There are very few people who we find on the court who are not excellent minds. That's how you get to the Supreme Court. They don't just pick me and Aggie to be on the Supreme Court. They're picking the Elites.
J. Aughenbaugh: These are good legal minds.
N. Rodgers: Elite legal minds. None of these guys are dumb, but some of them are out-shined by other guys.
J. Aughenbaugh: Because some are miscast. they probably shouldn't be judges. They were really good lawyers.
N. Rodgers: Or prosecutors.
J. Aughenbaugh: A prosecutor or a defense attorney. You ready for the major rulings? There were a bunch. 1947, Everson versus Board of Education, five to four decision written by Justice Black, the court upheld in New Jersey law that provided transportation reimbursement for children attending private schools. Now, on one hand, this was noteworthy because for the first time, the Supreme Court incorporated the establishment clause as bearing on states. prior to this ruling, the establishment clause only applied to the federal government. On the other hand, the majority said the New Jersey law did not violate the Establishment Clause because the reimbursements were provided to all parents regardless of religion or what school they attended.
N. Rodgers: As long as one kid could go to Hebrew school and one kid could go to Catholic school, you would pay for the transportation for both kids, then you're not establishing nor are you violating anybody's.
J. Aughenbaugh: It could be a non-religious private school. Because charter school or whatever. Because the logic of Black's majority opinion was one way or the other, a school district would have to provide busing. Because if they got the somewhere. They would have they're going to public school which meant that the school district provide the busing. Now, the big one in regards to civil rights, Shelley versus Kramer, in a decision that was six to zero written by Chief Justice Fred Vinson. The Supreme Court held that racial housing covenants were constitutional until they get enforced in state court, I'm going to explain the logic, this decision was 1948. Housing covenants in the United States first arose in the late 1800s to prohibit families that were non -white for particular religions from moving into certain neighborhoods,
N. Rodgers: This is called Red Line.
J. Aughenbaugh: Yes.
N. Rodgers: The insurance companies would draw maps of a city and they would circle certain parts. they would say, you can't live there.
J. Aughenbaugh: Yes.
N. Rodgers: Or you can't be insured to live there, which if you can't be insured, you can't buy a house because that's how houses work. You have to have an. the housing covenants loan from the bank.
J. Aughenbaugh: Housing covenants went further. If you owned a house.
N. Rodgers: You couldn't sell it?
J. Aughenbaugh: You could not sell it to one of the prohibited groups.
J. Aughenbaugh: The Shelley family and they were an African- American family wanted to buy a house in a neighborhood that was covered by one of these housing covenants.
N. Rodgers: The seller wanted to sell to them?
J. Aughenbaugh: That's right.
N. Rodgers: A small known fact. The seller was fine with it. It wasn't the seller that was the problem.
J. Aughenbaugh: It was the other property owners in the neighborhood who claimed,.
N. Rodgers: Our property values will drop.
J. Aughenbaugh: They were like, you are violating the housing covenant that you legally you said you would honor when you bought the house. The other property owners went to court at that point, according to the US Supreme Court, the housing covenant violates the Equal Protection Clause of the 14th Amendment. Why? Because it was a state government institution that was enforcing unequal protection under the law. Nia, as you've said in previous podcast episodes, private sector actors, unless they are forbidden by law, can engage in all kinds of discriminatory action. What the court said here was, that's true in regards to housing covenants until you try to enforce the covenant, where? In court?
N. Rodgers: As long as everybody agrees to continue to do the covenant. But as soon as somebody doesn't do that, and somebody else sues about it.
J. Aughenbaugh: In court, then the covenant becomes unconstitutional. This is what's known as the state action doctrine. Who's actually enforcing the racially restrictive or religious restrictive covenant? State government institution. The 14th Amendments Equal Protection Clause. Now, I don't know if you noticed this, Nia, but the vote was six to zero. Three of the justices had to recuse themselves because all three of those justices lived in neighborhoods in Washington, DC, in Northern Virginia that Housing coverage. [LAUGHTER].
N. Rodgers: But at least you can have that rule until you try to enforce that. The rules fine. As long as everybody abides by it willingly. But when someone doesn't, nothing you can do about it.
J. Aughenbaugh: Next one, also dealing with religion. In an 801 decision in 1948, McCollum versus Board of Education, the court struck down an Illinois program that used public school classrooms to teach voluntary religion classes during school hours.
N. Rodgers: This used to be that during your free period, you could go take a religious class of your choice in a school, and they said, "No, you can't use the school property to do that."
N. Rodgers: I have mixed feelings about that.
J. Aughenbaugh: Well, but that also doesn't cover what happens after school hours. Because what if you allow non-religious student groups to use the school, but then you prohibit religious organizations? This is where school districts get into a bind because, in trying to comply with the Establishment Clause, they might violate the free exercise of religion component of the First Amendment. That's another job I don't want to have.
N. Rodgers: The way that the LDS church, the Church of Jesus Christ of Latter-day Saints, otherwise known colloquially as the Mormons, have a thing when you are in high school, where you go to religious class as a teenager, usually three times a week. They are often held at public schools. But the way that they get around this is it's held before school or it's held after school. It's not held during school.
J. Aughenbaugh: Yeah, but again, in the hypothetical I went ahead and mentioned, where some school districts have run into problems, is that after or before school, they will allow non-religious student organizations access. But then they say, Oh, you're religious? Sorry. Per the Establishment Clause, we can't allow you to use public spaces for religion because it would look like we are establishing or favoring a religion.
N. Rodgers: The way Utah gets around that is everybody. Anybody who's a legitimate group at the school, I'm not trying to be difficult, and I grew up LDS. I had to choose between seminary and D&D because they had them at the same time, because that's how they got around that. Was they were like, Okay, any group that's of any size can use a room as long as they use it reasonably and responsibly. Blah, blah, blah. But anyway.
J. Aughenbaugh: Next two cases I want to mention deal with movies.
N. Rodgers: Oh, good.
J. Aughenbaugh: First, 1948, United States versus Paramount Pictures. The Supreme Court, in a seven-to-one decision, forced what was known then as the Big Eight film studios, Paramount, Universal, MGM, United Artists, to sell their movie theaters to comply with the Sherman Antitrust Act.
N. Rodgers: Yeah, it used to be that they owned the actors. They had contracts that would prevent you from making a film with any other studio. Let's just say for the sake of argument, pick one of them, MGM. Aughie is an actor with MGM and he signs on for eight films, and they can make him do, first of all, eight crappy films if they want him and he doesn't get to choose. But so he makes the film with them. They control the entire process. He can't make a film with anybody else. Then they show that film in an MGM theater, and Aughie he's contracted to do the publicity for that film at the MGM Theater and nowhere else and not allowed to do it outside of their rules. They had iron control over the artists, the writers, the film directors everybody who worked for them.
J. Aughenbaugh: This case dealt with that latter step in the process. What the studios would basically say to these movie theaters was, you have to show all movies. If you don't, we won't give you the movies from this studio that you do want to show. Let's just go back to your hypothetical, Nia. I'm in a movie from MGM that's crap. A local movie theater that's part of the MGM chain says, that movie is getting terrible reviews. Aughenbaugh is a terrible actor. We don't want to show that movie. MGM would say, You don't show that movie with Aughenbaugh.
N. Rodgers: You're not going to get to show The Wizard of Oz with Judy Garland. That's something that you know is going to bring in crowds and bring in.
J. Aughenbaugh: Or MGM would say, yes.
N. Rodgers: I don't know if MGM [OVERLAPPING].
J. Aughenbaugh: But let's say MGM has not released enough movie product, to occupy all the time slots for theater, and a theater wants to show a movie from a different studio. MGM would say, No, if you want our movies, you can't show any movies from RKO or United Artists. That's where they got in trouble with the Sherman Antitrust Act.
N. Rodgers: You should only show our films.
J. Aughenbaugh: That's right. The Supreme Court basically ended the practice of block booking. It forced the movie studios to sell their theaters.
N. Rodgers: It forced movie studios to make better movies. Because for a while there, if you were breathing, you could be in a movie. Because they needed to fill seven nights a week at a theater. Because, truly, what I think people don't understand about the movie industry is that a huge amount of money is made in the concession. It's not made in the film. It's made in people coming to the theater and buying their popcorn and their soda and whatever else. Anyway.
J. Aughenbaugh: The other Fred Vincent court decision concerning movies was in 1952, Joseph Bernstein versus Wilson. In a 9-0 decision, the court held that motion pictures qualify as art and therefore receive some protection from the First Amendment when the government wanted to censor risque movies. Basically, the Supreme Court overturned one of its precedents, Mutual Film Corporation versus the Industrial Commission of Ohio from 1915. Later cases would establish that the government can only censor films for obscenity. Again, listeners do note that the rating system is voluntary. It's voluntary. It's not from the federal government. It's not from state governments. The Motion Picture Association creates the rating system in part because they don't want the government to get involved.
N. Rodgers: They did that as a preemptive strike, against the federal government deciding what to rate things.
J. Aughenbaugh: Or particular states. Let's face it. If you got a movie with sex, do you really want the state of Mississippi to be able to I'm sorry. I'm not trying to denigrate the state of Mississippi.
N. Rodgers: He's not picking on Mississippi any state, you don't want any state to say, Oh, well, we think that's a XXX. Because that's going to crush where you can show that film.
J. Aughenbaugh: That's right.
N. Rodgers: They give the rating, and then the director can cut. They'll say, if you cut this and this and this, it will drop to this rating. Sometimes directors will do that and sometimes directors will say, Nah, I'm good. We'll just show it in the few theaters.
N. Rodgers: Is it Midnight Cowboy got the first X?
J. Aughenbaugh: Or was it the Last Tango in Paris?
N. Rodgers: Maybe it was the Last Tango in Paris. They declined to cut. They were like, No, we're going to leave it the way it is. That's the story we want to tell. If you limit our theaters, you'll limit our theaters.
J. Aughenbaugh: In there, you get a very nuanced, if you will, negotiation between the [OVERLAPPING] the director and then the studio. Then there are certain theaters, okay, who are like, we never will show an X-rated movie, and then others who will be like, we'll only show R-rated movies at certain times. This is all very complex.
N. Rodgers: Female frontal nudity is very different than male frontal nudity.
J. Aughenbaugh: Then there's the amount of violence, and then there's the number of profanities.
N. Rodgers: Language.
J. Aughenbaugh: One of my favorite anecdotes is Goodwill Hunting.
N. Rodgers: How many times did you say F?
J. Aughenbaugh: Matt Damon and Ben Affleck. They write the screenplay, they star in it. The director, I think, was Gus Van Sant, directs the movie and initially received an R. They say that if you cut down the profanity, it could be PG-13, which is what the studio wanted because they wanted more people to show up. Be PG-13 movies, you can get a younger audience to attend so Matt Damon, I guess, went ahead and said, Well, how many uses of the F word do we have to cut? They're like, Well, in the draft that we saw, there's like 150 plus uses. You need to get it down to five or six. They were like, What? Huh?
N. Rodgers: Remember, the two of them are from South Boston. That is how people talk in South Boston.
J. Aughenbaugh: They're young men.
N. Rodgers: It's also the three stars of this film are Matt Damon. Ben Affleck and Robin Williams. Who never bet a curse word he wouldn't say. I don't what you want here. Anyway. But I do understand the MPAA saying, no, no, no we will do our own. We will do our own censorship. Because remember that for the longest time on television, married people, I Love Lucy. They slept in twin beds next to each other. They never did explain how Dessie comes to be. Because you have the pan to the window. Whenever there's kissing, then you have the pan to the window, and then the next scene, somebody's pregnant. Like, wait, what? Windows make you pregnant?
J. Aughenbaugh: I was just reminded of that because this week on PBS's American Masters series, they had Dick Van Dyke. You had the Dick Van Dyke show of the late '60s. Which starred Dick Van Dyke and it costarred Mary Tyler Moore as the married couple, the Petres. What was funny is they were showing clips of that show, and they had two separate bathrooms. It was just like, and I think it was Season 3 or Season 4, she gets pregnant. But it just magically occurs. It's like the immaculate conception.
N. Rodgers: Exactly. Can we talk about the most important case? What I think of as the most important case in the.
J. Aughenbaugh: The Vincent Court?
N. Rodgers: In the Vincent Court?
J. Aughenbaugh: Yeah, go ahead.
N. Rodgers: Youngstown Sheet and Tube Company versus Sawyer. This sounds benign. That sounds like it's going to be a boring tax case that you're going to fall into a comma when you read. That's what that name sounds like. That name sounds like some stupid dispute that only people in very specific, narrow places in the world care about. That is totally not.
J. Aughenbaugh: This is a case concerning President Truman, who wanted to take control of several steel mills during the Korean War. There was a threatened labor strike, and Truman's logic was, if the steel mills go on strike, then the United States would have enough armaments to fight the Korean war. He ordered the Secretary of Commerce Sawyer to take control of the steel mills. One of the steel Mills that objected to Youngstown Sheet Tube.
N. Rodgers: This, for anybody who's counting, is called nationalization. It is, in my opinion, wildly undemocratic.
J. Aughenbaugh: Sure.
N. Rodgers: It's anti-capitalist, it's anti-everything that theoretically America stands for. We don't nationalize people's businesses. That's just not what we do.
J. Aughenbaugh: Historically, that is the case. I've tried to explain it to students when I teach this class in one of my constitutional law courses, Nia. Because a lot of people are just like What was Truman thinking?
N. Rodgers: Well, he was thinking, I'm at war. I have a war effort. I can't be messing around with you people.
J. Aughenbaugh: In World War II, the federal courts basically let Roosevelt nationalize a number of industries, the railroad industry.
N. Rodgers: Motor vehicle.
J. Aughenbaugh: Yeah, motor vehicle.
N. Rodgers: That's how we get all the tanks. That's how we get all everything is saying, This is what you're going to do.
J. Aughenbaugh: You know the rubber and tire industry. The foodstuff industry. There was rations of coffee, of sugar, okay, of basic food items. Why? Because it was war. Again, Truman served in Congress during World War II. He was FDR's vice president at the end of World War II. Hey, we're in the Korean War. I'm president. We can't have this strike. By the way, before he even did this, Truman consulted with Chief Justice Fred Vincent. Hey, Fred. By the way.
N. Rodgers: Is this going to fly?
J. Aughenbaugh: Yeah.
N. Rodgers: Oh, it'll be great. Look at in line.
J. Aughenbaugh: Fred Vincent was just like, Oh, yeah, the court will support you. By the way, Truman knew Fred Vincent saw him every week. Why? Because Truman had a weekly poker game, and one of the regular attendees was the Chief Justice, Truman was just like, I'm pretty okay.
N. Rodgers: I'm good. I got this.
J. Aughenbaugh: I'm good. I got this. Wrong answer.
N. Rodgers: Turns out, I don't got this.
J. Aughenbaugh: I don't got this. The vote was 6-3.
N. Rodgers: Part of that, by the way, don't you think has to do with union busting?
N. Rodgers: The way we get around unions being stroppy is we'll just nationalize.
J. Aughenbaugh: The problem with that logic was the Taft Hartley Act made it very clear. Again, Truman could not say he didn't know the law because the Taft Hartley Act was passed in 1948 when he was president. Truman vetoed the Taft Hartley Act, which explicitly says the presidents cannot take control of an industry to stop a labor strike.
N. Rodgers: He vetoed that. He was fine with the president taking control of an industry stop a labor strike?
J. Aughenbaugh: He vetoes it and Congress overrides his vetoes.
N. Rodgers: He knows his position is not popular.
J. Aughenbaugh: Not because he know it's not popular. He knows that it's illegal. His logic was I am the president. I am commander in chief, and the nation is in a war. Wow, where we heard this before. See FDR, see Lincoln.
N. Rodgers: See every president. Whenever a president is at war, they're I can do that because we're at war. It's not a get out of jail free card. Going to war is not a get out of jail free card. I know it seems like that, but it's not.
J. Aughenbaugh: There's not find anywhere in the US Constitution that says, all of these provisions apply except for in a time of war.
N. Rodgers: Written in tiny little print. Except when we're at war. No. Jefferson thought that or Madison or any of the writers of the Constitution bond, they would have put it in there. They would have explicitly said, except when we're at war because they had just been in one. Anyway, isn't that a huge you can't just cowboy up in here and do whatever you want to do?
J. Aughenbaugh: It is a huge statement about checks and balances and separation of powers. What this case is probably most noted for other than its stinging rebuke of Truman was Justice Robert Jackson's concurring opinion in this case. Justice Jackson's concurrence is, according to a number of scholars, the most cited concurrence by future Supreme Courts in the history of the court because in it, he goes into much more detail than Justice Black's majority opinion, which is Hugo Black's, strict constructionist. Is there language that says the president can do this in Article 2? No, sorry, President Truman. Does congress given you this authority in law? No, sorry, Mr. President, case over. Jackson's wait a minute, here. Increasingly, we get these cases where presidents are acting in ways not covered by the US Constitution, so how should we deal with them? What he basically comes up with is three categories or a spectrum of presidential power, and it's still used today, and we saw reference near to this in the Trump Tariff case in the oral arguments last fall. Listeners were recording this in early 2026. The Supreme Court's hearing a case about President Trump imposing without congressional approval, tariffs. Jackson's concurrence actually arose in the tariffs case. Because what Jackson basically says is presidential power is greatest when the president can point to a specific grant of power either by Congress or in the US Constitution. Where is presidential power at its lowest? When either the Congress or the Constitution explicitly prohibits the president from acting. But then he says, according to Jackson, there's a third category that we need to recognize what he called a zone of twilight where the constitution or Congress is silent and what Jackson proposed was federal courts should defer to presidents unless Congress indicates otherwise. Then he applies this spectrum to Truman's behavior in this case, and he goes, this is an example of presidential power at its lowest. Why? Because Taft Hartley explicitly prohibits this. Two, Article 2 of the Constitution, which covers the Office of president, does not say that the president can take control of an industry during wartime. Boom, done. But, I mean think about how many presidents since FDR and Truman who have basically gone ahead and said, I am the president of the United States.
N. Rodgers: I can do it.
J. Aughenbaugh: I can do it and it's not just Trump.
N. Rodgers: It's not just Nixon.
J. Aughenbaugh: Yeah, it's not Nixon. You think about President Biden in the loan forgiveness program, or President Obama in DACA. I'm still not entirely sure what's the legal authority. I like it as a policy. I just don't know where the legal authority is to do that. Or Bush 43 secret surveillance program, loosely based in a series of legislation passed.
N. Rodgers: Post 911.
J. Aughenbaugh: The Patriot Act. Really? I don't see a secret surveillance program in the Patriot Act. The last one I want to mention for the Vinson Court is US versus Reynolds and Nia, we should probably do an episode about this particular if you will, doctrine. US versus Reynolds, the Supreme Court, in a decision written by Chief Justice Vinson recognized the state secret privilege. Sometimes referred to as the state secret doctrine. This decision allowed the government to avoid releasing papers related to the B-29 crash. The B-29 was a bomber created for the US Army Air wing, which eventually becomes the Air Force. Various press organizations wanted the federal government to release the details about the B-29 having a propensity to crash.
N. Rodgers: I didn't mean to snicker. It did, actually. B-29 dropped out of the sky on a fairly regular basis. Regular while there and which is unfortunate because they're also loaded up with big armaments. They're not just a plane flying along. It's [inaudible] that goes down.
J. Aughenbaugh: These were the planes during World War II that dropped bombs all over the world, Germany, Japan, Italy, North Africa.
N. Rodgers: They're called Superfortress bombers. They dropped huge bombs. They make huge firestorms and by the way, Waycross is Georgia. This happened in the United States in case you were wondering. This thing crashed on American soil. That's why reporters were we should be able to go there and take pictures and find out about it and ask questions.
J. Aughenbaugh: The federal government should go ahead and release how often this occurs.
N. Rodgers: The report about it.
J. Aughenbaugh: In the federal government.
N. Rodgers: The government was like we don't want.
J. Aughenbaugh: It was more than we don't want to. What the federal government argued was if we release too much information about the B-29 bomber plane.
N. Rodgers: The Russians will make a B-29 and then everybody will have a B-29 and then the whole world will be B-29 fold and what are we going to do when that happens? No.
J. Aughenbaugh: The state's secret privilege is rooted in this idea. Again, this is two conflicting, if you will, constitutional purge. Does the federal government have the authority to provide national security? Yes. Is national security better provided when our enemies don't necessarily know about B-29. Probably. On the other hand, the First Amendment protects what? A freedom of press.
N. Rodgers: Theoretically the freedom of the people to know, hey, when that thing's flying overhead, be careful. It could crash down on you and kill you.
J. Aughenbaugh: How can we make informed decisions as the public if we don't? Should we be supporting these elected officials that keep on giving the Department of Defense a whole bunch of money to go ahead and build Boeings.
N. Rodgers: Things to drop out of the sky.
J. Aughenbaugh: We might want to vote those people out of office.
N. Rodgers: Informed consent and just who are you killing in my name and how are you doing it? That's another part of that. That question comes up all the time. That is such a modern. It's funny that in 1953, people think, since 911, we've been no. We've been having this conversation since 1953, where they're like there's certain things we shouldn't tell people and before that, they just didn't tell people. They just kept secrets. I mean, you wouldn't have Los Alamos if you don't have people who keep secrets.
J. Aughenbaugh: It's funny that we're discussing this in regards to the Vinson Court, because one of the main actors in discussing this court is President Truman. Truman before he becomes Roosevelt's vice president, made his name in the Senate, for holding Senate hearings that we're trying to make sure the federal government was not engaged in wasteful, fraudulent spending in conducting World War II. One of the things his committee found was an entire budget line item for the facility where?
N. Rodgers: Los Alamos.
J. Aughenbaugh: When he tried to press then department of four.
N. Rodgers: Nothing. We're not doing anything. Look some other direction.
J. Aughenbaugh: The Roosevelt administration pulled him aside and said, you got to stop your inquiry because this is a secret weapons program that can't be made public, because we don't want, in particular, the Germans to find out about it.
N. Rodgers: We thought they were a head. We thought they had more knowledge than they had, and we were worried that we were losing a race.
J. Aughenbaugh: Roosevelt was claiming, if you will, a version of the state secrets privilege or doctrine, with a guy who ends up finding out about our Atom bomb program once he becomes president, not even when he's vice president.
N. Rodgers: Nobody tells him anything until they're, Mr. President, by the way.
J. Aughenbaugh: We have this secret weapon.
N. Rodgers: That we're pretty sure is earth shattering. Turns out they're right. It is.
J. Aughenbaugh: You might want to use this, but again, you got these conflicting, if you will, constitutional norms and values here.
N. Rodgers: Many, in fact, probably most Americans would say after 911, when they were looking for organizations and terrorist cells, it's okay to look at people's cellphone data to try to figure out who's meeting up with whom and how are they doing and are they some sort of terrorist cell? Then people started to realize, you're tracking my data when I'm having a fling on the side and I don't want my spouse to know. Suddenly, I am way more concerned about you picking up and sweeping up that data because now it's capturing something that isn't state secret at all. But how do you know until you sweep up the data and look at it. It's super complicated. It's interesting that they didn't have to release the information. Although really what happened was a whole bunch of people in Waycross went out and took photographs and then said, hey, there's this big old plane that's flumped down in our backyard. It was terrible. That's the other thing, too. It's like when the government tries to keep a secret, sometimes it just doesn't work out in their favor. See Area 51. There are regular parties outside the gate at Area 51 because there's nothing secretive about it in the sense of everybody knows exactly where it is. You can find it on Google Maps for crying out loud.
J. Aughenbaugh: Oftentimes it's not the initial crime that gets you in trouble. It's the cover.
N. Rodgers: You'd think politicians would know that?
J. Aughenbaugh: By now, but they don't. They make the same mistakes.
N. Rodgers: Just come clean and say, we're working on a plane. It's a little dicey right now.
J. Aughenbaugh: We're still working out some of the bugs, and by the way, we're sorry.
N. Rodgers: Sorry, and we'll help pay for your house that got destroyed. Sorry about that.
J. Aughenbaugh: Anyways, Nia.
N. Rodgers: It's an interesting court. But we're seeing now to the shift in some ways, limiting the government with the steel decision and all that other stuff and also limiting the government in terms of I did not realize how deep the redlining case mattered until you get into the next court. It's going to really matter. That case is going to really matter in the next where are people of color allowed to live without harassment?
J. Aughenbaugh: Our next episode or next couple of episodes, listeners, a little bit of foreshadowing, we'll deal with one of the most impactful errors of the Supreme Court, the Warren Court. That's next in our series. Thank you Nia.
N. Rodgers: Looking forward to it, Aughie. Thank you.
J. Aughenbaugh: Bye.
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