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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 have a little bit of a cold because it's the start of the year and that's how these things work. Even though this won't come out for a month or so, maybe a little longer, I'll probably still have my cold even then because that's how colds work. How are you doing?
J. Aughenbaugh: It's the cold and flu season.
N. Rodgers: It is.
N. Rodgers: It is. I just fall in line every year.
J. Aughenbaugh: Well, the date that we're actually recording this episode, listeners, the spring semester has begun for VCU. We usually record at the tail end of the week.
N. Rodgers: Used up your voice.
J. Aughenbaugh: Okay. I've used up my voice. Right now, it sounds like I spent all of Thursday night at a bar drinking scotch and smoking cigars. Which, by the way, neither happened.
N. Rodgers: I think it's funny how professors use up their voice throughout the week. If you see them on Friday afternoons, they're all croaky because they've been reaching the back of the room for five days.
J. Aughenbaugh: Yeah, one of the classes I teach in the spring semester is Intro to US Government, and it's a large auditorium. Inevitably, there is a handful of students who sit in the furthest reaches of the auditorium.
N. Rodgers: Where you can't reach them or pick on them, apparently. Have you met Aggie? He's really good eyesight now that he's had his surgeries. He could see you all the way back there and he's going to call on you.
J. Aughenbaugh: But anyways, listeners today, we are continuing our series of Supreme Court eras. The previous episode was, well, actually, it was episodes because we did a two parter.
N. Rodgers: I forgot to ask you a question about that. So I want to ask you a question about that before we move on to the Burger court.
J. Aughenbaugh: Okay.
N. Rodgers: Earl Warren, when he was referred to with an honorific, was he referred to as governor or Supreme Court chief? Which title? You know how when you have multiple titles somebody's been a senator and president, they're always president. So it was the President Taft, it was not Supreme Court Justice Chief Taft because that would be president.
J. Aughenbaugh: Well, that would be awkward.
N. Rodgers: Well, it's really long. But which one was he referred to as in honorific?
J. Aughenbaugh: Typically, Mr. Chief Justice.
N. Rodgers: Because it was last title?
J. Aughenbaugh: Well, actually, there are two schools of thought on that, Nia. One is, it should be your last title, last official government title. Others believe it should be the most prominent of the two positions. There are some in the United States who believe that federal government positions are more prominent than state government positions. He actually didn't care one way or the other. He was somewhat down to earth. But he was referred to as Mr. Chief Justice, and after he retired former Chief Justice of the United States Supreme Court, the Honorable Earl Warren. Yes. That's the other thing that a lot of people who are doing introductions sometimes forget to do is you got to add the honorable.
N. Rodgers: Honorable.
J. Aughenbaugh: Yes.
N. Rodgers: Even whether they were or not you call them back?
J. Aughenbaugh: Yes, right?
N. Rodgers: I'm not saying he wasn't, I'm just saying even if it's like a former governor, you're supposed to say the Honorable Governor Youngkin, who tomorrow will be our former Virginia governor cause tomorrow, Abigail Spanberger will become our new governor?
J. Aughenbaugh: Next governor, and the way it should be said is governor or the former governor and then you say the honorable.
N. Rodgers: Okay. You don't say the honorable former governor?
J. Aughenbaugh: No.
N. Rodgers: You're not describing the governorship, you're describing the person.
J. Aughenbaugh: The person, that's right.
N. Rodgers: Got you.
J. Aughenbaugh: The first part is the position they had attained, and then the second part is you add the honorific, the honorable.
N. Rodgers: If they are removed from office, would you still add the honorable? Like if they're impeached?
J. Aughenbaugh: Yes.
N. Rodgers: Or would you say the semi honorable?
J. Aughenbaugh: Well, in the case of Richard Nixon, when he would be introduced at events, it was former Mr. President Richard M. Nixon the Former President, the Honorable Richard M. Nixon, he always preferred his middle initial to be said. That's the thing that you should ask the government official who you are introducing. How do you want your name to be said?
N. Rodgers: Yeah. How would you like to be styled? I think is the formal way of that.
J. Aughenbaugh: Style, yes.
N. Rodgers: How are you to be styled? Because the Former Senator Clinton prefers to be the Former Secretary of State, Clinton.
J. Aughenbaugh: That's right.
N. Rodgers: She comes from the school of that was not only the last position, but the highest position that she held.
J. Aughenbaugh: That's right.
N. Rodgers: Anyway. Sorry. I forgot to ask you that before we moved on from Earl Warren. I forgot to ask that. Sorry about that.
J. Aughenbaugh: But before we move to the Burger Court, to me, see, I'm sarcastic enough to where I actually would like somebody to make the verbal faux pas of saying this dishonorable, you know, like a fraudian slip.
N. Rodgers: Yeah. That would be fun. It'd be fun to see what somebody's face did if they were on camera.
J. Aughenbaugh: Yeah.
N. Rodgers: Can I just say that Earl Warren and Warren Burger mess me up every time because I'm like, their names are so close and I found out in your notes Warren Burger's middle name is Earl. So I'm like, Oh, well, that just makes it worse. Now it's like Earl Warren got married to somebody, and now we just mixed up the names Warren Earl Burger, Earl Warren. They should've been separated by a court by a guy named Bob Zarutska or something where you just have no confusion.
J. Aughenbaugh: Yeah, there should have been a chief Justice in between that was somebody like Tom Jackson. It was so different, it's like the comma between two nouns. But moreover, listeners, I recommend you pull up photos of both of them. Both of them look like they're out of type casting for what a male Supreme Court justice should look like, because they are these big dudes with these big granite faces. They got gray hair. They look like chief, they look like Supreme Court justices. They got this this image of a authority.
N. Rodgers: Oh, my gosh, you're right. I'm sorry. I just did this because Aughie made a suggestion, and I'm like, Okay, I can do that. I have the Internet. Oh, my gosh. They both look very stern.
J. Aughenbaugh: Yes.
N. Rodgers: They both look very stern.
N. Rodgers: Like at any moment, they're going to say no to whatever it is that you want.
J. Aughenbaugh: Yeah, they occupy the robe very well. Where some of the justice, I was just like, how did you slide in through the back door.
N. Rodgers: You don't have the gravitas. They both look like they have. Of course, you have to wonder how much of that comes from being the supreme, we don't know what they looked like when they were young men. By the time their photographs are being, I mean, we do. We can find photographs of them because they're not out of date range. But you know what I mean? Well, it's always interesting to me to look at pictures of presidents before their president and the presidents after their president because I don't care how long you serve as president. You could serve 20 minutes as president and it's going to age you about 50 years. You're just going to look gray and tired and big bags under your eyes and stuff. That's how I've come to think all presidents look Because they start off young-ish, well, not well, not recently. But man, that just takes you downhill fast, the presidency.
J. Aughenbaugh: Yeah, our last two presidents were older people when they were selected. But when you think about, for instance, three in a row, we had Bill Clinton, Bush 43, and Barack Obama. They were all middle aged. They weren't old. They were they were middle aged individuals, and you look at photos when they were first sworn in and then you look at photos from their last year of their two terms in office. Oh, my goodness. You're like, What does that position do to these people, right?
N. Rodgers: Exactly. It's like presidents live in dog years.
J. Aughenbaugh: Yes.
N. Rodgers: You know how dogs live seven years for every one human year? Something like that, I can't remember the exact ranges. But, yeah, it's like presidency is in dog years. Just saying. The Burger court the burger court we get 1969-1986, right?
J. Aughenbaugh: Yeah, pretty much Nixon to Reagan. Warren Burger replaced, as Nia pointed out, listeners, Chief Justice Earl Warren, and he served until halfway through Ronald Reagan's second term as president, and Warren Burger was replaced by his colleague, William Rehnquist. Earl Warren, Warren Burger, and then William Rehnquist.
N. Rodgers: Warren and Burger both retired, they did not die on the supreme court.
N. Rodgers: That is correct.
J. Aughenbaugh: That is correct, yep. The Burger Court, one of the first things we should note about the Burger Court, the media always portrayed the burger court as being conservative.
N. Rodgers: A swing away from the Warren Court and its progressiveness?
J. Aughenbaugh: Yeah.
N. Rodgers: Although really, if anybody was standing anywhere that wasn't all the way in the progressive, they would look conservate. That's not really a fair comparison. I look pretty dan conservative compared to AOC, because I don't know that the would most conservatives would think of me as pretty darn good conservative probably think of me more as middle independent.
J. Aughenbaugh: Yeah.
N. Rodgers: It depends on where you're standing.
J. Aughenbaugh: Again, another good example of Miles law, where you stand depends on where you sit. But for constitutional law and judicial politics scholars, Nia, the Burger court is the "last liberal court that we've had." It's a transitional court because there were holdover justices from the Warren court who still influenced the early years of the Burger court to issue some of the most prominent shall we say liberal Supreme Court rulings in our country's history. For instance, Roe V. Wade.
N. Rodgers: I was going to say 69 Roe V. Wade was three years later. Tow years later, yeah
J. Aughenbaugh: No, 1973, so four years later. The only time the Supreme Court has held that the death penalty was unconstitutional, the Burger Court.
N. Rodgers: Conservative only by standing next to the most progressive court ever.
J. Aughenbaugh: That's right. A lot of constitutional law scholars refer to the Burger court as a transitional court. It's like the tail end of the Hughes Court and the Harlan Fish Stone courts were transitional courts. As the Supreme Court went from conservative to eventually with the Warren court, just very progressive, very liberal. Again, the court is an institution. Listeners, Nia, is fond of saying that asking the government to change is like forcing a huge cruise ship to turn.
N. Rodgers: Oh, yeah. You just can't. It takes forever. Like, it is an incremental process because of the size of the institution.
J. Aughenbaugh: Yes.
N. Rodgers: If you suddenly wanted Congress to start working, good luck. Because they haven't been working for the last 50, 60 years. Not really. They stopped doing stuff and started saying, Hey, we've just let the president do that. These people who are like, Oh, elections matter. Elections do matter. Don't get me wrong. Elections matter in every fundamental way. But you also have to be prepared to do it over and over and over, because it's incremental. Can't change everything with one election. Tada that'll fix it, doesn't work.
J. Aughenbaugh: We even see this with presidential elections. It's a big surprise that we've not gotten meaningful policy change in a host of policy areas when we keep on flipping back and forth from Democrat to Republican to Democrat to Republican.
N. Rodgers: Because people vote on highly emotional issues, which I understand.
J. Aughenbaugh: Sure.
N. Rodgers: But the actual running of the country, the actual nuts and bolts nitty gritty sort of what we think of as the Procedures Act, the process of running the government shouldn't be swinging that far back and forth. So it ends up. Anyway, where was Earl Warren born?
N. Rodgers: Sorry, Warren Burger. Warren Burger. We're going to do that the whole time.
J. Aughenbaugh: No worry. Listeners, we apologize in advance.
N. Rodgers: We're going to mix them up. I'm going to mix them up.
J. Aughenbaugh: Wait a minute. I teach this stuff, and I don't know how many times students have had to correct me, particularly in my judicial politics class. They're like, you meant Warren Burger. I'm like, Did I say Earl Warren? Sorry, folks. Warren Burger, he was born in St. Paul, Minnesota, one of seven children.
N. Rodgers: He's our first chief born in the 1900s.
J. Aughenbaugh: That's right. He was born in September 17, 1907, and he lived nearly nine years after he retired as Chief Justice. He did.
N. Rodgers: I always wonder what they do after that. After you've been Chief Justice. What's left? I guess you go in and write books.
J. Aughenbaugh: He didn't do either. In fact, the main thing he did when he retired as Chief Justice, he led the federal government's not bicentennial. It was the bicentennial celebration of the writing and ratification of the US Constitution. He chaired the commission. He was one of the first former Supreme Court justices who championed civics education in the United States when he stepped down from the Supreme Court.
N. Rodgers: These people need to know more about what we do.
J. Aughenbaugh: Similarly, Sandra Day O'Connor and Anthony Kennedy have done the same thing. Sandra Day O'Connor was prominent. She went on TV and basically acted like the nation's school marm to.
N. Rodgers: I need better education.
J. Aughenbaugh: Better civic.
N. Rodgers: That's right. Better civics education.
J. Aughenbaugh: She left the other subjects alone.Was he a good student?
J. Aughenbaugh: No. Much like his predecessor, he was an average student. He at the age of eight, he had to stay home from school for an entire year because he contracted polio.
N. Rodgers: But that didn't affect his walking?
J. Aughenbaugh: No, it did not.
N. Rodgers: That's very lucky in that time period. Was he Minnesota nice? Was he a nice guy?
J. Aughenbaugh: He was until.
N. Rodgers: Sorry, we say Minnesota because he was born in St. Paul. Sorry we didn't mention that but.
J. Aughenbaugh: He was until he became a federal court judge, and then something like, snapped or clicked. Because he became pompous.
N. Rodgers: Probably started sounding like the teachers and peanuts.
J. Aughenbaugh: We're going to get to this when we look at his leadership of the court. But one of the reasons why he struggled to lead the court was that many of his colleagues on the Supreme Court, and from what I read, even some of his colleagues on his previous position as judge on the DC Circuit Court of Appeals, thought that he was pompous and very condescending, which is very surprising because almost everything else written about him was, he was your standard Minnesota.Nice guy, worked hard, he wasn't at the top of his class. He attended public school. He was the president of his high school student council. He received a partial scholarship to attend Princeton, but he had to decline because his family couldn't pick up the rest of the cost, and back then, it was not normal to borrow a huge amount of money to go to college.
N. Rodgers: The days of student loans in his day were not.
J. Aughenbaugh: He attended extension classes at the University of Minnesota while he sold insurance for the Mutual Life Corporation.
N. Rodgers: That's going to sound familiar to your students. He worked his way through school.
J. Aughenbaugh: Then afterwards, he attended and he graduated from the St. Paul College of Law. Which has now been renamed the William Mitchell College of Law and it's been renamed again. It's the Mitchell Hamline School of Law.
N. Rodgers: It says, money gets you names on an institution.
J. Aughenbaugh: He did graduate law.
N. Rodgers: He did go to law school. Following now the newer tradition, whereas we saw early Chief Justices were trained into the law. He went to law school and graduated from law school.
J. Aughenbaugh: Interestingly enough, he actually did better in law school than he did in high school and his undergrad because he actually graduated Magna cum Laude from law school in 1931.
N. Rodgers: He took to the law?
J. Aughenbaugh: He took to the law.
J. Aughenbaugh: Interestingly enough, I usually find one of these tidbits and I'm like, you can't say this about any of the current Supreme Court justices. Nearly 75% of his law school courses were night courses. He went to night school.
N. Rodgers: 'Cause he worked full time during the day.
J. Aughenbaugh: He worked during the day, selling insurance.
N. Rodgers: An insurance salesman. That says a lot. Just saying.
J. Aughenbaugh: He gets out of law school. He joins a number of firms. But where his career transitioned Nia, is that in 1948, he was appointed to serve on Minnesota's Interracial Commission, which was looking at issues related to racial desegregation.
N. Rodgers: Even before Brown?
J. Aughenbaugh: Yep. Okay.
N. Rodgers: Minnesota was out ahead of things.
J. Aughenbaugh: He was then also the President of St. Paul, Minnesota's Council on Human Relations, which looked at improving the relationship between the city's police department and its minority residents.
N. Rodgers: That's a topic that lives with us today.
J. Aughenbaugh: Particularly in that part of the country. Where he gained political prominence was back then in Minnesota, it was a pretty competitive state, Democrats and Republicans. He was supportive of Republican governor of Minnesota Harold Stassen. 'Cause Stassen was the one who appointed him to the Interracial Commission. He was one of Harold Stassen's insiders. He supported in listeners, Nia and I know of Harold Stassen simply because we did an entire episode about people who ran for the Office of President multiple times and never won. Harold Stassen is one of those people. He ran for the Republican Party nomination, for president four different times.
N. Rodgers: We said in that episode and I believe it to be true, but there is something to be said for somebody who just won't give up. There's a stick-to-it-iveness. There's some part of you that thinks, "Take the message, dude. They're never going to pick you". But then there's another part of you that thinks, "But good for you for trying. Good for you for saying, I'm going to keep swinging for the fence use what's the worst that can happen is I swing for the fence and I don't make it".
J. Aughenbaugh: Stassen was a liberal Republican. He was supportive of business. But on social issues, he was part of the Republican Party's liberal wing. He frequently ran for the Republican Party nomination for president as an alternative to, say, for instance, Richard Nixon. Who was a Cold War hawk. Stassen could never get there.
N. Rodgers: You're getting the transition between the two parties. Now you're starting to.
J. Aughenbaugh: In 1952, Burger convinced the Minnesota delegation with Stassen's approval to cast their support for Dwight Eisenhower.
N. Rodgers: Is that in the one where Eisenhower was having trouble getting enough delegates? I was going to ask you about that. He played a part in that. He played a part in swinging the delegates into, because Minnesota doesn't have a small amount of delegates. It's a healthy chunk.
J. Aughenbaugh: It's one of those medium sized states, and this was, again, listeners, if you go back to our previous episode, the first part of our two part episode on Earl Warren, this was the Republican National Convention where the first four.
N. Rodgers: Promises were made.
J. Aughenbaugh: The first four or five votes, no candidate could get a majority of the votes. The Eisenhower campaign started cutting a whole bunch of deals. They cut a deal with the California delegation that was very supportive of their native son, Earl Warren. The Minnesota delegation, Stassen had no interest in serving in the Eisenhower administration. But he did extract a promise that for his states votes at the Republican National Convention, the Eisenhower administration would have to take care of one of his chief lieutenants, Warren Burger.
N. Rodgers: The deals were made left and right at the 1952 convention.
J. Aughenbaugh: Republican National Convention. Eisenhower will.
N. Rodgers: Will gladly pay you Tuesday for a cheeseburger today. There was a lot of that.
J. Aughenbaugh: Eisenhower wins a presidential election, and he appoints Burger to the position of Assistant Attorney General in charge of the civil division. Not the civil rights, but the civil division. That's the division that handles.
N. Rodgers: Disputes versus criminal.
J. Aughenbaugh: That handles all prosecutions and all lawsuits concerning the federal government as a civil litigant. Not civil rights, but civil litigation.
N. Rodgers: That's about money. Civil litigation is always about money, basically. You wronged me in some way, you hurt me in some way, and I want you to pay as opposed to the criminal, which is you have hurt me, but that by extension, hurts all of us, and you should have to forfeit your liberty, your property, your something.
J. Aughenbaugh: And spend some quality time in one of our finer prison institutions.
N. Rodgers: Gently.
J. Aughenbaugh: In 1956, after Eisenhower, this was before Eisenhower won re-election. In '56, Eisenhower appointed Burger to the DC Circuit Court of Appeals.
N. Rodgers: Which is the stepping stone as we all know the Supreme Court. If you want to go to the Supreme Court, you should get somebody to appoint you to the Court of Appeals for the District of Columbia. When I am president, that's the first thing I'm going to appoint Aughie to. Because it will be my way to then elevate him to the Supreme Court.
J. Aughenbaugh: By the way, she won't do it.
N. Rodgers: He was critical of the, from that position. That's a place where you can be critical of the Supreme Court and have it matter. Because you're right down the road. You're right there in the mix of things. You can go, and it counts, whereas if you're in Texas going, nobody cares. I'm sorry, Texas. I'm not trying to be ugly. It could be California. Those district courts don't have nearly I mean, those Court of Appeals don't have nearly as much effect.
J. Aughenbaugh: In particular, Nia, think about the only business of any import in the District of Columbia is government.
N. Rodgers: It's the government. It's the only concern going. It's a relatively small pond, and you're swimming there.
J. Aughenbaugh: Yes. Warren Burger attracted a whole bunch of attention because he was quite critical of the Warren Court, particularly the Warren Court's criminal rights decisions. Let's segue Nia to the membership on the Burger Court. Now, remember, listeners, a few moments ago I said the Burger Court was a transitional court. Why? Because when Warren Burger took office as chief, there were a number of holdovers from the Earl Warren Court. There were seven veterans of the Warren Court when Burger took over. Hugo Black, William Douglas, John Marshall Harlan, William Brennan, Potter Stewart, Byron White, and Thurgood Marshall. Easily five of them were Earl Warren supporters, progressive, liberal. Not so much Harlan. Potter Stewart and Byron White, not so much. Potter Stewart was the classic swing vote even in the 1960s. Burger gets confirmed by the Senate. Abe Fortas, who was the first nominee to replace Earl Warren, not only does he not get a vote in the Senate, he's eventually forced to resign under an ethics scandal Cloud. Richard Nixon gets immediately a second Supreme Court appointment to replace Abe Fortas, who was also a consistent Warren Court vote. But Nixon, who had promised in the 1968 presidential campaign that he would appoint justices, particularly Southerners, to the Supreme Court as a counterbalance to the liberal Warren Court. Nixon strikes out on his first two nominations to replace Abe Fortas. He first nominated Clement Haynsworth. Haynsworth ends up being targeted for opposition by labor groups. Okay. Carswell was the next nominee to replace Abe Fortas, was considered by the American Bar Association as barely qualified to serve on the Supreme Court. I'm going to slightly digress.
N. Rodgers: Nixon's choices aren't the best. They are clearly political choices, not talent choices.
J. Aughenbaugh: Listener, Nia, please forgive me. I have to digress just for a moment. Carswell was so mediocre that one of the Republican senators who supported Carswell up on the floor of the Senate and in his speech of support, went ahead and said, we should confirm Harrold Carswell because even mediocre Americans need representation on the Supreme Court.
N. Rodgers: Oh, my gosh. That is the very epitome of damned with St. Praise.
J. Aughenbaugh: If you want the definition of a backhanded compliment, that should be in the dictionary.
N. Rodgers: Wow. That almost sounded personal.
J. Aughenbaugh: Wait a minute. Hold on. Nixon's struggling to find a successor for Fortas. Warren Burger reaches out to him and says, I got somebody for you. He's already a Federal Appeals Court judge in the Seventh Circuit. I know him personally. He recommended Harry Blackman.
N. Rodgers: Funny enough was the best man at Burger's wedding. When he says he knows him personally, he knows him.
J. Aughenbaugh: They were good friends at the same elementary and middle school.
N. Rodgers: But that took a while.
J. Aughenbaugh: Yes. It was a 391-day vacancy.
N. Rodgers: That's to say, is that the longest?
J. Aughenbaugh: It's the second longest. The longest was the 419 days between Justice Scalia's death in February of 2016 and the confirmation of Neil Gorsuch in April of 2017, because remember, after Scalia died, Barack Obama nominated then Mary Garland, who was serving on the DC Circuit Court of Appeals.
N. Rodgers: He was in his last year of his presidency.
J. Aughenbaugh: The Senate Republicans said, no, he's not even going to get a hearing. We're let alone take a vote.
N. Rodgers: Which set as a dangerous precedent, and it will come back to bite a Republican president at some point. Mitch McConnell played bad politics there. He won for now. He won it short term.
J. Aughenbaugh: I don't even know if it was bad politics. It was a response to what Democrats did to Bush 43's lower federal court nominations. Again, this is tit for tat. It starts in the late 60s and during Bush 43 administration, the Democrats who controlled the Senate for the majority of Bush's second term in office, in some cases, refused to take votes on Bush's Federal Appeals Court nominees because they were afraid that, because they were young conservatives, they would be really good, likely nominees to the Supreme Court. Among the Republicans, they felt very justified. Now, I don't think it's right. I think they should go ahead and give a vote. They should take a vote.
N. Rodgers: They should take a vote, and if they're going to say no, just say no.
J. Aughenbaugh: One of the perks of being president is you get to nominate federal court judges. That's in the Constitution.
N. Rodgers: Yes.
J. Aughenbaugh: You, as the Senate, have the opportunity to say to a president, we don't like your choice for whatever reason. It could be political, or in the case of Carswell. Come on. He's mediocre.
N. Rodgers: Whatever it is.
J. Aughenbaugh: Anyways, so almost immediately, two more nominations arise for Nixon. Hugo Black and Justice Harlan both die in 1971. Nixon replaces them with Lewis Powell and William Rehnquist.
N. Rodgers: Were shadowing. We'll see William Rehnquist in another episode.
J. Aughenbaugh: Yes. In November of 1975, after Nixon has already resigned, we now have a new president, Gerald Ford. Yes.
N. Rodgers: Something about Richard Nixon that I think is little known, and I really liked in your notes is that he considered nominating a woman?
J. Aughenbaugh: Yes, he did.
N. Rodgers: He considered nominating Mildred Lilly to the court. Warren Burger opposed it and basically ran around with his hair on fire, and Lewis Powell got chosen over Mildred Lilly. That's how progressive Richard Nixon, as a Republican conservative, is that he's out there making the EPA. He's out there doing the cleaning air and water acts and blah, blah, blah. He's out there doing all this stuff, and he's trying to get a woman onto the court. Burger says no.
J. Aughenbaugh: Burger went ahead and set in a couple of meetings with Nixon's chief of staff. I don't think that the members of the court are ready to have a female colleague.
N. Rodgers: I won't be on the court if she is, basically. I will hold my breath. Instead of calling his bluff, which is what they should have done, they caved. But anyway, and Lewis Powell is fine, blah, blah, blah. We ended up with Sandra Day O'Connor anyway, but it's unfortunate because it could have been 15 years earlier.
J. Aughenbaugh: Six.
N. Rodgers: Sandra is in '77?
J. Aughenbaugh: Hold on. Ten years later. 1981.
N. Rodgers: Ten years later.
J. Aughenbaugh: November of 2075, William Douglas retires after 36 years of service.
N. Rodgers: He's probably exhausted.
J. Aughenbaugh: He actually stayed on, and this is a direct quote, "I don't want that son of a bitch Nixon to appoint my replacement."
N. Rodgers: You really feel, sir.
J. Aughenbaugh: Yes. To this day, William Douglas has served the longest on the Supreme Court, 36 years. By the way, for listeners who may be wondering, Clarence Thomas has to serve two more years, and he will set the record. It basically goes William Douglas, John Paul Stevens, and now Clarence Thomas in terms of length of service on the court. Now, Douglas held on way too long. He held on for about two years after he suffered a series of strokes, each one successively worse.
N. Rodgers: Is that why there was an impeachment inquiry?
J. Aughenbaugh: No.
N. Rodgers: About him was because of his health?
J. Aughenbaugh: No. The impeachment inquiry, which occurred four years earlier in 1970, came after Southern Democrats and Republicans were able to get Fortas off the court because there were really three hardcore liberals on the Warren Court, William Brennan, Abe Fortas, and William Douglas.
N. Rodgers: The impeachment inquiry was a political.
J. Aughenbaugh: Once they took down Fortas, they were like, hey, we can't go after Brennan, because there were never any allegations of wrongdoing with Brennan. We only get allegations of wrongdoing about William Brennan after he retires. William O. Douglas, by 1970, was on his fourth marriage, and each one was with a yet younger woman. He had such bad alimonian child support obligations that he started cranking out a whole bunch of environmental books while he is on the court.
N. Rodgers: That's this guy. We talked about him.
J. Aughenbaugh: William Douglas.
N. Rodgers: Who's he replaced by when he has his stroke?
J. Aughenbaugh: The aforementioned John Paul Stevens, who was a sitting Federal Appeals Court judge in Illinois. 1981, Potter Stewart retires. Ronald Reagan satisfies one of his campaign promises. He appoints Sandra Day O'Connor to serve as the first woman on the Supreme Court. Then finally, in September of 1986, Warren Burger retired, and he was replaced by William Rehnquist. Reagan got a two-for on that one because he appointed sitting Associate Justice William Rehnquist to be the next chief.
N. Rodgers: He got a position to fill.
J. Aughenbaugh: He got another position to fill, and he picked Antonin Scalia. Yes.
N. Rodgers: That's where we get Scalia. Generally, our jurisprudential philosophy, wow, I ruined that word. Sorry.
J. Aughenbaugh: You excily pronounced all the syllables, but you did it in such a way that it sounded awkward.
N. Rodgers: Yes. I did sound awkward.
J. Aughenbaugh: Jurisprudential.
N. Rodgers: Jurisprudential.
J. Aughenbaugh: That's right.
N. Rodgers: Is transitioning from crazed liberal, which is not really crazy liberal, but pretty liberal. Now we're getting the swing, because that's what we see in the court is a lot like what we see in the presidency is swings from one thing to another. We're drifting more conservative at this point.
J. Aughenbaugh: Burger takes office in 2069. There was Brennan Marshall and Douglas very liberal. Douglas retires. He's replaced by Stevens. Stevens was at least initially a moderate conservative. Potter Stewart and Byron White often took centrist positions. They were the infamous swing votes. Rehnquist Burger, and to a lesser extent, Pow made up the conservative block.
N. Rodgers: We're kind of 333 like we are right now.
J. Aughenbaugh: Ish. Blackman started off as a reliable conservative, but he shifted towards the liberal block pretty early on. That's why a number of scholars refer to the Burger Court as the center holds, meaning that either the liberals or the conservatives would have to pick off.
N. Rodgers: One or two of the senator.
J. Aughenbaugh: That's right. They would either have to get Byron White and Potter Stewart or John Paul Stevens and Lewis Powell. They had, 'cause again, and that's why conservatives are very critical of the Burger Court because they, I mean, think about it. You know, by 1981, Nixon and Ford had basically gutted the Warren Courts membership. I mean, that's rather significant turnover.
N. Rodgers: Is Brennan, at this point, still acting like the intellectual leader?
J. Aughenbaugh: No, because Burger was so so disliked. The holdovers from the Warren Court that he never gave him any meaningful assignments. Where Brennan really showed his skill was that he was able to go ahead and pick off some of the moderates and minimize the damage that the Burger Court could do to Warren Courts precedents. If that makes sense. Now, Burger was overshadowed, and to your question, Burger was not the intellectual heavyweight on his court. For the liberals, it was Brennan, for the conservatives, it was Rehnquist. Rehnquist was considered a conservative if you will, intellectual genius. I mean, he pushed the Burger Court to the right long before the Burger court was ready. Particularly in the area of federalism.
N. Rodgers: Then his intellect is at some point, eclipsed by Scalia's.
J. Aughenbaugh: Yes.
N. Rodgers: 'Cause Scalia's probably the if not the smartest justice we've ever had. Right up there in the Top 5.
J. Aughenbaugh: One of the smartest.
N. Rodgers: In terms of logical argument.
J. Aughenbaugh: Yeah.
N. Rodgers: I like that you put in the notes that Burger often questioned the need for a judicial remedy at all.
J. Aughenbaugh: Yes.
N. Rodgers: I think that's interesting that the guy who's the chief Justice is like, are we should we even be involved in this question? Like, is this question us or is this question one of the other branches? Like, is this question, I think that's interesting.
J. Aughenbaugh: This reflects a different conservatism, listeners. Burger had a judicial modesty or self restraint that you oftentimes don't necessarily see with modern day conservativism. But on the current Supreme Court, you know, I'll give you an example, John Roberts would fall into that tradition, because Roberts oftentimes questions whether or not the courts should be addressing a particular dispute instead of the political branches.
N. Rodgers: You have in here a quote that I like courts could not cure all injustices.
J. Aughenbaugh: That's right.
N. Rodgers: I think that's a thing that it's really interesting for the chief to feel that way. It probably has some effect on the court overall. I know, personally, of one case in the Burger Court that I think of as like the major case, which is Rovi.
J. Aughenbaugh: Yes, Rovi 1973.
N. Rodgers: But there's got to be others Yes.
J. Aughenbaugh: We'll try to go in somewhat of a chronological order.
N. Rodgers: Let's not just skip around.
J. Aughenbaugh: 1971, Lemon versus Kurtzman in an eight to one decision, with the opinion written by Chief Justice Burger, the court struck down a state law that allowed school superintendents to reimburse Catholic schools for the salaries of their teachers. The court held that this violated the Establishment Clause of the First Amendment. This is the case that created the infamous Lemon test. See our previous podcast episode where we discussed judicial tests. That's right. It's a three prong test to determine whether or not the government is too, ''entangled with religion.''Yes.
N. Rodgers: If you're wondering the establishment clause, the government shall not establish a religion? \.
J. Aughenbaugh: Yes.
N. Rodgers: It also says in the same breath, and it will not prevent other people from engaging engaging in their religion.
J. Aughenbaugh: Yes.
N. Rodgers: The First Amendment was like, you can be whatever religion you want to be, but the government cannot make you be a religion. Which is a good thing.
J. Aughenbaugh: Well, what's really fascinating is a little bit the Rehnquist Court, but certainly the Roberts Court has basically gutted. They just have not officially buried the lemon test, but they've gutted the heck out of the lemon test. Next, New York Times versus the United States, and in the Companion case was the Washington Post versus the United States. 1971, this is the infamous Pentagon Papers case. The Supreme Court in a 63 vote held that the United States government could not engage in prior restraint of the press who had gained access to a classified document, otherwise known as the Pentagon Papers.
N. Rodgers: If you think this is still in question today? I would point you to Google News. Like I mean is the Pentagon Papers are all about the prosecution of the Vietnam War.
J. Aughenbaugh: Yes. The Rand Corporation received a contract from the government to study US involvement in Vietnam. What the Pentagon papers basically concluded was the United States got involved in Vietnam at the tail end of the Truman administration, certainly the beginning of the Eisenhower administration, which most of the American public was unaware of.
N. Rodgers: Everybody thought it was LBJ.
J. Aughenbaugh: Oh, well, actually, well, Kennedy was the first one to publicly send military advisors. But LBJ ramps it up. The Nixon administration, interestingly enough, didn't come off badly in the in the Pentagon papers because the Pentagon Papers main conclusion was, we've been so involved in Vietnam for decades, that it's not surprising that we just keep on adding more troops, more sunk costs into this war.
N. Rodgers: This is the ultimate sunk cost fallacy.
J. Aughenbaugh: That's right.
N. Rodgers: Just win if we just keep throwing more money at this problem.No, we won't. But anyway, part of the Nixon administration's point was, it is ours to release not anybody else's, and you just can't go around releasing stuff that we don't want released.New York Times and the Washington Post won because they got to publish.
J. Aughenbaugh: This was seen as These papers, a victory for the freedom of the press.
N. Rodgers: Freedom of the Press.
J. Aughenbaugh: Which is in the First Amendment. We've already mentioned Roe V. Wade for our non-American listeners. This is the case where the United States Supreme Court said that a right to privacy in the US Constitution extends to a woman's decision to have an abortion. This was precedent until 2022, when the Supreme Court held in Dobbs v. Jackson that there is not a right to privacy in the Federal Constitution that covers a woman's right to choose.
N. Rodgers: That, in fact, it is the states that can decide these health issues.
J. Aughenbaugh: Yes. One of my favorites that I get to discuss every year in constitutional law, Miller v. California, that looks at government efforts to regulate pornographic and obscene speech. In a five to four decision written by Chief Justice Burger, the court laid out the infamous Miller test, which is still controlling precedent on the court. The court held that First Amendment protections extend only to pornographic speech, not obscene speech. But they created a test that will assist courts in judging government regulations of said speech.
N. Rodgers: May not be able to define the difference, but I know it when I see it.
J. Aughenbaugh: By the way, listeners, Nia just gave us Potter Stewart's famous quote from Jacobellis vs Ohio, I believe, 1964, where he said, I cannot define obscene speech, but I know it when I see it. Hey, we got another Nixon administration Goody. US v. Nixon. In an 8 0 decision written by Chief Justice Burger, the Supreme Court upheld President Nixon's claim that executive privilege protected all communication between Nixon and his advisors.
N. Rodgers: Wait, upheld his claim?
J. Aughenbaugh: Oh, excuse me, rejected. Oops.
N. Rodgers: Big difference. One of those means you resign. The other one means you finish out your president.
J. Aughenbaugh: No, let's be very clear. In that decision, the Supreme Court did acknowledge that chief executives of government institutions do have an executive privilege. The problem for Nixon was he claimed it was universal, absolute.\.
N. Rodgers: All communications, which is not.
J. Aughenbaugh: What the court said in US v. Nixon was that interest that a president has and executive privilege has to be also weighed against a criminal investigation.
N. Rodgers: If Aughie and I are just hanging out and we're talking about we're swapping recipes for hummus because that's what we've been doing lately.
J. Aughenbaugh: That's right. Then it's not a problem. That is a private conversation and blah, blah, blah. If Aughie and I are sitting around talking about how to steal 800 million tons of garbanzo beans from a specific warehouse in a specific location, that is not a protected communication. It doesn't matter which one of us is president, which one of us is Supreme Court justice. It doesn't matter because that's not a protected communication because we're talking about committing a crime. We are or we are committing a crime. We are verbalizing the committing of a crime, which is, in this case, what was happening with the White House tapes. They were talking about the Watergate break in. I was like, no, that's privileged.
N. Rodgers: They're allowed to. No, it's not because.
J. Aughenbaugh: Again, as I've explained in a number of different fora, the idea of privilege, the idea behind it exists in a number of aspects of life.
J. Aughenbaugh: We want government officials to have advisors who are willing to give advice.
N. Rodgers: That speak freely.
J. Aughenbaugh: That won't be necessarily made public. Because they might be less likely to give all that advice.
N. Rodgers: Be honest, tell the truth.
J. Aughenbaugh: Yes.
N. Rodgers: All those other things.
J. Aughenbaugh: Consider off-the-wall ideas about solving a government problem. Likewise, we have privilege in regards to spouses. Why? Because we actually think that spouses talking to one another is a good thing.
N. Rodgers: Next slide. You run stuff crazy stuff by your spouse. I've decided that instead of putting our kid in daycare, I'm just going to velcro him to me. That could conceivably be treated as child abuse. But when you're talking to your spouse and your spouse goes, you cannot wear our kid all day.
J. Aughenbaugh: We have other kinds of privilege. We have doctor patient. Why? Because doctors can't go ahead and decide the best course of action of solving whatever physical malady you have if a patient doesn't feel safe.
N. Rodgers: Safe. Talking about it. If you want to walk in there and you say, I have a thing, but you don't tell your doctor what the thing is, they can't help you.
J. Aughenbaugh: Yes.
N. Rodgers: Whereas if you walk in there and you say, I think I have an STD.
J. Aughenbaugh: Yes.
N. Rodgers: Then they can help you.
J. Aughenbaugh: That's right.
N. Rodgers: They should help you.
J. Aughenbaugh: They want you to go ahead and explain how you did get that Billiards ball in your mouth, okay, on a Friday night. But what the court said was that has to be weighed against other societal interests.
N. Rodgers: If you walk in and you sit down with your priest and you say, I have a bomb and when I leave here, I'm going to go to the White House and explode it. Your priest should call the police and say, Listen you need to be on the lookout for Aughenbaugh because I think he's gone around the bend and I just want you to help him. Anyway.
J. Aughenbaugh: We got a couple more we want to cover before we conclude this episode. Milliken versus Bradley from also 1974, 5-4 decision, the court determined that school desegregation orders need only apply to schools within a single district and not to schools across different districts.
N. Rodgers: Unless it shows that the school district specifically across districts did racial shenanigan.
J. Aughenbaugh: Yes. Basically, what the court was beginning to respond to was a number of lower federal court judges that were merging school districts and then ordering what for the kids. Busing. Yes.
N. Rodgers: Busing. You get white flight. You get people leaving the cities to try to de facto segregate.
J. Aughenbaugh: Two years later, Greg versus Georgia, in a 7-2 decision written by Justice Potter Stewart, the Supreme Court held that the death penalty did not always qualify as cruel and unusual punishment, which is barred by the Eighth Amendment. This overturned the Burger Court's decision in 1972, in the Farman case, that held the death penalty violated the prohibition on cruel and unusual punishment. Again, this is a really good example of the burger court being a transitional court.
N. Rodgers: Four years.
J. Aughenbaugh: Four years, but in that subsequent four years Hugo Black's gone. Douglas gone.
N. Rodgers: I struggle with this one because I'm not a fan of the death penalty just because you can't no take backs, if you got that wrong, that's a pretty perlous.
J. Aughenbaugh: Nia and I've discussed off recording my opposition to the death penalty, there are many sources of my opposition. In part because I am Catholic.
N. Rodgers: I was going to say faith is one of them for you.
J. Aughenbaugh: Faith. Another one's policy. Every time I hear somebody say that this is a cost effective way to deter crime, I'm just like no, it costs more money to go ahead and have somebody on death row than it does to have in the general prison population. Moreover, almost every criminal justice study that I have read says it doesn't deter crime because very few criminals go ahead and say, Well, if I do this, I might die. No, they're going to go ahead and do it.
N. Rodgers: The length of time between crime and death penalty. It'll be 30 years. That's not a deterrent for most people, especially when they're 16. They're not thinking about that.
J. Aughenbaugh: The only justification for the death penalty that resonates with me is the victims of crime.
N. Rodgers: Suicidal revenge. The idea is you have wronged us and you must be punished. I understand that intellectually. I just think, you can't take that back if you screw it up.
J. Aughenbaugh: Yes.
N. Rodgers: I'd rather see somebody break rocks. I think that to me, I'm like, okay, that's something you don't want to do, so I'm going to make you do it every day. If I could punish college students, I'd just make them write essays, every day.
J. Aughenbaugh: What?
J. Aughenbaugh: You know what I mean? Like, I'm look to institute the death penalty. You have to write me an essay every single day.
N. Rodgers: They would ask for the death penalty at that point.
J. Aughenbaugh: Listeners, Nia said this to me a number of times and there was always something in the back of my mind that I'm like, Man, this reminds me of something that I encountered, and it just dawned on me what it was. The number of times I got in trouble in elementary and middle school, and I had to go up to the Blackboard. This is how old I am. I had to go ahead and write on the Blackboard what my offense was.
N. Rodgers: George Simpson, I will not do x thing.
J. Aughenbaugh: Yes. It finally dawned on me why your punishment that you would recommend for college students reminds me of what I encountered on the regular. Let's be very clear, particularly in elementary school. I was forever up at the darn Blackboard, writing over and over again. I will not shoot spit wads during class.
N. Rodgers: Exactly.
J. Aughenbaugh: We got a couple more. One is a rather infamous affirmative action case. Regents of University of California versus Bakke 1978. This was the very controversial Supreme Court decision that said, on one hand.
N. Rodgers: Was this the 441?
J. Aughenbaugh: Yeah. Because there was only one justice who was in the majority in both parts of this case. Lewis Powell. Lewis Powell in four conservative justices said their quotas could not be used for university admissions that would violate the Equal Protection Clause. But Powell did get the support of four liberals on the court when he said, but a diverse student population is a legitimate government purpose. As long as quotas were not used.
N. Rodgers: You could consider race and admissions as long as you don't have a mathematical quantification.
J. Aughenbaugh: That's right.
N. Rodgers: We must bring in 226 Asian students. But you could look at it and say, we want to bring in a wide variety of diversity of students, Asian students, African American students, White students as a mix.
J. Aughenbaugh: Then the last one Bob Jones University versus the United States. This was the case where the IRS removed the nonprofit classification of Bob Jones University because of the university's policy of racial discrimination. Again, I know some of our listeners are like, wait a minute. This was 1981. Yes, 1981, that's 27 years after Brown V Board, but Bob Jones University Institution. Institution. That's right. Bob Jones University said, the IRS can't do this. The Supreme Court said, Oh, yes, it can. The court held.
N. Rodgers: They said, ''Yeah huh''.
J. Aughenbaugh: Because the IRS told you so. No, but what the court said was yeah.
N. Rodgers: The IRS can remove your status as a nonprofit. You get all these special perks when you're a nonprofit. You get tax reliefs, you get all kinds of special you can do all kinds of shenanigans with money that for profit things cannot do, but you also have to live by certain rules and one of the rules is desegregation in this instance.
J. Aughenbaugh: That's right. Again, and this is a really good example of strict scrutiny. What the court said was the IRS actually satisfied strict scrutiny. Why? Because a number of laws for the IRS, emphasize that institutions receiving nonprofit status cannot engage in racial discrimination.
N. Rodgers: That's why churches are not churches that are listed with the IRS as non profits because not all churches are, but the churches that choose to do that are supposed to accept members of all racial classifications and if they can be found to not be doing that, they, too, can lose their status with IRIS.
J. Aughenbaugh: Yes, they can. But again, the main takeaway here for the burger court is it's a transitional court because after the burger, the other thing we should mention, and we briefly touched upon this. Warren Burger was not liked by his colleagues as a Chief Justice, he was considered pompous and arrogant by some of his colleagues who even if they disliked Earl Warren's votes, they like how he led the conference. Warren Burger played shenanigans with how he tallied conference votes. Some of his colleagues accused him of putting himself in the majority, so he as Chief Justice, could assign the majority opinion to minimize the scope of the majority opinion. C. Roe V. Wade. He often acted dictatorial. He would make decisions about the Supreme Court building. He imposed, for instance, the first confidentiality agreement between the court and Supreme Court Justice clerks.
N. Rodgers: We're talking about us. We going and writing books about us.
J. Aughenbaugh: About us. Don't be leaking what we do here in the court to the press. He kind of did it unilaterally without the other justices' support. Of course the justices were like, now, we got to go back and sell this to our clerks. Hey, thanks, Mr. Chief Justice.
N. Rodgers: People who already think we're jerks.
J. Aughenbaugh: Again, he was always going to suffer in comparison to Earl Warren. Because again, even those justices who didn't agree with Warren's ideology, thought he was an effective administrator. Warren Burger was not considered an effective administrator.
N. Rodgers: Well, or particularly nice guy. The thing about following Earl Warren, I'm sorry, I just have to say this, is that guy knew how to schmooze. That guy he was a governorship of California, the biggest state we have in terms of population. He ran you said unopposed in his last governor election. That guy, of course, anybody who comes after him unless he is just incredibly beloved is going to be less beloved, just because like he's going to be less able to schmooze, less able to whatever. But anyway. Next court, the next court is the Rehnquist court, right?
J. Aughenbaugh: Yes, the penultimate court, yes.
N. Rodgers: Well, let's hope not. I mean, in our series lets hope is not bad.
J. Aughenbaugh: The downfall of the Republic has predicted by Professor John Aughenbaugh on the civil discourse podcast.
N. Rodgers: Let's not go there. Cool. All right. Well, then I'll see you for Rehnquist.
J. Aughenbaugh: All right, bye Nia.
N. Rodgers: Bye.
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