The Volokh Conspiracy

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Volokh Conspiracy

How Have Judges Responded To The Press?

Chief Justice Marshall wrote pseudonymous editorials after McCulloch v. Maryland. Justice Stewart wrote a letter to the editor of the WSJ after Jones v. Alfred H. Mayer Company.


I recently criticized a Ninth Circuit judge who corrected a press report in a judicial decision. In effect, her opinion was a letter to the editor. She would have been better suited to simply write a letter to the newspaper, in her private capacity, seeking a correction. Instead, she chose to do so in the federal reporter.

I was reminded of the Case of the Speluncean Explorers. One of the judges, Justice Keen, includes in his opinion a personal plea to the Chief Executive seeking clemency for the explorers. Another judge responds, "I may remark, incidentally, that the advice of Private Citizen Keen will appear in the reports of this court printed at taxpayers' expense."

There is some precedent for federal judges to defend their decisions in the press. In 1819, Chief Justice Marshall wrote pseudonymous editorials after McCulloch v. Maryland. And in 1968, Justice Stewart wrote a letter to the editor of the WSJ after Jones v. Alfred H. Mayer Company.

McCulloch v. Maryland

McCulloch v. Maryland (1819) proved to be very unpopular. Critics charged that Marshall had read the Necessary and Proper Clause as to give Congress boundless authority. In response, Chief Justice Marshall published two essays in the Philadelphia Union and nine essays in the Alexandria Gazette.  The latter essays responded to a particularly vituperative criticism authored by Virginia Supreme Court Justice Spencer Roane, who used the pseudonym "Hampden." Specifically, Marshall rejected the notion that McCulloch gave Congress an unlimited power. Here is an excerpt, which Randy and I include in our casebook:

I say, without fear of contradiction, that the general principles maintained by the supreme court are, that the constitution may be construed as if the clause which has been so much discussed, had been entirely omitted. That the powers of congress are expressed in terms which, without its aid, enable and require the legislature to execute them, and of course, to take means for their execution. That the choice of these means devolve on the legislature, whose right, and whose duty it is, to adopt those which are most advantageous to the people, provided they be within the limits of the constitution. Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of a given power.

In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court expressly says, "should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land."

Modern defenders of federal power have ignored some of the important, limiting langauge from McCulloch. For example, the quoted sentence emphasized above. Randy and I think that Marshall's defense of McCulloch is useful to understand the scope of that decision.

Jones v. Alfred H. Mayer Company

In the second case, a Justice defended his decision in a signed letter to the editor.

On June 17, 1968, the Supreme Court decided Jones v. Alfred H. Mayer Company. This case held that 42 U.S.C. 1982 prohibits racial discrimination in the sale of real estate. (Then-Judge Harry Blackmun wrote the panel decision for the Eighth Circuit.) The Court split 7-2. Justice Stewart wrote the majority opinion. Justice Harlan dissented, joined by Justice White. Harlan was especially critical of the majority in light of the recently-enacted Fair Housing Act of 1968. Harlan thought the case should have been DIG'd:

Moreover, the political processes of our own era have, since the date of oral argument in this case, given birth to a civil rights statute embodying "fair housing" provisions  which would, at the end of this year, make available to others, though apparently not to the petitioners themselves, the type of relief which the petitioners now seek. It seems to me that this latter factor so diminishes the public importance of this case that by far the wisest course would be for this Court to refrain from decision and to dismiss the writ as improvidently granted.

The case was argued on April 1, and the FHA was signed into law on April 11Alfred H. Mayer was decided on June 17.

On June 20, the Wall Street Journal published an editorial titled, The Alternate Legislature. The editorial charged that the Court engaged in "judicial legislation," and for going far beyond the recently-enacted Fair Housing Act. Here is an excerpt from "The Alternate Legislature," Wall Street Journal, June 20, 1968:

The question to ask about the Supreme Court's sweeping proscription of housing discrimination is not whether the effects of the decision are just and wise, but whether the Court sees any limit to its role as an alternate legislature.

For the Court decision goes far beyond the fair-housing law Congress recently passed. Congress outlawed racial discrimination in housing, but provided some exceptions such as a homeowner selling has house without use of a real estate broker. The Court in effect wiped out such exceptions and also made fair housing effective immediately rather than in the stages Congress had provided. ….

The activist majority on the Court needs to start thinking about the limits of its legislative role. Before the Justices set out to write law on their own, they at least ought to hesitate long enough to give the real legislature first chance.

I found a copy of the editorial in the June 24, 1968 edition of the Congressional Record (p. 13 of this PDF). Senator Robert Byrd of West Virginia entered it into the record; he said "the activist majority of the court needs to start thinking about the limits of its legislative role."

On July 3, 1968, Potter Stewart–who authored the majority opinion in Jones–wrote a letter to the editor. Here is the response. "Letters to the Editor: Justice Stewart Dissents," Wall Street Journal, July 3, 1968.

I have read with interest the editorial of June 20, "The Alternate Legislature." In the case to which you refer, a man was refused the purchase of a house solely because he was a Negro. He eventually brought his case to the Supreme Court, relying upon a law, 42 U.S.C. 1982, written and passed by Congress that says:

"All citizens of the United States shall have the same right, in every state and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."

The Supreme Court held (1) that this law means what it says, and (2) that Congress had constitutional power to pass it. You say this made the Court a "legislature."

What would the Court have been if it had held (1) that the law does not mean what it says, or (2) that Congress did not have the power to pass it?

I add only that Congress, having enacted 42 U.S.C. 1982, remains free to amend it at any time.

Potter Stewart

Associate Justices, U.S. Supreme Court

Stewart's response is very weak. He insists the majority's reading of the statute is the only possible meaning of the statute. He repeats the standard line that he was merely interpreting Section 1982, and Congress can change it if it doesn't like the decision. (His certainty has a Gorsuch vibe to it, doesn't it?).

Judges should not try to defend their work; let the decision speak for itself.

I am grateful to Professor Steve Wasby who flagged this exchange. He wrote about Stewart's letter in Stephen L. Wasby, Anthony D'Amato, and Rosemary Metrailer, Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies (Southern Illinois University Press, 1977).