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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: Hi, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: I'm feeling fuller.
N. Rodgers: Less full and fuller? Excellent. Can I just say, this is an episode in our ongoing Saga series of the Supreme Courts. This is the Melville Weston Fuller Court.
J. Aughenbaugh: Correct. Unless you are a huge Supreme Court nerd, you probably never, ever heard that name. But Melville Fuller was the eighth Chief Justice of the United States. He served as Chief for 22 years from 1888 until his death in 1910. Yes.
N. Rodgers: But nothing happened during that time, so there was nothing to it.
J. Aughenbaugh: Let's just go ahead blow off two decades of American history.
N. Rodgers: You know what I think is funny about American history? American history, at least as it was taught to me, was taught in terms of war. There was the Revolutionary War, and then nothing happened. Then there was the Civil War, and then nothing happened. Then there was World War I, and then nothing happened. Then there was World War II, and nothing happened. You're like, bunches of stuff happened between those wars, but it's funny how they were taught as, I hope they don't still teach history that way.
J. Aughenbaugh: I was about to say the derivation in my high school civics was basically American history could be understood through wars and economic catastrophe. I was just like. I was shocked when I got to college and I started taking, some history courses. My second major was history. I was shocked when, there were these, discussions about positive developments and inventions.
N. Rodgers: Entire decades where you're looking at economic growth.
J. Aughenbaugh: Growth and [inaudible]
N. Rodgers: I guess stuff did happen between.
J. Aughenbaugh: I was just like, my American civics education really short changed me. But again, listeners, that reflects both Nia and I being GenX.
N. Rodgers: Hopefully, they've gotten better at teaching history than they used to teach in class.
J. Aughenbaugh: A lot of the curriculum changes in American civics and American government at the K-12 level. Really didn't start occurring until, after, we got through. But a really good example of what we're just talking about here is Chief Justice Fuller led the court, so Fuller was the successor to Morrison Waite. The Waite court, as we talked about in our previous episode in this series, had the potential to expand civil rights and civil liberties because of the 13th, 14th and 15th Amendments, but did not do so. They had very limited interpretations of those amendments. The promise of the country's second founding, if you will, in the language of historian Eric Foner, the country's second founding was the 13th, 14th and 15th Amendments. That promise was never fulfilled. The Fuller court went even one step further in being conservative and it really reflected, if you will, the dominant American politics and ideology of the time.
N. Rodgers: Reflected a lot of of Melville Fuller. His personal conservatism. Oh sorry. Got my tongue all twisted there. He was born in Augusta Maine, on February 11 of 1833. He was born in the dead of winter in one of the coldest places in North America.
J. Aughenbaugh: United States.
N. Rodgers: It's true, North America because the whole of Canada is colder. But anyway.
J. Aughenbaugh: North America, the United States. Yes.
N. Rodgers: He graduated from Bowdoin College, right? Like a well known school. He was well educated, going Bowdoin colleges.
J. Aughenbaugh: Then he migrated to Chicago, Illinois. He read the law, which again, was not, unusual. It would have been more unusual if he had actually gone to law school because that still was not the norm even in the mid 1800s.
N. Rodgers: Reading the law means you basically apprenticed to an attorney.
J. Aughenbaugh: Yes.
N. Rodgers: You learn the law from them and you learn how courts work from them and that thing.
J. Aughenbaugh: They gave you readings, and eventually you take the bar, you pass the bar, you set up your own legal practice. He was a Democrat. Again, listeners, particularly for non-American listeners, Democrats in the mid 19th century, were conservatives.
N. Rodgers: Essentially, the Democrats and Republicans reversed.
J. Aughenbaugh: Yes.
N. Rodgers: From what?
J. Aughenbaugh: We see today in American politics. He campaigned for Senator Stephen A. Douglas when he ran for president in 1860 during the civil war.
N. Rodgers: Famously of the Douglas Lincoln debate.
J. Aughenbaugh: The debates. He served in the Illinois House of Representatives. He supported the war, but he did not like many of Lincoln's war policies. He thought that the Lincoln administration should have been more willing to conciliation. With the Confederacy. He became a prominent corporate attorney in Chicago, was frequently a delegate to the Democratic National Convention. He was considered a Democratic party elite, even though he didn't really other than his one term in the Illinois House, he was never, an elected official. He was more of a party elite, a community elite. President Grover Cleveland offered him a number of appointments in his presidential administration, turned those down. But then he accepted the nomination to replace Waite as Chief Justice. Even though the Senate at that time was still controlled by the Republican Party, Fuller was confirmed in part because the Republicans at that time were beginning to divide. You still had the radical Republicans Nia, who, abolitionist, big proponents of broad interpretations of the 13, 14, 15th Amendment. But then you had more business economic conservatives being elected into the Senate for the Republican Party. That divide is what allowed Fuller to get enough votes to be confirmed as Chief Justice.
N. Rodgers: Didn't he sort of- in his time as Chief Justice, wasn't he Pro, business pro, wealthy guy pro. He was leaning into that side of.
J. Aughenbaugh: The Republican Party.
N. Rodgers: Of the Democratic Party, right?
J. Aughenbaugh: Well, Democratic, but remember, the GOP controlled the Senate. Where there was a divide was among the Republicans, which allowed him to get enough votes to be confirmed, right?
N. Rodgers: Got you. Sorry.
J. Aughenbaugh: But when he gets on the court, you are correct. By no stretch was he considered, he was like, wait. He wasn't considered a legal, intellectual elite. What he was considered was a very able Chief Justice who basically went along with the then Court's majority conservatism. Particularly about economic interests, which we're going to spend a little bit of time on, because that's what, the Fuller Court's really known for.
N. Rodgers: Can I just say that he was damned with the faint praise of being a capable manager of the Court's business? That is when Aughie is trying to find something to say about a person. That is the faintest pre, well, he ran it okay. You know what I mean? That's, I don't know. That's satisfactory on your evaluation. You're not extraordinary, you're not very good, but you're not very poor and you're not fiable. You're just satisfactory.
J. Aughenbaugh: Listeners, if you've been.
N. Rodgers: I just love it when you put that in the notes, it's always amusing to me and I'm like, okay. Aughie. He lacked legal genius is what you have in your notes. Can we talk about that for a second? Not everybody who is on the court at any given time is a legal genius. That's just not, if you had nine legal geniuses all at one time.
J. Aughenbaugh: Oh, my.
N. Rodgers: The struggle would be real. The struggle in these streets would be real because, usually you have one or two really high end people. Then you have like seven perfectly good justices who understand the law and can apply it well and all that other stuff. But I love it when you're like, he was tepidly fine.
J. Aughenbaugh: Well, for listeners of this series, think about how Nia and I describe Fuller's predecessor, Morrison Waite. When Waite got nominated, probably the greatest praise came from the associate press who went ahead and said.
N. Rodgers: He's fine.
J. Aughenbaugh: He's a gentleman, right? You couldn't come up with anything else because, nobody knew anything about him. When you got.
N. Rodgers: Maybe that's a good thing. Maybe what you want in a chief justice is someone who's not super well known because maybe that causes them to struggle.
J. Aughenbaugh: Well, I would argue as a chief justice because a big chunk of the job is managing the federal court system. Being a good administrator is not a bad quality to have.
N. Rodgers: That's true.
J. Aughenbaugh: But, he didn't lead the court intellectually. He had plenty of other colleagues. The court was increasingly divided, Nia. The Fuller court, will lead to a couple more courts where the Supreme Court is really struggling with one of the core debates in American constitutional law, which is to what extent can the government regulate the economy. Then Part 2, which level of government has the authority to regulate the economy? The federal or the state.
N. Rodgers: In a capitalist society is extremely important.
J. Aughenbaugh: Is a huge question?
N. Rodgers: Also, didn't he have a bunch of, big personalities, big P? Can you imagine being the Chief Justice with Scalia and Ruth Bader Ginsburg on your court? The navigation that you have to do in order to get these people to not personally agree because they actually were great friends.
J. Aughenbaugh: Agree.
N. Rodgers: But to get along with each other legally or in terms of the nine, because Aughie has pointed out on a regular basis, this is nine big people in one tiny room.
J. Aughenbaugh: Yes.
N. Rodgers: Being able to manage that says a lot about you. Didn't you say that he was actually pretty good at managing those hostile relationships and struggles?
J. Aughenbaugh: It was Fuller who introduced the practice that the Supreme Court still uses today. Before the justices either assumed the bench for oral arguments, and even before their private conferences, they shake hands.
N. Rodgers: He instituted that.
J. Aughenbaugh: He instituted.
N. Rodgers: Oh, that's when your parents say, you're sorry. Say you're sorry, and you say, sorry, even though it's clear that you don't mean it. That's okay. You shake hands so that we're starting off this session, assuming goodwill.
J. Aughenbaugh: Goodwill. That's right. Now, notwithstanding that, the justices on his court were split five, four, 64 times during his 22 year period. That basically means, every year they were divided at least three or four times five to four.
J. Aughenbaugh: Again the court was hearing more cases, but nevertheless, that's a lot of, division on the court. Now, but Fuller hardly was ever in the dissent. He was only in the dissent, 2.3% of the cases heard during his 22 years.
N. Rodgers: Really, roughly two percent.
J. Aughenbaugh: Roughly two percent.
N. Rodgers: Ninety-eight percent of the time he was in.
J. Aughenbaugh: Yes.
N. Rodgers: Is that, I wonder because he went along to get along or is that because?
J. Aughenbaugh: I think that is the case.
N. Rodgers: He didn't just signed agreement with these people roughly 98% of the time?
J. Aughenbaugh: If you're Chief Justice, if you're in the majority, you get to assign the majority opinion.
N. Rodgers: Oh, my gosh. You wrote the best thing about his opinion writing, which is that it is nondescript.
J. Aughenbaugh: Correct.
N. Rodgers: Earlier when we were talking about damned with faint praise, that is the faintest praise that you can put upon a Supreme Court justice, is to say that their writing is nondescript.
J. Aughenbaugh: Listeners.
N. Rodgers: What how?
J. Aughenbaugh: Frequent listeners, you all have heard me say this with some regularity. When I'm doing research for a particular one of our episodes, inevitably, I come across something that I never knew before or just makes me laugh out loud.
N. Rodgers: Then you teach it to me.
J. Aughenbaugh: With the Fuller Court, this was the one where I was like, that's too good. I got to put it in the notes. Nia.
N. Rodgers: Did I read the quote from Frank-N-Furter?
J. Aughenbaugh: Yes.
N. Rodgers: Frank-N-Furter. Sorry, not Frank-N-Furter. That's a film. Felix Frankfurter opined that Fuller was, "Not an opinion writer whom you read for literary enjoyment." That is cold. That is like, well, then scholar G Edward White characterized his style as, "Diffident and not altogether successful." Wow. They didn't come out and say, guys a terrible writer. But they did say, the guy is a terrible writer. Oh, my goodness. Aughie will tell you, Aughie reads pretty much every opinion that comes out of the court. There are very few cases that you skip. You know the writing. Most of the writing is at least interesting.
J. Aughenbaugh: Mind you, the huge caveat is legal opinions are written in a form of English that most of the public is, I'm familiar with.
N. Rodgers: It's in a foreign language.
J. Aughenbaugh: I understand that many of my former students who may be listening to the podcast episode are like, Aughie none of that writings good. But if you read.
N. Rodgers: I don't know scum. Some are very interesting.
J. Aughenbaugh: If you read enough of it, there are some, Supreme Court justices who write extremely well. You mentioned Scalia, particularly his dissents. Even if you disagreed with the content, the way he wrote it was just energetic, lively prose where you're like, you could see him getting animated as he wrote it, right?
N. Rodgers: It's just so much argle-bargle. Argle-bargle is a word we get from Justice Scalia.
J. Aughenbaugh: Scalia, right?
N. Rodgers: In terms of legal stuff.
J. Aughenbaugh: Justice Robert Jackson wrote short, punchy senses where he would draw in, literary references to make his points, etc., and where you're like, wow, that's really good stuff. On the current court, I so enjoy Elena Kagan's writing. Again, you could never tell that she was a law school professor, because one of the complaints about law school professors is that, they have so many citations and so many references. That's not Kagan. Kagan, I think, really benefited from her time on the court with Scalia. Because, they were frequently in disagreement. But in responding to Scalia, you had to get better. You had to. But Fuller, I've read a number of his opinions. I think the characterizations I found, I love the diplomacy of the characterizations to go ahead and say his writing basically was mediocre.
N. Rodgers: Side note, the justices don't always, the justices do use words that they didn't come up with, Scalia didn't come up with argle-bargle. That was from the 1870s. But he used it effectively.
J. Aughenbaugh: Yes.
N. Rodgers: That's part of writing is you're not coming up with new words for the most part. You're using them to write effectively. Whatever else one may say about Brown Jackson's writing, and I don't know that we've seen enough of it yet to see where she will go in the arc of her career. But her use of Calvinball rules is perfect in one of her recent dissents, where she's like, this is like Calvinball rules. Nothing counts, nothing matters. I was like, oh, my gosh, I know exactly what she's talking about.
J. Aughenbaugh: Yes.
N. Rodgers: That writing, I can't describe pornography, but I know it when I see it.
J. Aughenbaugh: From Justice Potter Stewart, yes.
N. Rodgers: Those are ways to make the opinion more reachable to somebody like me who is not trained in the law, who is not trained in all the Latin.
J. Aughenbaugh: Yes.
N. Rodgers: Language that you would use. It is a little sad that he was, apparently he could be summed up, his writing could be summed up as. Which, that's just.
J. Aughenbaugh: The criticism from, a future Supreme Court justice, Felix Frankfurter, not an opinion writer. Whom you read for literary enjoyment? I'm like. Which for you too? Felix Frankfurter's opinions got criticized for reading law journal articles because he was a former law professor at Harvard. To see Frankfurter, go ahead. Criticize somebody else. At one point, as I was, typing this into the research notes, I was thinking, Hello, Pot, this is Kettle.
N. Rodgers: Calling to say liven up your opinions.
J. Aughenbaugh: But I will say this about Fuller as a chief justice. One of the reasons why a lot of his colleagues liked him, even those that frequently dissented with him, was that he used the authority to assign majority opinions in a very modest way.
N. Rodgers: Wouldn't take all the glory. He didn't.
J. Aughenbaugh: He assigned a lot of the major cases to the other justices, and he assigned the duller ones to himself. Which may help explain why his writing was considered nondescript. Let's face it.
N. Rodgers: It wasn't really writing about exciting cases.
J. Aughenbaugh: There's only something that.
N. Rodgers: How exciting are you going to make a tax case?
J. Aughenbaugh: Well, just what I was going to say.
N. Rodgers: Trying to be ugly but.
J. Aughenbaugh: When you are doing a civil procedure case, there are only so many ways that you can liven up a Civ Pro. I'm sorry, but civil procedure cases are about procedure. Procedure in and of itself, and terribly exciting.
N. Rodgers: It's boring. It should be. Procedure should not be exciting because if it's exciting, it's poorly written. It needs to be something that is pedantic and very clear. What I like about him is that he didn't just serve as the CJ. He did other, he did what I think of as gig work on the outside. He did other stuff.
J. Aughenbaugh: In many ways, he was fascinated because President Grover Cleveland offered to appoint Fuller to be Secretary of State, and he declined. I liked what he said about declining. He said he enjoyed his work as chief and that accepting a political appointment would harm the court's reputation for impartiality. I love that.
N. Rodgers: Then he ends up on arbitration court for the Venezuelan boundary dispute.
J. Aughenbaugh: Yes. Then served on the permanent court of arbitration, which was an international law court.
N. Rodgers: This arbitration of Venezuelan boundary, that was international. That wasn't us deciding that for Venezuela, that was the world. He was clearly considered a sound arbitrator, which makes sense for a guy who's making everybody shake hands. Listen, we're going to come to some civilized agreement about what's okay here. We're going to do it in as neutral and not exciting way as we can do it because we don't want there to be dispute later about what we did. We want it to be, so I guess that his personality, that works actually.
J. Aughenbaugh: Now, before we get to some of the more important cases of the Fuller court, I do want to note something else and I never seen this quote before. But the last few years of Fuller's health, the last few years on the court, Fuller's health was not good. But biographer William King called the worst year of the history of the court. The Supreme Court term from October 1909 to May 1910, two justices died and one became fully incapacitated.
N. Rodgers: We're down to six, and that's not including Fuller who was already.
J. Aughenbaugh: Whose health was already failing. He hung on in part because the court was effectively down three justices, and again.
N. Rodgers: That's a lot.
J. Aughenbaugh: That's terrible for the court. It's terrible. Again, I'm sorry.
N. Rodgers: It's terrible from the humanity point of view. Aughie is not saying that is a small thing. But from a institutional point of view, that is awful.
J. Aughenbaugh: You're down one-third of your capacity, and you have another justice who's barely hanging on and had been barely hanging on for multiple years. You want to get into some of the thesis.
N. Rodgers: You have a quote in here about his health that says that, "It was growing enfeeblement?" That's a quote from scholar David Garo. I think that's actually, a very powerful image, growing enfeeblement. This idea that what happens to people who have been so active and so intellectually engaged, and then they start to lose that ability. It's sad, but he's in his 70s, which at that time, really was old age.
J. Aughenbaugh: Old age.
N. Rodgers: The 70s now is like 40s, it's like, whatever. You're in your 70s. That's no big deal anymore, currently, because we've extended the length of time that people live. But your 70s back then would have been a time of complete retirement and total disengagement from work. Here he was trying to do stuff. The Corp really was struggling. I'm sure.
J. Aughenbaugh: The Corp was really struggling. You're going to see this or you're going to hear about this listeners in our next two episodes in the series, when we talk about the Chief Justice Whitecourt and then his successor, William Howard Taft. But the other thing I wanted to go ahead and mention here is, before we get to the cases, and that is, Fuller also lobbied Congress. He was one of the first Chief Justices to lobby Congress for legislation that would help the federal judiciary. He convinced Congress in 1891 to pass the Circuit Courts of Appeals Act. This is the act that created a significant number of our current appeals courts.
N. Rodgers: That's taking some pressure off the Supreme.
J. Aughenbaugh: Supreme. That's right. Reduce the courts backlog.
N. Rodgers: That's when we get this. That's when we get the middle.
J. Aughenbaugh: Then when you couple this with a law listeners that we're going to talk about with the Taft court era, the Judiciary Act of 1925, those two acts together is what really reduces the Supreme Court's required caseload.
J. Aughenbaugh: Required case load. I want you all to keep that in mind. But in terms of the jurisprudence, the cases that came down from the Fuller Court. Again, as we talked about before, the court was generally conservative strongly supported states rights, limited federal government power, and they were huge proponents of economic liberty. They were Pro capitalist. Pro capitalism. Fuller actually wrote the majority opinion in Pollock versus Farmers Loan and Trust. That's the ruling in 1895 that said the federal income tax was unconstitutional. But the 16th Amendment later superseded that decision.
N. Rodgers: Are we get a fair bit of that with his court cases. It's like, this holds for the next 10 minutes, and then.
J. Aughenbaugh: A lot of the precedents from the Fuller Court did not stand the test of time.
N. Rodgers: That was one of them.
J. Aughenbaugh: Fuller also wrote the majority opinion in US vs EC Knight, which narrowly interpreted the Sherman Anti-Trust Act. This limited Congress's Commerce Clause authority saying that the Sherman Anti-Trust Act only applied to interstate commerce. The means of production could only be regulated by states. Yes.
N. Rodgers: That would make monopoly cases harder.
J. Aughenbaugh: That makes it really difficult. But the Supreme Court ends up eviscerating EC Knight. Post 1937.
N. Rodgers: Of course they do.
J. Aughenbaugh: The big one.
N. Rodgers: He enabled Robber Barons.
J. Aughenbaugh: Yes, he did. Oh, yes, his court definitely did. Speaking of Robber Barons, we got another one, Lochner v. New York. This is the case that actually has an era. The Lochner era. Because it reflected how the Supreme Court under multiple chief justices were very Pro business. This is the case Nia that you and I have talked about off recording. New York passed a law that limited the number of hours that bakers could work in bakeries. Because they were afraid that baker's dust was creating lung disease. Lochner owned a bakery and Lochner wanted to be able to employ his bakers, for as many hours as they would work.
N. Rodgers: Whatever they were willing to do, he would.
J. Aughenbaugh: Yes. He challenged the New York law on the grounds that it violated the due process clause of the 14th Amendment. His workers economic liberty was being violated.
N. Rodgers: Was being limited.
J. Aughenbaugh: Yes, it was being limited.
N. Rodgers: If that guy wants to trade his lungs for 15 hours a day work so that he can make money so he can go buy his own bakery? That's up to him.
J. Aughenbaugh: If I want to pay all these people to bake, all this bread and everything else, so I can make bookoo bucks, why is the state of New York limiting me. Case goes to the Supreme Court, and the Supreme Court agrees with Lochner. Saying that the due process clause of the 14th Amendment and more than likely, the Fifth Amendment limited the government's ability to regulate one's economic choices.
N. Rodgers: If you want to work full time job and work two gig jobs on the side and you never get any sleep, that's up to you.
J. Aughenbaugh: Yes.
N. Rodgers: But I think we get the end to that with child labor, don't we? We get into that with, wait. There are limits to this. There are. Force people to work overtime. You can't.
J. Aughenbaugh: Again. Lochner ends up getting eviscerated by the Supreme Court post 1937. It had a short shelf life of about 30 years, 35. The one that a lot of Americans know, Fuller joined the majority in Plessy versus Ferguson. Now, let's be very clear. There was only one justice who wasn't in the majority in Plessy versus Ferguson, and that was the first Justice Harlan. The vote was eight to one. But in Plessy.
N. Rodgers: Harlan is the only one on the right side of history there.
J. Aughenbaugh: Yes, right. Because again, Plessy gets overturned by Brown versus Board, but Plessy was the controlling precedent for nearly 60 years. It was decided in 1896, and the court said that separate but satisfied the Equal Protection Clause of the 14th Amendment.
N. Rodgers: Which was wrong.
J. Aughenbaugh: Wrong.
N. Rodgers: Sorry. I don't usually completely weigh in, but Plessy was a pox on American, especially on the American South. It didn't force the American South to do what it should have done?
J. Aughenbaugh: Yes.
N. Rodgers: For, 70 years. It let the South roll like it had done pre-Civil War, and it shouldn't have been like that. But anyway, separate opinion.
J. Aughenbaugh: There's one more that I want to mention. Because listeners, the Supreme Court, the current Supreme Court later this term is going to look at the issue of birthright citizenship.
N. Rodgers: Oh, is this the first case we see for birthright citizenship in his time?
J. Aughenbaugh: 1898 and get used to hearing this precedent name. United States vs Wong Kim Ark. Wong Kim Ark. Because that's how- what the court said in that case is going to fundamentally shape the discussion at the Supreme Court about Donald Trump wanting to end birthright citizenship. It was this ruling that went ahead and said that if you were born in the United States, even if your parents are not legal US citizens per the 14th Amendment, you are a US citizen.
N. Rodgers: Oh, because their parents were not here, were here in defiance of the Chinese exclusion, right?
J. Aughenbaugh: That's right. Yes.
N. Rodgers: But they're like, but I was born here. I'm not- I didn't come from China. I came from Sacramento or wherever. I don't know where they were.
J. Aughenbaugh: By the way, Fuller descended in that case. He gets another boo from Nia and I. Again, our views again, how- I'm sorry. This is one of the few times I'm going to pontificate in the podcast. How can you go ahead and punish somebody, for a decision they did not make, okay?
N. Rodgers: Which is the location of their birth?
J. Aughenbaugh: That's right. I'm sorry. Nobody consulting me on, when I was in the womb about where I wanted to be born or whether or not I was going to be born. How can you punish them, right? I'm sorry, okay?
N. Rodgers: Also the idea that you would, one of the religious concepts that Aughie and I grew up with is you don't visit the sins of the father on the child.
J. Aughenbaugh: That's right.
N. Rodgers: Sin is not an inheritable thing. You committed a sin, but Mac didn't commit the sin, so she is sinned free of whatever sins you have committed, because that's how we believe that.
J. Aughenbaugh: Guilt is pushing.
N. Rodgers: I think most religions, I believe, believe that, that you don't inherit sin from your parents. Therefore, you don't inherit citizenship from your parents. Wherever you are in the world, where you're born, is where you're born.
J. Aughenbaugh: As Justice Robert Jackson said in his dissent in the Supreme Court's Korematsu case, guilt is personable, not inheritable. Because I don't think.
N. Rodgers: [inaudible] Fuller.
J. Aughenbaugh: Yes, I don't think any of us wanted to go ahead and be punished. For the sins of our ancestors.
N. Rodgers: I would argue that nobody would have children if they thought their children were going to be punished for their. They would be like, Oh, no, then that stops with me because I'm not gonna visit that on a child. That's not.
J. Aughenbaugh: Oh, my goodness.
N. Rodgers: Goodness. We'd have to. I agree with you that his decisions did not stand the test of time. He was on the wrong side of history a lot.
J. Aughenbaugh: The general consensus of almost every scholar and I read a number of books, a number of journal articles. He was too deferential to corporations, too deferential to the wealthy. Of course, his Plessy decision, his joining of the Plessy decision was reversed by Brown. But again, do you want to point out his dissent in the Wong Kim Ark case is in line with the current presidential administration.
N. Rodgers: Where Donald Trump's argument from that is coming from is that there are many countries that do not confer citizenship upon you by birth.
J. Aughenbaugh: That's right.
N. Rodgers: You have to apply for citizenship or you have to prove citizenship in some way that, no, I've lived here my whole life or I've lived here X number of years and I've engaged in the system in some productive way. Therefore, I am a citizen of fill in the blank place. That allows people to change citizenship, as well.
J. Aughenbaugh: Many Western European nations, would find the concept of birthright citizenship weird. They've never recognized it in the history. They have much longer histories than the United States. They've never recognized birthright citizenship, right?
N. Rodgers: There's going to be some interesting arguments in that case. It'll be interesting to see who does the arguing. With that, because of recent vintage, we have seen the lawyers get their butts handed to them on a fairly regular basis on both sides. The justices right now are just crabby. They are crabby pants.
J. Aughenbaugh: Crabby with one. They're crabby with the lawyers.
N. Rodgers: They're crabby with molecules moving in the air. They're just crabby about everything. I get that because there are days when I'm crabby, too. But, man. There's a part of me that would be saying, I don't want to argue in front of the court. This is not a good time for them. They are not happy people.
J. Aughenbaugh: Somebody said to me tomorrow, hi, Aughie, you get a chance once in a lifetime chance.
N. Rodgers: Second chair in front of the court.
J. Aughenbaugh: I'd be like, No, I'm fine just sitting in the gallery.
N. Rodgers: I would rather put a pencil in my neck than do that. Thank you very much. No. It's going to be interesting times.
J. Aughenbaugh: I'd rather suffer another root canal without local, okay?
N. Rodgers: Than face those people. Overall, I think our summary of Fuller is, with an occasional boo. We don't have a lot of yay for him.
J. Aughenbaugh: But again, this is going to happen in any institution with a long history.
N. Rodgers: There's going to be courts where you're like.
J. Aughenbaugh: You can say that about presidential administrations. You can say that about, sessions of Congress led by particular speakers of the House or Senate Majority leaders. These institutions are like human beings. You live long enough and there are going to be periods to where you're like, whoa, hey, that wasn't a good time in my life.
N. Rodgers: They were utterly forgettable.
J. Aughenbaugh: Or, as they described his writing, nondescript.
N. Rodgers: Exactly. You ever heard of the gray man. Person who wants to pass through a crowd without being noticed. CIA tries to train their people to be gray people. Sometimes, I think we get gray courts.
J. Aughenbaugh: Yes.
N. Rodgers: Are they just passing through time without making any indention at all?
J. Aughenbaugh: Yes. What little they did frequently got reversed in the future.
N. Rodgers: That's right. Got overturned or negated in some way.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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