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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: Morning, Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: I'm pretty excited, Nia, and Nia knows the reason why. But listeners, I'm really excited because with this podcast episode, we are commencing a series where we look at Supreme Court eras.
N. Rodgers: Good word commencing.
J. Aughenbaugh: I like the word commencement. By the way, graduation ceremonies are known as commencement.
N. Rodgers: Which is weird because you're not beginning something.
J. Aughenbaugh: Yes, you are.
N. Rodgers: You're beginning life after college or after high school, or whatever.
J. Aughenbaugh: You're ending one stage of life and commencing a new one.
N. Rodgers: I can see that, except I protest people who have commencement ceremonies from kindergarten to first grade. I'm like, "No."
J. Aughenbaugh: I got to admit, when my daughter McKenzie was barely five years old, she had a preschool commencement ceremony. Which was really cool to see a whole bunch of five-year-olds in regalia.
N. Rodgers: See, that feels like a money grab for the regalia companies. The regalia companies are like, "There should be a graduation every year for a kid." Because no kid can wear the same graduation robe year to year. You notice how McKenzie's grown up like a weed.
J. Aughenbaugh: Yes. Then they have moving on ceremonies, and I'm like, "Okay, " but nevertheless.
N. Rodgers: But that is not what we are here to discuss. We are here to discuss the Supreme Court eras. Can I just say that, I've asked Aughie about this a couple of times because it annoys me that the courts are not known by the presidents. Aughie was like, "Yes, but some of the courts go across presidencies."
J. Aughenbaugh: Yes.
N. Rodgers: What would you call it? Would you call it the Kennedy, Johnson, Nixon Court? No, you'd call it the Warren Court, because it's after the Chief Justice. It's not after the presidents that are during the era.
J. Aughenbaugh: Regular listeners, a whole bunch of my students are familiar with the fact that I make references like the Warren Court, which is what, Nia, you just said.
N. Rodgers: This is an easy one.
J. Aughenbaugh: You have the Warren Court. You have the Marshall Court. The current Supreme Court is the Roberts Court. To your point, if we refer to the courts by the presidents, the Roberts Court would be the Bush 43, Obama, Trump, Biden, Trump Court.
N. Rodgers: Which would be a bit of a mouthful. Considering that J. Rob's health is pretty good, could be added another name to that, or two. At that point, he would sound like Elizabeth Taylor, with eight husbands.
J. Aughenbaugh: It was difficult to stay current with Elizabeth Taylor's legal last name because she usually took the last name of whomever she married.
N. Rodgers: She was very traditional in that way. She was a believer in love.
J. Aughenbaugh: The language that we use reflects the shorthand that judicial politics and constitutional law scholars use. This is how we break down the eras of the Supreme Court. On one hand, this makes a whole bunch of sense because the Chief Justice is the presiding officer of the United States Supreme Court. He's also the main administrative officer of the federal judiciary. We know this because every December, he writes a really long report that hardly anybody ever reads.
N. Rodgers: Except you, you and the guys at SCOTUSblog.
J. Aughenbaugh: We read it, and then we cherry pick what a Chief Justice would have thought was a seemingly innocuous statement, and we go ahead and hammer. "What did the Chief Justice mean when he said the federal judiciary is under attack?"
N. Rodgers: Whom? In what way?
J. Aughenbaugh: Exactly.
N. Rodgers: You guys get all your papers written out of that for the next year.
J. Aughenbaugh: What we're going to be doing is, with this episode, we're going to begin the series. In future episodes, we will note that using this shorthand, using this title makes sense because some Chief Justices were quite obviously leaders of that court. For instance, Nia, you mentioned Earl Warren. Nobody thought that the Supreme Court was led by anybody else in the roughly 16 years that he served as Chief Justice, likewise.
N. Rodgers: Some have been more caretakey. Let's keep all of the monkeys in the circus under the same tent.
J. Aughenbaugh: Some of them couldn't even keep the monkeys under the tent. They couldn't lead the other eight justices out of a wet paper bag. They were not very good.
N. Rodgers: How do we get out of here? I have no idea.
N. Rodgers: I have no idea.
N. Rodgers: So far only men, so we were referring to he in all of these situations, is that correct?
J. Aughenbaugh: That's correct. But the practice, as you have noted, off recording, is somewhat inaccurate. Why? Because first, remember, the Chief Justice is only one of nine votes on the Supreme Court, and their vote does not have any more weight than the most recently confirmed justice.
N. Rodgers: I would argue. I'm going to push back on a little bit of that, and say, technically.
J. Aughenbaugh: Really? This is the point you make all the time.
N. Rodgers: I know, but technically, they might influence other people with their vote if those people are waffling. If I were waffling, and I were in a meeting with you, and you stated something categorically, I might be more inclined to lean towards you than I would have, otherwise.
J. Aughenbaugh: But that only supports the point that I'm making, which is it's inaccurate to refer to an era by the name of the Chief Justice because it's oftentimes a reflection of who else they are serving with.
N. Rodgers: We don't have a Scalia Court, but we had a Scalia Court.
J. Aughenbaugh: Yes. When he died, Elena Kagan went ahead and said, "We are all textualists now." It wasn't because of the Chief Justice, the first Chief Justice Scalia served with, which was Warren Burger. It wasn't even John Roberts. Or think about, for instance, on the Supreme Court after Charles Evan Hughes retired when FDR was president, he was replaced by Harlan Fiske Stone. Stone had served on the Supreme Court for years, but he was a terrible manager, and it led to the criticism that the court was nine scorpions in a bottle, and Harlan Fiske Stone could not manage those scorpions.
N. Rodgers: Although in reality, who could manage nine scorpions in a bottle?
J. Aughenbaugh: That's true. To your point, do recall, listeners, that by custom, the Chief Justice can influence who writes the opinion if they are in the majority because the Chief Justice picks who writes the opinion when the Chief is in the majority. But if they're frequently in the minority, and I'll give you an example. Warren Burger, when he first got on the court, it was a court that was dominated by liberals. Warren Burger was frequently in the minority, so he didn't get to pick who wrote the majority opinion.
N. Rodgers: Remind me, so if the Chief Justice is in the minority, then the senior in the majority chooses who writes the opinion.
J. Aughenbaugh: Yeah, the senior most associate justice. On the current Supreme Court, the senior most associate justice is Clarence Thomas.
N. Rodgers: If he were in the majority of a thing that Roberts was not, he would get to pick who writes the opinion.
J. Aughenbaugh: Majority opinion.
N. Rodgers: Generally, they take that from themselves, don't they?
J. Aughenbaugh: The last two Chief Justices have been really good at setting up, shall we say, the behavioral norm that not all controversial, juicy, high intensity opinions will be written by the senior most justice in the majority. When we say senior, we're talking about tenure on the court, not age.
N. Rodgers: Although sometimes those things align.
J. Aughenbaugh: Yes. But Clarence Thomas is the senior most associate justice, and he would be, whether it'd be tenure or age.
N. Rodgers: In this happenstance.
J. Aughenbaugh: Yes. What we endeavor to do over the next few weeks is to explore different Supreme Court eras, how the Chief Justice led, or in some cases did not lead the court, how each court might be best remembered. There are certain themes that will become pretty apparent throughout. Listeners, this is to give you an example, and this is one that Nia pointed out when we were thinking about this series. A lot of these eras are not necessarily influenced by what the Chief Justice wanted to accomplish, rather it's the court responding to what's going on in the larger society. In many ways, Earl Warren showed leadership in an era where a whole bunch of Americans were pushing for greater civil rights. How he responded and how he led the institution is what leads us, in part, to remember Earl Warren as a great Chief Justice. John Marshall, for instance, as we will explore in our next episode, in some ways was great simply because he took what opportunities were presented in terms of the court's docket, and used those opportunities to increase the court's institutional power. If he wasn't given those opportunities, might the Supreme Court still have been the far weaker of the three branches of the federal government? Just keep that in mind, there are going to be certain themes that we'll return to. What's interesting, listeners, is the rest of this episode, we're going to explore the first three Supreme Court Chief Justices.
N. Rodgers: I have a theme.
J. Aughenbaugh: The theme is?
N. Rodgers: For these three justices, which is, ah, what, no, I didn't know this was what I was going to be doing. Whose idea was this?
N. Rodgers: These guys don't seem to have been super prepared for the onerous weight that is being the Chief Justice of the Supreme Court, don, don, dah. They didn't have they didn't have musical background like that.
J. Aughenbaugh: We don't remember them, and they don't have much gravitas, in part, because the Supreme Court early on in our country's history didn't have a lot of work to do.
N. Rodgers: Listeners, Aughie points this out to me, on more than one occasion he has pointed out to me that the Supreme Court did not even have a physical building. They were just meeting at people's houses. If we were on the Supreme Court, we were like, "Pizza at Aughie's next week, and we'll talk about some cases." That's sad, in a way, that they didn't even have their own spot.
J. Aughenbaugh: Listeners, you will notice how seemingly irrelevant the Supreme Court was at that time, even if you just looked at Article 3 of the Constitution, as we've discussed on this podcast.
N. Rodgers: Exactly. "By the way, we're going to have a court."
J. Aughenbaugh: If you compare Article 3, which deals with the judiciary, to Articles 1 and 2, which cover the Congress and the Office of the President, it's really difficult not to come to the conclusion that the judiciary was, "Hey, we need a judiciary, but we've been in Philadelphia all summer. I want to go home, and I'm beginning to dislike dealing with the rest of you."
N. Rodgers: Exactly. It feels like a little bit of an afterthought. "Yeah. Here's some stuff about the judiciary."
J. Aughenbaugh: How quickly an organization gets through the rest of its agenda at the end of a really long meeting.
N. Rodgers: We're two and a half hours into this meeting. Everybody's hungry and nobody cares, just sign off on whatever it is.
J. Aughenbaugh: I want to go home.
N. Rodgers: Who's our first Chief Justice?
J. Aughenbaugh: The first Chief Justice appointed by the country's first president, George Washington, was John Jay. John Jay was a well-known revolutionary figure from New York. He was a statesman. He was a diplomat. He signed the Treaty of Paris. He was a Founding Father. He served as the first Chief Justice from 1789-1795. But Nia, why did he leave the Supreme Court?
N. Rodgers: Didn't he get bored? I'm kidding. He wanted to go for a better job. Wait. Sorry. Didn't John Jay write some of the Federalist Papers?
J. Aughenbaugh: Yes.
N. Rodgers: He was way involved in the how to build governance.
J. Aughenbaugh: He didn't write very many of them because he got sick while the rest of his co-writers, Hamilton and Madison, were cranking out the Federalist Papers. But John Jay was a well-known figure.
N. Rodgers: Sorry, go ahead.
J. Aughenbaugh: Go ahead. No.
N. Rodgers: He takes this demotion of being the Chief Justice. "The third article thing, would you like to be in charge of that?" Like, "Thanks." I don't know.
J. Aughenbaugh: He resigned from the Supreme Court so he could go back to his home state of New York and run for governor. John Jay made it very clear to George Washington, my work is more important as a federalist, as a member of the Federalist Party back in New York, than it is as Chief Justice of the US Supreme Court.
N. Rodgers: They also didn't have a whole lot of stuff to do, did they? He didn't have a lot of cases.
J. Aughenbaugh: No. The first couple of Supreme Court terms, 1789-1790, 1790-1791, the Court only met for a couple of weeks, because, again, it was a brand new federal government. The federal government hadn't done enough stuff to upset enough people to file lawsuits in federal court, to challenge them. They didn't have a physical structure. There wasn't a robust docket. John Jay was like, I'm going to go back to New York. In part, you got to remember, John Jay was an important revolutionary figure. Nia, you intimated at this, John Jay was used to doing serious government work. He was part of the first Continental Congress.
N. Rodgers: He was used to thinking through complex problems and how to respond.
J. Aughenbaugh: He was an action junkie. In the language of today, he's an action junkie. He was elected to the first Continental Congress. From 1779-1782, he served as the ambassador to Spain, and he persuaded Spain to actually loan us money, which was extremely important, as we are breaking away from Great Britain because Great Britain was our bank when we were the colonies. He negotiated the Treaty of Paris, which is where Great Britain recognized American independence. Then he served as the Secretary of Foreign Affairs during the Articles of Confederation. This was a guy who was an important, if you will, government official, and Washington wants him to go ahead and lead up the United States Supreme Court when it's doing nothing. He was like, "I'm out of here"
N. Rodgers: Then John Jay bails, and Washington's left going, "I need another Chief Justice."
J. Aughenbaugh: That's right.
N. Rodgers: Does he pick another founder?
J. Aughenbaugh: Yes. Interestingly enough, he picked one of the associate justices of the United States Supreme Court.
N. Rodgers: He promoted somebody. He promoted from within.
J. Aughenbaugh: Yes. The second Chief Justice was John Rutledge from South Carolina.
N. Rodgers: Does Rutledge get a court named after him?
J. Aughenbaugh: No, he doesn't. The reason why is he served less than a year. We'll get into why he served less than a year in just a moment. For those of you who don't know of John Rutledge.
N. Rodgers: Of the great state of South Carolina.
J. Aughenbaugh: Yes.
N. Rodgers: Wait. John Jay was, sorry, from?
J. Aughenbaugh: From New York.
N. Rodgers: From New York. Washington was going all up and down the colony, he wasn't just picking people from large states in the North and stuff like that.
J. Aughenbaugh: No. George Washington, one of the characteristics of his Supreme Court nominations was he wanted geographical diversity.
N. Rodgers: That's pretty cool. When you think about the era in which he lived, that's pretty cool that his internal mechanism was, we should spread this out to get more buy-in, to get better relationships, all that stuff.
J. Aughenbaugh: Washington's thought process, as he explained in a number of letters, was that he thought the more each state was represented in the operation of the new government, the more those states would buy into this experiment, because it was an experiment.
N. Rodgers: That's actually really smart.
J. Aughenbaugh: Washington understood that there was significant opposition to the then proposed Constitution in a large number of states.
N. Rodgers: This is the original winning hearts and minds doctrine. You need to get people to have skin in the game because if they have skin in the game, then it encourages them.
J. Aughenbaugh: Yes. As I remark in my judicial politics class, this is probably the first example of diversity as a judicial selection, if you will, characteristic. Not diversity as we talk about it today, but geographical diversity. Rutledge, interestingly enough, left the Supreme Court after two years so he could go back to South Carolina to be the Chief Justice of the South Carolina Court of Common Pleas and Sessions. Rutledge actually created the norm for Supreme Court Justices at that time, saying, "The Federal Supreme Court, I'm going to go back and do more meaningful work.".
N. Rodgers: It's not where the action is. The action is at the lower court level. He's on the Supreme Court, then he leaves the Supreme Court. This is not during his time as Chief Justice. He's just a justice, an associate justice in the Supreme Court.
J. Aughenbaugh: He goes back to South Carolina. When Jay resigned in June of 1795, Washington said, "We need a Chief Justice, so I am going to recess appoint John Rutledge." For those of you who don't know, a recess appointment is a power that the president has to appoint federal judges and heads of cabinet departments when Congress is in recess. The person gets to hold the position until Congress returns, and then the president has to make a choice. Do I formally appoint them and have the United States Senate consider their appointment, or do I withdraw their appointment and make somebody else my formal appointment? Washington recess appoints Rutledge, and this is where Rutledge harmed himself. Mind you, Congress was in recess for basically the second half of 1795. Even the United States Congress didn't have very much work. To put this in context, John Jay resigns from the US Supreme Court in June of 1795. The Senate does not reconvene until December. Do the math, Nia, but that's basically six months the Congress was in recess.
N. Rodgers: Somebody's got to run the thing in the interim, that's what Washington's thinking. Somebody has to run the judiciary in the interim, see earlier note of what Aughie was talking about a little while ago of the Chief Justice has other jobs, not just the job of hearing cases and voting on cases, but they are an administrator. Washington's thinking, I need an administrator. I need somebody to be in here doing the job.
J. Aughenbaugh: That's why the Framers gave the president recess appointment power, because there are things that need to be run in the government even when Congress is on vacation. Rutledge in July of 1795, gave a very highly controversial speech where he denounced the Jay Treaty. We just previously spoke about the Jay Treaty.
N. Rodgers: Paris.
J. Aughenbaugh: This is the treaty where Great Britain recognized American independence. In the treaty, there was language that said the United States government would assume the debts that the colonial governments still had with the British crown. John Jay denounced the speech, "that he had rather the president should die than sign that puerile instrument", and that "he preferred war to the adoption of it", the treaty.
N. Rodgers: Rutledge got up there and ran his mouth about what a chucklehead John Jay was for creating this treaty, and what a chucklehead Washington is for signing it?
J. Aughenbaugh: Yes.
N. Rodgers: That probably went over a treat.
J. Aughenbaugh: Yes. Because the Federalist Party controlled both the House of Representatives and the Senate, more importantly the Senate, the Senate, when it had an opportunity to formally vote on Rutledge's appointment to be the next Chief Justice.
N. Rodgers: I bet the sound was wong, wong.
J. Aughenbaugh: Thanks, but no. The vote was 14 against and 10 in favor.
N. Rodgers: He's like, "Oh, man." I'm assuming Rutledge goes home with his tail between his legs and says, "That was silly."
J. Aughenbaugh: Yeah. Rutledge went home, and basically just faded into obscurity. It wasn't like John Jay, where John Jay goes home and becomes governor of New York. For the next Chief Justice, his third, Washington turns to another important revolutionary figure, Oliver Ellsworth. It's not very often that we get to discuss an Oliver on this podcast.
N. Rodgers: It's a good name, Oliver Ellsworth. Sounds like a Dickens character.
J. Aughenbaugh: Yes, it does. For our newer listeners, Nia and I are big fans of names.
N. Rodgers: We are. We love names. The weirder or the more unusual the name, the more we like it.
J. Aughenbaugh: Yes. Ellsworth was from Windsor, Connecticut. He attended the College of New Jersey, which I believe became Rutgers. He was the state attorney for Hartford County, Connecticut, and he was a delegate to the Continental Congress, and served in the Congress during the remainder of the Revolutionary War. He was a state judge, and he was a delegate to the Constitutional Convention.
J. Aughenbaugh: At the convention, Ellsworth played a very important role in fashioning what we know as the Great Compromise, the infamous Connecticut Compromise.
N. Rodgers: Oh, between the big states and the little states, or rather between the more populous states and the less populous states. Really wasn't about size so much as it was the number of people who lived there.
J. Aughenbaugh: That's right.
N. Rodgers: Because Alaska is huge, but about five people live there.
J. Aughenbaugh: We're not disparaging Alaska.
N. Rodgers: We are not disparaging Alaska. I would say that if you wanted elbow room, Alaska is a great place to go because there's a lot of elbow room.
J. Aughenbaugh: We're also fond of using Wyoming and [inaudible].
N. Rodgers: It's beautiful.
J. Aughenbaugh: Yes, as examples of.
N. Rodgers: Elbow room.
J. Aughenbaugh: Yes.
N. Rodgers: And beauty. All those places are lovely, too.
Speaker 1: Ellsworth's compromise was, well, we will have a two house Congress, which, by the way, plus brand new, no country in the world had ever had a bicameral legislature before what Ellsworth proposed, right?
N. Rodgers: The House of Lords and the House of Commons did not exist? It was basically the House of Lords.
J. Aughenbaugh: But one of them had no power and you only got the position because you inherited it, right?
N. Rodgers: Ah.
J. Aughenbaugh: I guess, technically, but in terms of functionality, we created this Ellsworth deed.
N. Rodgers: Pave the way.
J. Aughenbaugh: Yes, right? But, interestingly enough, he got out of Philadelphia before the convention ended, and he never signed the document. He goes back to Connecticut. He likes the proposed constitution, helped Connecticut ratify it. He got elected as one of Connecticut's inaugural pair of senators and he served for seven years. He was the main author of the Judiciary Act of 1789. For our listeners who are fans of the federal judiciary, that's the law. The first law that created the federal judiciary.
N. Rodgers: Is that the one that gives the federal judiciary supremacy over the state?
J. Aughenbaugh: That's right. The way to ensure this, and this was part of Ellsworth's handiwork is you put federal district courts in each state.
N. Rodgers: I'm over here watching you.
J. Aughenbaugh: Now, Ellsworth was a key Senate ally to Hamilton. He was aligned with the Federalist Party, and he played a key role in some of Hamilton's main pieces of legislation as Secretary of Treasury, including the Funding Act of 1790, which established the process for collecting taxes and paying off the debts that the United States, that means the debts that the states had, and also the bank bill of 1791, which created the first national bank in the United States.
N. Rodgers: He's a mover and shaker?
J. Aughenbaugh: Oh, yeah, he was an important dude.
N. Rodgers: Everybody's heard his name in that period. We may not have heard his name, but he would have been extraordinarily well known in government circles and the woo woo people in society would have known who he was and he would have had probably a lot of influence.
J. Aughenbaugh: Yes, and unlike Rutledge, he did not denounce the Jay Treaty. He did not denounce any of Hamilton's revenue or banking bills. No, he was a key federalist. When Washington nominated Oliver Ellsworth, Ellsworth was near unanimously confirmed by the Senate, and he served for four years. But he had to resign due to poor health. Now, Ellsworth's personal papers did note that he was bored on the Supreme Court, especially compared to his work in the United States Senate.
N. Rodgers: It was mental health. He was like, I'm going stir crazy over here.
J. Aughenbaugh: Interestingly enough, he resigned, but then went back to Connecticut and still served in various capacities in the Connecticut state government until he died in 1807.
N. Rodgers: Can I ask a question about these three guys and the boredom level of the Supreme Court at the beginning?
J. Aughenbaugh: Yes.
N. Rodgers: Is part of that because we haven't yet gotten Marbury v. Madison and we haven't yet gotten this judicial review that the court gets from Marbury v. Madison. Marbury makes it clear, oh, no, the supremes will decide whether something is constitutional or not. And if you don't like it, you're going to have to lump it. But that's 1803. That's before these guys have served. Is it then that the teeth of the Supreme Court really begin to come in during is during Marbury or is right after Marbury?
J. Aughenbaugh: Well, in part, again, we can't overplay or overemphasize the fact that there were very few cases that were brought to the United States Supreme Court during these.
N. Rodgers: In those first 10 years.
J. Aughenbaugh: Yeah, the first 10 years. Again, think about, for instance, the Senate being in recess for half a year in 1795.
N. Rodgers: We could only dream of that now.
J. Aughenbaugh: Or think about, for instance, Washington.
N. Rodgers: They went home to bring crops in. That's a huge part of what they did. If they went home in the fall, which is what they were, they were home in the fall, they were bringing crops in. They were doing work that kept their farms going because most of them were farmers.
J. Aughenbaugh: Or there were bankers. Or think about our first president. He had an active, thriving distillery business.
N. Rodgers: I was going to say winery.
J. Aughenbaugh: In Mount Vernon.
N. Rodgers: Had other stuff to do.
J. Aughenbaugh: Yeah, these were part time representatives of the people.
N. Rodgers: I'm not entirely certain that the founders thought that anybody would ever do it full time the way they do now. I think they probably expected that you would always have to at least farm to feed yourself and your family, like you would at least have to do some of that. It's interesting.
J. Aughenbaugh: In a lot of this, again, there weren't enough cases or important cases for where the Supreme Court could assert power and authority. In many ways, it's John Marshall who was given the opportunity to assert the court's institutional power. But that's, listeners, a little bit of foreshadowing for our next episode. This first episode was an introduction to the series and to talk about how the first three chief justices really don't have a named era, right? Nobody is [inaudible] .
N. Rodgers: But then fairness to them, they weren't doing a lot. There's not a lot to be named for. The theme here is, men. The theme basically is, okay, I guess we'll hear a case next year.
J. Aughenbaugh: Also, too, remember, if you think about Jay and Ellsworth, these were important revolutionary government officials. If you're used to doing a lot of important work, and then all of a sudden, you are nominated to serve on a government institution that has very little work, isn't really viewed as a coequal branch, it's easy to struggle with that change in your life.
N. Rodgers: A lot of people who retire have that same feeling of, well, why am I even getting out of bed. It's really hard to manage yourself especially if you've worked in a dynamic, and these guys all did dynamic, highly intellectual things, and then they're being asked to basically sit around and do nothing, and they don't want to do that. Two of them failed to go back and and do work at home that they thought was more important or more influential.
J. Aughenbaugh: Yes. But this is all going to change with our fourth chief justice, John Marshall, and we will pick up the series with our next episode, The Infamous Marshall Court.
N. Rodgers: His musical theme is done, done done. At the end of each whatever, I'm going to try to come up with a musical theme for each of us. In the first, they don't have a musical theme because nothing happened. But Marshall, we get actual action. That's [inaudible] .
J. Aughenbaugh: It's funny what you just said there, Nia, because it strikes me that if let's just say Nia, you and I we were trying to sell a brand new sitcom to a television network, and we we come in with the first three chief justices. Most TV network executives would go ahead and say, this is boring. Nobody's going to watch this. But when we get Marshall, just the way he was appointed, again, that's going to be part of our discussion of the Marshall court is how he was nominated, and how he quickly took a dispute about how other federal judges were nominated at that time to assert the court's authority. Now, TV executives were like, okay, now we got some drama, we got some personal animosity. We got one political party against another political party, and we have one of the best known revolutionary figures, Thomas Jefferson get absolutely schooled by his distant cousin from Virginia. It's got all of this [inaudible].
N. Rodgers: The only thing it doesn't have is sex. It has anger. It has money. It has power. It has all the other things.
J. Aughenbaugh: But the first three chief justices, a television network executive would say.
N. Rodgers: Well, and nobody would watch. They'd watch that first episode and they'd say, this is going to be the most boring series known to humankind. But we are here to tell you, listeners, that it picks up pretty quickly, and then we're on a roller coaster. Sometimes we get courts that do amazing leaps forward and all kinds of stuff and then we get courts that are like, we're just trying to maintain the court system. We're just trying to keep the United States from collapsing into like a flan and a cupboard. You get a roller coaster effect. I think that Roberts is trying to just keep the wheels on the bus. At this point he's in the second Trump era, which for him has got to be like, I don't even know what to think about this.
J. Aughenbaugh: The current Chief Justice, I think, would really like the American public not to focus on the US Supreme Court with as much regularity as we can.
N. Rodgers: The first three guys are like, man, we don't have enough to do, and the current Supreme Court is like, shhh, maybe nobody will notice if we're quiet.
J. Aughenbaugh: All right, Nia.
N. Rodgers: That shows you the difference.
J. Aughenbaugh: Yes. Well, it also reflects changes in American society.
N. Rodgers: And it reflects the presidency. You said to me off recording, and I think it's important that we mention it before we go, and that is Washington was finding the way of how to have a representative republic. Like, how do we even do this thing that doesn't exist in the world, and everybody's looking at us all side eye because they're like, you're going to fail without King. We'll see you in six months. You'll be dirty and hungry and tired and you'll have to come to us with your hat in your hand. And Washington is like, no, we can't let that happen. He's trying to figure out how to be a president and how to set the rules for the presidency. Like, what does the president do and what are the customs and stuff. He's trying to figure out all that, and I'm sure he's like, just don't run it into the ground. That's all I need you to do right now is just not run it into the ground because I got other stuff on my mind.
J. Aughenbaugh: Yeah, there's a whole bunch of parents the first time they let their kid drive on their own that basically have that thought in regards to automobiles, don't wreck the car.
N. Rodgers: No matter what. I don't care what else happens. Just don't wreck the car and don't get hurt and don't hurt anybody else.ee
J. Aughenbaugh: That's good. All right, Nia.
N. Rodgers: Thank you, Aughie.
J. Aughenbaugh: Thank you, Nia.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.