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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.
Rehnquist Court
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?
J. Aughenbaugh: Why is that?
N. Rodgers: Because we get to do another court. The Rehnquist court. I like Rehnquist because his name is impossible to spell.
J. Aughenbaugh: Before we get into the Rehnquist court, one of the funny stories, and it's been well documented, Nia, about William Rehnquist and how he got on the Supreme Court was he was working in the Nixon Administration's Office of Legal Counsel.
N. Rodgers: Because that's not fraught with any drama.
J. Aughenbaugh: Particularly of recent vintage. But President Nixon was having a difficult time finding people to serve on the Supreme Court that would satisfy his campaign pledge. That he was going to appoint more southerners that would appeal to former Southern Democrats who had grown disenchanted with the Democratic Party.
N. Rodgers: Otherwise known as the Southern Strategy Strategy.
J. Aughenbaugh: That's right. The people who Nixon had tasked with coming up with names finally recommended William Rehnquist. Nixon so struggled with his name that there are parts of the infamous Oval Office tapes where Nixon referred to Rehnquist as Wrench Burke.
N. Rodgers: Which is not even really close, but it's pretty funny. R-E-H-N-Q-U-I-S-T, Rehnquist.
J. Aughenbaugh: William Hubbs Rehnquist. Hubbs was his middle name. Listeners, this is our next to last episode in this series that we've been doing about Supreme Court eras. The Rehnquist Court arose after Warren Burger retired and Rehnquist, who was an Associate Justice at the time, was promoted by President Reagan and Rehnquist served as Chief Justice until he died in 2005. At which point, one of his former clerks, John Roberts was nominated and confirmed. In general Nia, the Rehnquist Court was considered more conservative than the preceding Burger Court and certainly more conservative than the Warren Court.
N. Rodgers: Which was more conservative than the Warren Court. The Warren Court swung all the way progressive.
J. Aughenbaugh: But as a point of comparison, as listeners will find out in our next episode, the Rehnquist Court was not nearly as conservative as the Roberts Court. We'll try to get into that in our current episode.
N. Rodgers: Pendulum it does swing.
J. Aughenbaugh: Yes. On the Supreme Court, it typically swings slowly. Remember, Nia, even before the Warren Court, you had the Fred Vinson Court, and then you had the Harlan Fiske Stone Court. Those were transitional.
N. Rodgers: They were nudging aggressive.
J. Aughenbaugh: Yes. Now, as a number of scholars pointed out, and this is going to be our theme. Even his liberal colleagues thought that William Rehnquist was a really good chief justice. He was a good administrator. He was a good natured individual. He was not nearly as pompous and as controversial among his colleagues as Warren Burger. But the Rehnquist Court certainly put brakes on some of the excesses of the Warren Court era. The big thing in terms of constitutional law that is always associated with the Rehnquist Court again, we will explore this when we get to the cases. The Rehnquist Court resurrected federalism. In fact, we are in the current era of federalism known as, and we scholars are not all that original with our titles, new federalism.
N. Rodgers: Y'all are not.
J. Aughenbaugh: We're political scientists. We're not literary scholars.
N. Rodgers: The word federalism is confusing because it does not mean more power to the federal. It means more power to the states. Federalism is the idea that states rights and states powers are important.
J. Aughenbaugh: The standard definition, Nia, of federalism, is a nation's government power is divided between a central government and local sub units. Now, within that broad definition, you're going to have times where the central or national government has more power than the local sub units, which in the United States are states. There's a balancing that goes on.
N. Rodgers: Because federal law always takes precedent over state law.
J. Aughenbaugh: Because of the Supremacy Clause if they're in conflict.
N. Rodgers: If they're not in conflict, they tend to go towards the state, they lean towards the state because that's the closest to the people in terms of local governance.
J. Aughenbaugh: If you're a strict constructionist of the Constitution, the federal government has significant power, but it's limited to those that are specifically listed in the Constitution. Everything else, according to the Tenth Amendment, is to the states.
N. Rodgers: Gone to the states.
J. Aughenbaugh: That's what the Rehnquist Court emphasized. Not so much that the federal government doesn't have significant power. But they really, if you will, reigned in the excesses of the last part of the Hughes Court, the Stone Court, the Vinson Court, but certainly the Warren Court. Because the Warren Court frequently overturned state laws and said, Congress, you can do whatever you want per what clause of the US Constitution?
N. Rodgers: The Supremacy Clause.
J. Aughenbaugh: Or Commerce.
N. Rodgers: One or the other gives Congress enormous amounts of power for some courts. It depends on how you read them. By the by folks, just as, what do they call, a tease, we are going to do a series on the clauses of the Constitution. The ones that the scholars tend to rely on on a regular basis, we're going to read them, and then we're going to explain how they get used.
J. Aughenbaugh: What they mean.
N. Rodgers: But anyway. Wait, what years are the Rehnquist years?
J. Aughenbaugh: What? '86 to 2005. He served as chief justice for 19 years. Who was William Rehnquist? Well, first of all, he was born and raised in Milwaukee, Wisconsin. He served in the US Army Air Force 1943-1946. He was one of the last Supreme Court justices to have World War II experience. Notice, listeners, I said, US Army Air Force. This was before the official creation of the United States Air Force. The Air Force used to be part of the United States Army. After he got out of the military, he studied political science at Stanford and at Harvard. Went to Stanford Law School. He was the editor of the Stanford Law Review.
N. Rodgers: No small thing that because law students try to kill each other to get that job.
J. Aughenbaugh: Get on law reviews, yes.
N. Rodgers: To be the editor.
J. Aughenbaugh: That's the top position.
N. Rodgers: That's the top student position you can get at a law school, is to be the editor of the law review. Even of a crappy law school. It's still the top position, and so at Stanford, it would be definitely competitive.
J. Aughenbaugh: Stanford Law School typically ranks in the top 20, top 25. It is one of the best law schools particularly on the West Coast of the United States. He graduated first in this class, and I would be remiss if I did not include a little personal aside. While he was at Stanford Law School, he briefly dated your favorite justice, Sandra Day O'Connor.
N. Rodgers: She's not my absolute favorite, but she's up there.
J. Aughenbaugh: She's up there for you. He graduates from Stanford.
N. Rodgers: By the way, when he dated her, she was Sandra Day. She goes on to marry John O'Connor later.
J. Aughenbaugh: Another law student at Stanford.
N. Rodgers: But Rehnquist proposed to her.
J. Aughenbaugh: Yes, he did.
N. Rodgers: She was like, I'm good.
J. Aughenbaugh: Sandy Baby, I can't believe I just refer to her as Sandy Baby.
N. Rodgers: I can't either.
J. Aughenbaugh: Sandra was a highly desired companion at Stanford.
N. Rodgers: Well, she was beautiful, but she was also brilliant. They all knew that she was going to go places. If you were in school with her, she would have been one of those people you're like, oh. You and I, when we were in school, people were like, you think they'll be alive in 20 years? Whereas Sandra Day she wasn't playing. She was there to kick butt and take names.
J. Aughenbaugh: He gets out of Stanford and he did something that today, it's highly coveted. He was blase about this and I found this in my research. He went ahead and interviewed to become a Supreme Court clerk, but he wasn't all that serious about it and was shocked when he was actually picked by Justice Robert Jackson. He served as a clerk on the Supreme Court the year that the Supreme Court first heard oral arguments in one of the court's landmark cases, Brown versus Board.
N. Rodgers: Oh, he was there watching the sausage being made?
J. Aughenbaugh: Yes. Actually we're going to return to this. Justice Jackson actually had him write a memo about whether or not the Supreme Court should declare segregation as unconstitutional. But just file that away, listeners. We're going to come back to that in just a few moments He does his year, Supreme Court clerkship.
N. Rodgers: Is that the normal length for a clerk or are some of them there longer?
J. Aughenbaugh: When the Supreme Court first had clerks, it was not unusual for a clerk to work for multiple years. Some clerks worked 5, 6, 7 years.
N. Rodgers: It was just a job that you got.
J. Aughenbaugh: But then it transitions in the 1940s and early 1950s as a one year appointment, and that's what it is today.
N. Rodgers: You spread the joy. A lot of lawsuits by having them only do one year as opposed to one guy do five or six years. I guess it helps you get lot of different viewpoints.
J. Aughenbaugh: Yes. A lot of justices point to that. By having new clerks every year, you're always getting an infusion of energy because they're young, they're talented, they're fresh out of law school.
N. Rodgers: You're also getting the latest thinking that's being taught in the law schools. All the Supreme Court clerks have already graduated from law school?
J. Aughenbaugh: Yes.
N. Rodgers: You have to graduate. You have to actually be [inaudible].
J. Aughenbaugh: Today, in some cases, they've been out of law school for three or four years because they have served clerkships for lower federal court judges. Now the process is you finish law school and you do a clerkship for a district court judge, then you do one for an appeals court judge.
J. Aughenbaugh: Heck, you may even do a second year for a different appeals court judge to increase your likelihood that a Supreme Court justice will want to hire you as a clerk.
N. Rodgers: The bar keeps getting raised in terms of who you're going to have as a clerk?
J. Aughenbaugh: Yeah.
N. Rodgers: Not to say that Rehnquist didn't have high bar to get over. But now it's very competitive, it sounds like.
J. Aughenbaugh: Back then, the justices, I think in the 1950s, only had two clerks. In the 1960s, you get three. Then as you move in the 1970s, you get four, and that's the current number with the exception of the Chief Justice who gets five.
N. Rodgers: In this time, the court is seeing fewer and fewer cases. They have more people to help and are doing less work. Just saying it's a good job if you can get it.
J. Aughenbaugh: Rehnquist finishes his Supreme Court clerkship, goes back to Arizona and enters private practice. He starts getting involved in politics in the mid 60s. He was the legal advisor for Republican presidential nominee Barry Goldwater in the 1964 presidential election. For our listeners who don't know, Barry Goldwater just got absolutely run over by Lyndon Johnson.
N. Rodgers: Yeah, Barry Goldwater, unfortunately, Lyndon Johnson was the vice president for the assassinated Kennedy. There's a whole lot that went into that where, people like the stability of having the same guy. That was part of it and part of it was he was doing things that were very popular in the country at the time.
J. Aughenbaugh: Popular in certain parts of the country.
N. Rodgers: In certain parts of the country. Thank you for the clarification. Not so popular in the South.
J. Aughenbaugh: The rest of the country, this was the peak LBJ popularity. LBJ's popularity doesn't begin to crater and nosedive until we move into the late 1965, early 1966, when he increases the involvement of the United States in Vietnam, etc.
N. Rodgers: Which is wildly unpopular. But anyway.
J. Aughenbaugh: After Nixon wins the presidential race in '68, Rehnquist gets hired to be an assistant attorney general in the office of Legal Counsel. He becomes known in the Nixon Justice Department as the go to guy to handle difficult situations and that's how he gets on the radar of the Nixon Oval Office, including the fact that he played a central role in forcing Justice Abe Fortas to resign after the United States Senate refused to confirm Abe Fortas to replace Earl Warren as Chief Justice.
N. Rodgers: Not only do you not get the job of chief justice, but we're going to need you to leave.
J. Aughenbaugh: We're going to need you to leave. It was Rehnquist who came up with the strategy that most of the members of the court would eventually force Abe Fortas to resign because if Fortas didn't the Nixon Justice Department made it known in DC circles that they were going to impanel a grand jury to investigate Abe Fortas, in particular, Abe Fortas' relationship with Wall Street figure Louis Wolfson who eventually ends up being convicted of selling unregistered shares in various companies that he was on the boards of. Wolfson had given Abe Fortas $20,000 while Fortas was on the Supreme Court.
N. Rodgers: But it looks like a bribe.
J. Aughenbaugh: Yes. Sure it did.
N. Rodgers: Fortas resigns.
J. Aughenbaugh: Yes. Rehnquist played a very important role in all that playing out.
N. Rodgers: But that can't have made him popular with the Supreme Court.
J. Aughenbaugh: It was Nixon who was viewed negatively by the other members of the Supreme Court. Not so much Rehnquist. 'Cause Nixon became the enemy of a lot of different people in Washington, DC.
N. Rodgers: Nixon was a combative individual.
J. Aughenbaugh: Sure, was.
N. Rodgers: Let's put it that way.
J. Aughenbaugh: He was paranoid.
N. Rodgers: He was mentally ill and he was combative. Those two things make for a dangerous combination.
J. Aughenbaugh: Yes, sure does. So 1971, Nixon has a couple of vacancies on the Supreme Court.
N. Rodgers: Is it Fortas?
J. Aughenbaugh: Fortas has already been replaced by Harry Blackman.
N. Rodgers: Because that's a couple of years earlier.
J. Aughenbaugh: In '71, the vacancies arose because both John Marshall Harlan and Hugo Black resigned. Because of health reasons. Yes.
N. Rodgers: I'll just say I love that the second Justice Harlan is named after John Marshall. If that's not setting you up to be a Supreme Court justice, I don't know what is. People now should be naming their kids Antonin Scalia and Ruth Bayer. Go ahead and set them up to hopefully get where they need to go on the court.
J. Aughenbaugh: Speaking of naming kids after Supreme Court Justices, I have an agreement with my child, McKenzie. That if we ever get another dog in our household and it's a female, I've agreed that we will name it Bader in honor of Ruth Bader Ginsburg, yes.
N. Rodgers: Nice.
J. Aughenbaugh: If it's a male, McKenzie has agreed that we will call it Byron for Byron White, who was the subject of my dissertation, yes.
N. Rodgers: Naming your dogs after Supreme Court. I guess that's just as good a reason to name a dog as to name it. I have a friend who has a dog named Culpeper and it's named after where they got it. They saw it on the side of the road Culpeper, Virginia. They picked it up and that's what it's named.
J. Aughenbaugh: My previous dog was named after one of my favorite singer songwriters, Lucinda Williams. The dog's name was Lucinda. Anyways, so Nixon nominates Rehnquist, and the Senate confirmed him that year.
N. Rodgers: Is it a pretty easy confirmation?
J. Aughenbaugh: No, it was difficult. During the confirmation hearings, some of the Democrats who remembered Rehnquist's role in forcing Fortas off the court, they were looking for a reason to take him down. During the confirmation hearing, Rehnquist was criticized for writing a memo when he clerked for Robert Jackson.
N. Rodgers: You mentioned that before.
J. Aughenbaugh: They had opposed the Supreme Court eventually ruling in Brown versus Board that segregation was unconstitutional. There were also allegations that Rehnquist, when he was a private attorney in Arizona, took part in efforts to suppress the voting rights of minorities in the early 1960s.
N. Rodgers: Did he do it?
J. Aughenbaugh: There is some evidence that Rehnquist before the Voting Rights Act was passed in 1965, basically did what many political party attorneys did, which was challenge their credentials of people who were voting for the opposition candidate. It was not unusual for both Republican and Democratic parties to have a squadron of attorneys ready to file lawsuits challenging the voting credentials of supporters of their opponents and Rehnquist did it.
N. Rodgers: It's scummy.
J. Aughenbaugh: It is scummy. On the other hand, both political parties were doing it.
N. Rodgers: It was the practice of the day.
J. Aughenbaugh: It wasn't declared illegal until you get to the Voting Rights Act of 1965. This country in its history with voting. Oh, my goodness.
N. Rodgers: He's a segregationist?
J. Aughenbaugh: Yeah.
N. Rodgers: But he's not a militant segregationist?
J. Aughenbaugh: No. Here's the other thing. During his confirmation hearing, he went ahead and claimed that the legal memorandum he wrote was at the request of Robert Jackson. The problem for Rehnquist is Jackson's secretary at that time went ahead and also during the hearing, said, those were not the views of Justice Jackson. Now, it doesn't become publicly known until many years later that she had a conflict of interest because at that time, she was not only Justice Jackson's secretary.
N. Rodgers: She was his amor.
J. Aughenbaugh: Yes. His mistress.
N. Rodgers: She was trying to make him not look bad?
J. Aughenbaugh: Yes.
N. Rodgers: Oh, man. The Supreme Court is a tangled of relationships. I do think it's interesting that you put in the notes that Rehnquist defended his segregationist ideas on the grounds of freedom of association.
J. Aughenbaugh: Correct.
N. Rodgers: That White people should be able to be free to associate with each other and free to exclude people of color from those associations.
J. Aughenbaugh: Or vice versa. He was pretty clear about this. Since the First Amendment protects the right to peaceably assemble with other folks that you choose. Private businesses should be able to go ahead and say, we only serve, people who are this way. Which, by the way, had been the longstanding interpretation of that clause of the First Amendment. You still got businesses today who make that argument. I'm only going to go ahead. [OVERLAPPING]
N. Rodgers: Private clubs who say, we're not serving women. We're not serving people of color. We're not serving gay people.
J. Aughenbaugh: If you want to enter my business, you have to have shoes, a shirt.
N. Rodgers: No shoes, no shirt, no service.
J. Aughenbaugh: That's right. Again, the standard defense of private business. [OVERLAPPING]
N. Rodgers: We disassociate with naked people. That's basically what they're saying.
J. Aughenbaugh: Yeah. But, by today's standards, it's very controversial. Back then, again, it was not all that unusual. You had Black political theorists in the 1960s who were instructing Black people to set up their own businesses that would only serve Black people. This was part of the Black Power movement.
N. Rodgers: Keep it in the community.
J. Aughenbaugh: That's right. You want to flourish? You don't associate with White customers and White people. Again, by today's standards, we're like, that doesn't increase. [OVERLAPPING]
N. Rodgers: It's a bad business plan. We would say, I think modernly as modern capitalists, you should sell to whoever will buy.
J. Aughenbaugh: That's right.
N. Rodgers: You should have whoever will eat in your establishment or be whatever in your establishment, you should have them because their money is green. Money is what matters. It's a matter of whether you choose your ethical standard or your capitalist standard.
J. Aughenbaugh: By capitalist standard, there is no ethical capitalism. There is just capitalism.
N. Rodgers: Yeah, the ethic of capitalism is you have a good with a seven whoever will buy it. If there is demand you will sell it. You want as much demand as possible, so you get rid of the supply of whatever you have created. That's the ethic of capitalism.
J. Aughenbaugh: It doesn't matter if you're selling axes to ax murderers.
N. Rodgers: Yes.
J. Aughenbaugh: They got to get them from somewhere.
N. Rodgers: Or high priced athletic shoes. When Nike comes up with its catchy slogans, they don't say, just do it white people or just do it rich people.
J. Aughenbaugh: Just do it. If you have to save for six months and beat up people for their lunch money in order to get the money to buy these shoes. We're okay with that.
N. Rodgers: Yes.
J. Aughenbaugh: It's by its nature, not really ethical. But anyway.
N. Rodgers: Well, it's a different kind of ethics.
J. Aughenbaugh: I suppose.
N. Rodgers: Mia's rolling her eyes at me right now.
J. Aughenbaugh: I did.
N. Rodgers: All her eyes are in with me.
J. Aughenbaugh: No, I disagree. There is no ethics in capitalism. It's just that we have decided that that's okay, or we've decided that we can bring our own personal ethics into it by not buying something. That's how we choose to punish.
N. Rodgers: See, I'm letting Nia go off because Nia's trying to head me off from making a full throated defense of capitalist ethics.
J. Aughenbaugh: Make a full throated defense. You will be wrong, but you are welcome to do that.
N. Rodgers: Back to Rehnquist. Since we've already deviated like three different times in this [OVERLAPPING] episode. Let's get back to Rehnquist. Rehnquist by that time standards had a rocky confirmation. But let's be very clear. He got two thirds of the votes of the Senate.
J. Aughenbaugh: Yeah, he didn't get borked.
N. Rodgers: It's not like recent justices. Many of whom are obviously qualified, and they barely get over 50 votes in the Senate. He got 66 or 67, two thirds of the Senate voted for him.
J. Aughenbaugh: While we say tough, not really. No compared to the modern.
N. Rodgers: The modern gauntlet.
J. Aughenbaugh: Which is the modern equivalent of going through is like fear factor. It's a whole. You got to eat worms and you have to jump from high things and you have to do all this stuff that's very different.
N. Rodgers: What Rehnquist went through was a really difficult day long hike.
J. Aughenbaugh: Yeah, it's nothing like fear factor. But anyway.
N. Rodgers: He gets on the court and almost immediately becomes the most conservative member.
J. Aughenbaugh: Not surprising with his personal views.
N. Rodgers: Well, no. Think about our previous episode about the Burger Court. The Burger Court was in many ways, evenly divided between liberals, conservatives, and then like three or four justices in the middle. Rehnquist basically became William Brennan's polar opposite on the Supreme Court, almost immediately. He was just as smart. Whereas Burger was conservative, Rehnquist was smart and conservative. Occasionally, Burger was the lone dissenter. He dissented so frequently in federalism cases that his clerks took a Lone Ranger doll and put tape on the bottom, to cover up Lone Ranger, and they wrote in Lone dissenter. He probably had it in his chambers for, like, the rest of his time on the Supreme Court.
J. Aughenbaugh: This is Burger.
N. Rodgers: No, Rehnquist.
J. Aughenbaugh: Rehnquist. I'm sorry. I thought you said Burger, and I missed jugde you.
N. Rodgers: On the burger course.
J. Aughenbaugh: On the burger course. There he is the lone dissenter. But he's brilliant.
N. Rodgers: Yes.
J. Aughenbaugh: When we list out the top five or ten minds that have been on the court, Rehnquist is up there.
N. Rodgers: Yes. No doubt about it. Scholars even scholars who don't like his jurisprudence are like, he's smart. This is well thought out. He's rooted it in legal theories that, in some cases stretch back to the 15 and 1600s.
J. Aughenbaugh: Which means that even people who don't agree with him respect him.
N. Rodgers: Yes.
J. Aughenbaugh: It's similar what will happen with Scalia. This idea of, even if I don't like what he says, I have to respect the intelligence behind how he got there and what adjudication he used to get to where he was going.
N. Rodgers: Yep. As we previously stated in our previous episode, Warren Burger steps down in 1986. Reagan nominated Rehnquist to succeed Warren Burger. Once again in the contrast is pretty clear. Reagan nominates Scalia to replace Rehnquist. Scalia just skates through. I think the vote in Scalia's case was like 98 to two or 99 to one. Rehnquist once again barely gets like two thirds of the votes in the Senate.
J. Aughenbaugh: Okay.
N. Rodgers: Rehnquist serves 19 years as chief justice. He is the fifth longest serving chief justice. Ironically enough, the fourth longest is the current Chief Justice who was one of his former clerks, John Roberts.
J. Aughenbaugh: John Rob lasts out a few years, he will surpass.
N. Rodgers: He already has surpassed Rehnquist. John Rob gets on the court in that, by the way, is John Roberts gets on the court in 2005, orrect my math, we're now into 2026.
J. Aughenbaugh: Twenty one years. He's already surpassed him. Who else was on his court?
N. Rodgers: We got some heavy hitters here. Rehnquist Court begins in 86. Scalia joins. You have William Brennan, Byron White, Thurgood Marshall, Harry Blackman, Lewis Powell, John Paul Stevens, and Sandra Day O'Connor.
J. Aughenbaugh: Because remember, Sandra Day O'Connor was in our previous court. She was in 1980, 81.
N. Rodgers: Eighty one, she replaced Potter Stewart.
J. Aughenbaugh: She's the first woman on the court.
N. Rodgers: Now, one year later, Lewis Powell retires. This led to Reagan nominating Robert Bork, who was at that time, serving on the DC Circuit Court of Appeals. Bork gets rejected by the Senate. We could do an entire episode of the Bork nomination and how he got rejected. We should do that.
J. Aughenbaugh: Just for fun, well, not fun.
N. Rodgers: Then Reagan nominates another sitting federal court judge, Douglas Ginsburg, not related to Ruth. Ginsburg has to withdraw before even getting a vote because it was disclosed and he acknowledged that when he was a Harvard law professor, he smoked pot with his students. Now, by today's standards, we would be like, What's the big deal. But listeners Ronald Reagan had instituted a war on drugs.
J. Aughenbaugh: Just say herb.
N. Rodgers: You can't be the president's nominee.
J. Aughenbaugh: In fact, though, I'm going to push back slightly and say, part of it is that he did it with his students.
N. Rodgers: No. That never came up. It never came up.
J. Aughenbaugh: Modernly, if you went before the court and I was like, Aughie smoked pot with his students. It'd be different if you smoked pot with friends or whatever.
N. Rodgers: By today's standards, that might be a disqualifying factor. Back then, there was no tolerance. He smoked pot. Done.
J. Aughenbaugh: Period.
N. Rodgers: The third nominee to replace Lewis Powell was successfully confirmed Anthony Kennedy, but he eventually becomes a huge disappointment to conservatives because he and Sandra Day O'Connor occasionally would vote with liberals. Anthony Kennedy and Sandra Day O'Connor were not as faithful to the conservative cause as conservatives would have liked. Brennan retires in 1990, Marshall in 1991. President Bush 41 nominates David Sutter and Clarence Thomas.
J. Aughenbaugh: But you talk about the Clarence Thomas nomination.
N. Rodgers: We can talk about that.
J. Aughenbaugh: That was also wild time.
N. Rodgers: Yes. Byron White retires in 1993. Harry Blackman retires in 1994. President Bill Clinton appoints Ruth Bader Ginsburg and Stephen Breyer to replace White and Blackman. Then the court's membership doesn't change throughout the rest of the Rehnquist court. It is the longest period of no membership changes in the history of the Supreme Court, 11 years.
J. Aughenbaugh: That is crazy.
N. Rodgers: No change.
J. Aughenbaugh: Eleven years without a justice dying or being replaced for whatever reason.
N. Rodgers: Or retiring.
J. Aughenbaugh: Yeah, retiring or moving up.
N. Rodgers: Yeah, none did. It wasn't until Rehnquist died and Sandra Day O'Connor earlier that year, 2005, had already announced that she was going to retire to take care of her ailing husband that you get changes on the Supreme Court 11 years. That means Stephen Breyer had to answer the door at the Supreme Court conference for 11 years.
J. Aughenbaugh: For 11 years.
N. Rodgers: For listeners who don't know this, we have mentioned this in a previous podcast episode. One of the behavioral norms on the Supreme Court is the justice with the least tenure has to answer the door at their private conferences. That meant that Stephen Breyer for 11 years.
J. Aughenbaugh: Had to get up and open the door when the guy came in to deliver the coffee and the tea, and you had to get up and open the door whenever a clerk needed something to get up and open the door when Chief justice said we need, yeah.
N. Rodgers: From the library, yes.
J. Aughenbaugh: I would be really annoyed with that after a while. I don't know. Maybe not. Maybe you just get used to it. Maybe you're like I'm the guy. I do think it's interesting. If he was chief justice at that point, then he would have presided over the impeachment trial of Bill Clinton.
N. Rodgers: Yeah, he did.
J. Aughenbaugh: Remember, folks for people who don't know how impeachment works, the House brings articles of impeachment. The Senate acts as the jury. The Chief Justice acts as the judge in basically what is a trial.
N. Rodgers: That right.
J. Aughenbaugh: Information presented on both sides and then the Senate votes, and then the judge either accepts or doesn't accept. Not a lot of Chief Justice have presided over impeachment trials.
N. Rodgers: No more recently.
J. Aughenbaugh: Regularly now. It happens all the time now. Until then, it was a pretty rare and a noteworthy event. Now, it's not noteworthy at all. How many times has Trump been impeached 486 or whatever it is? It's like, I don't even know what we're up to now. Well, I'm not sure that it slows anybody down at this point.
N. Rodgers: Trump as last week when we are recording has gone ahead and said publicly. Look if the Democrats regain control of the House of Representatives later this year, he fully expects that they'll bring articles of impeachment against him, so we will once again get to see an impeachment trial.
N. Rodgers: He didn't seem particularly worried about it.
J. Aughenbaugh: No.
N. Rodgers: I'm not sure I blame him at this point. He's on his, what? Fourth or fifth Impeach, I don't even know how many it is.
J. Aughenbaugh: The next one would be a fourth.
N. Rodgers: You're saying the judicial philosophy is slowly moving onto the Burger conservative.
J. Aughenbaugh: Yes.
N. Rodgers: Let's get away from all this craziness in the Warren Court stuff.
J. Aughenbaugh: Think about it Nia. Rehnquist was often the lone conservative dissenter on the Burger Court. But starting with O'Connor, then Scalia, Kennedy, Sutton or at least his first couple of years though he moved to the left. But most importantly, Clarence Thomas, move the court to the right. For a good part of the Rehnquist years starting with Clarence Thomas getting on the court, the vote on the Rehnquist Court on closely divided cases was 5-4 and it was Rehnquist, O'Connor, Scalia, Kennedy, and then Thomas. You particularly see that with federalism cases. If you had to put them on an ideological spectrum, the two justices who were most clearly on the right were Scalia and Thomas. It would go Thomas, then Scalia, then Rehnquist and then you would have a gap because O'Connor and Kennedy were more to the middle. Then on the left you would have Souter, you would have Thurgood Marshall, you would have William Brennan. Then those were replaced with individuals like Ruth Bader Ginsburg and Stephen Breyer. But the thing you need to understand is the Rehnquist Court was not a conservative monolith. Scholar Mark Tushnet in particular has pointed out that the conservatives were divided. You had establishment conservatives like O'Connor, Kennedy, and Souter, who were conservative on federalism. They were conservative about the government being able to regulate the economy, but on social issues like abortion, religion, guns.
N. Rodgers: They could picked off by the liberals.
J. Aughenbaugh: They could be picked off by the liberals.
N. Rodgers: Is the liberals toned it down a little?
J. Aughenbaugh: If they were willing to modify their position, they could usually get one or two of Souter, O'Connor and Kennedy. You certainly saw that on abortion. You saw that on the rights of gays and lesbians. Anthony Kennedy basically wrote every important Supreme Court decision that protected the political and legal rights of gays and lesbians. Obergefell versus Hodges, Lawrence versus Texas. They were both authored by Justice Kennedy. It got to a point where scholars referred to the Rehnquist Court as not the Rehnquist Court, but the O'Connor Court. Because how she voted in 5-4 cases would determine the majority. When she retired, then it became the Kennedy Court. You have heard me joke Nia off recording, that for about a 10-year period, it was Anthony Kennedy's world, and we were just living in it.
N. Rodgers: Yes, you've said that to me. Because it was clear that there were more liberal and four more conservative. There's Anthony Kennedy picking the arguments that he liked best. Which it's funny because they were both theoretically Republicans but Republican picks. It's what Aughie always says, when they get on the court.
J. Aughenbaugh: They can do whatever they want.
N. Rodgers: It's Miles' Law. A man's view point changes.
J. Aughenbaugh: Yes. Where you stand depends on behind what desk you sit. Listeners and I say this to my students who frequently complain today about the Roberts Court being conservative. Guys, by the time we get to Clarence Thomas' nomination. Even after Bill Clinton picked Ruth Bader Ginsburg and Stephen Breyer, seven of the nine justices have been appointed by Republican presidents. It should have been a consistently conservative court if you assume that justices will vote the way the presidents who appointed them. John Paul Stevens, who was on the Rehnquist Court for its entirety and people forget this, he was appointed by a Republican president Gerald Ford. Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, all appointed by Republican presidents. But frequently the Rehnquist Court would disappoint conservatives and buttress liberals with their rulings, particularly again, in cases concerning social policy. Not so much federalism. Because again, the Rehnquist Court, if there's one thing you could say about the Rehnquist Court, it resurrected federalism as a check on federal government power. Right now, if you are a Democrat and live in a Democratic controlled state, then you should thank Bill, Rehnquist, because federalism is acted as a check or a break on whose policies? Trump's. When a federal court goes ahead and says states, you have standing to sue, and by the way, your rights, your authority is being infringed upon by the Trump administration, you should thank William Rehnquist. Because before he becomes Chief Justice, the Supreme Court had roughly about, a 40 year, 50 year period of basically saying, federal government, you can do whatever you want. By the way, you paid us lip service and said it's rooted in the Commerce Clause. You ready to get to landmark decisions?
N. Rodgers: I am.
J. Aughenbaugh: Now, for those of you who believe in robust freedom of speech, the first one should be to your liking Texas v. Johnson, 1989, Nia knows this case. She's had to endure me talking about it.
N. Rodgers: I love this case.
J. Aughenbaugh: Five to four decision, the majority opinion was written by Justice Brennan. The court struck down a state law that prevented the burning of the American flag.
N. Rodgers: As a matter of protest because you are supposed to actually burn the American flag to show it respect, you don't throw one in the trash, you burn it. But we're talking about is, if you go out with a bunch of protesters and you throw it on the ground and you set fire to it.
J. Aughenbaugh: This is an example of symbolic or expressive speech sometimes referred to as speech plus. You engage in actions that have the message that you would see in written word or in speech. The Supreme Court held that it is protected by the First Amendment. The vote was 5-4. Interestingly enough, Justice Scalia voted with the majority in this case. This is one of those examples of being a strict constructionist according to Scalia meant, that Congress shall make no law or in this case, Texas cannot make a law abridging of freedom of speech.
N. Rodgers: Goes back to the argument of when you say symbolic speech, the flag is a symbol of things, and it's cool and it's awesome, but it's not sacred, I don't know. To me, it would be a different thing than it would be to burn in religious groups, which I would be against.
J. Aughenbaugh: The Supreme Court had to make a distinction because in the 1960s, the Warren Court said that burning a draft card, was not protected speech. Why? Because the draft card was an essential, if you will, element of the federal government exercising its national security authority. But here, the American flag is a symbol. It may have significance for a whole bunch of Americans.
N. Rodgers: Yep. I love the flag.
J. Aughenbaugh: However, if you want to get across the message that you are upset with something going on politically or in the government, then what more potent symbol to desecrate than the American flag and that is protected speech.
N. Rodgers: We'd rather you do that than set fire to a bald eagle, which would be horrible. But anyway, and then they follow up with and it's illegal in the federal issue as well.
J. Aughenbaugh: Because almost immediately after the Supreme Court's Texas v. Johnson ruling, the United States Congress passed a federal law that would make it a federal crime to burn an American flag. It goes to the Supreme Court and the Supreme Court said, per our logic in Texas v. Johnson, the federal law is also unconstitutional. Next, you can't talk about the Burger Court or the Rehnquist Court without talking about abortion, so 1992, Planned Parenthood versus Casey, in a plurality opinion authored by Justices O'Connor, Kennedy, and Souter, the court upheld the constitutional right to have an abortion. The court upheld that women have this constitutional right. What they did modify from the court's previous ruling in Roe v. Wade is they replaced the trimester framework with a new standard to judge government laws that infringed upon a woman's right to choose. This is where we get the undue burden standard, which we come to find out was the standard that was written by Justice O'Connor. But basically Planned Parenthood versus Casey upheld the core holding in Roe v. Wade. The US Constitution protects a privacy right for women to have an abortion. Here, conservatives just went, excuse the expression, batshit crazy. They were just, these were three justices appointed by which presidents? Reagan and Bush 41. They are unfaithful conservatives.
N. Rodgers: But they do say that the states 10 place restrictions on abortion. You have to wait 24 hours.
J. Aughenbaugh: Oh, sure.
N. Rodgers: You have to go in, make an appointment, and then go back. You can't just do it that day or whatever. Those are not seen as undue burdens, those are seen as reasonable restrictions.
J. Aughenbaugh: In this case, there were five provisions of the Pennsylvania Abortion Control Act, which ironically enough had been signed into law by a Democratic governor. That was still when Democrats still occasionally would elect.
N. Rodgers: Conservative folks.
J. Aughenbaugh: Pro-life on governors. American politics has changed so much Nia in our lifetime. But nevertheless, that's a really good example. But nevertheless, using the new standard, the Supreme Court actually upheld four of the five provisions. The only provision they declared unconstitutional with the new undue burn standard was women having to get consent from their spouses before they got an abortion. That was the only one.
N. Rodgers: Then both of those were overturned by Dobbs v. Jackson Women's Health, which basically pushed it back to the states.
J. Aughenbaugh: That's right.
N. Rodgers: The states get to decide this as a public health issue, how they are going to regulate abortion.
J. Aughenbaugh: The next two-
N. Rodgers: Or if they are going to regulate abortion.
J. Aughenbaugh: The next two landmark decisions from the Rehnquist Court deal with federalism. These are really two good examples of how Rehnquist resurrected federalism. The first 1995, United States versus Lopez. In a 5-4 decision written by Rehnquist, the court struck down the Gun Free School Zones Act of 1990, because in the court's estimation, it was an unconstitutional extension of Congress' Commerce Clause authority. This was the first time since 1937, that the Supreme Court declared that Congress had exceeded its authority per the Commerce Clause.
N. Rodgers: You know what? If you are a person who is liberal and you hate guns and you think guns are terrible and people shouldn't have guns, you have to stop yourself and think, but the logic here is is very reasonable, which is owning a gun or possessing a gun is not an economic activity, and therefore should not fall under the Congressional Commerce Clause.
J. Aughenbaugh: That's right.
N. Rodgers: Possessing a gun is not an economic activity. Whether you decide it's an unethical or immoral question is an entirely separate thing than whether it is a commercial activity. It is not a commercial activity to carry around a gun. This decision makes total sense to me from the opinion. The way that they say, "That's not part of your authority for that".
J. Aughenbaugh: What Rehnquist emphasized in his majority opinion, Nia, was historically, deciding what is best for public health and safety is an authority that has been reserved to which level of government?
N. Rodgers: States.
J. Aughenbaugh: States.
N. Rodgers: Congress doing is like, easy there, cheetah.
J. Aughenbaugh: Likewise, five years later, in the case of United States versus Morrison, once again, 5-4 decision, majority opinion written by Rehnquist, the court struck down portions of the Violence Against Women Act, which was passed by Congress in 1994. This is the law and in particular, the provision of the law which would allow women to sue those who have committed sexual assault and sexual harassment in federal court for economic damages. The court ruled, Congress once again exceeded its Commerce Clause authority. What the court said was gender motivated violence, is historically, a criminal act that can be regulated, prohibited by which level of government. State.
N. Rodgers: State.
J. Aughenbaugh: That's right. In particular, what the Supreme Court said was, congress has to do a better job at connecting the Act, to commerce.
N. Rodgers: Because the theory here being is the women would say it is a loss of income because they've missed work because they're injured.
J. Aughenbaugh: Studies have shown that victims of gender motivated sex crimes, typically remove themselves from the economy as a result of, being a victim of the crime. What Rehnquist pointed out was the problem is, you're not demonstrating that the person who committed the crime did it for economic reasons.
N. Rodgers: Most often they didn't. They did it for control reasons or whatever.
J. Aughenbaugh: The scholarship is pretty clear. Most, gender based sex crimes is about power. How do you connect that to Congress' Commerce Clause authority?
N. Rodgers: While it makes me sad, I understand the argument. I understand where they are getting that.
J. Aughenbaugh: I thought it was a very beneficial federal law, to address.
N. Rodgers: Me too.
J. Aughenbaugh: A condition that is clearly documented in the literature in court cases. Victims of sex based crimes typically remove themselves from the economy. It hurts their economic livelihood, short and long term. You're taking them out of the economy, which means they're not making money, they're not spending money. I got all of it. I was just like, this is great. The problem is, it shouldn't be Congress.
N. Rodgers: The states should be dealing with that.
J. Aughenbaugh: The state should be dealing with this because, again, which level of government historically has regulated this activity. It's states per their police power. The next one. I almost hesitated to put this in my notes for this podcast episode. Bush v. Gore.
N. Rodgers: He knows it sets me off.
J. Aughenbaugh: Before we get to how this sets Nia off. Bush v. Gore from 2000. For our younger listeners, this will take us back to American political history, where in the 2000 presidential election, which was closely divided between the Republican candidate, Bush and the Democratic candidate for President Gore. As it played out, one state would decide the electoral college, Florida. The problem was Florida had difficulty counting the ballots.
N. Rodgers: Florida had a thing called hanging chads. In the old system, you would use a paper ballot and you would basically punch the paper ballot for your candidate.
J. Aughenbaugh: For your preferences.
N. Rodgers: Those had to be looked at by hand because a machine could not read them because sometimes people didn't punch hard enough. Sometimes it's unclear who they were trying to punch. It's a whole thing. It was a whole thing with the machines.
J. Aughenbaugh: Because the vote count in Florida was so close, per Florida law, this generated a mandatory recount. The problem was how each of the counties or cities were doing the recount, and because it was taking so long, the Bush campaign said, wait a minute here, per Florida law, this has to be done, and by federal law, it has to be done by a certain date, and because the Florida Supreme Court basically went ahead and ignored the Florida Constitution and Florida law allowing for, in some cases, hand recounting of votes. This is what Nia just described was actually taking place.
N. Rodgers: Observers were standing around holding up paper ballots and holding them up to the light, trying to figure out? What people were trying to vote for and which box to put it in, yeah, it's the whole thing.
J. Aughenbaugh: The Supreme Court held that the recount, particularly as allowed for by the Florida Supreme Court, violated the Equal Protection Clause of the 14th Amendment. And that no recount could take place before the federal requirement. This was known as the safe harbor deadline. This was enacted in the late 1800s to ensure that states finished their.
N. Rodgers: Did just not turn in their votes.
J. Aughenbaugh: Yes, make sure.
N. Rodgers: Or just waited until the spring because I don't feel like turning it in now. They made sure that states did this in a relatively quick fashion so that we would know who the next president was.
J. Aughenbaugh: Because before the recount, the Republican candidate had won the state of Florida. The recount had to stop, and the person who had been previously identified as the winner, the Republican candidate Bush would win the state's electoral college votes, which gave Bush a majority in the electoral college.
N. Rodgers: Very close down to one state. Side note for folks who don't know Al Gore, conceded because he did. He said, "It is time for us to come together as a nation. This is not helping helping us as a country to keep fighting about this.
J. Aughenbaugh: This stretched on for three weeks listeners.
N. Rodgers: He had a lot of dignity involved in that, which I thought was very well done of him, but what pisses me off about this case is that for years, Scalia would say when he was asked, get over it. That to me was a cavalier like this changed the course of human history because 911 happened on George Bush's watch and not on Al Gores. We don't know what would have happened. We don't know. We don't know that Al Gore would have been any better or any worse or whatever at dealing with global terrorism than George Bush was. We will never know, but just cavalierly saying get over it used to make me want to punch Scalia in the face because the Supreme Court decided a presidency, which nine unelected, unaccountable people got to pick who was president that year. That for me is a very hard swallow. I have to admit, it's a tough one for me.
J. Aughenbaugh: I don't have as much difficulty with the court's ruling in part because I think both the conservatives and the liberals on the Supreme Court in this case, it was not their finest hour. My criticism of the conservatives is that historically, the Supreme Court conservatives on the Supreme Court had basically been saying, per federalism, we should defer to state government officials. If that's the case, then the Supreme Court should have allowed the Florida Supreme Court to decide how to best count votes in that state. I think the conservatives were being hypocrites. I think the liberals were also hypocrites. The liberals who had historically went ahead and said that state officials needed to comply with the Equal Protection Clause of the 14th Amendment, now turning around and saying, we don't have to hold state officials in Florida to the Equal Protection Clause was also hypocritical. I don't think either.
N. Rodgers: This was a dirty case all the way around.
J. Aughenbaugh: There's an old adage about and I can't remember which justice said this. There's this old adage, difficult case facts make for poor Supreme Court rulings. This case had difficult facts. The fact that the election ended up in a state with such poor vote counting process.
N. Rodgers: It's also just, Florida. You guys just need to get yourselves together. Come on. There's a reason the rest of us make fun of Florida Man. Florida Man plays with alligators and gets arm bitten off.
J. Aughenbaugh: Listeners. Some of the anecdotes that got reported on during the mandatory vote recount just blew our minds. You had Florida voters who were like, I thought I was voting for Al Gore, but they ended up voting for Pat Robertson.
N. Rodgers: Because the ballots were butterfly. The ballots were stupid looking. Nobody could figure out what they were, the whole thing was like, big surprise, this is a problem. Also air is breathable.
J. Aughenbaugh: Yes. It also exposed how in the most developed at that time many political scientists said, United States was the most developed democratic nation in the world.
N. Rodgers: You can jack up an election.
J. Aughenbaugh: We still had voting precincts and an important state like Florida who were still using computer punch cards for voting.
N. Rodgers: Paper ballot.
J. Aughenbaugh: It's one thing that a small village in Alaska is using paper ballots.
N. Rodgers: Where the 20 adults are easily counted.
J. Aughenbaugh: Yes, and you can't make mistakes when you're only looking at 20 ballots.
N. Rodgers: You can also ask everybody, Hey, could you go back and redo that?
J. Aughenbaugh: But Miami Dade County has millions of potential voters and they're using computer punch cards.
N. Rodgers: From the 50s.
J. Aughenbaugh: You're just like, are you freaking kidding me?
N. Rodgers: You want this to be messed up.
J. Aughenbaugh: We got a couple more decisions.
N. Rodgers: Can we go to one of my happy places though? Now [inaudible] my unhappy places Lawrence V Texas.
J. Aughenbaugh: 2003.
N. Rodgers: Isn't Lawrence V Texas, the one where a neighbor was like, I think my neighbor is having-
J. Aughenbaugh: Lawrence V Texas, Lawrence is in his apartment. He is engaging in consensual sexual activity with a partner. One of his neighbors-
N. Rodgers: Who is male?
J. Aughenbaugh: He was male. The partner was male. His neighbor who doesn't like the fact that he's living beside a homosexual, calls up the cops and falsely reports that he's hearing violence going on, in his neighbor's apartment. The cops show up.
N. Rodgers: I think it's a domestic.
J. Aughenbaugh: It's a domestic violence situation so they break on into the apartment to find Lawrence and his male partner engaged in consensual sexual activity. The problem is Texas had a law that made it criminal, homosexual sodomy. Not heterosexual sodomy, homosexual sodomy.
N. Rodgers: Which we even cannot get into on this podcast.
J. Aughenbaugh: We can discuss the details.
N. Rodgers: The frustration level of for it's okay for some people to do this, but it's not okay for other people to do this depending on equipment, no.
J. Aughenbaugh: We should emphasize it was consensual, there was no violence going on.
N. Rodgers: No violence, nobody being forced, nobody being paid, was just two people doing their thing together.
J. Aughenbaugh: The problem for Lawrence was that in 1986, the Supreme Court held that state laws that criminalize gay sexual acts were constitutional. The case gets to the Supreme Court and in a six to three vote, Justice Kennedy, writing for the majority, holds that the Texas law violated the due process clause. O'Connor wrote separately to say, I think it violates the Equal Protection Clause because Texas is not banning sodomy for heterosexuals. They're only doing it for homosexuals, what's the difference?
N. Rodgers: They are picking a class.
J. Aughenbaugh: Class and treating them differently under the law.
N. Rodgers: Which we don't do in this country theoritically.
J. Aughenbaugh: Again, this showed how the Rehnquist Court on social issues were divided, because you have O'Connor and Kennedy joining the liberals in declaring that consensual homosexual activity was constitutionally protected.
N. Rodgers: It's none of anybody's business. If you don't like your neighbor being gay, move. That's the answer to that question. Well, they're doing a thing, but we're not going to investigate all the male, female couples that are doing the same, no.
J. Aughenbaugh: By the way, Texas was not unusual. There were a whole bunch of states. Yes, including the state that we were reporting in Virginia.
N. Rodgers: That had that as a specific punishment. We will punish gay people. Generally speaking, males. We will punish males for having consensual sex with other males.
J. Aughenbaugh: By the way, well into the 1970s and 80s a majority of the states in the country banned all sodomy. It didn't matter if you were gay, hetero, bi, the majority of the states in this country completely banned it. By the way, most of the time police departments didn't want to have anything to do with enforcing these laws.
N. Rodgers: The cops are like, no, I don't want to know, I don't want to ask, I don't want to see, and that's different from non-consensual. That's rape.
J. Aughenbaugh: That's rape.
N. Rodgers: That's pretty legal for a long time, although side note, in this country until the 70s, there was no such thing as rape between married couples. Which we are now far more enlightened and we understand that power dynamics can be abusive in those relationships. But anyway, so yay Lawrence V Texas, in my opinion. Mostly because I just want everybody to be treated the same.
J. Aughenbaugh: If society went ahead and determined that nobody should be able to engage in sodomy, I would think it's a BS law, but if it applied to everybody, I would be like, it satisfied the Equal Protection Clause.
N. Rodgers: At least it's fair in the sense of no one is happy, or everybody is unhappy equally. But if you're like, no, it's going to apply to only certain people. Well, that's not that's not okay.
J. Aughenbaugh: At that point, Nia, then I get really skeptical. I'm like so why are we drawing certain lines? That's where the skeptic in me comes in. Because anytime the government starts excluding some people, including others, I'm like so what's your logic? I like how you put it. Either everybody's unhappy, or everybody is happy, but you can't pick and choose simply because they have a particular sexual preference. Again, we're going to mention one more at the risk simply because the ruling was overturned by one of your least favored Supreme Court rulings. McConnell versus the Federal Election Commission was decided in 2003. In a five to four decision, that was basically co-written by Stevens O'Connor, the court upheld provisions of the Bipartisan Campaign Reform Act of 2002, including its restrictions on soft money. The court held that not all political speech is protected by the First Amendment and that the government has a legitimate interest in preventing corruption and the appearance of corruption. This was the infamous law where Bush shocked a whole bunch of people when he said, if Congress passes this law, I'm going to sign it. This case was partially overturned by one of Nia's most hated Supreme Court rulings, Citizens United versus the Federal Election Commission in 2010, because in that case, in a majority opinion written by Justice Kennedy, the court went ahead and held that prohibitions on soft money expenditures made by corporations, labor unions, and trade associations violates the First Amendment.
N. Rodgers: The corporations are people in terms of their speech. They are allowed to use money to indicate it's [inaudible] .
J. Aughenbaugh: This is why I always push back. I'm going to go ahead and remind listeners, it also applies to labor unions and trade associations.
N. Rodgers: It does. My argument is all money in politics is bad. In the sense of all of that sloshing around money where people spend billions of dollars to get elected, I don't think that's what the founders intended. Now, the founders did intend for rich white guys to be in charge of stuff because they were rich white guys and they liked being in charge of stuff and we have a more enlightened view of being in charge of things now, and it doesn't have to be just rich white guys. Apparently, it can be rich guys of any ethnicity. What I'd like to do is break the hold on the rich part, not the guy part. I don't particularly care about the guy part, and I don't particularly care about the ethnicity part, but I care about the rich part. But it frustrates me that wealth controls elections and that probably goes back to the whole biblical, the love of money is the root of all evil. It's just the whole idea of every time you pour money into something, it goes wrong. There's no instance where you've poured money into things and it turned out happy. That just doesn't happen. Except for charities but other than charities it doesn't work.
J. Aughenbaugh: Let me get a word in here.
N. Rodgers: Sorry.
J. Aughenbaugh: No, sorry. I wouldn't mind if we reinterpreted the Freedom of Speech Clause to prohibit money. But I would like to see it again apply to all who like to use money. This is why I remind, not so much you because you understand this point, but sometimes I get the sense that many who oppose Citizens United versus the FEC is that they got an anti corporation bias. I'm like, but if we did go ahead-
N. Rodgers: Unions used to do the same thing Union.
J. Aughenbaugh: They still do.
N. Rodgers: Unions used to elect people.
J. Aughenbaugh: I also point out both political parties do this. This would require both political parties to disarm themselves because we are talking about billions of dollars that as long as the money is not being spent in a coordinated manner with a particular candidate, the Supreme Court says that's perfectly fine. The problem is, the FEC is so understaffed, we don't know how much coordination is going on. Both political parties do this, and you're talking about groups, corporations, labor unions, trade associations. Think about Nia, for instance, the amount of money that tort lawyers spend in campaigns.
N. Rodgers: Well, the amount of money that is funneled from individuals through the ACLU to campaigns or through the NAACP to campaigns, equally through the Teamsters to campaigns, through the Farm Workers United to campaigns. Those groups, all of that needs to stop. All of it. All of that needs to stop on all sides. Every single group that's doing that, that's what I'd like to see.
J. Aughenbaugh: If everybody is being forced to lay down the arm, in this case, money, then I would be like now, great.
N. Rodgers: Now we have a clearer election about what the person is about and not what they're paid to think or paid to say.
J. Aughenbaugh: But nevertheless, I put that in my life.
N. Rodgers: We have lots of feelings about that one.
J. Aughenbaugh: But again, last point before we conclude, this really does highlight how the Rehnquist court was divided. Because again, the media frequently refers to the Rehnquist court as this reliably conservative court. No, it wasn't.
N. Rodgers: Five Four. Do you know how many times you said Five Four, today? You said Five Four the same number of times that kids say six, seven. You said Five Four, in a Five Four decision. That should tell you that that court was not clearly conservative [inaudible].
J. Aughenbaugh: But anyways, Nia, thank you very much. The Rehnquist court to me, again, it always highlights the transition, how change on the court is slow, because by the time we get to the early part of this millennium, the Supreme Court should have been, if you look at just the sheer number of justices appointed by Republican presidents, this just consistent conservative monolith and it wasn't. It was led by a guy who many would argue, Wow, how did he get on the Supreme Court? Well, he did, and he led it for 19 years.
N. Rodgers: Thanks, Aughie.
J. Aughenbaugh: Thank you.
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