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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.
FEMALE_1: Welcome to civil discourse. This podcast will use government documents to illuminate the
workings of the American government and offer context around the effects of government agencies in
your everyday life. Now your host, Nia Rogers, 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 am feeling fabulous. How are you?
J. Aughenbaugh: I'm good. In part, listeners, the reason why I'm really excited about today's episode of
the podcast is one.
N. Rodgers: Cool name. We always like it when somebody has a cool name.
J. Aughenbaugh: The Chief Justice we're going to be discussing today has a cool name. But, two, we're
continuing our series about eras of the Supreme Court, as listeners, and thousands of my students
know, everything about the Supreme Court fascinates me.
N. Rodgers: This particular interesting period for the Supreme Court. 1941-1946 is pretty memorable for
some stuff that was going on in the world. I don't know if anybody's mentioned it to you lately, but.
J. Aughenbaugh: You're talking about an era that was comparatively short.
N. Rodgers: Five years.
J. Aughenbaugh: Some of these chief justices, like John Marshall, well over 30 years. But Harlan Fisk, so
the subject of today's episode is the Fiske Stone court. Named for the Chief Justice Harlan Fiske Stone.
On this podcast.
N. Rodgers: We love three names, first of all, because Aughie and I are used to having three names used
at us in anger. We love three names perversely. But also, we like fun names, interesting names. Harlan
Fiske Stone is just an interesting name. He followed Charles Evans Hughes. This is an era of three named
people.
J. Aughenbaugh: One of the things Nia, in doing research for these episodes, I recall when we did the
series about cabinet-level departments. We went through the names of those who were the secretaries
of various departments. Somewhere along the line of about 1940s, 1950s, you started to see the use of
three names drop out. This is like the tail end of the three named person. Do you understand what I'm
saying? Harlan Fiske Stone, Charles Evans Hughes, they were a whole bunch of people who served
during World War II. In the early years of the Cold War, they were three named people. But then you
moved into the '60s and the '70s, and nobody was using middle names anymore.
N. Rodgers: That fell out of favor. Except for Southern mothers when their mad at you. But otherwise.
J. Aughenbaugh: Yeah. But how many Americans referred to President Nixon as Richard Millhouse
Nixon.
N. Rodgers: Richard M. Nixon. Maybe you got him middle initial. John F. Kennedy.
J. Aughenbaugh: John F. Kennedy Lyndon B. Johnson. He was Baines, but unless you're a political nerd.
Let's face it. How many people knew?
N. Rodgers: We see that in the Courts, Earl Warren.
J. Aughenbaugh: Warren Burger, William Rehnquist. John Roberts.
N. Rodgers: J. Rob doesn't even have a full name. He just has J. Rob. Because now we're in the era of
nicknames.
J. Aughenbaugh: But anyways, let's get back to the Harlan Fiske Stone Court.
N. Rodgers: Harlan Fiske Stone Court is 1941-1946, which side note, if you don't recall, is also concurrent
with World War II.
J. Aughenbaugh: Yes.
N. Rodgers: There was some stuff going on. Think of the court is set in this era of wild change in the
world, like incredible unrest.
J. Aughenbaugh: You got World War II going on. The 1930s around the world was an era of The Great
Depression, not just in the United States. But, economies around the world, in other nations suffered
dramatically during the 1930s. This was also a period, as we will discuss of transition in the United States
in regards to civil rights, and we're going to touch upon that in just a few moments. But Harlan Fiske
Stone was the fourth Chief Justice to previously serve as an associate justice.
N. Rodgers: We start to see this as a habit now.
J. Aughenbaugh: Yeah, we're beginning to see this with more regularity. We're not going to see it with
Fred Vinson, Earl Warren or Warren Burger, but we will definitely see it with William Rehnquist. He did
so without a break in tenure. He got promoted from associate justice to chief.
N. Rodgers: Remember the earlier discussions had worried that that would piss off the other justices.
Why did you pick him and not me? That seems to have been not a concern at this point.
J. Aughenbaugh: Yes. Now, as Nia pointed out, the Fiske Stone Court basically covers the World War II
eras, and the Stone Court did deliver some important wartime decisions. For instance, ex parte Quirin,
where it upheld the president's power to try Nazi saboteurs captured on American soil in military
tribunals instead of civilian courts.
N. Rodgers: He was treating them as military folks.
J. Aughenbaugh: That's right. They were agents of a nation at war with the United States. The Supreme
Court said it would be appropriate.
N. Rodgers: That makes them military.
J. Aughenbaugh: Try them in a military tribunal. On the other hand.
N. Rodgers: Side note, military tribunals have very different rules. For evidence, they have very different
rules for everything than civilian court. At some point, Aughie and I are going to get around to doing a
series on the differences between military tribunals and regular court trials, but they are very different.
J. Aughenbaugh: They are very different. It will probably take us two or three episodes just to go ahead
and handle it from the basic purpose to processes, and then how the outcomes are different. But this
was also the court where you begin to first see the dismantling of Jim Crow laws and the notion of
separate but equal satisfying Equal Protection Clause. You see this in the cases of Mitchell v. United
States and Smith v. Al.
N. Rodgers: They have a big giant boo in my world, which is Kuramatsu. Which we will get to when we
get to the cases that they handled. Where was he born?
J. Aughenbaugh: Well, he was born in Western Massachusetts. He went to Amherst College.
N. Rodgers: Good School.
J. Aughenbaugh: Yeah. Good school. After Amherst, he went to Columbia Law School.
N. Rodgers: Very coastal.
J. Aughenbaugh: You're beginning to see this with more regularity.
N. Rodgers: You're starting to see the IVs and the woo woo schools as I call them.
J. Aughenbaugh: More of the elite model. After he finished Columbia, he was a partner at a Wall Street
firm.
N. Rodgers: Can we say the name of his firm just because it amuses me?
J. Aughenbaugh: Yeah, go ahead.
N. Rodgers: Sullivan and Cromwell. I'm just saying, if I came up against a lawyer from the firm that had
the name Cromwell in it, I would be nervous. Cromwell was not known as a nice guy.
J. Aughenbaugh: It reeks of being a blue-blood.
N. Rodgers: We would cut your head off for no reason whatsoever, because Cromwell was that guy. To
say cut throat is to be nice to cutting throats. Like he's just quite guy.
J. Aughenbaugh: It would probably do it without emotion. What they were ordering from the menu.
N. Rodgers: Exactly. I'd like the cheesecake and also kill that guy, and I'd also like some coffee with that
cheesecake. There would be just no distinction between any of that.
J. Aughenbaugh: Yes, Your Honor, I am basically asking this Court to go ahead and take away this
family's life savings. Next case, please?
N. Rodgers: I don't even feel remotely bad about it. Anyway, sorry. That's just a comment on Cromwell.
J. Aughenbaugh: We don't even know Cromwell. Sullivan and Cromwell could have been a law firm that
did a whole bunch of pro bono.
N. Rodgers: That Cromwell may not be related but I'm just saying.
J. Aughenbaugh: He seems like a really bad character from a Dickens novel.
N. Rodgers: Well, Sullivan and Cromwell, you get some really interesting. Anyway.
J. Aughenbaugh: Back to Harlan Fiske Stone. During World War I, and now we're picking up another
theme. You're going to see a lot more of these justices, who have wartime experience. During World
War I, he served on the US Department of War's Board of Inquiry. Which evaluated the sincerity of
conscientious objectors. He was doing judging work early on in his career.
N. Rodgers: Wasn't he also Dean of Columbia Law School? He as a young person, as a young man,
relatively early in his career. He's a star. He's a guy who's coming up and being pretty well known pretty
quickly. You're seeing a lot of that go on with the court, too, where prior to this, some dude who was a
pretty solid judge gets moved into the justices, and he's a pretty solid justice, and nobody remembers
his name except Aughie, who remembers all their names. But the rest of us don't know those guys. But
now you're starting to see with Brandeis and Oliver Wendell Holmes, Frankfurt, you're starting to see
stars. You're starting to see people who stand out as intellectually gifted minds on the court.
J. Aughenbaugh: In 1924, President Kelvin Coolidge appointed Fiske Stone as attorney general. Fiske
Stone reformed the Justice Department. The Justice Department, it had a number of scandals during the
Harding administration. Fiske Stone was Nia, go back to our previous discussion of William Howard Taft
versus Teddy Roosevelt. Harlan Fiske Stone was an acolyte of Teddy Roosevelt. He was a progressive
Republican. He used the Justice Department to bring a number of antitrust cases during the 1920s.
J. Aughenbaugh: What, Sir?
N. Rodgers: Anytime a corporation gets taken down a notch, for me, it's a happy thing. I know. People
are That's not that's not very capitalist of you. That's not very whatever I don't like corporations when
they get so big. I don't like the idea of too big to fail. That scares me as a person because I don't think
corporations should be that big. I'm starting to worry, now that Amazon has a health component to it,
that there will be a lot of people who will get their health care from Amazon. Amazon's starting to be
the answer to everything, and I find that terrifying. That's very sky net to me.
J. Aughenbaugh: For me, I'm a big proponent of competition.
N. Rodgers: Me too. I think competition brings better prices for everybody, and it makes corporations be
better at doing their jobs.
J. Aughenbaugh: That's why, for instance, the amount of money that Wall Street has invested in AI
companies, concerns me because again, this goes back too big to fail. Because if the AI investment
bubble bursts, it reminds me of the housing market, bubble bursting that led to the great recession of
2007/ 2009, or the.com bubble bursting in the last year of the Clinton administration.
N. Rodgers: If bad enough, the depression where people borrowed on margin.
J. Aughenbaugh: That's right.
N. Rodgers: Because the stock market was new and flashy and exciting and people thought they could
get civilians.
J. Aughenbaugh: Contributions to the Great Depression. I mean, this is one of those things to where I
don't think listeners either Nia or I are anti capitalist. In fact, I would actually argue the converse. We
believe that competition is a good thing, and at times the government has to come in and make sure
competition is occurring.
N. Rodgers: There needs to be enough regulation to allow for healthy competition.
J. Aughenbaugh: He was only attorney general for about a year, when Coolidge nominated him to the
Supreme Court to replace Justice Joseph McKenna. Because the Republicans dominated the Senate,
sailed through? No, he sailed through.
N. Rodgers: Good. It's good.
J. Aughenbaugh: Yes. He gets on the TAF court. Almost immediately he joins if you will, the two
progressives on the Taft court.
N. Rodgers: He becomes one of the three musketeers.
J. Aughenbaugh: That's right. One of the three musketeers with justices Oliver Wendell Holmes and
Louis Brandeis. Again, guys, don't equate being a progressive on the Supreme Court in the 1920s, '30s,
and '40s with being activist. No, they actually believed in judicial restraint. They believe that the
Supreme Court should defer to legislative will, unless the law was obviously in violation of the
Constitution. Because a lot of progressive legislation was declared unconstitutional first by the TAF court
and then roughly the first four, five years of the Hughes court. Again, a lot of times my students are
they're progressive, so they must be activists. No.
N. Rodgers: Not necessarily.
J. Aughenbaugh: Not necessarily,. Don't confuse activism with ideological preference, 'cause you can be
a conservative activist, just like you can be a liberal, judicial restraintist.
N. Rodgers: See Elena Kagan.
J. Aughenbaugh: We could discuss that in another episode.
N. Rodgers: We'll get an adult beverage and have that discussion.
J. Aughenbaugh: Back to Fifth Stone. If you really want to see his progressive bona fides, he authored
two Supreme Court opinions at the tail end of the Hughes Court. US versus Darby Lumber and US versus
Caroline Products, where Stone writing for the majority upheld broad legislation that regulated the
economy. These were classic Harlan Fiskstone majority opinions, I mean, he even went so far in the
Derby case and said that the Tenth Amendment was all but a truism. Won't we just negate an entire
amendment of the US Constitution in favor of Congress' Commerce Clause? Well, okay then. Well done.
Just a stone. Well done. When Fisstone was promoted by again, he's a Republican. FDR picks him to
replace Charles Evan Hughes. But again, FDR picked justices or in the case of Stone, promoted him to be
chief, because they were loyal to whom, him. Fisstone had no problem with most of the new deal.
N. Rodgers: progressive. I mean. Falls in line with his personal views as well as his judicial views.
J. Aughenbaugh: When he took office as Chief Justice, the court consisted of him, Owen Roberts, Hugo
Black, Stanley Reid, Felix Frankfort, William Douglas, Frank Murphy, Jim Burns, and Robert Jackson. The
last two joined the court days after Stone's elevation to be chief.
N. Rodgers: Why do I know the name Jackson?
J. Aughenbaugh: Robert Jackson? Because he's probably my favorite Supreme Court justice. He took a
year off.
N. Rodgers: I thought Byron White was your favorite.
J. Aughenbaugh: I like Byron White in regards to his contribution to administrative law. Robert Jackson,
he took the year off to go ahead and be the chief prosecutor for the Nuremberg trials.
N. Rodgers: That's why. That's why I know that name.
J. Aughenbaugh: Look.
N. Rodgers: Can I just say that's a hell of a job? Being the chief? The chief prosecutor for the Nazi of the
Nazis.
J. Aughenbaugh: The Nazi drive?
N. Rodgers: Not just, the common Nazis, but, we're talking the big names.
J. Aughenbaugh: Yes the policymakers,
N. Rodgers: The ones that survived.
J. Aughenbaugh: The stone lasted until April of 1946, when he died because he suffered a cerebral
hemorrhage. Then Truman, who was president in '46, went ahead and picked Fred Vinson, who will be
the subject of our next podcast episode.
N. Rodgers: Do you think that the justices were affected by being a judge down in '46?
J. Aughenbaugh: There was that make it harder for them?
N. Rodgers: Because basically This is before they've really cut their At this time, they're still doing quite
a number of cases, even though they're allowed to say no now because that's what we got in the last
court was the ability to say no.
J. Aughenbaugh: Act of 1925. Well also, because the Stone Court was pretty evenly divided. Again, the
assumption was because FDR picked seven of the nine justices, and then promoted Harlan Fi Stone, that
this would be an overwhelmingly liberal court. No.
N. Rodgers: It wasn't?
J. Aughenbaugh: No, because you had liberal activists like Hugo Black and William O Douglas. But then
on the flip side, you had restraintist, like Robert Jackson and Felix Frankfort. The court was oftentimes
bitterly divided, Fisstone was terrible, at running the conference. Again, the conference is where they
take the votes. Which cases should we hear? How do we vote in particular cases that we've decided to
hear? He was terrible.
N. Rodgers: If the Chief Justice wants that to go quickly, they can make that go quickly. if they are a
person who can organize, but if they are not organized, that could take what? Days?
J. Aughenbaugh: Well, they actually had conference discussions that went on for days. One of the
justices, I'm thinking it's Felix Frankfort went ahead and complained that Harlin Fists Stone ran the
conference like he was still dean of Columbia Law School.
N. Rodgers: He wanted to hear everybody's thoughts. He wanted to hear Everybody's opinions.
J. Aughenbaugh: Which is a faculty meeting, for listeners who never had to endure a faculty meeting.
N. Rodgers: They're too long.
J. Aughenbaugh: They're too long.
N. Rodgers: Doesn't matter how long they are. They're too long.
J. Aughenbaugh: They're too long. Everybody wants [inaudible 00:24:47] .
N. Rodgers: You know what they would benefit from standing up. If you had to have your faculty
meetings standing up, they probably would be shorter, anyway.
J. Aughenbaugh: You force everybody to stand up. Nobody can go to the bathroom until the meeting
ends.
N. Rodgers: That'd be over pretty quick. Feed everybody coffee right before. The only person who could
stand that long would be Aggie.
J. Aughenbaugh: I'd be like this is an excellent okay space.
N. Rodgers: Anyways. Let's just walk back and forth.
J. Aughenbaugh: What you had on the Stone Court was one, he was terrible at managing the
conference. Two, he had a number of justices who believed in judicial restraint, because they thought
the court using the due process clause to overturn progressive legislation was inappropriate.
J. Aughenbaugh: I agree with that.
N. Rodgers: I agree with the court being I guess, I'm one of the restraintists in that I think that most of
the time what the courts should do is scold Congress and send things back to them saying, be clearer.
You have written this poorly, and nobody understands what the heck you want. You can't just say insert
miracle here, and then we will get the answer we want. That doesn't work.
J. Aughenbaugh: But the downside to that is it's easy to go from, we're going to scold you because you
wrote imprecisely worded legislation to this is legislation that violates the Constitution. On the other
side, Murphy and Rutledge, Wiley Rutledge, I love that name. Wiley Rutledge joined Black and Douglas.
N. Rodgers: It was if his last name was Coyote, Wiley Coyote.
J. Aughenbaugh: You had a court that was basically divided five to four. Because Stone couldn't manage
apparently his way out of a wet paper bag, the justices.
N. Rodgers: Is that your technical opinion, Aggie?
J. Aughenbaugh: I mean, everything I read about the Stone Court was he was a nice guy. He was a poor
man.
N. Rodgers: Smart. He's a poor manager.
J. Aughenbaugh: Poor manager.
N. Rodgers: That proves that sometimes, when we've been saying before, he wasn't the brightest
person in the world, but he was good at managing things. That actually serves a purpose.
J. Aughenbaugh: That was not a compliment. it serves a purpose in the courts.
N. Rodgers: It does sound a little backhanded, it's one of those things you want to run smoothly. There
are many things in the world that it's okay if it doesn't run smoothly, It's okay if things get a little bit off
or a little bit funky. But there's some stuff that you need to run very smoothly in order for it to not be a
giant disaster.
J. Aughenbaugh: There's a difference between an art class for kindergarteners.
N. Rodgers: Which is going to be utter chaos from start to finish. You know that. You're like let's just get
chaotic in here.
J. Aughenbaugh: Versus the conference for the Supreme Court.
J. Aughenbaugh: Probably the saving grace for Harley Fifth Stone was a short Supreme Court era.
N. Rodgers: [inaudible 00:28:41]
J. Aughenbaugh: But there were some noticeable trends and the most obvious was the Stone Court
continued the Supreme Court's Constitutional Revolution of 1937, where the court basically went ahead
and said, the new deal is constitutional. Congress can pretty much write any legislation it wants if it can
somehow tie it to what clause Nia?
N. Rodgers: The Commerce Clause.
J. Aughenbaugh: The Commerce Clause.
N. Rodgers: Because as we know, the Commerce Clause is like the one ring. It rules them all.
J. Aughenbaugh: Yes. Let's get to some noteworthy rulings of the Harley Fifth Stone Court. First 1942,
Glasser versus United States. In a six to two decision, the court went ahead and said that a criminal
conviction could be reversed because the defense attorney had a conflict of interest. This was the case
where the Supreme Court also for the first time, said, the exclusion of women from the jury pool
violated the Sixth Amendment's impartial jury clause. Yes.
N. Rodgers: It's not till 1942 that we just women been caught on juries.
J. Aughenbaugh: That's right.
N. Rodgers: Even though women are 50% of the population of the United States at any point.
J. Aughenbaugh: They've been allowed to vote since 1919. But in the subsequent-.
N. Rodgers: Only in 2032, can they serve on a jury?
J. Aughenbaugh: Did the Supreme Court go ahead and say that state laws prohibiting women? Again, we
talked about this in previous episodes. The logic was women needed to be protected from, these- If you
will, dirty processes of governing and things like hearing these despicable acts on juries.
N. Rodgers: In court, you do see and hear things that are harsh and rough and gross sometimes. Not
always. I mean, not in traffic court usually. But when you're talking about a grizzly murder or whatever
else.
J. Aughenbaugh: Yes.
N. Rodgers: We were protecting women's delicate sensibility.
J. Aughenbaugh: Bility. That's right.
N. Rodgers: Turns out women are as murderous as men, but okay, that's Amazing. Clearly, these people
had never met women, but [inaudible 00:31:21]
J. Aughenbaugh: However, the Supreme Court giveth, the Supreme Court also taketh away. Same year,
Betts versus Brady. The Supreme Court went ahead and said that indigent defendants did not have a
right to an appointed counsel in state courts under the due process clause.
N. Rodgers: Yeah, indigent people did not have a right to an attorney.
J. Aughenbaugh: That's right. This gets overturned 21 years later in one of the best known criminal law
cases in the history of the Supreme Court Gideon versus Wainwright, where the Supreme Court held
that even if you're charged with a misdemeanor crime, you have a right, if you are poor and cannot
afford an attorney, you have a right to legal counsel.
N. Rodgers: The reason you have a right to legal counsel and you should have a right to legal counsel is
because the legal system is Byzantine. Most takes somebody who has studied it and is a professional at
it to get you through it in a reasonable way. I can't remember which of the justices said man who
represents himself has a fool for a client. You cannot effectively represent yourself. I don't care how
good a lawyer you are. You need the advice of counsel. Most of the time, if you say you're going to be
your own lawyer, the judge will force you to have counsel sitting at your table says please don't do that.
Please don't do that.
J. Aughenbaugh: Even if it's for a misdemeanor crime where there is no, if you will, threat of, you know,
punishment being in prison or jail. It's still, if you're found guilty, that's on your record for the rest of
your life.
N. Rodgers: It's going to cost you.
J. Aughenbaugh: Yes.
N. Rodgers: If you're found guilty, it will always cost you money. There's always money involved in being
found guilty.
J. Aughenbaugh: Yes. The next one is one that countless of my students have been exposed to. Nia, you
and I've talked about this case on this podcast. WickarV Filburn from 1942, this is the case of where
Roscoe Filburn, who was a wheat farmer, grew some extra wheat so he could feed his livestock -and.
N. Rodgers: His own animals.
J. Aughenbaugh: Yes. He was prosecuted for violating the Agricultural Adjustment Act, which provided
for limits on the amount of acreage you could grow in certain agricultural foodstuffs. The Supreme
Court. The reason why I'm chuckling is Nia just went ahead and expressed that she thought that the
Supreme Court was Number 1. No, she did not.
N. Rodgers: I used my middle fingers to do that. Yes.
J. Aughenbaugh: But a unanimous Supreme Court case. Again, you want to see how significant the
Supreme Court's view about Congress' Commerce Clause authority was, how big of a change it was? In
1937, the Supreme Court was still declaring Acts of the New Deal unconstitutional. In five years, the
Supreme Court unanimously upheld a law passed by Congress. To punish a farmer for growing extra
wheat.
N. Rodgers: Because it'll be a big threat. His wheat is a big threat. Miss me with this case. I hate this
case. I I don't hate this case. I hate this ruling.
J. Aughenbaugh: This produced a doctrine that still is used by the court even today. This is known as the
substantial economic impact test. Conservatives on the court hate it. Liberals love it. Liberals love it.
N. Rodgers: I hate it because I think it'd be one thing if he was dumping it in the market and jacking the
prices, right, and doing something like that. Now we've got a bigger problem. Feeding his own family,
and his own cows. I'm going to stop. What's our next case?
J. Aughenbaugh: In important First Amendment case in a six to three decision in West Virginia versus
Barnett, the court held that the Free Speech Clause protected students from being forced to salute the
American flag or recite the pledge of allegiance. This overturned a Supreme Court precedent that lasted
three years. Miners ville versus Gabtas.
N. Rodgers: These are both school district bringing these cases. They're like, we want to force kids to
salute the flag, and the court is saying, you can't do that. Well, for three years, they said you can do that.
Then they said, No, it turns out you really can't do that. You can't force people to be patriotic. That's a
personal choice, not a social choice, not a governmental choice.
J. Aughenbaugh: This case really hurt some of the personal relationships on the Supreme Court. Because
the Gabdis case, I believe was eight to one. A whole bunch of justices changed their vote in the Barnett
case. Felix Frankfurter, who wrote the majority opinion in the Gabdis case was quite obviously in the
dissent in this case and he was extremely upset with his colleagues who changed their votes. From 1944,
the court in an eight to one decision struck down a Texas law that allowed white primaries. This is a case
that arose in Texas where Texas said that the political parties could hold primaries to decide candidates
and exclude non whites. The Supreme Court once again overturned a recent precedent, a precedent
that was only 9-years-old. They did so in an eight to one decision? Yes.
N. Rodgers: The original argument was that political parties are private organizations and can therefore
be racist if they want to.
J. Aughenbaugh: That's right.
N. Rodgers: The reality is that if you have a private organization that is paid for privately and takes no
public funds, you can be racist. Like, you're allowed to keep out people of color, you're allowed to keep
out women, you're allowed to keep out cats, you're allowed to keep out whatever it is that you want to
keep out. You can do that so long as you do not take public Suns,.
J. Aughenbaugh: Yeah. The problem was even-.
N. Rodgers: Do political parties take public funds? Or they use public?
J. Aughenbaugh: Well, they could use public money, but the linchpin of Justice Reed's majority opinion
Nia, was that political parties, though they claim they are private organizations, in most states actually
control the election process, which is public.
N. Rodgers: Right.
J. Aughenbaugh: If you think about it, listeners, in the United States, okay, the voting and election rules
in every state are largely determined by political parties.
N. Rodgers: The local party.
J. Aughenbaugh: They just decide them at third, fourth, fifth, sixth parties. The Supreme Court was just
like, you can't claim on one hand you're private while on the other hand, public, you have basically
rigged the system to protect your existence
N. Rodgers: Controlling public access to-.
J. Aughenbaugh: Yes. Now, are you ready to get to probably the most hated Stone Court Rulling. Or
Mansu versus the United States in a decision that was six to three. The Supreme Court upheld Executive
Order 9066.
N. Rodgers: Which I also have a boot for. Boo. Executive Order 9066.
J. Aughenbaugh: Which was issued by President Roosevelt codified by a democratically controlled
Congress that ordered the interment of tens of thousands of Japanese Americans living on the West
Coast many of whom were US citizens. The court accepted the government's argument that the order
was a matter of military urgency. Legal scholars have basically equated the Kormasu decision with Dred
Scott and Plessy versus Ferguson. This ruling was not explicitly overturned until 2018, ironically enough
in the Trump versus Hawaii case concerning the Trump administration's travel ban executive order. Both
the majority and dissenting opinions in Trump versus Hawaii explicitly denounced Koromatsu. But then
the majority turned around and said the Trump administration had the authority to issue the travel ban.
I can't make this.
N. Rodgers: The problem with Kuramasu to me, though, there are two problems. One, you should not
enter American citizens for any reason. That's not you've missed the point of citizenship. Two, hugely
happened on the West Coast did not happen on the East Coast. If you were of Japanese descent and you
lived in the East, you were fine. They were worried about proximity to spies, basically. They were
worried about if somebody landed a spy here, they would look like other people who live in the West
Coast, but they would be spying, preemptive strike against people's rights because there might be a spy
that might get through, but they didn't do that with Germans.
N. Rodgers: They didn't do that.
J. Aughenbaugh: With Italians.
N. Rodgers: With Italians. It's morally appalling. It's just morally appalling.
J. Aughenbaugh: I know I oftentimes get criticized, particularly by colleagues as being too focused on
process. But all three of the dissents in the Korematsu case, I think, captured correctly why due process
is so important when you get targeted by the government. Because all three in the dissent basically
argued that the government should have been forced to give all of these Japanese Americans some sort
of process to prove their loyalty and never were. They never were. In particular, Justice Jackson's dissent
always resonated with me, where he went ahead and said that guilt is personable, not inheritable. You
should only be guilty for things that you did, not what perhaps your ancestors did or the country of your
ancestors, in this case.
N. Rodgers: The sins of the father do not carry to the son.
J. Aughenbaugh: That's right. Guilt is personable, not inheritable. You and I've discussed this jokingly on
this podcast. It's a good thing that we can't be found guilty for some of the things that our ancestors
used to do on the regular.
N. Rodgers: It's a good thing Matt can't be found guilty for stuff you've done. That's the society in which
we live, and we should want to live. This shouldn't be a cast system where, oh, well, Aughie does this
thing, so his children should suffer. Anyway. Korematsu is a stain on American history. It just is in the
same way that slavery is a stain in the same way that the Charlo tears is a stained. There are just things
that we as a country, have done that are immutably wrong. We can't say it any other way, and that's
one of them.
J. Aughenbaugh: Again, it exposes the tension in any democratic society because the majority on the
West Coast wanted the internment camps. They wanted the curfew policy.
N. Rodgers: Because they were scared.
J. Aughenbaugh: Yeah, they were scared. I get that. It's a time of war.
N. Rodgers: Fear makes you do dumb stuff.
J. Aughenbaugh: On the other hand, that's why you have constitutional protections to go ahead and
protect people who are statistically or politically or in terms of power in the minority. I think the
Supreme Court fell down on this one.
N. Rodgers: It took an enormous amount of time to fix this. I think that the government issued an
apology, didn't they?
J. Aughenbaugh: Yeah, in 2011.
N. Rodgers: Oh, 2011.
J. Aughenbaugh: Also, during the Reagan administration, reparations were paid. United States Congress
went ahead and appropriated [OVERLAPPING]. The last case I'm going to mention is Edwards versus
California. The reason why I bring this up is it struck down a California statute that criminalized bringing
indigent residents of other states to California because California claimed that a whole bunch of poor
people moving to California placed an intended and immediate burden on state resources. What we're
talking about here became infamous in a Steinbach book.
N. Rodgers: Is this the Okies?
J. Aughenbaugh: Yes, The Grapes of Wrath.
N. Rodgers: These is people who went from farm land that could no longer be farmed because it was
the Dust Bowl, and it turned into the Dust Bowl. They went to California to try to find work because
California is a growing state, physically growing. They thought they could find agricultural work because.
J. Aughenbaugh: California passed laws that criminalized bringing poor people from other states to
California.
N. Rodgers: The way there are traffickers now for poor people over the borders of the United States,
there were traffickers in states bringing people to California and bringing people to the West Coast.
J. Aughenbaugh: What was interesting is that the court almost declared, in this case, and they
eventually did it during the Warren Court, that the 14th Amendment protected the right of travel. They
debated it, got close, but they left it for another day. But Edwards versus California is the name of the
case. This is where the Supreme Court for the first time went ahead and said that states cannot ban or
prohibit residents of other states to move there because that would affect interstate commerce. Again,
individuals.
N. Rodgers: If you think this does not apply modernly, because of all of our easy travel in the United
States, there are states that would like to ban women from traveling for reproductive healthcare.
J. Aughenbaugh: That's right.
N. Rodgers: And this is going to come up. Eventually, that's going to come before the courts because
someone somewhere is going to get that passed in a conservative legislature, and then women are
going to sue because they're going to say, You can't limit my ability to travel. Because historically, we
have not done that. We have not limited people's ability to travel.
J. Aughenbaugh: This actually came up in a number of state legislatures, Nia during COVID-19 during the
pandemic. in particular.
N. Rodgers: Similar situation, different circumstance, but yeah.
J. Aughenbaugh: A number of democratically controlled states considered legislation to ban people
from other states coming. In particular, they didn't want people from-.
N. Rodgers: The vaccinated.
J. Aughenbaugh: Yes. That's right.
N. Rodgers: They didn't want the vaccinated. Which you also can't do, if you can't limit travel for
reproductive health, you also can't limit travel because people don't take vaccines. Like you either
believe that it's okay to limit travel or you don't believe it's okay. This is one of those situations where
you have to be careful about what you like versus what should be universally true.
J. Aughenbaugh: Again, this goes back to one of the things I tell students all the time, Nia, which is, be
careful when you go ahead and recognize a right in one context because lawyers love analogies.
N. Rodgers: You open the door a lawyer will walk through it. Every time. It doesn't matter if there's a
tiger behind the door. Some lawyer somewhere will say, that's okay. I'm going anyway.
J. Aughenbaugh: That's not a tiger. That's a sheep.
N. Rodgers: Here, let me prove it to you.
J. Aughenbaugh: But anyways, so to wrap things up in regards to the Harlan Fiske Stone, we pointed this
out with the Hughes Court. Once, the Hughes Court in 1937 basically just took the wraps off on
Congress. This is where the federal government began to dominate the regulation of the nation's
economy. You're beginning to slowly see the court looking at legislation that would harm minority
populations. The Fiske Stone and the next court era, the Fred Vinson Court era, are transitions. It's not
to the Warren court era that you see enough of the justices who are progressive and activist.
N. Rodgers: That door opens slowly.
J. Aughenbaugh: Yeah, it opens slowly.
N. Rodgers: Nobody throws that door open and says, Wow, let's go through. Fiske Stone opens it, and
then Vincent opens it a little further, and then by the time you get to Warren, there's a comfort level
with saying, Let's do this.
J. Aughenbaugh: The membership on the court changes. It takes time.
N. Rodgers: Because the court moves slowly. In most instances, that's what we want. We want
incremental change because when the court just goes, it throws everybody off. It's better if the court
goes.
J. Aughenbaugh: That's why, for instance, listeners, when we get to the Roberts court in a future
episode, you will see that one of the tensions on the Roberts court is between those justices who want
immediate change versus those who don't want any change. Then you got one or two justices in the
middle who are okay with incremental changes. This is always, one of the tensions on an institution like
the court. How quickly should change occur? Because there are going to be some justices who are like,
No, we like the law the way it is currently, and you got others who are like, we've been doing it wrong
for the last 50 to 60 years. It's time to fix it. It's time to fix it, and then you got others who are like, Okay,
well, maybe if we're going to fix it, do we have We could do this part first.
N. Rodgers: Then we can come back and look at this part.
J. Aughenbaugh: Part, yes. Listeners think about in your own friend group or in your own families. Some
of you all when you're listening to this, will have just had the holiday season. You've spent time with
your families. There are people in your families who are like, These traditions make no sense. Let's get
rid of them. You got others who are like, No, I love these traditions. Let's not change them. Then you got
others who are like, well, can we just make a few changes? Can we do it?
N. Rodgers: We've tried to find balance.
J. Aughenbaugh: Find some balance. You see these fault lines within families, friend groups, work
groups. It's not just for supporting.
N. Rodgers: That happens in every workplace. There's somebody who wants to set fire to the place
today. Burn it down and start over. There's somebody who's like, Oh, no, we've always done it this way.
For 427 years, we've done it this way. We should always do it this way. Then there's the people in the
miner who are like, maybe we should change a little bit at a time and see what sticks and what doesn't?
S. I like to think of myself as one of those people. I'm not a Let's burn it all to the ground, but I'm also not
usually a Oh, well, I can't even conceive of change.
N. Rodgers: Like, that's not.
J. Aughenbaugh: I'm the first person to go ahead and say that the span of human existence is change.
On the other hand, I'm like you, Nia, in the sense that I'm like, Hey, wait a minute here. Do you
understand why we've always done it this way?
N. Rodgers: Right. That's not a completely terrible idea that just needs to be gotten rid of rid of reform.
It doesn't needs expunging. It just needs to be changed. It needs to be modernized, or it needs to be
whatever. But there's a reason that we still collect people's first and last names or whatever.
J. Aughenbaugh: I also think bureaucratically, okay, are we going to go ahead and waste a whole bunch
of time and energy on something that we can't change, versus what are those things that we can
change?
N. Rodgers: What's going to matter in the end?
J. Aughenbaugh: But nevertheless, thanks, Nia, for the opportunity to talk about Harlan Fiske Stone's
Court.
N. Rodgers: It's a great name. If anybody wants to name their kid that, Harlan Fiske something. That'd
be fabulous. Or Fiske Stone something.
J. Aughenbaugh: Well, hey, Fiske would be a good name for a dog. Here, Fiske.
N. Rodgers: Would be a good name for a dog. As would Fred. On that note, I'll see you in next episode.
J. Aughenbaugh: For shadowing. Thanks, Nia. Thanks, Aughie.
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