AHC: Lewis Powell, Potter Stewart, Byron White, etc — the center holds in the Supreme Court from the 1970s to 90s ? ! ?

[Dancing Fool]

What a concept of leadership!

And I think it’s realistic in many cases, especially with the United States Supreme Court.

Later Edit—

The MOST EXPLOSIVE claim in this book is that Justice Bill Brennan did not vote in favor of giving a man a new trial because he was trying to win over Justice Harry Blackmun’s votes on other cases. This is on pages 224 & 225 of the book.

This is hotly disputed by legal writer Anthony Lewis, who contacted some clerks from that time and was NOT able to verify this story.

And in a pair of letters in The New York Review of Books, the two sides go at it.

The Evidence of 'The Brethren': An Exchange | Scott Armstrong

To the Editors: Anthony Lewis in a review of our book, The Brethren , alleged that two pages dealing with a 1972 Supreme Court case, Moore v. Illinois,

www.nybooks.com

And yes, if I’m going to recommend this book, I kind of have an obligation to give you the hard-hitting stuff.

 

[Dancing Fool]

And, I love everything about the presentation! 😃

All 9 Justices are shown, this being sometime after John Paul Stevens was confirmed in Dec. 1975 [and the Court would not change again until Sandra Day O’Connor was confirmed in 1981]. The back cover has a chart showing which president nominated which justice and the age of each nominee.

And one of the co-authors is journalist Bob Woodward of Watergate fame.

 

[Dancing Fool]

Lewis Powell, Jr.

And because I like economic discussion, I’m hoping someone brings up the “Powell Memo” — which he was paid to write for the U.S. Chamber of Commerce in August 1971 regarding the “attack” on the U.S. free enterprise system.

I think the Chamber just barely got their money’s worth ! !

The memo seemed filled with clichés and simple arguments. But I guess that’s what often convinces people. I mean, the thing seemed to read at the level of just an above-average college student

No, make that the level of a high school sophomore.

For example—

https://www.reuters.com/investigates/special-report/assets/usa-courts-secrecy-lobbyist/powell-memo.pdf

”There always have been some who opposed the American system, and preferred socialism or some form of statism.”

Wow.

To say or imply that the only alternative to big, badly-acting corporations is “statism” is a not very advanced argument, at all! I think a lot of people who sour on big business will point to particular abuses like the McDonnell-Douglas company not coming clean about defective engine mounts on the DC-10 — or the effing door!

And/or the Ford Pinto.

Later edit — and these days, the Boeing Corp.

I’m not as familiar the Vietnam Era, but I’m guessing corporate-profiteering was part of it.

****************

The other interesting thing about Lewis Powell, Jr. is that he was . . .

age 64 . . .

when he took his place on the Supreme Court in January 1972.

 

[Aisha Clan-Clan]

Independent judiciaries tend towards reaction. The warren court was a weird anomaly and not the norm.

If you want a US that's at least semi-democratic you'd need to severely cut judicial independence.

 

[Dancing Fool]

Independent judiciaries tend towards reaction. The warren court was a weird anomaly and not the norm.

If you want a US that's at least semi-democratic you'd need to severely cut judicial independence.

I agree. Now, if we’re both right, that means most college textbooks on American history are wrong, or at least woefully incomplete.

Most college textbooks talk about the Supreme Court’s “Lochner Era” — a period in which the Court struck down minimum wage laws, etc, etc, even striking down a major child labor law! This period started around 1890 and is typically given an ending date of 1937. This is when Roosevelt’s court packing scheme failed, but supposedly it put the fear of God into the Supreme Court (“The Switch in Time that Saved Nine!”)

And/or maybe just one guy— Justice Owen Roberts.

Plus, FDR had gotten zero chances to nominate in his 1st term, but he got five in his 2nd, starting with Hugo Black. Funny how things sometimes work out that way.

All the same —

I think courts generally side with the powerful [not sure why this is] instead of siding with the common citizen when they reasonably can. The courts tend to only side with a regular citizen when the facts are glaring and blatant and sometimes not even then!

And then conversely, in some kind of weird roundabout, they will sometimes let an obviously guilty person go free, I guess to somehow prove the majesty of the whole thing ? ?

But they won’t change systematic factors that get most criminal defendants slam-dunked. I mean, once the police fixate on someone as the main suspect, God help them. I’m just less than impressed by the justice system in most countries, including my own United States.

And I’m interested in how we can improve the Supreme Court [and other courts] in ways . . .

. . . that require solid majorities, nothing more.

 

[Aisha Clan-Clan]

Judicial or bureaucratic independence are mistakes. Marbury v. Madison was a mistake and so was whatever supreme court that's used as an excuse to give bureaucracies independence.

 

[LuckyLuciano]

Judicial or bureaucratic independence are mistakes. Marbury v. Madison was a mistake and so was whatever supreme court that's used as an excuse to give bureaucracies independence.

why was it a mistake?

 

[Dancing Fool]

why was it a mistake?

Because it led to too many cases like this—

Hammer v. Dagenhart - Wikipedia

en.wikipedia.org

“ . . The Keating-Owen Act of 1916 prohibited interstate commerce of any merchandise that had been made by children under the age of fourteen, or merchandise that had been made in factories where children between the ages of 14 and 16 worked for more than eight hours a day, worked overnight or worked more than sixty hours a week. . ”

*************

And in 1918, the Supreme Court struck down this law [in a 5 - 4 decision].

 

[Rafi_T]

If I may quote myself on the thread AHC — Center holds with U.S. Supreme Court from 1980 to 2015? by @Dancing Fool:

I’d say the best way to maintain Centrism on the court would be the following:

1) William O. Douglas holds out until Carter is inaugurated. (Replaces John Paul Stevens)

2) Potter Stewart retires in 1980 and Carter gets to replace him. (Replaces Sandra Day O’Connor)

3) Thurhood Marshall hangs on until Bill Clinton is inagurated. (Replaces Clarence Thomas.)

Even with Reagan/HW, you’d still have a decent liberal wing as the pre-Clinton court would consist of: Marshall, Rehnquist, Scalia, Kennedy, Souter, White, Blackmun, Shirley Hufstedler (Carter) (died 2016), and Charles H. Kirbo (friend of Carter, died 1996 from complications due to gallbladder surgery, so can be butterflied, though he was 79).

With Clinton getting 4 nominations rather than 2 (Marshall and Kirbo), that would most likely flip Bush v. Gore, which means 2 terms of Al Gore, who gets at least 1 justice (Rehnquist).

(If you really wanna stretch it, have Fortas be named Chief Justice and retire in 1980 (Carter +1), as well as have Thornberry serve until at least 1993, though he could go for life, as he died in 1995). This means no Burger or Blackmun (-2 Clinton, made -1 by Thornberry).

If you wanna go even further, have Rehnquist’s nomination be rejected due to perjury/anti-desegregation actions. From his wiki:

During his confirmation hearings, Rehnquist was criticized for allegedly opposing the Supreme Court's decision in Brown v. Board of Education and allegedly taking part in voter suppression efforts targeting minorities as a lawyer. Historians debate whether he committed perjury during the hearings by denying his suppression efforts despite at least ten witnesses to the acts, but it is known that at the very least he had defended segregation by private businesses in the early 1960s on the grounds of freedom of association.

Other idea, either have Douglas Ginsburg be confirmed (if he was more liberal than Kennedy), or have Democrats keep Powell’s seat open until after the 1988 election as threatened by then Senate Judiciary Committee member Patrick Leahy (Anthony Kennedy’s wiki).

 

[Dancing Fool]

If you wanna go even further, have Rehnquist’s nomination be rejected due to perjury/anti-desegregation actions. From his wiki:

In addition, Bill Rehnquist was selected from a job within the Justice Department. For a lot of people, this might smack of a double-promotion and in-house favoritism.

 

[Dancing Fool]

SCOTUS = Supreme Court Of The United States

Brown v. Board of Education was decided in May 1954. And then seemingly, race was the only SCOTUS issue which mattered. More so for the anti-equality people, and then some criminal justice cases and some religious cases got pulled in. Such as the claim that the courts were “taking God out of the schools.” Which I guess was kind of true, but God probably should not have “been in the schools” in the first place.

And racial issues were also important to pro-equality people. I mean, how could it not be? And the other issues can pulled into it [maybe pro-Labor Union? Pro-individual rights?] But race was the original dividing line.

Potential branch point—

The “Little Rock Crisis,” with President Eisenhower sending army soldiers to Little Rock, Arkansas, was Sept. 1957. How did we not stay the course?

Instead it was 12 years later in 1969 that the Court ruled in a Mississippi case, Okay, we mean it, No more delays. [a case with Holmes in the name]

Potter Stewart, one of the guys in my title, was appointed in 1958. Maybe he could have done a better job?

Potter Stewart - Wikipedia

en.wikipedia.org

Later Edit — Potter Stewart received a “recess appointment” on Oct 14, 1958, took his oath of office, and apparently started work on the Supreme Court right away. He was not confirmed by the Senate until May 5, 1959 (“Cinco de Mayo” Day).

In any case, he’s too late for I believe is the excellent Fall 1957 window. A window to basically, Go Faster, Be More Emphatic, Be Briefer, Hit the Sweet Spots Better (for example, only limited use of busing, but equal teacher salaries right away).

Some of this might be dream of “perfect season,” but I think some could have actually been done.

 

[Rafi_T]

In honor of the late Sandra Day O’Connor and in keeping with both my previous post about butterflying her nomination, and keeping the Court centrist.

 

[Dancing Fool]

in keeping with both my previous post about butterflying her nomination, and keeping the Court centrist.

Thank you for being brave enough to post this.

And since we’re much more in the role of journalists, since we’re not friends or family or elected officials of Arizona, I think it’s fine for us to post criticism of Justice Sandra Day O’Connor.

 

[GDIS Pathe]

Basically impossible given the trajectory of American conservatism. The New Right didn't want squishes, not in government and not on the Court, the Federalist Society was formed to be quality control, to make sure that no more David Souters and O'Connor's made onto to SCOTUS, to make sure Conservatives got exactly what they bargained for. Really the only for it to happen is to ensure every GOP President in this era never gets a Senate with more then a paper thin Conservative Senate Majority, and even then Clarence Thomas made it past a Democratic Senate.

 

[Rafi_T]

Yeah, that’s why my post mentions William O. Douglas and Potter Stewart retiring under Carter, as well as Thurgood Marshall holding out until Clinton is inagurated, because otherwise there’s no true way to truly stop judicial conservative overreach other than retroactively changing electoral results every time a change in the judiciary comes up, which is just permanently chasing your own tail.

Basically, you can’t truly avoid organizations like the federalist society, and the more you marginalize conservatism on the court, the more extreme they’ll get, at least in a vacuum and with no pushback. However you can do two things: win elections! (Much easier said than done, but there’s a reason I highlighted that any of the original three PoDs would flip Bush v. Gore and butterfly Alito.)

The other option is pushback! That when you have the rare Republican president (though just implement the national popular vote and you eliminate that problem too), make it clear that Democrats will raise Hell on Earth if they try to pick the modern day Bork, as Leahy threatened to hold open Powell’s seat until after the 1988. Best case scenario, a Democrat wins, worst case scenario, HW wins, so you get a less extremist Justice (on paper, though spite can be a powerful motivator so he could just spam Bork/Thomas-like candidates, though then you could just pull a McConnell and threaten to hold the seat open for the four whole years.)

The thing is, and I had this argument on the other thread, centrism is nonpartisan, and Democrats, especially if they stayed on the Clinton/Gore Third Way DLC triangulator path will (on paper) pick more conservative/moderate justices (though Hufstedler for Carter and Mario Cuomo/Laurence Tribe/RBG for Clinton say otherwise). Other than that, centrism will shift with the times (after all, 7-2 on Dred Scott means that at least the idea of Scott not deserving freedom was the “centrist/moderate” position).

At the end of the day, ideally (and admittedly self servingly as a progressive), just pick the furthest left justices you can, and after they serve 2-3 decades on the court, they’ll be centrists or even outright conservatives compared to where the country is. (Basically, conservatives can roll with the punches of a liberal SC, after all, who doesn’t like more rights? Rolling with the punches of a conservative SC is much more hard, especially when they outright strip previously guaranteed rights, and as such, it’s much better to avoid their dominance in the first place.)

(For my point, see Dred Scott, Plessy, Civil Rights Cases, Slaughterhouse, and Cruikshank, amongst others.)

 

[Dancing Fool]

. . . The New Right didn't want squishes, not in government and not on the Court, the Federalist Society was formed to be quality control, to make sure that no more David Souters and O'Connor's made onto to SCOTUS, . . .

This is very perceptive. Conservatives admire “strength,” and holds weakness in withering contempt. Often regardless of the content of that strength. This is similar to the business approach of, “Hurry up and make a mistake,” because at least you get clear feedback.

I’d add Justice Anthony Kennedy to this list, nominated by Reagan in Nov. 1987, as another person placed on the Court by a Republican who turned out to be moderate.

And at the end of the day, I want the Court to largely agree with the American public.

For example, the American public is more skeptical of Big Government than Big Business. I might wish things were different, but that’s pretty much a fact of life. At the same time, the American public is highly skeptical of anything which smacks of monopoly. I’m not a lawyer, but I’m going to guess that there were probably cases in which the Supreme Court could have decided against a big insurance company, or against a Big Pharma company, etc.

I think even if we stop at the year 2000,

the Supreme Court siding with corporate power is a big under-reported story.

 

[Dancing Fool]

At the end of the day, ideally (and admittedly self servingly as a progressive), just pick the furthest left justices you can,

It’s not like mixing cats!

I mean, it’s not like it the rest of the cats are too dark gray, we can just throw in a few white cats. By the way, this was a mistake Darwin made. He seemed to think things blended smoothly, rather than as discreet factors which could shuffle and re-combine, and which we know of as genes.

Centrists are MUCH BETTER at the implementation, and this is often what’s most needed.

For example, after President Eisenhower really went out on a limb and sent the 101st Airborne to protect to 9 black students at Little Rock’s Central High School,

how did the Supreme Court not roll forward big time on school desegregation ? ! ?
[maybe they out too much weight on maintaining unanimous decisions? ]

 

[Don Corleone]

the Supreme Court siding with corporate power is a big under-reported story.

Unfortunately the "left" wing of the Court notoriously did this with Kelo.

So you can't even depend on them to do the right thing.

 

[jacob ningen]

Unfortunately the "left" wing of the Court notoriously did this with Kelo.

So you can't even depend on them to do the right thing.

If the court had to decide between corporate power and Jersey which would it choose.

 

[Rafi_T]

It’s not like mixing cats!

I mean, it’s not like it the rest of the cats are too dark gray, we can just throw in a few white cats. By the way, this was a mistake Darwin made. He seemed to think things blended smoothly, rather than as discreet factors which could shuffle and re-combine, and which we know of as genes.

Centrists are MUCH BETTER at the implementation, and this is often what’s most needed.

For example, after President Eisenhower really went out on a limb and sent the 101st Airborne to protect to 9 black students at Little Rock’s Central High School,

how did the Supreme Court not roll forward big time on school desegregation ? ! ?
[maybe they out too much weight on maintaining unanimous decisions? ]

I get where you’re coming from, though the issue is that the court is too conservative when it comes to implementing solutions to controversies.

After all, Brown was unanimous because it would help make clear that there would be no way to reverse it, and that judicially, it was uncontroversial. That’s good. The issue is that Brown II then decided to not be too controversial and said that schools should desegregate with all practical speed, which is a meaningless platitude.

A more progressive court would’ve most likely set an actual concrete deadline.

Plus when you include justices like Harlan (The Great Dissenter) and O. Douglas (especially in Sierra Club v. Morton) show the greatness the court could achieve!