The Faculty Lounge

Swanson, Race and Selective Legal Memory

Kara Swanson, Race and Selective Legal Memory.  Forthcoming Columbia Law Review.

In 1858, the United States Attorney General issued an opinion, Invention of a Slave. Relying on the Supreme Court’s recent declaration in Dred Scott v. Sandfordthat African Americans were not citizens, he created a formal racial barrier to the patent system, declaring inventions by all African Americans, enslaved and free, unpatentable. Within a few years, legal changes that overruled Dred Scott and abolished the law of slavery rendered the opinion obsolete. This brief opinion became, as far as lawyers and legal scholars were concerned, forgotten. Unlike many overruled opinions dropped from the legal canon, however, Invention of a Slave and the associated story of an enslaved blacksmith who invented an innovative plow have been continuously remembered. Women and men committed to fighting the legacy of slavery maintained both in the collective memory of those seeking full civil rights for African Americans. Our legal forgetting was an act of persistent blindness to their efforts and publications. This Essay excavates the generations of African American writers and activists who have worked to remember the opinion and argues that legal forgetting has carried a cost. Their remembering was not casual storytelling but rather deliberate, strategic, and political. I offer Invention of a Slave as a case study of race and selective legal memory, tracing an unacknowledged color line that demarcates legal memory and the costs of that line. Because of our forgetting, the opinion appears as an obscure part of the antebellum past. When we understand their remembering as a political act, we can see what they have always seen: There is a connection between the patent system and the legal and social definition of citizenship. At a time when the boundaries of citizenship and the contours of who is worthy to be considered an American are hotly contested in ways related to race and ancestry, learning from those who remembered Invention of a Slave offers lessons that link this piece of the past to our present and future, with implications both for the patent system and for our on-going conversation about race, equality, citizenship and the laws that affect them.

Francis Daniel Pastorius Reader

The Francis Daniel Pastorius Reader is Penn State University Press.  It has been works for a lot of years—for years.

Francis Daniel Pastorius was one of the first German settlers to Pennsylvania, every late seventeenth and the early eighteenth century.  This monumental anthology presents a selection of his many writings in one volume.

Pastorius sailed to North America as a Pietist but found a unique home among the Quakers in Pennsylvania. Within this early modern religious context, he was a lawyer, educator, and community leader; a polymath; and a prolific writer and collector of knowledge. At the turn of the eighteenth century, Pastorius held one of the largest manuscript collections in North American. His collecting, curation, and dissemination represents a unique look at the ways information was stored, processed, and utilized during the seventeenth and eighteenth centuries in both North America and Europe. This rich selection of Pastorius’ writings on religion, education, gardening, law and community, and the colony of Pennsylvania—as well as letters, poems, and numerous encyclopedic and bibliographic works—shows the work of a true humanist in action.

Pastorius’s works have long been important to archival study of early German settlement and the Atlantic world. Now available together, transcribed, translated, and annotated, his writings will have widespread significance to the study of early American literature and history.

 

Judge Ronald Longstaff

I recently wrote an article on the life and career of Judge Ronald Longstaff, a highly regarded federal judge in Iowa. The article is titled “Common Sense and Compassion: A Judicial Biography of Ronald Longstaff” and it was published last fall by the Drake Law Review. Here is the abstract:

For over four decades Ronald Earl Longstaff served the United States District Court for the Southern District of Iowa, first as a federal magistrate and then as an Article III federal judge. Longstaff’s professional life provides a unique window into the Iowa bench and bar from the 1960s to the 2000s. Over the course of his career, Longstaff heard a remarkably diverse range of cases, from civil rights actions to commercial disputes to murder trials. A highly respected and admired judge, Longstaff exemplified the two qualities he viewed as central to judicial service: compassion and common sense.

Judge Longstaff’s life is also a story of perseverance and triumph over adversity. As a child in Pittsburg, Kansas, he was diagnosed with cerebral palsy. The treating physicians advised Longstaff’s parents to institutionalize him, a common practice in the 1940s for children with cerebral palsy. But to Ronald Longstaff’s good fortune, his parents ignored the doctors’ advice. The Longstaffs’ decision to keep their son in school made it possible for him to achieve his full potential, which eventually included decades of service as a distinguished federal judge.

As part of the project, I did a number of interviews with Judge Longstaff at his home in West Des Moines. It was an absolute pleasure to get to know him. Dick Lyford, the president of the Historical Society for the Southern District of Iowa, joined me for all of the interviews and provided invaluable assistance to me. Dick also arranged for a court reporter to transcribe the interviews. 

If you are interested, here is a link to the full article.

Babe Ruth’s Candy Bar

The distinguished sportswriter and baseball biographer Jane Leavy has a new book out on Babe Ruth. It’s called The Big Fella: Babe Ruth and the World He Created. Leavy’s book is a New York Times best seller, just like her biographies of Sandy Koufax and Mickey Mantle.

Brian Lamb interviewed Leavy on his CSPAN program Sunday night. During the interview she told the interesting story of the legal battle between Babe Ruth and the makers of the Baby Ruth candy bar.

The candy, which is still made today, became a tremendous commercial success at the exact moment that George Herman “Babe” Ruth Jr. became the biggest superstar in baseball history. The timing was probably not a coincidence.

Otto Schnering—owner of the Curtiss Candy Company of Chicago—insisted that the candy’s name referred to former President Grover Cleveland’s daughter, Ruth, who was born in 1891. But the only thing that rang true about Schnering’s claim was that the Cleveland baby was known as “Baby Ruth” at the time of her birth. The rest of his story did not hold up.

The Great Molasses Flood of 1919

Today marks the 100th anniversary of the Great Molasses Flood. Despite its absurd-sounding name, the flood was a grave and tragic event for the city of Boston. Shortly after 12 noon on January 15, 1919, a massive storage tank burst and sent a deadly wave of molasses flooding across two city blocks in Boston’s North End. By the time the molasses came to a stop, 21 people had died and more than 100 had suffered serious injuries.

The flood likely resulted from a design flaw that made the storage tank vulnerable to temperature fluctuations. The Purity Distilling Company and its parent corporation, United States Industrial Alcohol, paid little heed to safety. They built a poorly constructed tank in the middle of a busy wharf district. The owners also had advance notice of trouble. The tank leaked so much that neighborhood children frequently came by to taste the molasses streaming down the sides of the structure. Months before the disaster, the foreman repeatedly warned management that the tank could explode, but his superiors brushed aside his concerns. As gases built up within the tank, its walls began to vibrate ominously. When the tank finally erupted, the wave of molasses that roared out of it weighed 20 million pounds, stood 25 feet high, and moved at 35 miles per hour. No one in its path had a chance.

The Plantagenets

I am pleased to report that BBC’s historical documentary The Plantagenets is now available in high definition on YouTube. It is hosted by the distinguished medievalist Robert Bartlett, an emeritus professor of history at the University of St. Andrews.

The Plantagenets ruled England from 1154 to 1485, the longest reign of an English royal dynasty. The common law, the principle of stare decisis, and the parliamentary form of government all took hold under the Plantagenets. But their reign also included some of the bloodiest and most tumultuous chapters in the history of England, Wales, and Scotland. A century after the demise of the last Plantagenet king, William Shakespeare ensured the everlasting fame (and infamy) of the Plantagenet dynasty in plays such as Richard II, Henry IV, Henry V, and Richard III.   

The real life story of the Plantagenets puts Game of Thrones to shame. Episode One of the BBC documentary on the Plantagenets—The Devil’s Brood—is available here. Episode Two—An English Empire—is available here. And the final episode—The Death of Kings—is available here.

On a related note, two months ago on his In Our Time BBC radio program Melvyn Bragg did a quite interesting 40-minute segment on Is Shakespeare History? The Plantagenets. During the program Bragg interviewed the Shakespeare scholars Emma Smith, Gordon McMullan, and Katherine Lewis. You can find the audio clip here.

The Christmas Amnesty of 1868

Tuesday marked the 150th anniversary of President Andrew Johnson’s Christmas Amnesty of 1868. Acting under Article II of the Constitution (which empowers the president “to grant reprieves and pardons for offenses against the United States”), Johnson granted amnesty and a full pardon to all ex-Confederates. Here is the complete text of his Christmas Amnesty:  

A Proclamation

Whereas the President of the United States has heretofore set forth several proclamations offering amnesty and pardon to persons who had been or were concerned in the late rebellion against the lawful authority of the Government of the United States, which proclamations were severally issued on the 8th day of December, 1863, on the 26th day of March, 1864, on the 29th day of May, 1865, on the 7th day of September, 1867, and on the 4th day of July, in the present year; and

Whereas the authority of the Federal Government having been reestablished in all the States and Territories within the jurisdiction of the United States, it is believed that such prudential reservations and exceptions as at the dates of said several proclamations were deemed necessary and proper may now be wisely and justly relinquished, and that an universal amnesty and pardon for participation in said rebellion extended to all who have borne any part therein will tend to secure permanent peace, order, and prosperity throughout the land, and to renew and fully restore confidence and fraternal feeling among the whole people, and their respect for and attachment to the National Government, designed by its patriotic founders for the general good:

Now, therefore, be it known that I, Andrew Johnson President of the United States, by virtue of the power and authority in me vested by the Constitution and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.

In testimony whereof I have signed these presents with my hand and have caused the seal of the United States to be hereunto affixed.

Done at the city of Washington, the 25th day of December, A. D. 1868, and of the Independence of the United States of America the ninety-third.

ANDREW JOHNSON

The Christmas Amnesty is a historical precedent worth remembering as we await the completion of Special Counsel Robert Mueller’s Russia investigation. Two aspects of Johnson’s use of his pardon power stand out as particularly relevant.

Execute Against Japan

Today marks the 77th anniversary of Pearl Harbor, one of history’s most famous events. On the morning of December 7, 1941, the Imperial Japanese Navy launched a surprise attack on the American naval and air facilities at Pearl Harbor, Hawaii. Striking without warning (and before Tokyo’s issuance of a formal declaration of war), the Japanese military caught the U.S. Army and Navy completely off guard. In a span of less than two hours, Japanese fighters, bombers and submarines killed 2,400 American service members (as well as 49 civilians) and sank or severely damaged a dozen American warships, including the battleships Arizona, Utah, and Oklahoma.

Without question, the Pearl Harbor attack was one of the most brilliant and sophisticated tactical operations in military history. To achieve surprise, the Japanese Navy had secretly moved six carrier battle groups across 4,000 miles of ocean in heavy winter seas to reach the waters off Hawaii. During the long dangerous voyage across the Pacific, the Japanese warships never broke radio silence. After the attack the Japanese fleet left Hawaii almost unscathed, having lost only 100 pilots and submariners. Few navies in history could have pulled off such a skillful feat as the Pearl Harbor operation.   

But Pearl Harbor ultimately proved to be a strategic disaster of truly epic proportions for Japan. In the years that followed the attack the United States went on a war footing that vastly exceeded Japan’s ability to match. Even before the Japanese planes returned to their carriers, Tokyo’s unconditional surrender became America’s central war aim in the Pacific theater. As Professor Gerhard Weinberg observed in his classic work, A World At Arms: A Global History of World War II, the unprovoked nature of Japan’s attack on Pearl Harbor “was guaranteed to unite the American people for war until Japan surrendered. . . . The attainment of surprise guaranteed defeat, not victory, for Japan.”

When Japan finally surrendered in August 1945, it had sustained one of the most crushing defeats in the history of modern warfare. American firebombing (including two atomic bomb attacks) had destroyed most of Japan’s major cities, Japan’s military was shattered, and over 2 million Japanese were dead. The war also devastated Japan’s reputation with its neighbors as the brutal Japanese military occupation of China, Korea, Vietnam, and the Philippines created bitterness that lasted decades. For the rest of the twentieth century, the United States stood as the dominant power in the Pacific.

Pearl Harbor’s enormous historical significance is self-evident. But there is a remarkable aspect of the Pearl Harbor story that even many students of World War II do not know. A few hours after the Pearl Harbor attack, the United States Navy issued an extraordinary order to its surface and submarine fleets, one that violated international law and probably the Constitution of the United States as well.

Manliness

I want to thank Dean Dan Filler for inviting me to blog.

One of my chief scholarly interests is manliness and its relation to law and politics. While the topic may seem exotic to some, I think it is in fact quite the opposite: it is manifest in some of our most pressing public issues. We have a President, for example, who has explicitly invoked the tropes of manliness to justify his authority (and belittle others). So too the policy debates about the Second Amendment are often prompted by mass shootings committed by disturbed males who feel that a resort to gun violence is necessary to redeem their emasculated status.

But manliness is a barbed idea. It can serve diverse constituents. Manliness as a normative theory has arguably been used to underwrite the First Amendment right of speech, the need for civility as a political virtue, and the Civil Rights Movement of the 1960s.

In the next couple of weeks I plan to blog about manliness in the context of law and politics, beginning with my recent book about Justice Oliver Wendell Holmes.

 

Eleanor Roosevelt’s Tax Returns

Eleanor Roosevelt probably would have disagreed with Donald Trump on many topics. But a new article in Modern American History highlights one issue Roosevelt saw eye-to-eye with President Trump: the non-disclosure of presidential tax returns. 

In “Eleanor Roosevelt’s Tax Returns,” Carolyn Jones provides a short but illuminating history of how tax returns became confidential documents, shielded from public access. As Professor Jones explains in her article, tax privacy was not always the order of the day in Washington. When Congress adopted an income tax during the Civil War to pay for the Union war effort, the government allowed public inspection of all tax returns. Six decades later, in the case of United States v. Dickey, the Supreme Court held that no congressional statute or constitutional provision barred newspapers from publishing the details of individual taxpayers’ federal income tax returns.

In response to the Dickey decision, the Coolidge Administration made tax returns confidential. But during the Great Depression allegations of widespread tax evasion by the rich became a highly partisan issue. As Jones points out, when President Franklin Roosevelt called for disclosing the names of “very wealthy individuals” who used loopholes to avoid paying taxes, the IRS Commissioner publicly identified 67 wealthy people (mostly Republicans) who allegedly had not paid “their full share of taxes.”

Viewing the tax disclosures as a partisan attack as well as a blatant abuse of power, Congressional Republicans responded by demanding an investigation into the Roosevelt family’s finances. The intrusive nature of the investigation affected Eleanor Roosevelt as much as her husband. As Professor Jones notes, the First Lady made so much money from her product endorsements, speaking fees, and writing royalties that “her income sometimes exceeded her husband’s salary.” Although proud of her financial independence from her husband, Eleanor Roosevelt had little interest in revealing to the world the most private details of her personal finances, let alone those of her family. The controversy soon fizzled out, but the experience left Roosevelt with a deeply wary view of mandatory disclosure of government officials’ tax returns. 

During the 1952 election, the issue of presidential taxes returned to public prominence when Senator (and Republican vice presidential candidate) Richard Nixon challenged the Democratic presidential and vice presidential candidates to disclose their tax information. Eleanor Roosevelt, however, publicly disagreed with Nixon in a newspaper column. Although she understood the benefits of public disclosure, she nevertheless argued that asking “government officials to reveal their finances . . .  is a sign that we no longer believe people should be proved guilty before they are accused of wrongdoing.” The controversy over the Roosevelt family finances, Jones concludes, “helps explain [Eleanor] Roosevelt’s reticence in 1952 to Nixon’s call for politicians to disclose their filings.”

Professor Jones’s excellent article is timely, engaging, and concise (it is only 4 pages long). It is available here at the Cambridge University Press website. In addition, Legal History Blog has a link to the other articles in the new issue of Modern American History.

The Schoolhouse Gate

Last fall I heard Justin Driver give a superb lecture at Drake Law School on free speech in the public schools. The lecture was based on a book he was writing about constitutional law and public education. The book is now out and it is called "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." It was published last month by Pantheon Books.

Yesterday SCOTUSblog posted an interview with Professor Driver about his new book. As he explains in the interview, the book "argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history." He contends that "when we disagree over what the Constitution means in public schools, we engage in an argument that is fundamentally about what sort of nation we want the United States to be."

One part of the interview that particularly caught my eye is Driver's revisionist account of Brown v. Board of Education. Here is an excerpt from the interview:

"Many observers have asserted that the Supreme Court’s unanimity was essential in Brown because a dissenting opinion would have stoked southern opposition. As subsequent events would demonstrate, however, southerners did not need any encouragement from the Supreme Court to resist Brown in a maximal form. In 1956, for example, 19 U.S. senators and approximately 80 congressmen joined forces to issue a document called the Southern Manifesto denouncing Brown as wrongly decided. Anti-Brown forces eventually coalesced around a rallying cry holding that they would accept racial integration exactly 'never!' Importantly, it seems quite plausible that Chief Justice Earl Warren, had he not felt compelled to placate Justice Stanley Reed — the last holdout for Jim Crow — could have written a more muscular opinion in Brown. Whatever modest gain Warren realized from Brown’s unanimity in the form of squelched dissent, in other words, could have been counterbalanced — and perhaps even outweighed — by the attendant loss of watering down the opinion’s condemnation of Jim Crow. Thus, rather than continuing to champion Warren’s behind-the-scenes maneuvering in Brown uncritically, one might more appropriately view those actions as well-intentioned but ultimately misguided." 

I have always admired Chief Justice Warren's skill in securing a unanimous opinion in Brown, but Driver's counterargument is compelling. His book looks absolutely great.  

Here is a link to the full SCOTUSblog interview with Professor Driver. And here is a link to the book's Amazon page.

A Vapid and Hollow Charade

In a 1995 book review, an up-and-coming University of Chicago law professor criticized Supreme Court nomination hearings as a “vapid and hollow charade.” The professor’s name was Elena Kagan. When Barack Obama nominated her to the Supreme Court in 2010, Kagan approached the Senate hearings in a highly respectful manner, notwithstanding her previous sharp criticism of them.

Nevertheless, Kagan’s characterization of the nomination hearings as “vapid and hollow” remains accurate, as demonstrated last week by the Brett Kavanaugh hearings. During his testimony, Judge Kavanaugh carefully avoided saying anything interesting, revealing, or surprising. We learned nothing of value about Judge Kavanaugh beyond what we already knew.

But the opaque nature of the Kavanaugh hearings does not represent much of a departure from past hearings, nor does it mean we lack a reasonably clear sense of Judge Kavanaugh’s judicial philosophy. As a D.C. Circuit judge, he has heard more than 1,500 cases. Accordingly, he has articulated his views to a far greater extent than Elena Kagan ever did prior to joining the Supreme Court. Before criticizing the Kavanaugh hearings, therefore, a few historical points are worth emphasizing. 

The Triangle Shirtwaist Factory Fire

On a spring afternoon in March 1911, Frances Perkins joined friends for tea at a luxury townhouse on North Washington Square in Lower Manhattan. Shortly after she arrived, however, the sound of sirens and shouts of fire drew Perkins and her friends outside to find out what was happening. Across Washington Square Park they saw a fire raging on the top floors of the Asch Building, a “fireproof” 10-story high-rise that housed factories that made women’s blouses.

As Perkins got closer to the building, the full horror of the situation became apparent. Terrified factory workers, most of them young women, began jumping from the 9th floor of the building to escape the flames. Some of the victims were on fire when they jumped.

Perkins later described the awful scene:

“People had just begun to jump as we got there. They had been holding on until that time, standing in the windowsills, being crowded by others behind them, the fire pressing closer and closer, the smoke closer and closer. . . . They began to jump. The window was too crowded and they would jump and they hit the sidewalk. . . . [E]verybody who jumped was killed. It was a horrifying spectacle.”

Perkins and her friends had witnessed one of the worst workplace disasters in American history: the Triangle Shirtwaist Factory Fire.

A Girl Stands at the Door

Few Supreme Court rulings in history have approached the importance of the 1954 case of Brown v. Board of Education. In overturning the notorious case of Plessy v. Ferguson, the Supreme Court in Brown unanimously held that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

Brown is rightfully celebrated as a great chapter in American history. But do we really know the whole story of how the case arrived at the Supreme Court?

Trump, Roosevelt, and Secret Campaign Funds

In the 1904 presidential election, a number of major American corporations secretly contributed $1.5 million to Theodore Roosevelt’s reelection campaign. George Cortelyou, the GOP chairman and Roosevelt’s de facto campaign manager, aggressively solicited the corporate donations even as Roosevelt himself publicly denied that his campaign relied on corporate support. When the true story of Roosevelt’s campaign tactics began to emerge after the election, the president sanctimoniously reversed course, calling for a ban on corporate donations to federal election campaigns. In 1907 a reluctant Congress enacted the ban and it has remained in effect ever since.

On Tuesday we learned that Donald Trump’s 2016 presidential campaign likely violated the century-old prohibition on corporate campaign contributions. The facts as currently known, however, suggest the campaign’s real motivation had to do with preserving secrecy, not amassing corporate cash.

Hank

If you are looking for something to watch this weekend, the documentary Hank: Five Years from the Brink is now available on Netflix and Amazon. The film tells the story of the 2008 financial crisis from the perspective of Treasury Secretary Hank Paulson. During the most dangerous days of the crisis, he played a crucial role in persuading Congress to authorize a $700 billion bank bailout, the biggest in American history. The October 2008 bailout averted a 1930s-style run on the banks and likely prevented another Great Depression.

Ironically, however, Paulson inadvertently helped trigger the crisis in the first place.

Did Harry Tompkins Lie?

On Monday I wrote about the legal legacy of Erie Railroad Company v Tompkins. Then last night on Legal History Blog I learned that in a forthcoming article, The Ballad of Harry James Tompkins, Brian Frye challenges the key factual assumptions at the heart of the Erie case. It is an entertaining but also quite significant article that rewrites the history of one of the Supreme Court’s most important cases.

For the last 84 years, the facts of Erie seemed straightforward. On the evening of July 26, 1934, an unemployed young man named Harry James Tompkins visited his mother-in-law in Exeter, Pennsylvania. After midnight he set off on the 2.5-mile walk home to his wife and infant daughter in neighboring Hughestown. Near the end of his journey, and after getting a ride from friends for part of the trip, the most direct route to his house was along a footpath running immediately parallel to an Erie Railroad track. As Tompkins made his way home on the footpath, he saw the headlight of an approaching train. Nevertheless he continued walking on the footpath until at the last second he glimpsed an unsecured door on one of the train’s refrigerator cars suddenly swing open. Before he could get out of the way, the swinging door knocked him to the ground. Tompkins’s right arm fell under the train’s wheels and was severed.

The case that ensued changed the course of American law. After finding a young lawyer in New York City to represent him, Tompkins brought suit in a New York federal court, which heard the case on the basis of diversity jurisdiction and general personal jurisdiction (Erie Railroad was incorporated in New York). Judge Samuel Mandelbaum, following the federal general common law, applied the plaintiff-friendly standard of ordinary negligence. As expected, the jury ruled for Tompkins and awarded him $30,000, a verdict affirmed by the Second Circuit. But in a dramatic turn of events, the U.S. Supreme Court reversed, holding that the trial court should have applied Pennsylvania common law, which called for the defendant-friendly standard of wanton negligence. On remand, the Second Circuit directed a verdict for the railroad, and Tompkins ultimately received no compensation for his injuries. The rest, as they say, is history.

But is the history right? Did an unsecured door on a refrigerator car really hit Harry Tompkins as he walked along the tracks at 2 a.m. on July 27, 1934? Or was the truth entirely different?

Professor Frye makes a compelling case that we’ve gotten the facts of Erie all wrong. As he explains in a fascinating reconstruction of the accident, Tompkins almost certainly was not walking innocently along the footpath when he fell under the train. Instead he was likely attempting to jump on the train as a trespasser in order to ride it to neighboring Wilkes-Barre. Tompkins himself was thus the negligent party and his lawsuit should probably never have gotten to a jury in the first place.  

I won’t ruin the story by giving away all the details, but Frye’s explanation of what happened that fateful night in Hughestown is completely persuasive. You can find the article, which is forthcoming in the Akron Law Review, on SSRN here. When we get to Erie during my Civil Procedure class this fall, it will be fun to share Professor Frye’s article with the students. The story he tells provides a wonderful insight into the human actors who gave rise to the famous Erie case. It is also a good reminder that history is never fully settled. Even in the most famous and closely scrutinized Supreme Court cases, there is usually more to the story than we know.  

Cardozo and the Death of the Common Law

Last month marked the 80th anniversary of the death of Benjamin Cardozo, a Supreme Court justice whose name still resonates in courtrooms and law schools across the country. As Andrew Kaufman observed in his great biography of the late justice, Cardozo stands as “one of the most distinguished judges in the history of American law.”

Cardozo cases, such as Palsgraf v. Long Island Railroad and People v. Zackowitz, remain staples of major casebooks. His influence on constitutional law can still be felt today as well. Cardozo’s majority opinions in Steward Machine Co. v. Davis and Helvering v. Davis upheld the constitutionality of the Social Security Act, opening a new era of federal jurisprudence.

But a disconnect exists between Cardozo’s short tenure on the bench and his legacy’s extraordinary reach. Remarkably, he only spent six years on the U.S. Supreme Court, a fraction of the time of major justices such as John Marshall (34 years), Stephen Field (34 years), Oliver Wendell Holmes, Jr. (29 years), Hugo Black (34 years), William Brennan (34 years), and Antonin Scalia (30 years).

So why is Cardozo still so prominent in American law all these years later?

Nixon on US v Nixon

Over the weekend we learned that Brett Kavanaugh once expressed doubts about the wisdom of the Supreme Court’s ruling in United States v. Nixon, the famous Watergate tapes case. His comments have generated controversy because the case stands as a hallowed landmark in the history of American law. In the 1974 case, the justices ruled 8-0 that the president’s “generalized assertion of [executive] privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 

In fairness to Judge Kavanaugh, his critical comments about the Nixon decision came almost 20 years ago. More recently he has discussed the ruling in favorable terms. In any case, the Senate confirmation hearing will give him an opportunity to clarify his position on United States v. Nixon and the crucial issue of executive privilege.

In the meantime, it’s interesting to reflect on Richard Nixon’s own reaction to the momentous Supreme Court decision that ended his presidency. Nixon learned of the Court’s ruling on the morning of July 24, 1974, when Alexander Haig, his chief of staff, called to let him know the bad news.

According to President Nixon’s autobiography, The Memoirs of Richard Nixon, the most important feature of the ruling was that it was 8-0. After learning that the Court had ruled against him, the first question Nixon asked of Haig was how many justices ruled with the majority.

“Unanimous,” Haig responded. “There’s no air in it at all.”

“None at all?” Nixon asked.

“It’s tight as a drum,” Haig explained.

A few minutes later Nixon and Haig met with James St. Clair, the president’s attorney. The three men discussed how to proceed in the wake of their devastating Supreme Court defeat. They knew that the release of the audio tapes—which recorded the president’s direct personal involvement in obstruction of justice—spelled Nixon’s political doom. Indeed, he would resign on August 9, just over two weeks after United States v. Nixon.

Ever since then, the case has been rightfully celebrated for vindicating the rule of law. A few hours after the Court announced its Nixon ruling, Watergate Special Prosecutor Leon Jaworski told the journalist Theodore White, “What happened this morning proved what we teach in schools, it proved what we teach in colleges, it proved everything we’ve been trying to get across—that no man is above the law.” 

But it is worth noting how close Nixon came to defying the Supreme Court ruling. As he explained in his autobiography, after the Court’s decision he seriously considered forcing a constitutional crisis by refusing to hand over the tapes. Nixon had an absolutist view of presidential power. He thus viewed the decision itself as unconstitutional, and lamented that the “presidency itself was a casualty of this ruling.” He would later tell the British journalist David Frost that “when the president does it, that means it is not illegal.”

Ultimately, however, the unanimous nature of the Supreme Court’s decision forced Nixon’s surrender. He could not portray the Court’s ruling as partisan or ideological in nature when the justices acted in unison. As Nixon explained in his autobiography:

“The problem was not just that we had lost but that we had lost so decisively. We had counted on some air in the Court’s ruling, at least some provision for exempting national security materials. We had counted on at least one dissent. For a few minutes we discussed the option of ‘abiding’ by the decision in the Jeffersonian tradition. But after checking with some of our strongest supporters in Washington, we concluded that full compliance was the only option.” 

It’s worth pondering what would happen if a similar case reached the justices today. If faced with a momentous case testing the limits of presidential power, could the Roberts Court find common ground among the justices as the Burger Court did 44 years ago?

No one knows the answer to that question. But it certainly makes Judge Kavanaugh’s views on United States v Nixon worth exploring in great detail during his Senate confirmation hearing. 

The Court Martial of Jackie Robinson

Seventy-four years ago tonight 2nd Lieutenant Jack Roosevelt Robinson, an African-American army officer from California, refused to move to the back of a military bus at Camp Hood, Texas. Robinson’s courageous and principled decision set off a legal controversy that nearly changed the course of American history.