The Faculty Lounge

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.

Rove on Supreme Court interviews

CNN is reporting that President Trump will select his nominee to the Supreme Court by July 9. Accordingly, over the course of the next 10 days, a handful of candidates will undergo the enormously stressful experience of high-stakes White House interviews.

In his autobiography, Courage and Consequence: My Life as a Conservative in the Fight, former presidential adviser Karl Rove revealed the confidential interview process that led to the 2005 nominations of John Roberts and Samuel Alito. Rove’s book provides a unique and valuable perspective into how the Bush administration approached the selection process. I suspect the Trump White House’s approach will be quite similar.

RFK

New York Senator and Democratic presidential candidate Robert F. Kennedy died from gunshot wounds 50 years ago today. RFK’s assassination represented a turning point in American political history. At the time of his assassination, RFK was only 42 years old with a promising future ahead of him. Even if he had failed to win in 1968, he would have remained a formidable contender in subsequent elections. Indeed, it seems safe to say that had he lived, RFK would have been a major force in American politics well into the 1990s.

But his assassination is also historically important for another reason: it left a legacy of public distrust and cynicism that remains entrenched in our politics today. 

Money in Politics . . . in the 1700s

Noah Feldman’s superb new book, The Three Lives of James Madison: Genius, Partisan, President, is filled with fascinating insights relevant to contemporary American law and politics.

One anecdote particularly stood out for me, and it involves James Madison’s first effort to win elective office. The story of Madison’s inaugural political campaign illustrates that the problem of money in politics is not a new development. It dates to the very origins of our republic. 

Romero

Pope Francis announced on Saturday that Archbishop Oscar Romero will be canonized as a Roman Catholic saint this fall. 

The story of Archbishop Romero is one of the most important in Central American history. He was shot and killed on March 24, 1980 as he celebrated Mass at the Chapel of the Hospital de la Divina Providencia in San Salvador, the capital of El Salvador.

Follow the Money

The phrase “follow the money,” which seems ubiquitous lately, is one of the most famous and enduring legacies of the Watergate scandal. It was popularized by the classic Alan Pakula movie, “All the President’s Men,” which itself was based on the book of the same title by the Washington Post reporters Bob Woodward and Carl Bernstein.

The phrase is used in one of the movie’s best scenes. With Woodward and Bernstein’s investigation stalled, a frustrated Bob Woodward (played by Robert Redford) meets with his secret Nixon Administration source, Deep Throat (played by Hal Holbrook), for guidance on how to proceed. The movie shows them meeting in the middle of the night in a Washington parking garage, just as Woodward and Deep Throat did in real life. In a scene filled with tension and mystery, Deep Throat explains to Woodward that the key to solving the riddle of Watergate is to “follow the money.”

Ever since then, the phrase “follow the money” has been synonymous with Watergate. But there is just one catch: Deep Throat probably never said “follow the money.”

Informant Testimony and the Watergate Case

There is an excellent piece on FiveThirtyEight today by Maggie Koerth-Baker on why we should be more skeptical of incentivized informant testimony. Her post is called “Should We Trust Michael Cohen If He Flips On Trump?” and she examines the role informant testimony plays in wrongful convictions. It is a nice supplement to the great recent Faculty Lounge posts on false confessions by Laura Nirider and Brian Gallini. Koerth-Baker discusses a number of important recent academic studies on informant testimony as well as the tremendous work of Northwestern University Law School’s Center on Wrongful Convictions. Her post also brought to my mind one of the most famous episodes in the Watergate scandal. 

The Ghost of Felix Frankfurter

This week the Supreme Court heard the final oral arguments of the 2017-18 term.

The attorneys who argue before the justices have never had it easy. One of the toughest questioners in history was Justice Felix Frankfurter, who served on the Court from 1939 to 1962. A former Harvard Law professor, Frankfurter used oral argument as an opportunity to treat “lawyers before the bar as students, heckling them as he had done in class,” the historian Melvin Urofsky observed in a 1988 Duke Law Journal article. On average Frankfurter spoke 1,300 words per case, a ferocious verbal outpouring that far exceeded that of any other justice in history, at least as far back as oral argument records exist.

But is oral argument an even more trying experience today? And are the justices’ questions and comments more ideologically freighted than in past eras?

The 1968 Fair Housing Act

Earlier this month marked the 50^thanniversary of the passage of the 1968 Fair Housing Act. On March 1, 1968, the Kerner Commission issued its report to Congress on race relations in the United States, warning that “America is dividing into two societies, black and white, separate and unequal.”  According to the Kerner Commission, one of the chief manifestations of this inequality was residential segregation, which relegated Blacks to crowded urban ghettoes. Congress responded to the Kerner Commission report with the 1968 Act, an attempt to reduce residential segregation and provide access to economic opportunities for people of color.  Despite the urgency of the report, the Act stalled in Congress until the assassination of Martin Luther King, Jr. sparked nationwide riots in inner cities. The Fair Housing Act is far-reaching.  Among other provisions, it requires the federal government to engage in affirmative action to integrate federally owned and subsidized housing.  Unfortunately, the Act’s anniversary passed with little fanfare.

Two provisions of the 1968 Fair Housing Act were based on Congress’ power to enforce the 13^thAmendment.  The first, the “Anti-Blockbusting Provision,” prohibits realtors from using race-based rumors to scare people into selling their homes at a reduced rate.  The second, the 1968 Hate Crimes Act, makes it a crime for a person to interfere in certain “federally protected activities,” including economic activities, on the basis of their race.  According to New York Senator Charles Goodell, “the 13th amendment to the Constitution forever barred slavery and involuntary servitude in the United States.  It was viewed by those who had approved it as abolishing not just enforced service of one person for another but as a guarantee to all citizens, of the outlawing of all the badges and incidents of slavery.  One hundred and three years after its adoption the Congress has yet to remove all the disabilities of that servitude.”  Like the 1866 Civil Rights Act before it, the 1968 Fair Housing Act addressed the badges and incidents of slavery.

Given the significance of the Fair Housing Act, it’s surprising how little acclaim the Act received on its April 11 anniversary.  On the other hand, the 1968 Fair Housing Act was controversial when it was enacted, and its wide-reaching mandate is largely unenforced.  According to one of the act’s sponsors, Walter Mondale, “The public servants tasked with implementing it have often forgotten — or refused to pursue — its ultimate goal of building an integrated society.”  Mondale points out that federal officials balked at enforcing the Act’s integration mandate until the Obama administration.  Now, the current Secretary of Housing and Urban Development, Ben Carson, referred to those Obama era regulations as “mandated social engineering.” 

Rather than celebrate the Act’s anniversary, Secretary Carson seems intent on undermining it.  For example, Secretary Carson recently removed anti-discrimination language from HUD’s mission statement.  As advocates for civil rights struggle to maintain hard won gains from the past 50 years, comprehensive measures like he 1968 Fair Housing Act seem sadly anachronistic.  However, 50 years after the Kerner commission report, little has improved.  Blacks experience unemployment at twice the rate as whites, and according to a recent study, our cities and schools are re-segregating.  Try as we might to ignore and deny it, people of color in our country are still suffering from the badges and incidents of slavery.