Today in Supreme Court History: September 11, 1958

9/11/1958: Cooper v. Aaron is argued.

Comments

[Dan Schiavetta]

Smith v. United States, 423 U.S. 1303 (decided September 11, 1975): Douglas, in a wheelchair, stays order requiring federal grand jury records to be handed over to state prosecutor (this was the public appearance which showed the world that Douglas was never going to recover from the stroke he had suffered on the last day of 1974; he stared into the air blankly, declared that there would be a lunch break at 12:30 when it was already 1:00, and after oral argument was over, everyone waited uncomfortably while he sat in silence for ten minutes, before finally thanking the lawyers “for a spirited argument”) (he resisted resignation not just because he was stubborn and ornery but because Gerald Ford, who as a Congressman had led an attempt to impeach him, would pick his successor; he finally resigned on November 12) (the written opinion, though dated the same day as the hearing, was not handed out to the full Court until it met for the new Term on September 30; it is unnecessarily detailed and seemed intended to prove he was still in full possession of his faculties; upon reconsideration the full Court vacated the stay with Douglas dissenting, 423 U.S. 810, Oct. 6, 1975)

[Mr. Bumble]

Hubris.

[loki13]

Douglas. Oh.

In addition to THAT THING (aka, trees have standing) the one thing I always remember about Douglas is that after he retired (and he was effectively forced out, as the other justices agreed to postpone any decisions in which his vote made a difference until the next term given his obvious incapacity) he still insisted he was on the Supreme Court, and continued to show up and try to participate.

Eventually, SCOTUS (all nine) had to send him a letter saying, "Bruh, you're retired. Stop. You're not welcome here. You don't get to write opinions and participate in oral arguments. Go away."

[Dan Schiavetta]

Nat Hentoff was such a huge fan of Douglas (admittedly for the right reasons) that he managed to relate this episode as if Douglas was in the right.

[loki13]

Wow.

I mean ... I'll take your word for it, because I can't imagine how you could spin that to make Douglas look good.

He was clearly unable to perform his duties before this, and the idea that SCOTUS punted on all of the cases that he had a deciding vote on because they knew it as well is pretty damning.

[JoeFromtheBronx]

Douglas in Sierra Club v. Morton instrumentally viewed nature. The ultimate standing fell on people:

Those who hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many.

Anyway, Citizen Justice: The Environmental Legacy of William O. Douglas—Public Advocate and Conservation Champion by Judge M. Margaret McKeown was an interesting take on his environmental activism.

[Sarcastr0]

As the kids say:

The debat.

[Martinned2]

I thought that was a nice international touch. Not sure if it was French or Dutch though, because "debat" is the word for debate in both languages.

[JoeFromtheBronx]

The Cooper v. Aaron oral argument can be listened to here:

https://www.oyez.org/cases/1957/1_misc

It’s a greatly appreciated resource that Oyez.com provides the audio and the 9/12 opinion (brief order) announcement.

My first experience with SCOTUS oral arguments was the Peter Irons’ collections. As Edward Lazarus once noted, these excerpts have issues. Nonetheless, it did provide a chance to listen to oral arguments. Oyez later had a more complete recording.

(Oyez transcripts do also have some issues. The justices sometimes are not correctly labeled. The justices generally have distinctive voices & those who know them can catch the errors.)

9/11 was the date of multiple orders in recent years.

For instance, on 9/11/2019 among the “orders in pending cases,” SCOTUS addressed the allotment of argument time in the Bostock case.

Yesterday, Sarah McBride, a state legislator, won her primary for the sole Delaware House seat, making her a favorite to be the first trans member of Congress.

[Martinned2]

The two pivotal moments in the history of American constitutionalism:

- The civil war, when a deadlock about the future of the constitution was resolved through force of arms.

- The civil rights era, when large swathes of the American public, including a unanimous Supreme Court, gave up on the idea that meaningful constitutional change could be achieved through the amendment process of Article V.

[Magister]

Wasn't the civil rights era when the provisions of the Fourteenth Amendment were enforced by Congress passing legislation? The change was achieved through the amendment process and envisioned in section 5 that Congress might have to enforce it through legislation, even if it did take a century to get there.

One of the arguments I heard against the Equal Rights Amendment was from conservatives claiming that it was already there (although that would seem to mean that the Nineteenth Amendment was unnecessary, or that it affected things beyond voting) and the amendment would be redundant.

[JoeFromtheBronx]

Over time, the Fourteenth Amendment was eventually broadly interpreted to apply to voting rights. Nonetheless, originally, there was a more limited understanding. Also, the penalty in the second section specifically only applied to “male” voters.

(There was some dissent.

https://prawfsblawg.blogs.com/prawfsblawg/2023/10/wrapping-up-loughridgebutler.html)

Whatever the reach of the Equal Protection Clause, it covers all “persons.” Nonetheless, it is not clear how to apply that. For instance, the elderly are persons, but minimal scrutiny is applied to age discrimination.

Sex discrimination has been addressed over the decades. The ERA would have placed a firm command, phrased in an open-ended way, that would have put a thumb on the scales.

[Magister]

I guess I wanted to hear from Martinned2 the evidence that people gave up on meaningful change through amendments, rather than just recognizing the difficulty in passing them. Deadlocks in Congress don't mean that people have given up on meaningful change through legislation.

[Brett Bellmore]

Per Wikipedia the Civil Rights movement was 1954-1968. (I wasn't paying much attention to politics at the time, I'll take their word for it.)

The 23rd amendment was proposed in 1960, and ratified by 1961.

The 24th amendment was proposed in 1962, and ratified by 1964

The 25th amendment was proposed in 1965, and ratified in 1967.

The 26th amendment was proposed in 1971, and ratified that same year.

The ERA was proposed in 1972, and defeated.

The DC voting rights amendment was proposed in 1978, and defeated. 46 years ago, the last amendment Congress bothered originating.

The 27th amendment was proposed in 1789, but ratified in 1992, demonstrating that the states, at least, were still open to amendments.

I think it would be fair to say that *Congress* gave up on change through amendments, but well after the Civil rights movement. But it appears to have been because they stopped wanting amendments the states were willing to ratify. Or perhaps just didn't feel that they needed amendments anymore, since the Supreme court was being so obliging about reinterpreting the Constitution to expand Congressional power.

Should we have a constitutional convention, I think we'll find Article V is still quite viable. Hopefully the first amendment out would be to schedule regular conventions going forward, as many states do.

[Magister]

I think it would be fair to say that *Congress* gave up on change through amendments, but well after the Civil rights movement. But it appears to have been because they stopped wanting amendments the states were willing to ratify. Or perhaps just didn’t feel that they needed amendments anymore, since the Supreme court was being so obliging about reinterpreting the Constitution to expand Congressional power.

Congress still sees many proposed amendments every session that go nowhere. The difficulty is getting 2/3 of Congress to propose an amendment, beyond something so inoffensive that there would be no point, and even then they probably wouldn't send it to the states. By amazing coincidence, the last time that either party had 2/3 of the House was 1977-1979, and with 61 Democrats in the Senate (so they still would have had to persuade a few Republicans; had any liberal Northeast Republicans survived that long in the Senate?). Another amazing coincidence is that government shutdowns became a regular occurrence after that.

[Martinned2]

People propose constitutional amendments all the time, in the same way that Chuck Schumer proposed a bill to overrule a constitutional ruling of the Supreme Court: as pure political theatrics.

Exactly because everybody knows that no meaningful constitutional amendment will pass for decades do they feel free to propose whatever amendments will allow them to produce a nice campaign ad.

[SMP0328]

One of the arguments I heard against the Equal Rights Amendment was from conservatives claiming that it was already there (although that would seem to mean that the Nineteenth Amendment was unnecessary, or that it affected things beyond voting) and the amendment would be redundant.

The Nineteenth Amendment was necessary because the Supreme Court rejected the argument that the Fourteenth Amendment prohibited sex discrimination in voting laws (see Minor v. Happersett, 88 U.S. 162 (1875)). The only alternative for the Suffragettes would have been to hope SCOTUS would one day overrule that decision.

[Magister]

When have I ever believed evidence-free conservative claims? Not that time, at least.

[Martinned2]

The only alternative for the Suffragettes would have been to hope SCOTUS would one day overrule that decision.

As the last 70 years show, it's not just a question of hope. Anyone trying to get the constitution amended through the Supreme Court can do that through a combination of persuasion of the sitting Justices (e.g. Randy Barnett and his broccoli) and pushing the President and the Senate to put in new Justices who are likely to be sympathetic to one's goal.

[Noscitur a sociis]

although that would seem to mean that the Nineteenth Amendment was unnecessary

Are you familiar with the Fifteenth Amendment?

[Magister]

Wow, another good argument against the conservative I disagreed with.

[Martinned2]

During the civil rights era the Supreme Court and the left of American politics sorted out segregation by re-interpreting the existing provisions of the Constitution, instead of adopting an amendment, which is what previous generations would have done.

E.g. Instead of banning the sale of alcohol by Congressional command, relying on an expansive reading of the interstate commerce clause, they passed a Constitutional amendment. And then they passed another one to undo the 18th amendment. (Instead of, say, issuing an executive order instructing the federal government to stop enforcing it.)

Whether we think Brown v. Board of Education and the subsequent cases were correctly decided is besides the point. The key fact is that they overturned almost a century of case law and (almost certainly) the expectations of most people who were alive in the 1860s.

Whether it is abortion or same sex marriage, constitutional change in the United States happens through the Supreme Court, not through Article V. The only formal Constitutional amendments that get ratified anymore are "sliced bread is great" things like "no pay rises for Congress until after the next election". All meaningful constitutional change in the US in the last 70 years has come in the form of Supreme Court judgments, and in the form of Congressional and Presidential action in areas where the writ of the Supreme Court doesn't run (like the filibuster, war powers, control over the enforcement of federal law, etc).

[SRG2]

constitutional change in the United States happens through the Supreme Court,

E.g., "The president shall be immune from criminal charges for all actions undertaken in his core official capacity."

[Martinned2]

For example

The death penalty was briefly unconstitutional, and then it wasn't.

Abortion was constitutionally protected for a while, and now it isn't.

Gun control was constitutionally allowed for a long time, but is increasingly less so.

Congress used to be able to authorise the President or executive agencies to do things, but is now increasingly placed on a short leash by the newly invented major questions doctrine.

&c &c &c

[JoeFromtheBronx]

The death penalty was briefly unconstitutional, and then it wasn’t.

Furman v. Georgia held that the specific litigants were unconstitutionally sentenced to death.

Only two justices thought it was completely unconstitutional. States passed a slew of new laws & the Supreme Court determined certain procedures were required, but clearly stated it was constitutional.

Abortion was constitutionally protected for a while, and now it isn’t.

It was protected for about 50 years which was longer than certain other things. For instance, the Supreme Court once struck down paper money as legal tender and shortly after upheld its usage.

Gun control was constitutionally allowed for a long time but is increasingly less so.

Many things were allowed "for a long time" but then "increasingly" or "decreasingly" so as the case might be.

It didn't suddenly become a thing c. 1960. Law develops over time. It ebbs and flows.

Congress used to be able to authorize the President or executive agencies to do things but is now increasingly placed on a short leash by the newly invented major questions doctrine.

The Supreme Court before the New Deal -- especially at certain times -- put more restrictions on congressional power over commerce and taxation & then as the law and society developed, gave them more free rein.

[Brett Bellmore]

The problem with this take is that the Slaugherhouse decision was fundamentally illegitimate; All the Court did with Brown was partially and hamhandedly undo their own institution's prior bad deed.

No amendment was needed, because the 14th amendment had already been adopted, the Court just had to get on board with finally enforcing it.

[Sarcastr0]

Declaring a decision illegitimate gets you not much.

History is messy. Insisting on an engineered and smooth logical world is useless.

You can’t get there from here, you can only whine about it.

Take a page from Burke and deal with what’s possible and useful from where we are not your formally pleasing world. A utopia to no one but outsiders considering it platonically.

[Martinned2]

I repeat:

Whether we think Brown v. Board of Education and the subsequent cases were correctly decided is besides the point. The key fact is that they overturned almost a century of case law and (almost certainly) the expectations of most people who were alive in the 1860s.

[not guilty]

The Supreme Court set the stage for desegregation with decisions such as Shelley v. Kraemer, 334 U.S. 1 (1948), Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), and Cooper v. Aaron, 358 U.S. 1 (1958). But achieving desegregation involved all three branches of the federal government.

Presidents Eisenhower and Kennedy ordered federal troops to enforce desegregation orders in Little Rock and at the University of Mississippi. Congress, at the urging of Senator and later President Johnson, enacted the Civil Rights Acts of 1957, 1960 and 1964, the Voting Rights Act of 1965, and Fair Housing legislation in 1968. SCOTUS upheld the authority of Congress under the Commerce Clause to forbid racial discrimination in decisions such as Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964).