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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: Hi. I am feeling fabulous. How are you?
J. Aughenbaugh: I'm feeling good because listeners, we are once again delving into various Supreme Court eras, and we are now moving into the early part of the 20th century.
N. Rodgers: We're getting into what I think of as the interesting part. I know it's all been interesting before Marshall was interesting, White Fuller. They're all interesting. I'm not saying that, but I'm saying these are things that I feel like have more effect on my life now than that earlier stuff.
J. Aughenbaugh: Well, in part, Nia, the court's work oftentimes reflects broader changes in American society, and the two courts that we're going to look at today, the Taft Court and then on our next episode, the Hughes Court, these, we're looking at the 1920s and the 1930s.
N. Rodgers: I know you guys believe Aughie and I were alive then, we were not. We are not that old, but that is our great grandparents. That's within memory of people we've actually met.
J. Aughenbaugh: Met. You saw some rather significant changes in terms of the American economy and the country's presence or role internationally. You're beginning to see some significant changes in regards to race relations. The next two Supreme Court eras, first half and then in our next episode, Hughes, really set the groundwork for some landmark Supreme Court eras. The first we're going to be looking at the Taft Court. Again, Supreme Court eras frequently marked by who is the Chief Justice. William Howard Taft served as Chief Justice from 1921-1930. He replaced somebody that Nia just mentioned, Edward Douglas White after White died.
N. Rodgers: People don't tend to resign, do they? They tend to croak. I guess, as the Chief Justice, you probably once you've reached the pinnacle?
J. Aughenbaugh: They oscillate. White died in office. Taft resigned right before he died. Hughes retired and lived for another 4.5, five years. But then Hughes' successor, Harlan Fiske Stone died in office. Fred Vinson died in office. Earl Warren actually retired and lived for four years. Interestingly enough, Earl Warren died the same day the Supreme Court released its decision in Roe V. Wade in 1973. Yes.
N. Rodgers: A little known coincidence.
J. Aughenbaugh: Then Warren Burger, he resigned. Rehnquist died in office. Of course, [inaudible]. It oscillates. It goes back and forth.
N. Rodgers: I wonder, too, if it has to do with how people feel, like I'm feeling pretty good and I want to go out on top, or I'm feeling pretty crappy, and I'm just going to wait here to die.
J. Aughenbaugh: Well, then also, too, remember, Supreme Court justices don't have to share with the public like presidents do.
N. Rodgers: Reasons for resignation.
J. Aughenbaugh: Well, their medical history.
N. Rodgers: Their medical. So we have no idea what's up with some people. Some people were very open. Ruth Pedro Ginsburg was very open that she suffered from cancer.
J. Aughenbaugh: Well, she's open to an extent. We frequently found out about her second, third, and fourth after she went through them and then returned to the court, and we were like, where were you.
N. Rodgers: That's true. That's a fair point.
J. Aughenbaugh: Because the Supreme Court takes a lot of breaks during their terms, it's not easy, but it would not be unusual for a justice to go off and have a procedure done, and we wouldn't know that they had the procedure done because they didn't miss any oral arguments
N. Rodgers: That's true. There are many, many weeks where you could disappear, and as long as your clerks were grinding.
J. Aughenbaugh: Listeners, we're recording this episode on December 18, and this will get released early next year. But I can tell you right now, the Supreme Court is already adjourned until the next year.
N. Rodgers: So if they wanted to have something done in the next two or three weeks, they could do that and nobody would know.
J. Aughenbaugh: They could be at home, they can recover, but here's the thing about Taft. This is one of the great American government trivia questions. Nia, who is the only person who has served as both president and as Chief Justice?
N. Rodgers: Exactly. I was about to say, William Taft was the 27th president of the United States, 1909-1913, and he's the only one so far. That doesn't mean that we couldn't have. There was talk rough of Biden putting Obama on the Supreme Court, although why you would take that pay cut and why you would take on that stress level after having been president of the United States, I don't know why. But Taft did it. I think the most memorable thing about Taft, actually, isn't that he was president and Supreme Court Justice, but that he was not a small person. Taft was a man of some heft, and Aughie will be quick to tell you he did not get trapped in his bathtub. That is a fault, that is a lie. Or was it him or was it Polk, that that was the accusation?
J. Aughenbaugh: It was theft.
N. Rodgers: That didn't actually happen. But he was not a small person. He was over 300 pounds, which is unusual for that time period.
J. Aughenbaugh: In his youth, he was a wrestler. He wrestled heavyweight. He was a big man.
N. Rodgers: He was a tall man, too, wasn't he?
J. Aughenbaugh: Yeah, he was well over six foot, which, again, for that time, was somewhat unusual.
N. Rodgers: Just a big person all around. Where was he born?
J. Aughenbaugh: Taft was born in Cincinnati, Ohio. His father was very prominent in American politics. His father, Alfonso was a US Attorney General and was secretary of war. He was born to a family of some political prominence, particularly in Ohio.
N. Rodgers: Service, sounds like a service-oriented family.
J. Aughenbaugh: Very much so. In fact, one of Taft's sons ended up being, I believe, governor of Ohio and then a US senator.
N. Rodgers: So it went through their bloodline.
J. Aughenbaugh: Taft attended Yale, and he joined one of the most prominent secret societies at Yale, Skull and Bones.
N. Rodgers: Skull and Bones. Bush Senior and Bush Junior were both members of Skull and Bones.
J. Aughenbaugh: Skull and Bones. That's right.
N. Rodgers: A long and storied history for that court.
J. Aughenbaugh: Taft's father was a founding member. So he's definitely a legacy
N. Rodgers: If you wonder what Skull and Bones is secret society, and they got up to whatever college boys get up to in secret societies, which probably was drinking and running around being stupid, would my guess.
J. Aughenbaugh: Yeah.
N. Rodgers: But doing it on the sly, I guess, or, like Vegas. Whatever happens here, we don't tell anybody what's happened here. I do like that in your notes you say that he wasn't the smartest person, but he was extremely hardworking.
J. Aughenbaugh: Yes.
N. Rodgers: I love it when you write things like that in the notes. It makes me so happy. What you don't have to have necessarily, brilliance, you can make up for in sheer hard work. You can just push your way.
J. Aughenbaugh: This is something that is said in a number of biographies of Taft. Teachers, classmates were all like, he wasn't the most brilliant. He wasn't the smartest, but he always did his assignments. He was always in the library. He was a very competent student, and teachers loved him.
N. Rodgers: So he actually studied the law as opposed to some of the people previous to this who read the law. Are we now moving into an era where more people are going to formal law school?
J. Aughenbaugh: Yes.
N. Rodgers: So we're getting a more formal treatment of people's training in this era and going forward. Now, we would never consider a person who hadn't been to law school being on the court. That would just blow people's mind. What do you mean you read the law?
J. Aughenbaugh: Again, you still had outliers. Robert Jackson who served on the court in the 1940s and '50s, he never finished law school. Hugo Black, another Supreme Court justice, never finished the University of Alabama Law School. But you are correct. What you're now beginning to see is more of the justices and more lawyers writ large in American society, who are going to law school instead of reading the law and doing an apprenticeship. Taft is a good example of this. Went to Yale for both undergrad and law school, gets out, and immediately, I think he worked as a lawyer in private practice for a couple of years, but then he became a local prosecutor, and then he was appointed in his 20s as a state judge.
N. Rodgers: So when we say he was not the smartest person, we are not saying he was dumb, because clearly he's intelligent. Clearly he's gifted. If he's going to be a judge in his 20s, doesn't he end up being on the Sixth Circuit. He ends up all the way up in what we would think of as the higher echelons of Federal Court service. He's not just a drooling idiot. He maybe was running with a crowd where if you're running in the right crowd, you are the dumbest person in the room, even if you're Einstein.
J. Aughenbaugh: Well, yeah. Nia, you and I have talked about this, for instance, in our current positions at VCU. There are some of our colleagues who are just brilliant.
N. Rodgers: Judyth Twigg, we're calling you out.
J. Aughenbaugh: We're calling you out, Judy. On the other hand, some of us, and I think you and I fall into this category. What a lot of people would say about us is we're hardworking. It's not that we're dumb. But the thing that is characteristic of many of us is we take our job seriously. We show up, we do the work. If it means we have to work late at night or come in on the weekends, we will do this. This was very characteristic of William Howard Taft. Again, he wasn't dumb. He becomes solicitor general of the United States. He then gets appointed to the Sixth Circuit Court of Appeals as a federal judge. Again, if you are lucky.
N. Rodgers: But that doesn't make him brilliant.
J. Aughenbaugh: It doesn't make him brilliant.
N. Rodgers: But that's the difference. The difference, I suspect is between me and you and Judy Twigg is, we're smart and she's brilliant. There's a difference there.
J. Aughenbaugh: The other thing that is very characteristic of Taft, and you're going to see this when he becomes Chief Justice of the US Supreme Court is that he was a very effective administrator. So he gets picked by President McKinley to be the civilian governor of the Philippines after the United States participation in the Spanish-American War
N. Rodgers: So it's 1901.
J. Aughenbaugh: 1901. McKinley, as you may recall, dies in office
N. Rodgers: Assassinated.
J. Aughenbaugh: He's assassinated. Theodore Roosevelt becomes president. Roosevelt brings him back to the States and makes him secretary of war. So as the United States is beginning to have a larger international presence and the war department is increasing in size, see our gratuitous self plug, previous episode about the Department of War, which begins to expand in the late 1800s, early 1900s, he brings Taft back to run the department. In fact, when Roosevelt gets done serving his second term, his first full term, he hand picks Taft to be the Republican Party nominee for president. Now, did Taft want to become president? In numerous biographies I read, Taft didn't want to become president. In fact, in the Taft household, the person who wanted him to become president the most was Taft's wife.
N. Rodgers: She wanted to be First Lady.
J. Aughenbaugh: Taft loved being a federal judge. Taft liked being the governor of the Philippines. He didn't want to be president.
N. Rodgers: So she was the ambitious one in that marriage.
J. Aughenbaugh: Yeah. Now, Taft had very little opposition for the Republican Party nomination. Taft easily defeated Democrat, William Jennings Bryan in 1908.
N. Rodgers: Bryan ran for the presidency several times, didn't he?
J. Aughenbaugh: 1908. Yeah. William Jennings Bryan. Previous podcast episode, I think William Jennings Bryan ran for president at least three, possibly four times. Never won.
N. Rodgers: That was the guy who really wanted to be president.
J. Aughenbaugh: In the worst way. Taft as president immediately had conflict with the Republican Party's conservative wing versus the wing of the party that was supportive of Roosevelt. Taft was more of your traditional Republican. Roosevelt was a progressive Republican. The progressives in Congress and his former boss Roosevelt were very critical of Taft. They thought Taft should have pushed for more anti trust cases. They believed Taft should have been, more aggressive in using presidential power. Teddy Roosevelt was Donald Trump originally.
N. Rodgers: Perhaps more charming in some instances.
J. Aughenbaugh: More charming. Teddy Roosevelt basically believed.
N. Rodgers: But all about populism.
J. Aughenbaugh: If neither the Congress or the constitution prohibited a president from doing something, then the president could go ahead and do it on behalf of the public interest. Remember, this is the guy that created national parks, even though he had no statutory or constitutional authority to do so.
N. Rodgers: He creates them pretty much out of whim. He wants to have nice places where people can go hunting and where people can go see nature and so he's like, "We shall have parks". Teddy Roosevelt walked softly and carried a big stick. He was not kidding. That was his world view.
J. Aughenbaugh: We get to 1912. Taft wins the Republican Party nomination in a backroom deal at the Republican National Convention. The Democrats picked little known New Jersey Governor Woodrow Wilson. Roosevelt's like, "Ok".
N. Rodgers: Heck, no.
J. Aughenbaugh: Heck no.
N. Rodgers: That's what he said except with more colorful language.
J. Aughenbaugh: Because as far as Roosevelt is concerned, Woodrow Wilson, who was born in Virginia, migrated to New Jersey was still "A Conservative Southern Democrat." Taft, huge disappointment. Not as aggressive as a progressive. "I'm going to run as a third party candidate", so he basically creates his own party.
N. Rodgers: Is that the Moose?
J. Aughenbaugh: The Bull Moose Party.
N. Rodgers: Bull Moose Party.
J. Aughenbaugh: You have a three way race.
N. Rodgers: Ask Bush Sr., how that works out with Perot and Clinton.
J. Aughenbaugh: No, not Kudrow, Ross Perot.
N. Rodgers: I'm sorry.
J. Aughenbaugh: It was Ross Perot. Did you say Como?
N. Rodgers: No, I said Perot. With Perot, Clinton and Bush and it hurt President Bush much more than it hurt Bill Clinton for Ross Perot to be in that race. Three way races are dangerous for the big parties. That's why they don't like them.
J. Aughenbaugh: Particularly for the incumbents. When you have somebody in your own party or used to be in your own party, say, you're not a faithful, in this case, Republican.
N. Rodgers: You're basically getting primaried from your own side, and that makes it hard for your people to figure out who to vote for.
J. Aughenbaugh: You are the target now of two people.
N. Rodgers: You have double targets painted on you.
J. Aughenbaugh: The 1912 presidential election, three way race. Taft only wins Utah and Vermont but because of the electoral college, Woodrow Wilson actually wins the presidency because none of the candidates actually won 50% of the vote overall. What's Taft do after he loses the presidency. He goes back to Yale and he becomes a professor.
N. Rodgers: Like you do.
J. Aughenbaugh: That's what you do. What's interesting is in 1921, we now have another Republican president, Warren G. Harding. White dies and Harding appoints Taft as Chief Justice, which he had long wanted to be. He wanted to be on the Supreme Court.
N. Rodgers: He'd been on the Supreme Court as an associate justice.
J. Aughenbaugh: No, Sixth Circuit Court of Appeals.
N. Rodgers: Sorry. My bad. He wanted the next step.
J. Aughenbaugh: You're thinking about our next Chief Justice.
N. Rodgers: Another mix up. Sorry.
J. Aughenbaugh: Listeners, keep that in the back of your mind.
N. Rodgers: We'll get to Mr. Hughes.
J. Aughenbaugh: With Charles Evan Hughes. He gets on the Supreme Court, serves for basically nine years and he was buried at Arlington National Cemetery, the first president and Supreme Court Justice to be buried there.
N. Rodgers: Really?
J. Aughenbaugh: Yep. First one.
N. Rodgers: That's pretty late, 1930. You would think that earlier presidents. Are all Supreme Court Justices since then buried there?
J. Aughenbaugh: Not all. Some are actually buried in other places.
N. Rodgers: That's right.
J. Aughenbaugh: Charles Evan Hughes, for instance, is buried in New York City.
N. Rodgers: That's right. We did an episode on that. Some of them are buried there together, but some of them are not. That's right. I remember that. What's the general philosophy of the Taft court. Are they pro anything? Are they anti anything. Did they wake up crabby?
J. Aughenbaugh: The Taft court basically continued the pro business attitude of the Lochner era, which is the Lochner versus New York ruling, where the Supreme Court was pro capitalism, and used the due process clauses of the Fifth and 14th Amendments to strike down government regulations of the economy. Basically, the Taft court struck down numerous economic regulations, basically in defense of a particular version of capitalism, laissez-faire capitalism. They were not necessarily pro civil liberties, so the court tended to take the side of businesses over unions, rarely intervened to protect minorities. They were basically a conservative court. They were conservative court. Interestingly enough, during the White court, so the previous court, progressives came pretty close to taking control. But again, presidential elections have a huge impact on the court.
N. Rodgers: They do.
J. Aughenbaugh: Once Wilson served his two terms and the country picked another Republican president, Harding, the president, basically shored up the conservative wing. During the Taft court, you basically had two progressives, Holmes and Brandeis, because Justice Clarke retired pretty early on. But the conservatives included McReynolds, Van Devanter, and then all of the Harding appointees, Taft, Sutherland, Butler, and Sanford. You basically had, for the latter part of the Taft court, a seven to two conservative-liberal split on the court. In particular, Van Devanter, Taft, Sutherland, Butler, and Sanford were very cohesive. Occasionally, Justice McReynolds would digress. But again, that's a solid-
N. Rodgers: Cross over to the dark side, in their mind.
J. Aughenbaugh: What gets really interesting is Coolidge, the next president, appointed Attorney General Harlan Fiske Stone to replace Justice McKenna and Stone surprised many by aligning with Holmes and Brandeis. When we get to our next episode for about the Hughes court, and we want you to remember those three names, Stone, Holmes and Brandeis, because they were the "Three liberals, the three musketeers." But Taft court. They had some important rulings. In Pennsylvania Coal versus Mahon, the court established the idea that the government actually did take property or could take property through a regulation. Let's just say, for instance, the federal government issues a regulation that affects your ability to use your property. You still legally own it but does it have the effect of actually taking your property? In that case, the Supreme Court said, yes.
N. Rodgers: It was okay for the government to do that.
J. Aughenbaugh: But they had to offer you compensation per the takings clause.
N. Rodgers: Market value. We have built a power line across your property. You can't build anything underneath it.
J. Aughenbaugh: Yep.
N. Rodgers: But if we get it from you, if we acquire it from you, we must give you the actual value of the land. We can't just say, we'll give you 20 bucks for it.
J. Aughenbaugh: On one hand, it was groundbreaking in regards to government regulations. The government, can take your property via regulation instead of just buying it outright. On the other hand, the government still had to comply with the takings clause. The next important ruling, as a baseball fan, is a big one.
N. Rodgers: It's huge. When Aughie explained this to me, he was on his way to a baseball game with our colleague Chris Saladino. We were in the car together. I called him for a separate reason, and somehow they had been talking about this. He was explaining to me this case. This case is huge.
J. Aughenbaugh: It's still. The controlling logic in regards to Major League Baseball even today in the United States.
N. Rodgers: Which is bonkers, 100 years later, it is still. Sorry, not building it up now. Let's talk about it. Federal Baseball Club versus National League, 1922.
J. Aughenbaugh: At the time, the Federal Baseball Club wanted to create a rival baseball league in the United States. But the National League and the American League, which are the two leagues for professional baseball in the United States, had basically created a monopoly and both of those leagues told cities, "If you allow this upstart league to play in your cities, we may move our teams from your cities".
N. Rodgers: Which no city wants. No city wants. As much of a pain in the butt as having a stadium full of baseball lunatics in your city can be, the commerce that those people bring is enormous. It is huge.
J. Aughenbaugh: I'm glad you mentioned commerce. The Federal Baseball Club went ahead and argued that what these two existing leagues were doing violated the Sherman Antitrust Act. The Sherman Antitrust Act was passed in the late 1800s by Congress per its what authority?
N. Rodgers: Commerce clause.
J. Aughenbaugh: Commerce clause authority to discourage the creation of monopolies of trust. The idea being that if you have more competition.
N. Rodgers: Prices are better for consumers.
J. Aughenbaugh: That's right.
N. Rodgers: It's basically consumer protection.
J. Aughenbaugh: That's right. However, in this case, a unanimous Supreme Court in an opinion written by, the leading progressive on the Supreme Court at that time, Oliver Wendell Holmes, the court held that Major League Baseball operations did not qualify as interstate commerce. I think the phrase that was used, they were considered entertainment, not commerce. Therefore, they were not covered by the Sherman Antitrust Act.
N. Rodgers: Sounds familiar to you. It's because modernly, there was an attempt to start a football league. That was the American ball league or whatever AF. I can't remember what it's called. But anyway, they tried. They said, We'll have a football league and the NFL said, you think? We don't think you will. We don't think you're going to because this doesn't just control baseball. It controls all of the sports.
J. Aughenbaugh: It basically, this ruling has been upheld in two future cases by the Supreme Court. The precedent's been upheld two other times. Basically Major League Baseball, like most professional leagues in the United States, run like a cartel.
N. Rodgers: Please. It's like a mafia.
J. Aughenbaugh: If the current owners don't want you to join their if you will, club, then you don't. If you want to create a rival league, they will use their economic might to squash you. Again, what the court has said to Congress is if you want the Sherman Antitrust Act to apply to professional sports leagues, then you need to rewrite the Sherman Antitrust Act and explicitly say it covers professional sports. Again, members of Congress aren't going to do this because many of them, represent states that have Major League Baseball teams or National Football League teams or National Hockey teams. Are you willing to get the blowback?
N. Rodgers: From an owner of an NBA team who's going to call you and say, what are you doing?
J. Aughenbaugh: What are you doing?
N. Rodgers: What are you doing? But that is still affecting players today. It still affects fans today. You wonder why ticket prices are so high at Major League Baseball venues? It's because there's no competition. There is no other baseball game in town. If you want to go see baseball, and if you're Aughie, you always want to go see baseball.
J. Aughenbaugh: Think about how the players have become complicit in this. Players unions have extracted as part of their collective bargaining agreements, certain percentages of all the revenues produced by the teams. Now the athletes are complicit because the athletes are guaranteed huge salaries as part of their collective bargaining agreement. What the owners have said is, if we allow other competitor leagues into the mix, then our revenues might fall which means your guaranteed salaries might also fall. The teams in the leagues hold cities and states hostage. If you want to keep us, you're going to have to put use.
N. Rodgers: Some new stadium.
J. Aughenbaugh: Use public money.
N. Rodgers: A parking deck or a new training facility or. It happens all the time. They get pretty sweet treatment because nobody wants to move from Brooklyn out to LA. The Dodgers. Nobody wants that to happen because you lose the revenue from that.
J. Aughenbaugh: It's also part of the identity. It's part of the culture etc. We cover all of this in multiple weeks. By the way, listeners, Nia mentioned this in a class that Professor Saladino and I co-teach every spring, politics and sport. We cover all of these issues in the latter third of the class. Anyways, some other important rulings from the Taft Court. You want a good example of how the Taft Court was pro-business and not pro-government regulation. I'm going to give you a couple. Bailey vs Drexel Furniture, 1922, 8-1 decision. The opinion was delivered by the chief justice. The court struck down the federal 1919 Child Labor Tax Law. Congress had passed this law to tax companies using child labor as a way to disincentivize using child labor. The court said the tax was not a true tax, but was a regulation on child labor. In child labor, all labor conditions may only be regulated by the states per the 10th Amendment. Federalism writ large. Yes.
N. Rodgers: It's so wrong. I understand why they did that, but.
J. Aughenbaugh: By the way, another example of this Pier Adkins vs Children's Hospital, 1923. Now, this vote was a little closer, 5-3. But the court struck down a national minimum wage law for women. The court held that minimum wage laws violate the freedom of contract, which was the, if you will, ruling or theory in the infamous Lochner v. New York case. Adkins existed as a precedent for only 14 years because as we will discuss in our next episode, the Hughes Court overruled the Adkins decision in West Coast Hotel vs Parrish. But if you want to couple good examples of how the Taft Court was pro-business, anti-government regulation.
N. Rodgers: Work those children, work those women. Don't pay them anything. Do what you want to do.
J. Aughenbaugh: Those two decisions are classic. On the other hand, please forgive the frivolity. Occasionally, the Taft Court showed some moral compass. In Moore vs Dempsey, in a decision written by Holmes, the court held that mob interference in a criminal trial violates due process and that the federal courts could protect due process violations in trials held by state courts. This was probably the first time in the 20th century that the court protected civil rights of African Americans in the South.
N. Rodgers: You mean mob as in a rabble of crabby people not mob as in leave the gun, take the cannoli. You mean the first mob, not the second mob?
J. Aughenbaugh: The former, not the latter. Because what you basically saw in a lot of criminal trials in the South was that.
N. Rodgers: Was a rabble that gathered together and said he did it. I know he did it. I was or whatever, and they.
J. Aughenbaugh: If the prosecutor didn't bring the most severe charges.
N. Rodgers: They would cane a person, they would tar and feather a person, they would do all horrible things. That's nice. That they recognized the obvious.
J. Aughenbaugh: But again, the Taft Court really highlights some stuff that we are going to see in future decades. A good example of this is Pierce vs Society of Sisters. In a unanimous decision, the opinion written by McReynolds, the court struck down the Oregon Compulsory Education Act, which required children to only attend public schools. The court held that it violated the due process.
N. Rodgers: You couldn't go to a Catholic school.
J. Aughenbaugh: Very good.
N. Rodgers: Or any religious school. You couldn't go to Hebrew school. You couldn't go.
J. Aughenbaugh: Oregon and a number of states had passed these laws because they wanted to force new immigrants who typically were Catholic, Jewish, etc these new immigrants wanted to send their kids to religious schools of their religious faith. To force assimilation, Oregon and a number of states said, no, you can only attend public schools. The Supreme Court said, no, that violates the privacy rights of parents.
N. Rodgers: Interesting.
J. Aughenbaugh: Listeners, if you want to know where parents, interjecting themselves into curriculum of schools, etc, where they get all this from, it originated with Pierce.
N. Rodgers: In 1925. You know what, though? I actually agree with that. I agree that parents should have the choice of where to send their kid. I agree that once a kid reaches a certain age, they should be able to say, I'm done with this. I don't want to be in Catholic school, and I don't want to be in Jewish school anymore. I want to go to public school because I want whatever. But there are certain things we allow parents to choose, and one of the things we allow them to choose is the religion of their children. Take your kid to a church and we don't tell you you can't do that.
J. Aughenbaugh: Their education. Think about that and again.
N. Rodgers: Private school, public school, charter school, if we don't have any of those choices, if you can only go to public school, I understand where the state's coming from. They want to have everybody in the same school system so they can guarantee everybody is getting a similar education. I get that. But I could see where that would be a hard swallow for parents who are like, don't tell me where to send my kid. I can choose that, and I should choose that as a parent. Interesting.
J. Aughenbaugh: Another one, help civil liberties. Go ahead.
N. Rodgers: Can I say though, that line stops with your kid. You don't get to decide where my kid goes to school. That's where the weirdness is for me when we get into parental effect in the classroom is, it's fine if you don't want your kid to learn certain things, but you shouldn't be able to dictate that my kid can't learn those things or do those things or whatever.
J. Aughenbaugh: While I may agree with you on that, the problem is school districts in the United States, frequently go ahead and say, but we know best because we're the professionals.
N. Rodgers: Which is also a problem.
J. Aughenbaugh: You got so many tensions. Again, they still play out. If you've been listening.
N. Rodgers: We haven't solved any of this.
J. Aughenbaugh: To our last couple of years of summer SCoDis, this stuff is still affecting us. The lines are difficult to draw. Speaking of lines that are difficult to draw, Gitlow vs New York, 1925. This is the case where the Supreme Court held that the due process clause of the 14th Amendment extended freedom of speech and freedom of press protections to the states. This is known as incorporation. Unfortunately, while the court went ahead and recognized that, they also upheld Benjamin Gitlow, who is a socialist or was a socialist. He's not with us anymore, because they claimed his speech represented a danger to the country per the clear and present danger test. On the one hand, the court said, states have to honor freedom of speech and freedom of press. This was considered, this is groundbreaking. On the other hand, sorry, your speech creates a clear and present danger and the government has the authority.
N. Rodgers: You're still in trouble.
J. Aughenbaugh: You're still in trouble. What was remarkable was Holmes, who had created the clear and present danger test in 1919 in Schenck vs United States, actually wrote the dissent in Gitlow. He was just like, I don't like how you guys are using my clear and present danger test.
N. Rodgers: Nice. Hey, that doesn't mean what you-all think it means. Actually, it turns out.
J. Aughenbaugh: By the way, for those of you who want to know why the cops don't need to get a search warrant when they search your automobile when they pull you over, you can thank the Taft Court in Carroll vs United States, 1925. The Taft Court said there's a motor vehicle exception to the Fourth Amendment requirement that the cops get a search warrant based on probable cause. Why? Because if you're in your vehicle.
N. Rodgers: If you're in public.
J. Aughenbaugh: No. You have evidence you can drive away while the cops have to go to court to get a search warrant.
N. Rodgers: Now, modernly, that is only stuff they can see through your window. That is not stuff that is under the seat, is in the trunk. Those places they do have to have a warrant to search. But interesting.
J. Aughenbaugh: Now, let's get to a couple of rulings that are, wow, there's no way to put it. These are not high marks for the Taft Court. Buck v Bell, 1927. The Supreme Court in an eight-to-one decision, and interestingly enough, the majority opinion was written by, again, the court's leading progressive all over Wendell Holmes. The court upheld Virginia's Racial Integrity Act of 1924, which allowed for the compulsory sterilization of intellectually disabled patients at state mental health institutions. This is the infamous decision where Holmes concluded his majority opinion by saying three generations of imbeciles is enough and that the state had a legitimate interest in stopping the shall we say, propagation of imbeciles in society.
N. Rodgers: This is upholding eugenics.
J. Aughenbaugh: Yes.
N. Rodgers: Who's the dissent?
J. Aughenbaugh: I believe it was either, I want to say, Sanford or Sutherland, but they did not write. They just said that they descended.
N. Rodgers: Not a warm and sunny day at the Supreme Court.
J. Aughenbaugh: Interestingly enough, within 15 years, the Supreme Court overturned Buck v Bell in the case of Skinner versus Oklahoma. Oklahoma had a law that said those who are repeat offenders in terms of breaking and entering could be sterilized by the state of Oklahoma. Skinner went ahead and said, but this violates the Equal Protection Clause because if I commit a white collar crime, I cannot be sterilized by the state of Oklahoma. The Supreme Court agreed with him and overturned Buck v Bell. But this is the case where the Supreme Court, in Holmes's majority opinion, said that the government trusts the science. If you want the expression during the COVID pandemic, "trust the science," that was a common refrain by eugenic supporters. Trust the science.
N. Rodgers: That's terrifying.
J. Aughenbaugh: Another negative mark on the Taft Court, also from 1927, Lum versus Rice. A unanimous Supreme Court upheld a Mississippi school district's expulsion of a Chinese American student from a whites-only school on the grounds that the Mississippi law did not consider Asians to be white, which greatly expanded school segregation until Brown v Board. The court went ahead and said, based on our decision in Plessy v Ferguson, we don't have a problem with the Mississippi School District policy.
N. Rodgers: So 1927 was a bad year for the court?
J. Aughenbaugh: Now, we got one more decision, and I included this one because I know Nia knows this case very well, and in particular, really likes Justice Brandeis's dissent in this case, Olmstead versus the United States. Nia, what was Olmstead about?
N. Rodgers: I'm pretty sure that, and please correct me if I'm wrong, Olmstead's in a telephone booth, in a public place, and he's making a call basically to arrange criminal behavior.
J. Aughenbaugh: He was placing bets.
N. Rodgers: But he was using a bookie. He was like, hey, Aughie. I need you to place this bet on this horse for me at this blah, blah, blah. But he was doing it. This is back when phone booths were closed in. But they were glass. He could be seen, and he could be heard if you stood next to it. Somebody said, "Hey, man, that guy keeps coming in here and doing this illegal stuff." The cops came and wiretapped him, wiretapped that phone booth.
J. Aughenbaugh: Without permission from a judge. Yes.
N. Rodgers: He said, "No, you can't do that. I have the right to make a phone call." This is before people have phones in their homes. This is before a private ownership of phones is really widespread.
J. Aughenbaugh: His argument was, I have an expectation of privacy when I go into the phone booth and do what? Close the door.
N. Rodgers: Close the door.
J. Aughenbaugh: A majority of the Supreme Court said, "No, you don't."
N. Rodgers: No, you don't, because we could see you.
J. Aughenbaugh: Yes, the phone booth is in public; the cops can see you making the call.
N. Rodgers: If the phone booth had been in a room on its own, that might have been a different ruling. But because the phone booth was where other people frequented.
J. Aughenbaugh: Yeah. What's interesting is there is a dissent in this case, and it's an infamous dissent by Justice Louis Brandeis. Brandeis said, "I think the court got this wrong." Why? Because when Olmstead went into the phone booth, he had a reasonable expectation of privacy that's protected by the Fourth Amendment. He said, "It's an expectation of privacy that is recognized by the public." It took nearly 40 years, but the Supreme Court adopted Brandeis's logic in the case of Katz versus the United States in 1967, where the court said that if the cops want to surveil you, they need to get a search warrant when a person has a reasonable expectation of privacy recognized by the general public.
N. Rodgers: Basically, what they said about Olmstead is if Olmstead had instead of being a bookie, if he had been going in there and gossiping about someone on the phone to someone else, and then you repeated that gossip, it would be rude by their standards of the day. You're not supposed to be eavesdropping, you're not supposed to be listening, and you're not supposed to be repeating what you've heard. That's what they mean when they say the reasonable expectation of privacy. His expectation was that he would not be eavesdropped on. Because nobody is supposed to be standing around listening and eavesdropping. The government and the Supreme said, "Yeah, it turns out, if you're standing around in public, talking on your cell phone, think modernly, if you're on your cellphone in the bathroom."
J. Aughenbaugh: Again, it all comes down to, Nia, the language in the Fourth Amendment. The government cannot perform or conduct unreasonable searches and seizures.
N. Rodgers: But if you're in the public bathroom on your speakerphone, on your cell phone, and you say, "Last night I killed a guy,-"
J. Aughenbaugh: The cops don't need to get a search warrant at that point to go ahead and surveil you and listen in to what you had to say, because why, there is no reasonable expectation of privacy while you're in a men's room stall, talking on your cell phone, and you got it on speaker.
N. Rodgers: I would like for you to go away and do that because I would like to have some privacy.
J. Aughenbaugh: Some privacy in my stall.
N. Rodgers: That's a different question.
J. Aughenbaugh: Yeah, because the government's not involved, then the Fourth Amendment is not applicable.
N. Rodgers: But if you do that in a federal building, and you go in there, and you're like, I killed a guy last night, you should be expecting that when you come out to wash your hands, you're going to be wearing handcuffs almost immediately after that; like Hello.
J. Aughenbaugh: You sometimes hear these cases, or you see these scenarios play out on TV shows and movies. A couple of people get arrested, and they're in the backseat of a cop car, and they start talking about the crime, and it gets recorded. Then they go ahead and say, "I have a reasonable expectation of privacy." No, you don't. You're in the back seat of a cop car.
N. Rodgers: Cops car.
J. Aughenbaugh: What were you thinking?
N. Rodgers: Come on now.
J. Aughenbaugh: But this is a well-known case for criminal justice attorneys, students, heck, even Homeland Security, because this all became a significant issue post-'9/'11. To what extent could the government, okay, engage in surveillance of you without probable cause?
N. Rodgers: It's one of the reasons that Snowden is living in Russia right now is that he whistle blew the understanding that the NSA was sweeping up millions of records. Did they have the right to do that? No. The answer is no. Not if you had the expectation of privacy.
J. Aughenbaugh: Privacy. As the court said in Katz, listeners, it's a reasonable expectation of privacy recognized by the general public. You merely saying, well, hey, I thought I had a reasonable expectation of privacy when I went into the men's room stall and then decided to have the conversation on speaker. Whoa.
N. Rodgers: No reasonable person said that's private. But you're in your car, you're not on speakerphone, and you're talking on your cell phone, you do have a reasonable expectation of privacy.
J. Aughenbaugh: Likewise, cops have to get search warrants to go ahead and put tracking devices on suspected criminals. Why?
N. Rodgers: Our movements.
J. Aughenbaugh: But most people view traveling in their car to be a private experience. Most of us are not like hey, once I get into my car, I fully expect the cops to be able to surveil me. No, you have to give the cops a reason to want to go ahead and follow and search you.
N. Rodgers: But if you get in your car and you turn on YouTube and your live-streaming or Discord or wherever, and you're live-streaming Discord, whichever one it is that does that, can't remember, Switch, then you have no expectation of privacy because you have put on the Internet. Hey, I'm driving in my car doing illegal stuff. You've now removed the need for the cops to go get a search because you have broken that promise of privacy.
J. Aughenbaugh: Again, listeners, as Nia pointed out at the beginning of this episode, this court, the Taft Court, and then the next one, the Hughes Court, both of them begin to deal with constitutional legal issues that are really going to go ahead and see some longevity in American life, as the country shifts from agrarian to industrial.
N. Rodgers: More people live in cities. More people live together. There's more reason to have to work out things like privacy, things like labor issues.
J. Aughenbaugh: Unholy, if you will, deal that occurred post-Civil War during the Reconstruction, all begins to eventually just pull at the seams of American society. As we all want to do in the United States, we bring these issues where for resolution?
N. Rodgers: The courts.
J. Aughenbaugh: To the courts.
N. Rodgers: Because until relatively recently, we have assumed that the courts were the moral authority.
J. Aughenbaugh: Sure.
N. Rodgers: I'm not sure if we still do that.
J. Aughenbaugh: When we get to the Warren Court, you begin to see segments of the American population here like, why are these nine elected people in funny attire telling us how to live. That's where you begin to see some of the cracks. We're still dealing with that. But we can speak about that in future episodes. But don't lose the overall message here. Yes, on one hand, the Taft court was a continuation of the White Court. On the other hand, some of these issues were beginning to badly divide the court. The only thing that many scholars point to in regards to Taft is Taft was an effective administrator of the court. The court did its work promptly. By the way, it was Taft who lobbied the United States Congress with the Judiciary Act of 1925 for two groundbreaking, if you will, changes. One, he convinced Congress to appropriate money so that the Supreme Court would finally have its own building. Now, he didn't live to see it completed because the Supreme Court building was not finished until 1935. That's one. But two, the Judiciary Act of 1925 gave the United States Supreme Court the authority to decide which appeals it will hear, because [inaudible] right to say had no choice.
N. Rodgers: Right, give them the right to say no.
J. Aughenbaugh: No. This is a huge authority because the court can send a lot of messages to the public and the legal community, and even the government. Hey, we're not going to hear these cases. We don't think they're important, or we don't think the issues are clear enough or have percolated enough at the lower courts, so we're not going to hear them. That's a huge power.
N. Rodgers: It also changes their workload.
J. Aughenbaugh: Yes.
N. Rodgers: What we are going to hear, we are going to spend a lot more time deliberating and being more right, because if we're not taking 700 cases in a year, if we're taking 70 cases in a year, the expectation is they are going to be the most complex and the hardest questions to wrestle with.
J. Aughenbaugh: It's a significant power. I talk about it in all my classes. Students are like, so what's the big deal? I'm like, guys, if you, as a government institution, can go ahead and say, "No, we're not going to deal with it," that means there's a whole bunch of people who are affected by those case facts who aren't going to get resolution from the highest court in the land. It sends a pretty clear message. Right?
N. Rodgers: It does. Not always a good one, but a clear one, generally.
J. Aughenbaugh: It's like what I say to my daughter: I'm not going to respond to every shenanigan or stunt that you pull, because some of them, I just don't think are important. It sends a very clear message to her.
N. Rodgers: When I do act, you need to take me seriously.
J. Aughenbaugh: That's right.
N. Rodgers: Yeah.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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