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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'm a little weird. How are you? Well, I don't know why I thought that I would need to announce that to you as if you didn't already know that after five years with me. but yes.
J. Aughenbaugh: My response was, well, you're weird and I'm odd, and our listeners are like, thanks for telling us stuff we already knew.
N. Rodgers: That's right. Captain obvious and his side kick.
J. Aughenbaugh: But the reason why Nia and I listeners are feeling weird and odd is we're going to do an entire podcast episode on Supreme Court justice, oddities, weirdness, and other strange, if you will, factoids about.
N. Rodgers: Beloved Supremes.
J. Aughenbaugh: Our beloved Supremes.
N. Rodgers: First, we'd like to welcome you to the summer of Scotus 2024. We should probably stop numbering them because I think we were up to, like, Number 4, 5 summer of Scotus. At this point, we should just say, it's the summer of Scotus 24, and we should put the year on it.
J. Aughenbaugh: It's a campaign. Bind 2024. But-
N. Rodgers: Which at some point this year, you and I need to talk about potential running mates for Donald Trump, because I've been thinking a lot about that. That might be my way to the presidency. I'm just saying. Because, Donald Trump is getting older. I'm just saying what I may need to do.
J. Aughenbaugh: Well.
N. Rodgers: Just find a wealthy individual to run a campaign. A wealthy popular individual who then kicks it. Not wishing death on Donald Trump or Joe Biden or anyone else.
J. Aughenbaugh: We do not wish that.
N. Rodgers: If they did the natural course of things.
J. Aughenbaugh: Particularly individual.
N. Rodgers: Just step into the presidency.
J. Aughenbaugh: In particular, you have people in high stress jobs.
N. Rodgers: Who are a little bit older, and they don't maybe have the best eating habits. Of course, I'm not really one to talk about that. Eating habits. But anyway.
J. Aughenbaugh: Nor I, since I'm on my, second 24 ounce mug of coffee as we are reporting, anyways listeners.
N. Rodgers: But let us talk about the Supremes and their odd. Now, we should start off by saying, these are an odd group of people to start with. Because they are super smart, super elite, in a profession where people regularly eat their own. These people have risen to the top. They are not.
J. Aughenbaugh: Metaphorically listeners. When we're talking actually people but this is we're speaking metaphorically.
N. Rodgers: Metaphorically they've risen to in a very competitive.
J. Aughenbaugh: Oh, my goodness.
N. Rodgers: Doggie of profession. That is a very competitive profession. They're already a little odd/unique/weird.
J. Aughenbaugh: Weird because if you think about the training and preparation that goes into the modern Supreme Court justice. For most of these justices, at a very early age, typically very consciously, but even if it's just subconsciously, they've made some choices that put them in rarefied air. It's very difficult process.
N. Rodgers: Well, you've mentioned before that they have been used to being the smartest person person in the room. Then they get to the Supremes and now they're maybe not the smartest person in the room. There's nine of them now. It's got to be a little interesting. But that's not the weirdness we're talking about. We're not talking about their legal weirdness. We're talking about their other weirdness.
J. Aughenbaugh: In many ways, we have to remember, and I try to tell my students this. Supreme Court justices are humans.
N. Rodgers: It's easy to forget.
J. Aughenbaugh: It's easy to forget, but nevertheless, they are in my estimation, blessedly weird, human and odd. We're just going to go ahead and do a random sample of that weirdness, of that oddness. I want to first start off with one of my favorite anecdotes about any Supreme Court of justice, which is, early on in our country's history, we had a Supreme Court of justice who had some let's say, significant financial difficulties.
N. Rodgers: Financial difficulties are very common. Most of us pay check but getting on the edge what is it? 30% of Americans couldn't get $400 together for an emergency. That's not particularly weird.
J. Aughenbaugh: Weird but we had a Supreme Court justice, James Wilson, who was one of the founding fathers. He was a delegate to the Constitutional Convention from Pennsylvania. He missed an entire Supreme Court term because he wanted to avoid going to debtors prison. He fled to North Carolina because he had debts that according to a couple of historians, totaled at least $197,000. That's just-
N. Rodgers: That's back in the day money?
J. Aughenbaugh: You're talking yes.
N. Rodgers: Hundred and ninety seven thousand dollars now would be millions.
J. Aughenbaugh: By the way, the $197,000 that I just quoted, was just the figure he owed to another founding father, Pierce Butler of South Carolina.
N. Rodgers: He owed a lot of money, probably. If he owed that to one person-
J. Aughenbaugh: He owed it to a number of banks and people across the country.
N. Rodgers: He went on the run.
J. Aughenbaugh: He went on the run. Because he knew that if he showed up to the Supreme Court.
N. Rodgers: They'd know where to find him.
J. Aughenbaugh: They were going to find him. We basically had a fugitive Supreme Court justice who wanted to avoid debtors prison.
J. Aughenbaugh: It's pretty hard to go ahead and top that in terms of weirdness and oddity but that's the characteristic that we're looking to explore in this broadcast episode.
N. Rodgers: I think Justice Douglas. See, in my oddity with money, I'm like, yeah, lots of people owe money. I don't know how many people go on the run because they owe money but that seems a little extreme. But you got to love supremes they take everything to the extreme and William Douglas is an example of that, is he not?
J. Aughenbaugh: William Douglas falls into a number of categories in terms of weirdness and oddity. First of all, for all of our listeners who have had marital problems, Justice Douglas could feel your pain because Justice Douglas was married four times. The first three ended in divorce and with each successive marriage his partner became younger than the previous one. His last wife was 22 and he was 68. All right?
N. Rodgers: She put him in the ground?
J. Aughenbaugh: She put him into the ground.
N. Rodgers: They did not divorce?
J. Aughenbaugh: They did not divorce.
N. Rodgers: But I'm in big surprised, he was 46 years older than she was.
J. Aughenbaugh: Yes.
N. Rodgers: How long was that going to last?
J. Aughenbaugh: But he was a justice who did a lot of side work well being a justice so he wrote multiple books. One of the reasons why, according to a couple of his biographers that he had to write these books that he received large royalty payments for was to pay for alimony thousands words.
N. Rodgers: He owed back money?
J. Aughenbaugh: Yes.
N. Rodgers: Oh, my gosh, that's funny. Well, because it's not surprising when you keep getting divorced and back in the day alimony was a secret. Now there's limits on alimony but there was not a limit on alimony before so if his ex wives did not remarry he was essentially married to four women.
J. Aughenbaugh: Financially. Yes.
N. Rodgers: Financially, at the end. He was married to one legally and four of them in terms of what he owed. He clearly was beloved by women.
J. Aughenbaugh: Well, at least until they married him. I am Sorry.
N. Rodgers: Fair point.
J. Aughenbaugh: I'm taking a cheap shot at somebody who's been dead since the mid 70s. But here's the thing, listeners. Before we get to how he was disliked by his staff, to put this in context, the reason why to Nia's point about alimony and child support. Before the 1970s in most states in the United States you didn't have the concept of no fault divorce. Usually a party would have to be identified as the person who ruined the marriage. If you were so identified and in Douglas's case he was, because he had affairs.
N. Rodgers: Well, not surprising.
J. Aughenbaugh: Yes.
N. Rodgers: He clearly liked women.
J. Aughenbaugh: Yes. He liked them at least.
N. Rodgers: For a while.
J. Aughenbaugh: Until they got married.
N. Rodgers: He liked them for a while.
J. Aughenbaugh: I'm not even working hard here for the jokes. But nevertheless. If you think Douglas was odd in terms of the number of times he was married and had marital difficulties, he was also very human in terms of being a boss. He was so disliked by his clerks, he treated them so poorly and this is an anecdote that I found multiple times. I'm sorry, I'm going to have to use a profanity, his clerks took to refer calling him behind his back, shithead.
N. Rodgers: That's so rude.
J. Aughenbaugh: Your boss is a Supreme Court justice, you walk out of his chambers and you're like, he's a shithead. But here's what Douglas would do. He would fire a clerk on a Friday and then he would show up to work on Monday and when the clerk wasn't there because the clerk thought he was fired, Douglas would then call the clerk and yell at him for not showing up to work.
N. Rodgers: Where the heck are you? I'm at home, sir, you fired me. I did not.
J. Aughenbaugh: Get your ass to work.
N. Rodgers: He was the longest serving justice.
J. Aughenbaugh: That's right, he was the longest serving justice.
N. Rodgers: He sat on the court from 1939-1975. He had a long time to be weird.
J. Aughenbaugh: Yes. He was appointed by FDR and he died when Roosevelt was president.
N. Rodgers: That's amazing.
J. Aughenbaugh: Think about the number of presidents, so FDR.
N. Rodgers: Wait, he died when?
J. Aughenbaugh: Ford, 75.
N. Rodgers: Ford was president. I'm sorry. I misheard you.
J. Aughenbaugh: Yeah, Ford. FDR, Truman, Eisenhower, Kennedy, Johnson, Nixon, in Ford that's six presidents, good Lord.
N. Rodgers: Didn't when he called Wild Bill?
J. Aughenbaugh: Yes. Wild Bill or sometimes referred to as Cowboy Bill because he grew up, he was born out West, he was born, I believe in Yakima Washington and he would sometimes wear cowboy boots with his robe, yes. Wild Bill or Cowboy Bill. Yes. He was a character.
N. Rodgers: That's one way to put it that.
J. Aughenbaugh: Yes, he was a character.
N. Rodgers: Goodness, four wives. He only had two children, though.
J. Aughenbaugh: He only had two children, yes.
N. Rodgers: But that's a lot of wives. I'm just saying.
J. Aughenbaugh: He was probably the first environmentalist on the Supreme Court. He actually wrote an opinion where he said that he thought trees and other objects in nature should have standing to sue in federal court.
N. Rodgers: He was just weird?
J. Aughenbaugh: Across the board.
N. Rodgers: All around.
J. Aughenbaugh: Yes. I love teaching him in my course of politics class.
N. Rodgers: He leads us to another weirdness which is mental and physical health problems because didn't he at the end have problems staying awake?
J. Aughenbaugh: Justice Douglas near the end of his tenure on the court suffered-
N. Rodgers: Because remember, we're talking a huge length of time talking.
J. Aughenbaugh: Yes.
N. Rodgers: Thirty-six years on the court.
J. Aughenbaugh: At the end of his tenure, he suffered two strokes and he didn't want to retire in part because one he needed the paycheck, so our previous conversation about Alimony. But he also didn't want to retire because the president when he suffered his first stroke was Nixon and Douglas hated Nixon, and the quote is, ''He did not want to retire because I don't want that Son of a Bitch Nixon to appoint my successor.''
N. Rodgers: That is not unusual for justices actually to stay. I don't want this person just replace me because I can't stand this person.
J. Aughenbaugh: That's right.
N. Rodgers: But that those strokes caused him to have problems paying attention, didn't they like him?
J. Aughenbaugh: Yes, so he would fall asleep during oral arguments and then he would awake during the oral argument, but he thought the court was hearing a different case, so he would start asking questions of the attorneys but from the wrong case. This actually led his colleagues, his last term on the court to informally decide that if a vote in a case was four to four and Justice Douglas' vote would be the deciding vote they would hold the case over and have re-arguments in the case because his mental capacities and mental and physical capacities were so diminished, yes.
N. Rodgers: They wanted to make sure that he understood what he was voting for?
J. Aughenbaugh: Yes.
N. Rodgers: Or against.
J. Aughenbaugh: They didn't want his physical problems to affect the work of the court, but he's not the only one.
N. Rodgers: I was going to say he's not the only one though that's had mental and physical. Wait, can we just say before we get into a lot of physical issues? By the time Supreme Court justices, Amy Coney Barrett supplied get onto the court. They are in their 40s or older.
J. Aughenbaugh: Yes.
N. Rodgers: People in other countries in their 40s, 50s, 60s 70s may be in great health. People in the United States are not always in the best of health and so we had just noted about the presidential candidates this year.
J. Aughenbaugh: Yes.
N. Rodgers: A lot of them are not in great physical health.
J. Aughenbaugh: That is correct.
N. Rodgers: It is not unusual for people if you're talking about people in their 60s, 70s to be not well.
J. Aughenbaugh: Yes, and again these are high-stress jobs.
N. Rodgers: You've had to climb over a lot of people to get there. It's not just this job that's high stress, It's getting to this job that's high stress.
J. Aughenbaugh: You're talking Type A over Achievers.
N. Rodgers: Exactly. Sleeping under their desks in their law offices trying to get ahead.
J. Aughenbaugh: They took government lawyer jobs where they were working 70 hours a week to get ahead.
N. Rodgers: Eight hundred cases a year trying to lead.
J. Aughenbaugh: By the time they get to the Supreme Court, they may be in their early 50s, but their bodies.
N. Rodgers: In their minds sometimes.
J. Aughenbaugh: We've had a number of justices with well known mental and physical health problems and again because of the way the constitution is written, they effectively get to decide when they retire. They serve for life if they want to and the number of justices have served until they've died, but there are a number of examples and I mentioned a few in our research notes Nia, but there are other examples. We could do an entire episode just on physical and health issues, but I highlighted a few. Justice Henry Baldwin missed the entire 18-33 term due to hospitalization four and here is the money ''Incurable Lunacy.'' I'm like I actually had to look that up.
N. Rodgers: Incurable lunacy as opposed to curable lunacy which makes calling somebody a lunatic so much better.
J. Aughenbaugh: But better. But at that time it was a phrase used by doctors in medical science and it basically meant that no matter what rudimentary prescriptions, treatments had been given you were crazy and you would be crazy the rest of your time on this earth.
N. Rodgers: You were mentally ill. You were dull, but he didn't-
J. Aughenbaugh: He stayed on the court until his death, 11 years later, he didn't die until 1844, so we had a justice who was diagnosed by doctors for incurable lunacy and he served on the court for 11 years. What was even more fascinating to me was his colleagues concluded early in the 1830s that he could not be sane.
N. Rodgers: Before he was he was hospitalized they knew he was not well.
J. Aughenbaugh: Yes.
N. Rodgers: But the justice decides when they're going to retire unless they are impeached.
J. Aughenbaugh: That's right.
N. Rodgers: Did impeachment exist at that point?
J. Aughenbaugh: Yeah, because impeachment came into the Constitution when it was ratified in 1789.
N. Rodgers: They could have impeached him, but they didn't.
J. Aughenbaugh: But they didn't.
N. Rodgers: Basically for those 14 or 15 years, we had an eight person Supreme Court?
J. Aughenbaugh: That's right. Now, we've had others.
N. Rodgers: Which is the downside.
J. Aughenbaugh: Because it affects.
N. Rodgers: Thing because it affects the work of the court. In both instances, Douglas's instance and Baldwin's instance, the court is now at eight or 44 if they are retired.
J. Aughenbaugh: Yes, but of more recent vintage, we've had a number of justices with physical health problems. We've had two Justice Harlan's, the second one who was the grandson of the first. He was so blind. His last few years on the court, he had to have his clerks read the briefs that were submitted to him.
N. Rodgers: He must have retained the information though and been able to process.
J. Aughenbaugh: Yes.
N. Rodgers: Good for him. Well, lots of blind people I think do that. They have incredible memories because they can't just glance and refer.
J. Aughenbaugh: Justice Thurgood Marshall, the last decade he served on the court, he had so many medical issues.
N. Rodgers: Oh, my goodness.
J. Aughenbaugh: Heart, lungs, diabetes, frequent bouts of gout, etc. That it was widely known within the Supreme Court, that he was doing very little of the work coming out of his office. It was his clerks. We have talked about this in a previous podcast episode, how that relates to members of Congress, who get older and have medical issues. They're able to continue to function as a senator or representative simply because.
N. Rodgers: They have incredible support.
J. Aughenbaugh: Credible staff. But there are other examples. Go ahead.
N. Rodgers: Sorry. Thurgood Marshall was not a small man, either. It is not surprising that he had a lot of medical issues related to what we now know would be obesity and its carry-on effects. [inaudible] lungs, diabetes. All of those things. I see young pictures of him when he's with the NAACP, and he's still a very big man. Even then when he was younger, so was not surprising that he had some physical problems.
J. Aughenbaugh: But we've had other examples, Chief Justice William Rehnquist had throat cancer.
N. Rodgers: Vader Ginsburg had cancer and eventually succumbed to it.
J. Aughenbaugh: Both of them died in office, and both of them stayed on longer than many people thought that they should have.
N. Rodgers: It's okay to stop and take care of yourself and spend time with your family.
J. Aughenbaugh: In Rehnquist case, because he stayed on. He basically forced Sandra Day O'Connor's hand in terms of her retirement. Because she came to him and said, I'm thinking about retiring to take care of my husband who had the early stages of Alzheimer's, but she didn't want to step down if the chief who had been going through chemotherapy, was also thinking about stepping down because she didn't want to leave the court with two vacancies. Rehnquist said to her, "You can go ahead and retire. I think I've got this cancer leaked." But he didn't. She retires, and then a few months later, he dies, which then actually led the court to having two vacancies. Their replacements were John Roberts and Sam Alito. But again, these are all part of the consideration when you have a small collegial if you will, working group. Because if you're one down, as you pointed out, Nia, that may lead to four to four votes in closely divided cases, but if you're two down. Now you got seven justices.
N. Rodgers: You've got the odd number you need, but you've got a lot more work for the justices.
J. Aughenbaugh: That's right. The justices are very aware of what a vacancy can do to the rest of the court.
N. Rodgers: Can you talk about your favorite, Justice White?
J. Aughenbaugh: Yes. We have one justice, who is the only justice who was ever elected into the college football Hall of Fame. That was Justice Byron Wizar White because he was an all-American at the University of Colorado. After he graduated, he was the only justice to play professional football. At one point, he was the highest-paid player in what eventually became the National Football League.
N. Rodgers: He was appointed to the court by Kennedy, right?
J. Aughenbaugh: Correct. Yes.
N. Rodgers: That's funny because the Kennedys were known for their football games. They were known for being serious rough and tumble.
J. Aughenbaugh: Yes, every Thanksgiving the Kennedys
N. Rodgers: The Kenya Bunkport, or whatever it was, they would get together, and basically run over each other and just jump on each other playing what should have been a gentle game of family football, but it's because they're the most competitive family on Earth, or one of them. I want to talk about fashion. Can I talk about fashion for just a minute?
J. Aughenbaugh: By the way, I put this in the research notes just for you, Nia.
N. Rodgers: Thank you. Ruth Bader Ginsburg. Now, Sandra Day was very plain. Some of the other female justices have done a little bit of stuff with the collars on their robes, but Ginsburg, she took it to a whole new level, man. She had those big lace collars. Some of them were made with gold and stuff, and then she did big chunky necklaces. She was not playing. Girlfriend was like, if I have to wear a black robe, it is going to look stylish, but that's nothing compared to Justice Rehnquist.
J. Aughenbaugh: But before we get to Rehnquist, Ginsburg's fashion choices oftentimes sent signals in regards to her moods. Because according to the reporters in the Supreme Court Press Pole, they always knew or they thought they knew when she was going to read a descent from the bench because she would come to a Supreme Court decision day. Should have her robe on, and she would have a particular collar. Which was I'm upset, and I'm going to actually read from the bench my descent.
N. Rodgers: You know what that is. That's her crabby collar.
J. Aughenbaugh: It's really crabby.
N. Rodgers: But she also opened the door for lots of lower court justices to wear stuff with their robes.
J. Aughenbaugh: Yes.
N. Rodgers: A lot of female justices now feel comfortable wearing something to break up the black right next to their skin if they want to make it look a little more stylish. She opened that door and basically said, you can still be taken seriously as a justice while making a stylish choice. However, I'm not entirely certain people were taking Rehnquist seriously with his stylish choice.
J. Aughenbaugh: Rehnquist had seen a local production of Gilbert and Sullivan's operetta [inaudible]. Afterwards, he decided who jazz up, if you will, his robe. He wanted one to look very similar to Lord Chancellor in the production. He shows up one day, and he added what was it four gold stripes on each sleeve. I still remember during the Clinton impeachment. Is the chief judge for impeachments for presidents and members of Congress. I still remember how the press just had a field day with the four gold stripes on each of his sleeves and Nia just went ahead, pulled up a photo on the Internet while we're recording this.
N. Rodgers: It just tickles me that he was like, I am a very model of a modern major general, but It makes me think of that when I see his robes because I'm like, that really is Gilbert Zelvan.
J. Aughenbaugh: Well in Rehnquist.
N. Rodgers: I don't know.
J. Aughenbaugh: Was just.
N. Rodgers: Like Jay Robb would never do that. He would die before he would put stripes on his robe.
J. Aughenbaugh: Rehnquist was of peculiar justice anyways. In so many ways. Nia, just a few moments ago, you mentioned Thurgood Marshall, being a big man. Rehnquist was easily six foot five.
N. Rodgers: Was he? I didn't realize he was that tall.
J. Aughenbaugh: When he got older and he started having physical problems, he lost weight. Some of his clerks actually referred to him as crane.
N. Rodgers: That's not very nice. I shouldn't laugh.
J. Aughenbaugh: Early on in his tenure on the court, he so frequently descented by himself that his clerks got him a lone ranger doll. On the base of the doll, they went ahead and taped Lone Dissenter. He loved to gamble. He would bet on anything, football games, whether or not DC would get a snowstorm, who would win an election. He had a frequent card game with members of Congress, the White House, etc. As loyal listeners of the podcast know. At one point, when he was at Stanford Law School, he actually went out on a few dates with-
N. Rodgers: Sandra Day.
J. Aughenbaugh: -Sandra Day O'Connor.
N. Rodgers: He became Sandra Day O'Connor.
J. Aughenbaugh: Yes.
N. Rodgers: After she married John O'Connor.
J. Aughenbaugh: O'Connor, yes.
N. Rodgers: On your notes.
J. Aughenbaugh: Yes.
N. Rodgers: I have to say this because I just think it's funny. Some justices are terrible drivers. Now, I put to you that I would be willing to bet that all of the justices are terrible drivers.
J. Aughenbaugh: Well, quite a few in the world.
N. Rodgers: I think some are probably worse than others. But I'm not entirely certain. First of all, Supreme Court justices do not drive themselves places. They are driven by capital security. Back and forth from their homes.
J. Aughenbaugh: To the Supreme Court. They do have that option.
N. Rodgers: Although we know Justice Thomas drives because he has an RV.
J. Aughenbaugh: But that's in the summer.
N. Rodgers: Right. But all I'm saying is we know that he does drive.
J. Aughenbaugh: Yes.
N. Rodgers: Maybe not in DC but.
J. Aughenbaugh: What many Americans were probably unaware of, is that the Supreme Court justices have the option of getting secret service protection. It's also in the Supreme Court budget that they can actually get a car and a driver. Not all justices avail themselves of that option. For instance, infamously, David Souter not only didn't want Social Security protection. He didn't even want a car or driver. He actually sometimes would bike to the Supreme Court. But Justice Souter.
N. Rodgers: Is an odd duck. He did come up again.
J. Aughenbaugh: Yes. But probably by all accounts of recent vintage, the worst driver, of the Modern Supreme Court. Let's say we date the Modern Supreme Court starting with the Warren Court in the 1950s. The worst driver of the modern Court, by all accounts was Justice Scalia.
N. Rodgers: I'm not surprised by that. Consider that Justice Scalia probably had incredible road rage. You know what I mean? Like, doesn't he seem like a guy who would yell at people in other cars? Maybe not do anything to them, but don't you think when you see somebody driving down the road, yelling at other drivers, don't you think that that would be a Scalia thing to do? Like, I have been in a car with him. So I don't know that for sure. It seems like the kind of guy.
J. Aughenbaugh: He does strike me as an aggressive driver.
N. Rodgers: Crabby with other people and crabby with I hit every red light.
N. Rodgers: Because he was an aggressive questioner during oral arguments at the Supreme Court. If you see recordings of him doing co-lectures with other people. He leans forward, he gestures with his hands, etc. I could see him being aggressive driver. But the funniest anecdote was, he was double parked in Philadelphia outside the Union League. He had a car that had a Supreme Court police parking placard on the car, and he still got a ticket, for being double parked. He received a $31 ticket from the Philadelphia Parking Authority.
N. Rodgers: I'm going to put to you that if you double park, you deserve a ticket. I have no sympathy for that.
J. Aughenbaugh: Yes.
N. Rodgers: You are now, parking in the driving lanes. No.
J. Aughenbaugh: Yeah. By the way, listeners, I'm from the Northeast, and people double park all the time, particularly in big cities, and it just drives me nuts. Because you're just driving along, you're in your lane, and all of a sudden, you got to come to a big somebody is parked in a driving lane with their hazards on.
N. Rodgers: You've got to try to get around them. You've got to try to get somebody to let you in to the next lane. Which I'm just going to tell you in New York is not going to happen unless you make it happen.
J. Aughenbaugh: Yes.
N. Rodgers: It's just all bad. Scalia should have gotten a $31 ticket. Just saying.
J. Aughenbaugh: Yes. Now, some justices? Never married.
J. Aughenbaugh: Justices Moody, McReynolds, Cardozo, Frank Murphy, David Souter, and on the current court, Elena Kagan. Yeah.
N. Rodgers: Do we know why? I know in some cases it has been suspected that they are homosexual or lesbian.
J. Aughenbaugh: Yes.
N. Rodgers: In Elena Kagan's case, I don't know that anyone has ever had the stones to ask any of those people, nor do I believe that it's anybody's business. It's not.
J. Aughenbaugh: No.
N. Rodgers: But for many years, choosing to have no partner was the way that a lot of homosexual folks went about their public lives.
J. Aughenbaugh: Yes.
N. Rodgers: They just chose not to have a partner, rather than have a partner that they didn't love or didn't want to be with.
J. Aughenbaugh: It has been rumored in regards to Kagan and Souter that both of them were homosexual. But there's no concrete evidence. In the case of McReynolds, I'm sorry, I'm going to swear again. He was a son of a bitch.
N. Rodgers: He's just honory.
J. Aughenbaugh: Remember, McReynolds was probably the best-known, most recent anti-Semite on the Supreme Court. McReynolds was the justice who refused to sit for the annual group photo when he had colleagues who were Jews.
N. Rodgers: Because afford it.
J. Aughenbaugh: No. It was Brandeis and then even worse, Cardozo. There was a period of time where he had to serve with two Jews, and he disliked Jews.
N. Rodgers: He's a jerk. We don't like him.
J. Aughenbaugh: Yes. I don't know about Moody. Murphy. If I had to venture a guess, he was probably in the closet.
N. Rodgers: We're hypothesizing because we do not know, and it's not our business to know.
J. Aughenbaugh: No.
N. Rodgers: Do we think that at some point there will be a justice that has a partner that is same sex?
J. Aughenbaugh: Yes.
N. Rodgers: Do we think that the Senate will not see that as a barrier? Have we reached, or will we reach a point where that won't be?
J. Aughenbaugh: The reason why I say yes is because we now actually have people in Congress with same-sex partner.
N. Rodgers: Same-sex partners. Well, MP Budgez Department of Transportation has also been openly partnered.
J. Aughenbaugh: We see this now with more regularity in state and local government. As you see more examples of people being able to have successful government careers.
N. Rodgers: It will eventually work its way up.
J. Aughenbaugh: Its way up there. I suspect that that will be the case.
N. Rodgers: But to a not serious thing because that's a serious thing, can we talk about what people eat?
J. Aughenbaugh: Good Lord. Yes.
N. Rodgers: We have some really picky, weird eaters.
J. Aughenbaugh: Again, David Souter is probably the best-known of recent vintage.
N. Rodgers: I love David Souter.
J. Aughenbaugh: His preferred lunch was an apple and plain yogurt.
N. Rodgers: When Aughie says apple, he doesn't mean that just the fleshy part of the apple. He ate the entire apple, including the core, which is just weird. That is just weird. If you're going to have a weird eating habit, like Scalia's eating habit basically was, if it is red meat. I don't only want it. I want a lot of it.
J. Aughenbaugh: Yeah. For Scalia, he didn't want it well done.
N. Rodgers: He wanted a good vet, might be able to bring it back. He wanted it to basically just had a pulse recently.
J. Aughenbaugh: Yes.
N. Rodgers: Sorry. Not to be overly graphic for our vegan.
J. Aughenbaugh: Vegan listeners.
N. Rodgers: Sorry about that.
J. Aughenbaugh: He wanted the echo of a moo from the cow. He also loved.
N. Rodgers: He wanted it served with potatoes.
J. Aughenbaugh: With potatoes. Vegetables, optional. He loved his cigars and whiskeys, he used to joke about it. He said he was the poster child for a heart attack. Guess what? He died of a heart attack.
N. Rodgers: But on a lighter note.
J. Aughenbaugh: On a lighter note?
N. Rodgers: Justice Kagan has a whole Froyo thing going on.
J. Aughenbaugh: I got to show you this. I think I've mentioned it in previous podcast episode when you are the newest member to the court, part of your institutional hazing is you have to serve on the Supreme Court's Cafeteria committee. Usually, you're made the chair because you are the justice. Kagan gets appointed to the court by President Obama. She gets onto the committee, and she engendered so much goodwill among the clerks and the staffers because she got what for the Supreme Court cafeteria?
N. Rodgers: A frozen yogurt machine. Froyo for everybody.
J. Aughenbaugh: Yes. Kagan even to this day, jokes that there are staffers who still come up and say, thank you very much for getting the frozen yogurt machine.
N. Rodgers: It should be noted that they do not pay to eat in the cafe. If you are a member of the court meaning the clerks, the support staff, or the justices you don't pay to eat. That's part of the budget is that they feed you lunch, basically. I suppose dinner if you're there late enough. But I'm sure that people are like we need right now. Do you know what the solution to this would be? Frozen yogurt, and they go get frozen yogurt. I just think that's great.
J. Aughenbaugh: By the way, Souter's reign on the cafeteria committee was short because it was only a year and a half, and then Clarence Thomas was nominated. But they were really concerned about Souter's, if you will, tenure on the cafeteria committee because again, it had become known very quickly that David Souter led a very, shall we say, spare life.
N. Rodgers: If there could be a modern justice monk.
J. Aughenbaugh: Yes.
N. Rodgers: I think David Souter will probably, in terms of personality, be that guy. He left the court to go back to his rural town because he just didn't want to be part of the DC hustle bustle, he never liked that. Didn't want to be a part of it. Just wasn't his jam. As opposed to Scalia, who thrived in DC, he went to Opera, and he went to games, and he went to all concerts and all stuff. He really loved that life.
J. Aughenbaugh: That environment.
N. Rodgers: That walk into a bar and start arguing with everybody life.
J. Aughenbaugh: Souter hated it. Yeah.
N. Rodgers: Yeah.
J. Aughenbaugh: Now, we've had a couple other oddities. We've had one justice who served on two courts at one time.
N. Rodgers: How is that possible?
J. Aughenbaugh: Robert Jackson took a year sabbatical from the Supreme Court because he served as the lead prosecutor in the Nuremberg trials after World War II.
N. Rodgers: That's right. Because they wanted a Supreme Court justice.
J. Aughenbaugh: They wanted somebody of stature to go ahead and lead the prosecution against commoners.
N. Rodgers: Like a Kangaroo court. It wouldn't look like we were just. Like the allies were just punishing Germany without any actual due process.
J. Aughenbaugh: But Jackson's fellow justices really had a problem with him doing this because it basically meant that they were down one justice.
N. Rodgers: Short staffed.
J. Aughenbaugh: They were short-staffed. He did not consult with the other justices. I'm just going to do it.
N. Rodgers: He was not the chief.
J. Aughenbaugh: He was not the chief. No, he wasn't.
N. Rodgers: You know how competitive they are. I'm sure that they were petty. Why did you pick him? You've been on a plate ground in your life.
J. Aughenbaugh: Yes.
N. Rodgers: You know how this goes.
J. Aughenbaugh: Yes.
N. Rodgers: Aughie is better than the rest of us.
J. Aughenbaugh: Again, you're talking about people who for most of their life, have been told that they were the smartest person in the room.
N. Rodgers: Then they found out their slightly less special than their colleague.
J. Aughenbaugh: Now Justice Jackson, we made light of Justice Douglas' marital problems. Justice Jackson died in a, shall we say in a very inglorious manner. He actually died at his secretary's house.
N. Rodgers: It wouldn't have been so bad.
J. Aughenbaugh: Bad.
N. Rodgers: If she hadn't also been his mistress.
J. Aughenbaugh: But the Supreme Court's official press release said he suffered a heart attack. While shopping for his wife.
N. Rodgers: They couldn't make up a better lie than that.
J. Aughenbaugh: Now, mind you, his wife had moved back to Upstate New York, where they were from.
N. Rodgers: She knew this was going on. But Supremes are funny about their dirty laundry.
J. Aughenbaugh: They won't like it aired at all.
N. Rodgers: How long did it take us to find out that Jenny Rob had fallen? That was several weeks.
J. Aughenbaugh: Almost two months.
N. Rodgers: Before they said, he's fine. Everything's fine. They wanted to make sure he was fine, and then they could say, he fell, but it's all fine. That's a thing we should have known, don't you think, but maybe not.
J. Aughenbaugh: I don't know.
N. Rodgers: I don't know. Don't you think that also happens with the presidency? When presidents do weird stuff? The PR people kind of fib.
J. Aughenbaugh: Think about with the current president. President Biden and his wife, first lady, Joe Biden. They've had multiple dogs bite multiple Secret Service agents.
N. Rodgers: Watch out for Christie Noman. Just saying.
J. Aughenbaugh: You're on fire today. Both of us are on fire. We're just dropping jokes left and right, but we didn't find out about this about the dog-biting incidents until months afterwards.
N. Rodgers: People didn't find out about Kennedy's affairs until years afterwards.
J. Aughenbaugh: Yes.
J. Aughenbaugh: The Press Corp agreed. We just won't talk about it. We won't talk about his addiction to painkillers. They didn't talk about Nixon wandering the hall, talking to himself, even though they all knew it was happening. They didn't talk about his slow-motion mental breakdown.
J. Aughenbaugh: LBJ in his longstanding affair. They didn't report on how profane LBJ actually was.
N. Rodgers: I guess not just the Supremes, but the presidency. Probably Congress does the same thing, circles the wagons on certain things, and doesn't tell people stuff, because I would imagine they would think that it would undermine people's respect for the institution.
J. Aughenbaugh: Institution.
N. Rodgers: If you knew that he was banging his mistress and died at her house.
J. Aughenbaugh: Yes.
N. Rodgers: That's not very dignified. I should not have put it in those terms. Sorry. If he was with his mistress at her house, it's not very dignified. Part of what they're trying to do, I guess, is protect the dignity of the institution.
J. Aughenbaugh: Yes.
N. Rodgers: Beyond the individual. We have a couple of things to end on, but I want, if I may, to poach your notes. I had no idea. I know that justices have considered other careers. Presidents have had other careers. We've had an actor. We've had a peanut farmer. We've had several generals, people who've had full military careers, not just like, I served for a few years, but I made that my career before they go on to do other things.
J. Aughenbaugh: Yes.
N. Rodgers: I did not know until I read your notes. First of all, I did not know that Clarence Thomas was Catholic.
J. Aughenbaugh: Yes.
N. Rodgers: But I also didn't know that he had considered the pre-state, and had actually studied at Seminary.
J. Aughenbaugh: Yes, he did.
N. Rodgers: The thing that separated him out was that he didn't care for the church's stance on civil rights.
J. Aughenbaugh: Yes. He thought that the Catholic Church was too hesitant to support the Civil Rights movement.
N. Rodgers: That's one way to put it.
J. Aughenbaugh: That they should have been more out in front and supporting African Americans in the United States like they were other oppressed people in other parts of the world. But no, he's still a church-going Catholic even to this day.
N. Rodgers: He didn't break with the church. He just broke with the Priest. He didn't want to serve the church in that way but he didn't turn away from his faith.
J. Aughenbaugh: Of course, with Byron White, he had a really difficult choice.
N. Rodgers: Football career. Highly paid fall football career.
J. Aughenbaugh: But he chose wisely because the careers of justice last a lot longer than a careers of football player.
J. Aughenbaugh: Or, think about former Chief Justice Taft. Taft was a president before. According to a number of books, he hated being president. He loved being chief Justice. But, hey, he won a presidential election. Almost had a second term if it was not for his former mentor entering the race in 1912, right? We've had justices who had medical degrees.
J. Aughenbaugh: They were newspaper publishers. You mentioned people who've had military careers. So today, we just expect them to have been one track their entire life. Well, that's not all even the case.
N. Rodgers: The modern Supreme Court has done that. The modern Supreme Court, for the most part, have had. Now, they haven't all come up through the district court system or whatever, because some of them have been attorneys general, but they've all been in the law. Like Elena Kagan did not play field hockey and then come to the law.
J. Aughenbaugh: No.
N. Rodgers: You pay field hockey professionally and then come to the law, although that would be awesome.
J. Aughenbaugh: I mean, she was an elite in the American, if you will, legal system.
N. Rodgers: Right.
J. Aughenbaugh: Okay?
N. Rodgers: And she was a dean at a university.
J. Aughenbaugh: Well, dean at Harvard Law School.
N. Rodgers: Harvard Law School, so a dean at Harvard Law School. So again, tied to the law.
J. Aughenbaugh: Yeah. Tied to the law. Yeah, right? I mean, the last politician we've had on the Supreme Court was Sandra Day O'Connor.
N. Rodgers: Right. That's true. She had a career that was separate from law. That's true. I shouldn't say all of the modern court, many of the modern court.
J. Aughenbaugh: Yeah. But she was the last one, right? And she died late last year and hasn't been on the court since the first decade of this millennium. I mean, we basically now have a whole bunch of justices who have made conscious education and career choices point towards being considered for the Supreme Court.
N. Rodgers: Right. There were people who were motivated, probably from birth. You know what I mean? When I was a kid, I wanted to be a lot of different things. I'm like, I'll be of this, I'll be of that and then eventually settled in librarianship. But I'm sure that, I don't know, Amy Coney Barrett came out of the womb saying, I shall be a Supreme Court Justice.
J. Aughenbaugh: Or think about your beloved Jay Robb. He's been making conscious choices to be on the Supreme Court, if not being a Chief Justice of the Supreme Court.
N. Rodgers: Since his first softball game. Like when he was five.
J. Aughenbaugh: I mean, I wanted to be a catcher. I'm an accidental professor, right?
N. Rodgers: Right.
J. Aughenbaugh: Okay.
N. Rodgers: Jay Robb is not accidentally the Chief Justice of the Supreme Court.
J. Aughenbaugh: He hasn't done anything accidental since probably his mother changed his first diaper. Oops.
N. Rodgers: I won't do that again. I'll be purposeful next time.
J. Aughenbaugh: Yes. Right.
N. Rodgers: But we want to end on a funny net.
J. Aughenbaugh: Yes.
N. Rodgers: Now, some of the Supreme Court justices do what I call zingers. Which is when people are talking to the court, they will ask questions that are funny or zingy in part, because the proceedings are so serious.
J. Aughenbaugh: Yes. Or in some cases dry and boring. Let's face it.
N. Rodgers: Right. Or in some cases so ridiculous. That it opens itself up to, you have to make a joke here.
J. Aughenbaugh: Yes.
N. Rodgers: Who's the best at that?
J. Aughenbaugh: According to a law study done by law professor, Jay Wexler. He looked at the 2004 Supreme Court term, and Justice Scalia was the funniest justice because during oral arguments, he said things or asked questions that triggered 77 rounds of laughter which was basically one laugh per oral argument.
N. Rodgers: Okay. So he had a wicked sense of humor. We knew that anyway. We knew that anyway because when you see him speak publicly, he has a tendency to mix that sort of thing in.
J. Aughenbaugh: And it's not a big surprise. He loved being the center of attention.
N. Rodgers: Yeah.
J. Aughenbaugh: Okay.
N. Rodgers: Class clown as it were.
J. Aughenbaugh: He stated he was an only child in a large Italian Catholic family. He got doted on his entire life. He was the center of attention. Everybody thought he was cute, funny, smart, blah, blah, blah. So as life progressed, he thought, well, Hey, here's another opportunity for me to go ahead and get a laugh or get in a zinger. Now, the contrast was the second most funny. The second funniest was Justice Breyer. Now, if you ever heard Justice Breyer speak, you're like, how's this guy funny? He got laughter because of his bizarre hypotheticals. He would ask these hypotheticals, who you're like, ha, what?
N. Rodgers: Let's just assume that a cat was driving the car.
J. Aughenbaugh: What?
N. Rodgers: Okay.
J. Aughenbaugh: Okay.
N. Rodgers: Who's the least funny?
J. Aughenbaugh: Thomas and Alito.
N. Rodgers: He didn't say anything.
J. Aughenbaugh: For years, he didn't say anything, and even today.
N. Rodgers: It's hard to be funny when you don't talk.
J. Aughenbaugh: But even now that he participates, he probably asked the most serious questions, right?
N. Rodgers: I would assume that Ruth Bader Ginsburg was probably not hugely funny-ish.
J. Aughenbaugh: Yeah, she wasn't either.
N. Rodgers: She's very serious justice.
J. Aughenbaugh: Which makes her relationship, her friendship with Scalia, even more unusual, because you could not find two more different people in regards to oral arguments. Yes.
N. Rodgers: Well, when you hear Justice Ginsburg speak publicly, she's actually pretty amusing. But I would be willing to bet that she probably drew a line at the courthouse door because she wanted to be taken seriously. She wanted to be seen as a very serious justice. This is not a game. This is not playful. See, one of the things that Scalia could get away with in part was because he was white male. Right?
J. Aughenbaugh: Yeah.
N. Rodgers: He could be more like that and still be taken seriously. Whereas Justice Thomas, Justice Ginsburg, didn't have that advantage. They would be seen as not taking it seriously enough. So that's an interesting quirk. Go ahead.
J. Aughenbaugh: Well, you see this in other professions. I mean, there's a large body of research in regards to college professors. White male college professors can do and say things to elicit laughter or to elicit a particular response that female faculty members or faculty members can't do. If they attempt to do that kind of thing, students will evaluate them more negatively on end of the semester course evaluations. There's other research and other professions that can sort of support this. But Scalia, as you pointed out, white male, known for aggressive questioning. Well, of course, he's going to go for the zinger for the shot, right?
N. Rodgers: See and I want either Dave Chappelle or Chris Rock on the Supreme Court. I think those oral arguments would be fantastic to listen to. They have things to say. But I will tell you that my favorite of all the weirdness of all the justices, I swear to you is David Souter in the entire apple.
J. Aughenbaugh: Apple core. Yes, including the core, right?
N. Rodgers: Including the core. That's just so weird. But they're all kind of weird in their own ways, and we delight in their weirdness as long as it's harmless.
J. Aughenbaugh: And again, in some ways, it's not surprising because they've been so career focused. Right? There are things that they probably have not developed in regards to their personality or interactions with other humans. I mean, it's sort of the joke about the absent minded professor. If you're always thinking about stuff in books or your lab or experiments, you may not notice that you left the house with one gray sock and one brown sock on, right?
N. Rodgers: Right. And it doesn't matter.
J. Aughenbaugh: Yeah, you may not have noticed that you pulled away from your driveway and your coffee mug was on top of your car, right?
N. Rodgers: Right.
J. Aughenbaugh: Then you get to the office and you're like, hey, where's my coffee mug? And when you get home, you find it laying in your driveway or your yard, because that's where you put it before you drove away.
N. Rodgers: Right.
J. Aughenbaugh: I mean, hey, you interact with me on a regular basis, and you know that I have some peculiarities that with most other folks those would be considered odd or strange. But with me, it's kind of, Hey, oh, it's just Aughie, right?
N. Rodgers: Well, I think we all have that. Perhaps theirs are just more in the spotlight. And some of them are extraordinary. You haven't been married four times with a wife that's 46 years younger than you. Although there's still time, Aughie. You can work on that.
J. Aughenbaugh: Oh, no.
N. Rodgers: On that happy expensive note.
J. Aughenbaugh: Yes. I was just like, Nia, I thought you were my friend. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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