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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I am excellent. Do you know why I am excellent?
J. Aughenbaugh: No. Please share.
N. Rodgers: Well, I'm sorry. How are you?
J. Aughenbaugh: I'm fine. Come on now. We get to talk about another era in the history of the United States Supreme Court.
N. Rodgers: That's why I'm excellent, because your notes fill me with joy because they give me lots of names that I get to wrap my mouth around, and I love some of these names. I just do. I've been thinking a lot about cool names and how people come around to cool names, and I think it's just because they're from different eras that I think they're so cool. Because we do have cool names now, but hardly anybody goes by all three names now in a way that they used to back in the day.
J. Aughenbaugh: With some regularity, yeah.
N. Rodgers: Maybe because a lot of people were named John. Speaking to a person named John who is in a department with another person named John.
J. Aughenbaugh: Oh, yeah. And you see this again.
N. Rodgers: Which is why you go by Aughie. Because there's a guy who's named John in your life.
J. Aughenbaugh: Well, I go by Aughie because most people cannot pronounce my last name.
N. Rodgers: Well, yeah, okay. Fair.
J. Aughenbaugh: I mean, it was a nickname given to me when I went to school. And because I have an older sister, she was Big Aughie, which she really grew to resent. As a woman, she didn't really appreciate being referred to as Big Aughie, but I was Little Aughie. That was until the summer between fifth and sixth grade, when I grew up.
N. Rodgers: You shot up like a weed?
J. Aughenbaugh: Yeah. And then all of a sudden, she was no longer Big Aughie.
N. Rodgers: Yeah, no kidding. She was just older, not bigger.
J. Aughenbaugh: Yeah, she was just older. But listeners, we are continuing our series of Supreme Court eras. And again, for those of you joining us midway through, the reason why we focus on chief justices is that by tradition and norm, scholars refer to Supreme Court errors by the name of the chief justice.
N. Rodgers: Because they straddle presidents a lot of times.
J. Aughenbaugh: They cross over presidents, Congressional sessions.
N. Rodgers: Several of them have been on the court 10 years, 20 years. And that takes you across presidents.
J. Aughenbaugh: So we're looking at our ninth era. Edward Douglas White was named the ninth Chief Justice. He replaced one of Nia's favorites because of his name. Not necessarily because of his work
N. Rodgers: Right. Because his work irritates me, but his name.
J. Aughenbaugh: Melville Weston Fuller.
N. Rodgers: I do love a good Melville.
J. Aughenbaugh: Chief Justice White was noteworthy for a lot of reasons. First, he was the first incumbent associate justice elevated to become chief justice in the history of the court.
N. Rodgers: Put a pin on that because we're going to come back to that.
J. Aughenbaugh: It is an interesting point. Mind you, he was named to be Chief Justice in 1910. So we are nearly 120 years into the history of the court before we actually get an incumbent, somebody already serving on the court, to be promoted to chief. Now, who nominated him to be Chief, Nia?
N. Rodgers: It's President Taft, right?
J. Aughenbaugh: President Taft. And as we will discuss in our next episode, Taft is noteworthy because Taft is the only person in the history of the United States to serve as both president and then subsequently Chief Justice.
N. Rodgers: He's our next Chief Justice, so we will hear from him in the next episode. What I like about this guy is they confirmed him in about 10 minutes.
J. Aughenbaugh: Yeah, one week.
N. Rodgers: The Senate was like, do we want to break for lunch? Just confirm this guy and move on. I mean, it was from December 12, he's nominated, and December 19, he's sworn in. Not just like, oh, you got the job, but he's already sworn in, which means there was time to write a ceremony and do whatever and get his family there.
J. Aughenbaugh: The other thing to keep in mind here is this was really smart by Taft, because, Nia, what's the Senate in the worst way wanting to do the third week of December?
N. Rodgers: Go home for Christmas.
J. Aughenbaugh: Yeah, they want to adjourn the session.
N. Rodgers: Why on Earth are we still here?
J. Aughenbaugh: Why are we still here? Oh, we got this piddly business of maybe confirming the next Chief Justice. Alright, let's get it done. Let's get on out of town.
N. Rodgers: Yeah. So it's a good time. It's good timing. And it's also, you're not likely to have as many fighting because people are like, I want to go home. I'm not going to fight about this guy. How long was he on the court?
J. Aughenbaugh: Well, in total.
N. Rodgers: Oh, sorry. I meant, how long was he Chief Justice?
J. Aughenbaugh: Well, he was Chief Justice for 10.5 years. He died on May 19, 1921. Yes.
N. Rodgers: So December 19 to May 19? He made that very round for future people who count things.
J. Aughenbaugh: Well, it was almost precisely 10.5 years.
N. Rodgers: Thank you.
J. Aughenbaugh: If you think about it, 10.5 years. Thank you very much, Chief Justice White. Now, there are a lot of fascinating things about this particular era. One of the first we got to mention, and we mention this all the time, and a couple of my former students have said, why do you guys always talk about the membership changes for a particular era? And here's the reason why. It's a small group organization. If you get a lot of membership changes, this puts a pretty heavy premium on the chief to show leadership, right?
N. Rodgers: Right. Because it unsettles the group. We go from nine to eight, to seven, to eight, to nine.
J. Aughenbaugh: Then you're getting ideological changes, potentially. And then you're getting personality changes. You may have had a justice who was an agreeable person replaced by somebody who's annoying. And again, there's only nine of them. So you replace one, and it can have. But then, if you end up replacing. Here's the thing. When White was Chief, in addition to White being nominated in 2010, there was another vacancy on the court. So Taft nominated Joseph Rucker Lamar, and then you had Justice.
N. Rodgers: On the same day as Chief Justice White. He was like, while you're in there voting, could you vote to replace another? And when you think about it, if you bring up an incumbent, you've now created a vacancy on the court.
J. Aughenbaugh: And the person who was nominated to replace White as an associate justice was Willis Van Devanter.
N. Rodgers: Van Devanter. It's not hard to say.
J. Aughenbaugh: I just like the Willis part.
N. Rodgers: So three changes right there within a year. Right there within a month, actually.
J. Aughenbaugh: And then a year after White becomes Chief Justice, Justice John Marshall Harlan, the first Justice Harlan, he dies. He's replaced by Justice, okay, you got to say his name.
N. Rodgers: Mahlon Pitney. M-A-H-LON. Mahlon Pitney.
J. Aughenbaugh: Then in 1914, Justice Horace Harmon Lorton dies, and he's replaced by, again, the use of all three names, Justice James Clark McReynolds. And we'll discuss McReynolds a little bit more in depth when we get to the Hughes era, because McReynolds was one of the most conservative Supreme Court justices, and he was a flaming anti Semite.
N. Rodgers: Ah. So you're calling him JC.
J. Aughenbaugh: Yeah. Alright. Then in 1916, two more vacancies arose. First, Justice Lamar dies, and Justice Charles Evan Hughes resigns to run unsuccessfully for president. So then Woodrow Wilson nominates Louis Brandeis, one of the most famous Supreme Court Justices.
N. Rodgers: I was going to say. So there's Brandeis, okay.
J. Aughenbaugh: But then you got another three-namer, John Hessin Clark.
N. Rodgers: Hessin.
J. Aughenbaugh: Yes, Hessin Clark. And then, fortunately, for Chief Justice White, the membership basically remains constant.
N. Rodgers: People quit dying or quitting?
J. Aughenbaugh: Yeah, for the next number of years.
N. Rodgers: For a little while.
J. Aughenbaugh: Okay. So, Nia, where was Chief Justice White born?
N. Rodgers: He was born in Louisiana, and I don't know how to pronounce. I think it's Lafourche Parish.
J. Aughenbaugh: Yes, Lafourche Parish.
N. Rodgers: And as we know, in Louisiana, they don't have counties, they have parishes.
J. Aughenbaugh: Parishes. That's right. Yes.
N. Rodgers: So that would be Lafourche County for the rest of us who live in another state. But it's Lafourche Parish in Louisiana. And then I know that he went to what became Tulane.
J. Aughenbaugh: Yes, he did.
N. Rodgers: Which is in New Orleans. It's a pretty good school.
J. Aughenbaugh: And before he attended the University of Louisiana, which became Tulane, he went to a Jesuit high school. The College of Immaculate Conception. He was Catholic, which was somewhat unusual in the Deep South. But he was Catholic.
N. Rodgers: That's interesting. That probably had some influence on his judicial opinions.
J. Aughenbaugh: That's right.
N. Rodgers: Having been raised in a Jesuit high school. Because Jesuits, if I'm not mistaken, and please tell me because you're a Catholic. Aren't they raised to be very deep thinkers in the idea of you must pull an idea apart to its very core in order to understand it? Isn't that one of the Jesuit traits? Is that there's a high premium placed on that?
J. Aughenbaugh: Yeah. I went to a Jesuit high school. You don't get by in Jesuit high schools with half-baked, incomplete thinking.
N. Rodgers: I know what they're known for.
J. Aughenbaugh: Yeah. I mean, in writing. You should be able to go ahead and write clearly.
N. Rodgers: Articulate your ideas.
J. Aughenbaugh: Yep. Okay. Now, Chief Justice White was born to a very prominent Louisiana family. His father, Edward Douglas White Senior, was the 10th governor of Louisiana, and he represented Louisiana in the House of Representatives as part of the Whig Party. The White family was rich. They had a huge sugar plantation, and they owned slaves well into the 1840s.
N. Rodgers: I'm not surprised by that.
J. Aughenbaugh: Nope.
N. Rodgers: If you're going to be wealthy in the South at that time, that's how that would have worked.
J. Aughenbaugh: White fought for the Confederacy during the Civil War, and he was captured by the Union forces in 1865. But because the war ended shortly thereafter, he was only a prisoner of war just a couple of months. After the war, White won election to the Louisiana State Senate, and he served on the Louisiana Supreme Court. In 1891, he was elected to the US Senate representing the Democratic Party, because, again, Deep South post-Reconstruction was controlled by the Democratic Party.
N. Rodgers: Remember that the flip had not happened yet. So this is essentially the modern-day Republican Party.
J. Aughenbaugh: That's right. White served in the Senate for only three years before he was nominated to serve on the US Supreme Court. And when he was nominated to serve on the Supreme Court, it was pretty widely known by his fellow senators that he was a former member of the Confederacy.
N. Rodgers: I don't know how you would hide that.
J. Aughenbaugh: He couldn't hide it.
N. Rodgers: If you served in the Confederate Army, people would know that. What's interesting is that at this point, we start to see that not be as big of a stumbling block for politicians as it was in previous. We've mentioned in a couple of episodes previously that that actually kept people off the Supreme Court before now, but it didn't do that with him.
J. Aughenbaugh: Yes. Now, what was also rumored but never proven, and I checked a number of biographies, and they cannot come to agreement on this, it was rumored that White was a member of the KKK.
N. Rodgers: Then would not have been surprising at this time, a lot of Whites in the South in general were members of the KKK. The KKK didn't have the reputation then that it has now.
J. Aughenbaugh: Now.
N. Rodgers: I'm not saying it was ever not an abomination because it was. It was a bigoted group of people who intended to scare and harm and hurt and in some instances, murder Black folks. No membership in the KKK should be ever considered a pass. But a lot of people in the South joined the KKK because there was a lot of social pressure for men to join the KKK. I don't know that they all felt as one person. I think there were a lot of different people who ended up. It's like people who go to church because their neighbors go to church and they don't want to be seen as the guy that doesn't go to church, even if they're not a true believer.
J. Aughenbaugh: You also see this within families. I don't know about you, Nia, but in my family, there are certain family members who only go to church because everybody else goes to church and they don't want to deal with the flowback, the verbal abuse if they don't go to church.
N. Rodgers: Then some people joined the KKK because they wanted to hurt other people, and they were horrible. Like any group of people, there are going to be people there that we can make no reasoned, understanding for. But he wasn't the only ex-confederate on the Supreme Court.
J. Aughenbaugh: That's right. Two others who also served in the Confederate Army.
N. Rodgers: Please let me say it.
J. Aughenbaugh: Go ahead.
N. Rodgers: Lucius Quintus Cincinnatus Lamar.
J. Aughenbaugh: Yes. Lucius Lamar.
N. Rodgers: His parents thought he was going to be a Roman general apparent.
J. Aughenbaugh: Fairly. From the fine state of Mississippi?
N. Rodgers: Cincinnatus but from the fine state of Mississippi, not Ohio. Anyway, I think that what it is.
J. Aughenbaugh: Then the other was Horace Harmon Lurton from the fine state of Tennessee.
N. Rodgers: Who earlier we heard died and was replaced during White's term. But he was awesome.
J. Aughenbaugh: In 1894, President Grover Cleveland appointed White as an associate justice. Before we get to his nomination to be chief, it should be noted that White as an associate justice was pretty consistent with the rest of that court era. He was conservative. Probably the easiest example was he joined the majority in the Supreme Court's ruling in Plessy v. Ferguson which said that separate but equal public facilities in the United States satisfied the Equal Protection Clause of the 14th Amendment.
N. Rodgers: Plessy is why I don't like Fuller.
J. Aughenbaugh: Yes.
N. Rodgers: Frankly. Anybody who was on the court at the time with him, I don't like them either.
J. Aughenbaugh: Mind you, we talked about this when we discussed Plessy v. Ferguson. It was such the accepted view on the court that there was only one dissenting vote in Plessy. That was the first Justice Harlan. The rest of them were like, of course, it means separate but equal. Now, that's not to say that it was a correct decision. I think very clearly Nia, you and I are like, it was wrong. The court got it right some 60 years later in Brown v Board.
N. Rodgers: They fixed it finally.
J. Aughenbaugh: But again, Justice White was not an anomaly.
N. Rodgers: He was not bucking the system. He was a part of the system. Agreed. That in fairness to them and I shouldn't boo as much. They were men of their time. I just wish they've done better.
J. Aughenbaugh: Exactly. Fuller dies. The president at that time is William Howard Taft. William Howard Taft was a Republican. But Taft surprised a whole bunch of people when he picked White to be the next chief justice.
N. Rodgers: Because White's a Democrat.
J. Aughenbaugh: That's right.
N. Rodgers: But that's not why it's controversial. It's a controversial.
J. Aughenbaugh: There's two reasons.
N. Rodgers: There's a reasonable reason and then there's a reason that makes sense only if you have ever worked in a very small group of people.
J. Aughenbaugh: We'll get to that second. The first reason why it was controversial was that Taft was a Republican. The problem for Taft is that in his presidency, he was not nearly as progressive as some of the other members of the Republican Party. Again, the Progressive Party at the turn of the 20th century was the Republican Party. It was not the Democratic Party. The Republican Party led by Theodore Roosevelt, believed in good government, strong government. Government can use science to go ahead and make lives better. William Howard Taft was not as progressive. There was a divide in the Republican Party and Taft was like, they don't like me anyways. I really don't care. I'm going to pick somebody whose jurisprudence I'm comfortable with. He picks White. But it was extremely problematic on the Supreme Court, Nia, why?
N. Rodgers: Because people in small groups can do one of two things when one of their own gets an accolade. They can support and be excited, or they can be petty and say nasty things about each other. They were worried at the time that that group of nine would choose the second route. That they would not be supportive, that they would be petty. Why didn't you pick me? Why didn't I get it? Why did he get it and not me? Which if you have ever worked in a small group of people, you will know that is the way sometimes people react. Most of the time, if you're lucky and your group is good, they're excited for you. This is great. One of us has succeeded and it's marvelous. But, man, I have worked in some groups, fortunately for me, not my current job, but I have worked in places where you getting ahead means somehow me being hurt, which is crazy. They see it as the pie is a sum zero. If you get a bigger piece, it means I automatically get a smaller piece. They were worried about that at the time that the supremes would be petty about.
J. Aughenbaugh: As my students learn in my courts and politics class, those concerns do arise later on in the history of the court when some associate justices have been promoted to chief or some who thought they should have been promoted were not.
N. Rodgers: That doesn't actually turn out in this case. In this case, everybody's like, he's fine.
J. Aughenbaugh: He's fine. Again, in part because White's jurisprudence basically fell in line with the majority of the court.
N. Rodgers: He's banal, and so there's no reason to be upset that he has somehow been moved ahead.
J. Aughenbaugh: White was viewed as, by and large, a good administrator. Again listeners, at this point in the court's history, the court basically had to hear any and all appeals that came to it.
N. Rodgers: Approximately 800,000 a year.
J. Aughenbaugh: White was really good in making sure that the court got through their workload.
N. Rodgers: He's an able administrator. He just like chop chop people, let's move it along.
J. Aughenbaugh: Again, listeners, if you've not had the experience of working on in a small group organization, if you have an administrator who can make sure that the organization's work gets done, by and large, the rest of the people in the organization are going to be like, good administrator. What he was known for his signal contribution as a justice is in regards to antitrust law. Now, I'm going to put on my instructor's hat. In the 1890s, Congress passes the Sherman Antitrust law. It was a law designed to break up monopolies because monopolies were viewed as bad for the economy and bad for consumers. Congress passes the Sherman Antitrust Act. The Supreme Court really struggled with how to apply it because many of them, their first instinct is, what's the government being involved regulating the economy. They're conservatives. On the other hand, even they recognize that left unchecked, the market.
N. Rodgers: The robber barons will steal from all of us.
J. Aughenbaugh: They recognize the Sherman Antitrust Act is rooted in which of Congress's powers, Nia?
N. Rodgers: The Commerce Clause power. The power to regulate interstate commerce.
J. Aughenbaugh: Commerce. How do you come up with a standard that would allow the court to judge either monopolistic behavior that naturally occurs in the market or occurs because of specific actions taken by corporations.
N. Rodgers: Because there are monopolies that happen because somebody is the only person willing to do a thing or they're the only person willing to make a thing, and so it's a natural monopoly.
J. Aughenbaugh: It succeeds, and therefore they have cornered the market.
N. Rodgers: If you're the only person who makes, I don't know, slouchy hat necklaces, I don't even know what that is. I just made that up. But if you're the only person who makes that, then you're going to corner the market, at least for a while until somebody says, hey, man, you can make money doing that. What they're trying to avoid is, I buy up all of the smaller steel companies so that I am the only person who produces steel so that anybody who uses steel in their manufacturing has to come to me to get it.
J. Aughenbaugh: Then I can gouge the heck out of the prices because I'm the only one providing that good.
N. Rodgers: That's what they're trying to avoid.
J. Aughenbaugh: What White came up with as a standard becomes known as the rule of reason, and it's still used today. Is this a reasonable monopoly. One that flows from normal market conditions, or was this the result of specific actions taken by participants in the marketplace. The rule of reason, and it's still used today. In fact, Nia, earlier this year, in the Google antitrust case in regards to their search engine, the parties in the case, spent a lot of time in front of the judge in that case discussing whether or not it was reasonable for Google, to basically have eliminated all their competitors.
N. Rodgers: This is while White is a chief justice.
J. Aughenbaugh: He's chief. That's right.
N. Rodgers: He comes up with it.
J. Aughenbaugh: He's the one who comes up.
N. Rodgers: That's pretty good. We're still using it 115 years later.
J. Aughenbaugh: But otherwise, he was a conservative on the court.
N. Rodgers: He did something that peeves me.
J. Aughenbaugh: Okay, go ahead.
N. Rodgers: Did I mention one of the things that he did that peeved me? Is he basically got in line with the case that took away tribal rights.
J. Aughenbaugh: Yes.
N. Rodgers: Lone Wolf versus Hitchcock, which I know sounds like a movie, and it probably could be a movie. Congress could just say, yeah, no, we had a treaty, but we're going to ignore it.
J. Aughenbaugh: Yeah, because he went ahead and said that because Congress could regulate trade among the tribes, that by extension the framers of the United States Constitution effectively gave Congress complete control over the tribes. Which meant that Native American tribes had no sovereignty. But he was interesting because at the same time he was conservative. C. Hammer versus Dagenhart, where he joined the court majority, saying that the federal government could not ban child labor.
N. Rodgers: Hello.
J. Aughenbaugh: On the other hand, in the same year, 1916, he wrote the majority opinion saying that the Adamson Act, which mandated an eight-hour workday for railroad employees, was constitutional. How do you square those?
N. Rodgers: Who is this guy?
J. Aughenbaugh: He generally favored states regulating the economy. At the same time, he supported Congress being able to regulate and tax more. He was conservative on racial issues. On the other hand, he's also the justice who wrote the unanimous opinion for the court in the Gwen case, which invalidated Oklahoma and Maryland's grandfather clauses regarding voting.
N. Rodgers: African American males vote?
J. Aughenbaugh: No. Oklahoma and Maryland, and southern states, had grandfather clauses that allowed poor Whites who were illiterate to vote. But if you were African American and poor and illiterate, you weren't grandfathered in.
N. Rodgers: He was like, you can't do that. You have to grandfather in anybody who can't read or anybody who's poor and whatever, or nobody who's poor and whatever.
J. Aughenbaugh: Yes. Then, in 1918, he wrote the majority opinion that said the Selective Service Act did not violate the 13th Amendment, which prohibits servitude.
N. Rodgers: Yeah. Can you explain that to me just a little bit? I wanted to ask you about that because I'm not sure that I understand that. Selective Service Act of 1917 is basically every male has to register with the government that he is a male of the age of 18, or it's currently 18. Was it always 18?
J. Aughenbaugh: I think that's what got established with the Selective Service Act of 1917, yes.
N. Rodgers: Okay. Males who are 18 must register with the government and say, I am available if we go to war to be drafted.
J. Aughenbaugh: Right.
N. Rodgers: Every application that you make for college, every application that you make for a job, everything you apply for, it says, are you subject to the Selective Service Act? And you say, basically, yes, I am a male who is over 18. What people at the time said, was conscription is no different than slavery. If you're going to make somebody do a thing that they don't want to go do, like going and killing other people, how is that different from slavery? Is that basically?
J. Aughenbaugh: That was the argument that was made to challenge the law. What White wrote in the majority opinion for the court was that Congress could use the necessary and proper clause to achieve its authority to declare war.
N. Rodgers: If we have to have people to go fight a war, that is necessary and proper. Is that law upheld so long as it applies to all males in the United States who are of the age of 18? You can't say we will preferentially draft certain groups first.
J. Aughenbaugh: Correct.
N. Rodgers: And that's okay.
J. Aughenbaugh: Yeah. I have students who are like, how does registering for the draft and then being called up for a draft, how does that not violate the 13th Amendment? I'm like, okay, but remember, guys, the United States Congress has the authority to take the nation into war. It has the authority to declare war, right?
N. Rodgers: Right. Then to fight that by any means necessary.
J. Aughenbaugh: A draft is necessary and proper so that Congress can achieve that particular authority. That's where the necessary and proper clause always becomes an issue, Nia. Is how broadly do you read the necessary and proper clause? This takes us back to McCulloch versus Maryland, from 1819, where the Supreme Court said, sorry, Maryland, the federal government, using the necessary and proper clause, can create a bank. Why? It needs a bank because it taxes things. It generates revenue.
N. Rodgers: It generates debt.
J. Aughenbaugh: Thus, it needs a bank to go ahead and tax and spend. Is taxing and spending clearly given to the Congress in the Constitution? Yes.
N. Rodgers: Got you.
J. Aughenbaugh: This all goes back to, can Congress clearly identify an authority it has? If so, is the thing that they have created necessary and proper to achieve that authority? You can plausibly argue you need a draft to achieve the authority to declare war.
N. Rodgers: Okay.
J. Aughenbaugh: The court for the White era and the next one, the Taft era, hint at some rather significant changes that are going to occur on the Supreme Court in the 1930s and '40s. Because what used to be unanimous decisions or 8-1 or 7-2 were increasingly becoming 6-3 and 5-4. You will see this in the White court, and you will see this with the next court led by William Howard Taft. The thing that probably binds both White and Taft together, and we'll cover Taft in our next episode, is that they were viewed as capable administrators of the court, even if you didn't like the jurisprudence. Very capable administrators.
J. Aughenbaugh: That's what you can say. He wrote a lot. He wrote the majority opinion in 717 cases. He wrote 155 dissenting opinions.
N. Rodgers: Almost 900 opinions.
J. Aughenbaugh: Yes.
N. Rodgers: In basically 10.5 years.
J. Aughenbaugh: Yeah.
N. Rodgers: He's cranking them out at the rate of somewhere between 80 and 90 a year.
J. Aughenbaugh: Yeah, that's right.
N. Rodgers: Average. Probably some years were worse than some years were better.
J. Aughenbaugh: Put this in context, listeners, the most recent Supreme Court term, the justice who wrote the most was Clarence Thomas, and I think he wrote 27 or 28 opinions. John Roberts wrote, I believe, seven or eight.
N. Rodgers: And this guy's writing 80 a year.
J. Aughenbaugh: Eighty a year.
N. Rodgers: He's cranking one out every three or four days.
J. Aughenbaugh: By the way, institutionally, the Supreme Court had not begun to use clerks.
N. Rodgers: Oh, he didn't have any clerks.
J. Aughenbaugh: He didn't have any clerks.
N. Rodgers: What.
J. Aughenbaugh: He's doing all the research, all the writing on his own. Yes.
N. Rodgers: That's a lot.
J. Aughenbaugh: Yes.
N. Rodgers: That's when they took it seriously.
J. Aughenbaugh: Yes.
N. Rodgers: Hey, I don't think I want that workload. I'm not trying to be lazy or anything, but I don't think I want that workload.
J. Aughenbaugh: Hey, some of these opinions are 12, 14, 18 pages. My listeners who are students, think about it. You have to write two or three research papers in a semester, and you're dying.
N. Rodgers: And this guy is writing three or four every other day.
J. Aughenbaugh: 80-85 in a year. Come on. You're slacker slackers compared to Chief Justice White.
N. Rodgers: But in fairness, he also didn't have any other job?
J. Aughenbaugh: No. Hey, he's a professional. You get to be 55, 60 years old, what else you got going on?
N. Rodgers: It also begs the question, and I'm going to ask you this just as your personal opinion, not of White, but of Supreme Court justices in general.
J. Aughenbaugh: Okay.
N. Rodgers: Or rather, up until we get clerks. Is that Taft, or is that the one after?
J. Aughenbaugh: Hughes. That's when you see justices beginning to pay for their own clerks. It's not until the 1940s that the United States Congress actually allocated money for the hiring of Clerks.
N. Rodgers: Prior to this, versus post clerk, I'm asking your opinion, do you think the writing was better when they were doing it with clerks or without clerks?
J. Aughenbaugh: Without.
N. Rodgers: Is the writing better now or was the writing better then?
J. Aughenbaugh: Better then. The reason why is, a lot of the clerks are fresh out of law school, and the draft opinions that they give their justices read like law review articles instead of opinions that can be understood by other people in the government, but particularly the public. Oh, yeah.
N. Rodgers: It behoove people to go back and read a few of these opinions from the first 120, 130 years of the court, and see how they changed over time.
J. Aughenbaugh: Yeah. There are other scholars who concur with me that the writing back then was to the point, short, punchy, senses. Because they understood that they wanted practitioners to be able to read and comply with them. Yes.
N. Rodgers: Hence, what they used to call reading the law.
J. Aughenbaugh: That's right.
N. Rodgers: That's just reading and understanding the court opinions. Okay, cool.
J. Aughenbaugh: Yeah.
N. Rodgers: All right. Thank you, Aughie.
J. Aughenbaugh: Thank you. Next time, listeners, we will look at, in my estimation, one of the most fascinating characters in the history of American politics and government, William Howard Taft.
N. Rodgers: The only one to be president and Chief Justice. The only one so far.
J. Aughenbaugh: So far, yes. Because there's no prohibition on that in the United States Constitution. You just can't occupy both at the same time.
N. Rodgers: That would be Vladimir Putin. That would be Russia. That would not be the United States. One job at a time, buddy. One job at a time.
J. Aughenbaugh: Who would think that that was a good idea? Who would say, I could handle both of these? Oh, my goodness. No.
N. Rodgers: This narcissist that you would have to be to think that you could be both of those things at the same time is not a person we should have as president of the United States. I'm just going to declare that right now.
J. Aughenbaugh: Remember, Nia, we did a series of episodes with our colleague Bill Newman about presidents. We all joked about how the presidency ages the occupant. You imagine how much you would age if, at one point in time, you were both president and Chief Justice?
N. Rodgers: Yeah, no. I'll be careful.
J. Aughenbaugh: All right.
N. Rodgers: Cool.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thanks, Aughie.
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