How the Supreme Court claimed supreme power

20:00This case would reverberate for centuries to come. For somebody reading it at the time, it's screamingly clear that he is not pushing the judicial supremacy position and is backing away from it, which of course he had to do because it would not have been acceptable at the time. So while this was an important win for the court, it was a long way from Marshall's ultimate goal, judicial supremacy, the court as umpire with final say. He was a visionary, though, and he knew he had to play the long game. During his three decades on the bench, he helped plant the seed of what the court could be and the amount of power the Supreme Court could have in the future.

20:44Larry Kramer:In the next iteration of the court where Roger Taney becomes Supreme Court justice, chief justice of the Supreme Court, tends to be a little bit less involved in striking down laws. I mean, they don't strike down a federal law again until Dred Scott v. Sanford in 1857. Dred Scott was an enslaved man who was suing for his freedom. As the controversy over slavery in the territories heats up, there are people who start to say, why don't we have the Supreme Court settle this? Like, wouldn't that be great if the Supreme Court settled it? Before we get into the case, let's set the scene. This is more than 50 years after Marbury v.

21:23Madison. And by now, the country had more than doubled in size. Louisiana, Indiana, Mississippi. Adding a dozen states to the Union. Alabama, Maine, Missouri. It's the decade leading up to the Civil War. Abolition is the defining debate of this time. And with the Dred Scott case, the court was about to wade deep into that debate.

21:51Dred Scott was born into slavery in Virginia, and he was moved around a lot. First to Alabama, then to Missouri, both slave states, and then on to Illinois, a free state. And then the Wisconsin Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott filed suit in court for his freedom, claiming that because he'd lived in a free territory and state, he was now a free man, a U.S. citizen. The case eventually made its way to the Supreme Court.

22:26Larry Kramer:Taney is going to give the ultimate determination, but it takes a while. They start, they evaluate what they ought to do over the course of not just, you know, a few months, but over a year. And while the case is being determined, members of the court are in discussion with politicians in the area. Finally, the court came to a decision. The long-trumpeted decision of the Supreme Court in the Dred Scott case was pronounced by Judge Taney yesterday, having been held over from last year. And the court holds that Scott cannot be a citizen because he's black. And Africans can never be citizens.

23:13They had no rights which the white man was bound to respect, and that the Negro might justly and lawfully be reduced to slavery for his benefit. The court's opinion was an outright racist endorsement of slavery throughout the country. It denied all black people, enslaved as well as free, any chance at citizenship. It is too clear for dispute that the enslaved African race were not intended to be included and formed no part of the people who framed and adopted this declaration. It seems to, like, give the South everything it wanted. There's a huge explosion in the North.

23:52Larry Kramer:And this sets off all kinds of anger among quite a few people. Republicans at this point, a new party that want to eliminate slavery from the territories with the idea that eventually it would die out. The Supreme Court of the United States has polluted its garments in the filth of pro-slavery politics. From this day forth, it must stand as a self-disgraced tribunal. And from this day forth, it will be one of the great and leading aims of the people of the free states to obliterate this shameful record and undo what has been done. This is from an article in the New York Tribune, one of the largest newspapers aligned with that new political party, the Republicans.

24:41And one of the most vocal critics of the decision, a rising star in the Republican Party, was a former congressman from Illinois named Abraham Lincoln.

24:50Larry Kramer:Lincoln is very unhappy, and he says that this is a conspiracy to extend slavery across the United States. He believes Dred Scott was wrongly decided. He also believes that it does not have to be permanent law.

25:09After becoming president, Lincoln, as the executive, basically just ignores the Supreme Court and its rulings. During the Civil War, as his power grows, their power wanes. And by the end of the war, abolition has become the law of the land, and the court's decision in Dred Scott puts them on the wrong side of history. Dred Scott certainly hurts the court's credibility for a good generation. It takes them a while to rebuild credibility after that.

25:41When we come back, the Supreme Court fights to restore its legitimacy as a president challenges its power at every turn.

26:15This is Jose Santana from Navatuck, Connecticut. And you're listening to FroLine from NPR. I really love you guys. Thank you for bringing so much information to us. Bye. This message comes from LinkedIn ads. Ever invest in something that seemed incredible at first, but didn't live up to the hype? For marketers, that's impressions. When ads don't create revenue, that's a tough conversation with the CFO. Instead, invest in results your CFO will love. LinkedIn Ads generates the highest ROAS of all major ad networks. So advertise on LinkedIn. Spend$250 and get a$250 credit. Just go to linkedin.com slash nprpod.

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27:07Larry Kramer:This message comes from Mint Mobile. If you're tired of spending hundreds on big wireless bills, bogus fees, and free perks, Mint Mobile is for you. Shop plans at mintmobile.com slash switch. Taxes and fees extra. See Mint Mobile for details. Support for NPR comes from IBM. On Smart Talks with IBM, Malcolm Gladwell explores how organizations are using technology to solve complex challenges. I spoke with Sergi Ghosh, Heineken's chief AI officer. If you can connect all the different applications, all the platforms, remove fragmentation, scale very quick. That's what we call the best connected door.

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27:51Larry Kramer:Listen to Smart Talks with IBM wherever you get your podcasts. Part 2. The switch in time saves nine.

28:06I am prepared, under my constitutional duty, to recommend the measures that a stricken nation in the midst of a stricken world may require... On March 4, 1933, President Franklin D. Roosevelt took office, and he was up against the worst economic disaster in American history. In his inaugural address, the biggest applause line was not, we have nothing to fear, but fear itself, was instead that I may have to take on the powers of a wartime president. Broad executive power, to wage a war against the emergency as great as the power that would be given to me if we were in fact invaded by a foreign force.

29:01He has a mandate, which is to do something about the Great Depression. Prosperity is just around the corner, say the hopeful headlines. But around the corners wind the lengthening bread lines and a whole new class of citizens appears in American society. The new poor. You've got unemployment running at 25 percent. Not since the Civil War has such pressure, political, economic, social, centered on the White House. And so Roosevelt, you know, pushes through the first New Deal. And the court strikes it all down.

29:44By this time, the Supreme Court was beginning to find its voice again, to come out of the shadows. But you can't expect to be taken more seriously and expand your power if you're stuck in a basement. Construction on a new Supreme Court building was underway when Roosevelt took office. And not long after Roosevelt tried to pass the first New Deal, the court moved into its fancy new building. Amid the architectural glories that grace our nation's capital, the United States Supreme Court building is one of the most imposing. A worthy meeting place for the highest tribunal of the land. This was a real step up from their old basement quarters.

30:25It's big, regal, like something out of ancient Greece, with a wide oval plaza, tall, imposing columns lining the front, marble statues on either side, and a staircase perfect for a Rocky-style training montage, welcoming you to the entrance, which is inscribed with the words, Equal Justice Under Law. There's a statement in the New Yorker in 1935 as the new Supreme Court building, the current Marble Palace, is open for the justices. And the quip was, the new building has wonderful large windows to throw the New Deal out of. My name is Lucas Poe Jr. I'm a professor of law and government at the University of Texas.

31:17My specialty is the United States Supreme Court. OK, so why were the newly enthroned Supreme Court justices so staunchly against Roosevelt's plans? Well, first of all, this was still a conservative court and they didn't like his populist agenda. And second, Roosevelt was dramatically expanding the power of the presidency as they were trying to expand their power. But Roosevelt was like, OK, you want to fight? I'll give you a fight. He begins using all the old themes that have been there all along, pushing back that the court doesn't have this authority, shouldn't have this authority, that it shouldn't be able to strike these laws down in this way.

31:58Roosevelt was determined to push through a second New Deal, which he saw as the only way to rescue the country from the ongoing Depression. Congress was on board. The only thing that stood in his way was the Supreme Court, which was threatening to strike down that deal too. And he's putting more and more pressure on the court, and they're still holding out to do it. It was like a game of chicken. Who would blink first? Eventually, Roosevelt reached his breaking point. and decided to reset the rules of the game. I want, as all Americans want, an independent judiciary as proposed by the framers of the Constitution.

32:41He proposes a plan to add new justices to the court. What is my proposal? It is simply this. It would allow a new justice for every justice over the age of 70 not retiring. And at that time, the court was the oldest in American history, and that would have given Roosevelt six new appointees for a 15-member court. I seek to make American democracy succeed. You and I will do our part. It's disingenuous. you know, everybody understands why he's really doing it. He was going to point yes men to the court. And there's a cartoon of that era that shows you a jury box with everyone is filled with an image of FDR voting I.

33:34And that's what people feared would happen, Republicans especially. It's not particularly popular, but it is still a huge amount of pressure on the court because he's Roosevelt and he's got a lot of political capital to use. You know, it's a warning shot that you've gone too far. And it's working its way through Congress and it's not clear what's going to happen. Roosevelt's court packing plan set off a heated debate in Congress. But this wasn't the first time a president had proposed changing the number of justices on the court. Turns out right now to be the last time, but it wasn't the first time at all, right?

34:15Back in 1801, John Adams did it right before leaving office. They shrunk the court from six to five so that Jefferson wouldn't get to make any appointments. But Congress increased the number to seven. Then Andrew Jackson added a couple and Abraham Lincoln added one more. Congress increases its size from seven to ten. Under Andrew Johnson, it shrunk. To seven so that he won't get any appointments. In 1868, Ulysses Grant was elected. They increased it again to nine. And it stayed there till Roosevelt came along. Roosevelt was the last serious effort. No one had ever doubted its constitutionality.

34:54And the way Roosevelt saw it. The court had this outmoded, outdated interpretation that did not fit the modern world at all. And that there was no way that theirs should be the final and binding interpretation. So how do you push back at them to get them to stop striking down laws? You use the tools the Constitution provides, which include that the political branches get to decide how the court is made up. So I'm going to add some justices. It's a way to turn it around. They're all just ways of pushing these controversies back out to the people who are the ultimate deciders. People themselves are actually the interpreters of their own Constitution.

35:35With the court packing plan on the table, the future of the court was uncertain. And after months in limbo, the court retreats. The court packing plan just scared the hell out of the justices and caused what the best con law professor of the time, Thomas Reed Powell, said, the switch in time that saves nine, as the court changed.

36:04In 1937, Roosevelt's second New Deal was upheld. Case after case came before the court, and they basically just greenlit everything. A minimum wage, Social Security, the right of workers to unionize. And not long after. One of the five justices who were the conservative majority holding this all back, Van DeVanter, retires in the middle of all this, and Roosevelt is able quickly to replace him. So now he's got the law that he wants. The court has retreated. He's got the court that he wants. So he lets the court packing plant go. He doesn't need it. He's gotten what he needed. And in the next couple of years, the rest of them retire and he's able to appoint other justices.

36:41So Roosevelt did get the court he wanted, just not in the way he expected. From the time of the court packing plan onward, the court simply rubber stamps the federal government. Whatever the federal government does, the court is going to approve. But the court's bid for judicial supremacy wasn't over just yet. Tucked away in one of the cases decided by this court was a footnote that said, We are reserving heightened judicial entanglement in a certain number of areas. They refer to discrete and insular minorities and the protection of individual rights. Individual rights. Life, liberty, the pursuit of happiness.

37:27Nobody paid much attention to that footnote because in the 150 years before then, none of those issues had actually been major issues in constitutional law. So it'd be like me saying, I'm going to let you control the whole house, but I'm going to keep this corner over here. Like, fine, keep that corner. What do I care? To be clear, that corner was the civil rights corner. And then what the Warren court does is pick that up in ways that actually nobody had really thought would happen and runs with it. Takes those doctrines and turns them into major issues of constitutional law for the first time.

38:06When we come back, we enter the Warren Court era, and the battle for judicial supremacy reaches a tipping point.

38:25This is Dano from Phoenix, Arizona, and you're listening to ThruLine from NPR. This message comes from LinkedIn ads. Ever invest in something that seemed incredible at first, but didn't live up to the hype for marketers. That's impressions. When ads don't create revenue, that's a tough conversation with the CFO. Instead, invest in results. Your CFO will love LinkedIn ads generates the highest row as of all major ad networks. So advertise on LinkedIn, spend$250 and get a$250 credit. Just go to linkedin.com slash nprpod. Terms and conditions apply.

39:05Larry Kramer:This message comes from Mint Mobile. If you're tired of spending hundreds on big wireless bills, bogus fees, and free perks, Mint Mobile is for you. Shop plans at mintmobile.com slash switch. Taxes and fees extra. See Mint Mobile for details. This message comes from Takeoff by IXL, the K-5 core math curriculum that continuously differentiates learning. Everything teachers need to personalize instruction is on Takeoff's digital platform. Learn more at Takeoff by iAxel.com. Part 3. The Ceiling and the Floor

39:45Little Rock, Arkansas, and the first phase of the trouble. The white population are determined to prevent colored students from going to the school their own children attend. Little Rock, Arkansas, September 25, 1957. An angry mob stands outside Central High School, a formerly all-white school, waiting to see if nine Black students will show up. Minnie Jean Brown-Tricky was one of those students. The world came to Little Rock to see what would happen. Years of rising tensions had led to this moment. Here is a sequence of events in the development of the Little Rock school case. In 1952, the issue of school segregation went to the Supreme Court in the case Brown v.

40:36Board of Education. A lawyer named Thurgood Marshall, then the chief attorney for the NAACP, argued for the plaintiffs. He argued that segregation in schools was a violation of the 14th Amendment of the Constitution, and the court unanimously agreed. They ruled that segregation in public schools was unconstitutional. Now, states across the country had to figure out a way to integrate their schools, which made a lot of people, especially in the South, really angry. They resented the idea that the federal government could just come into their state and tell them what to do. Glory, glory, hallelujah.

41:21We are going to maintain segregated schools down in Dixie. And that included Little Rock. In 1955... The Little Rock School Board approved a moderate plan for the gradual desegregation of the public schools in that city. But white community members refused to carry out that plan, so the courts pushed back. The Supreme Court issued a follow-up decision known as Brown II, ordering school districts to integrate. And in Arkansas, a federal district court judge followed up with another order. Still, the community resisted, vocally and sometimes violently.

42:10It's just chaos in the Little Rock schools and it's impossible for the students to attend.

42:22And the protesters got backup from the governor of Arkansas. The governor calls out the National Guard, they're not going to allow the integration to take place. — If it interferes for a time with certain other liberties, then that has always been the case. Which reminds me of a statement of Abe Lincoln one time when he said, if I tried to answer all the charges that come to this office, then I might as well close up shop for any other business. That if I am right, then all the things they say won't matter in the end.

42:54As pressure mounted to carry out the court's order, a mob formed outside the high school. Little Rock became a tinderbox, ready to ignite at any moment. And by September 1957, President Eisenhower decided he had to step in. Our personal opinions about the decision have no bearing on the matter of enforcement. The responsibility and authority of the Supreme Court to interpret the Constitution are very clear. Mob rule cannot be allowed to override the decisions of our courts. Phase two. President Eisenhower sends troops of the 101st Airborne Division of the United States Army to Little Rock by night.

43:41They are to keep order and to see that the law of the land is obeyed. Nine black students, escorted by federal troops, prepared to enter Central High School. They would come to be known as the Little Rock Nine.

44:04It's early morning in Little Rock, and a new school day is dawning.

44:14What about you, sir? Do you think the college students will show up? If I got anything to do with, they won't show up. They meet here and are conducted to school by the Army to make sure of their safety.

44:28This was an important moment for the Supreme Court. The president had sent in federal troops to defend their decision, to back up their authority. But the drama wasn't over. A few months later, the Little Rock School Board petitioned to postpone their integration plan. That case, Cooper v. Aaron, eventually made its way to the Supreme Court. And the Supreme Court, feeling bold, decided that the state of Arkansas wasn't allowed to undermine their ruling in Brown v. Board. And then... They go way beyond that. The court, for the first time, explicitly asserts that it is supreme in the interpretation of the Constitution.

45:11It was a claim of judicial supremacy, the likes of which had never occurred at the Supreme Court. And cites Marbury. Marbury v. Madison says it's the function and duty of the Supreme Court to interpret the Constitution, but it didn't say everybody's bound by it. Right, but the court takes a sentence out of context. So there's the famous line in it where Marshall says, It is emphatically the duty of the judicial department to say what the law is. As we learned earlier in the episode, what that meant in 1803 was that the court could decide what the law is only in the case at hand. But in 1958, the court was asserting that it had carte blanche power, a decision in one case applied to everyone everywhere in the country.

46:00In other words, judicial supremacy. We set the floor and we set the ceiling.

46:09Thing is, not everyone was bought into the idea of judicial supremacy yet. It's greeted with widespread skepticism because, remember, most of the people on the left had fought the earlier court battles. They were Roosevelt people. And the idea of judicial supremacy was anathema to their understanding. How could they give final say power to a court that had stood in the way of so much legislation they believed in? But there is a new generation of rising liberals who, seeing an activist liberal court, like, love this. So they embrace the idea of judicial supremacy because they're looking at a court that's enabling them to do all sorts of things that they think are good and right and important.

46:50I believe that we can and that we must restore integrity in government and the confidence of people in the integrity of their government. This is the voice of Earl Warren. He was chief justice of the court during both Brown v. Board and Cooper v. Aaron, which marked the beginning of what would come to be known as the Warren Court era. And over the next decade, the 1960s, under his leadership, the court will expand its power like never before. I think on this day many of us didn't realize just how important our movement was supposed to be. The real invader is integration. Unless we integrate, we shall very quickly disintegrate.

47:38The people will get to the promised land. Mine eyes have seen the glory of the coming people. America!

47:52The 60s are a time of incredible ferment because African-Americans in the South are starting to demand the rights that the Constitution gave them a century earlier. You've got Martin Luther King. You have demonstrations. You have sit-ins. You go to a counter and sit down beside him. You cause no violence. You're friendly. it sort of helps to project the idea that here sits beside me another human being. And the South is fighting to maintain white supremacy. Well, it's just not the things we're used to down here. I mean, because I wasn't raised with them, I never have lived with them, and I'm not going to start now.

48:42And the court is at the forefront of the national government in trying to bring civil rights. Remember that footnote in the case back in the Roosevelt era, the one about the civil rights corner being reserved for the Supreme Court to look at cases in which civil rights might have been denied? Well, during the 1960s, the Supreme Court started getting case after case relating to civil rights issues. And in case after case, the court ruled in favor of expanding civil rights nationwide. It was slowly setting the precedent on the most important issue of the day. And the real tipping point came in 1963.

49:27President Kennedy is reported to be fighting for his life in a Dallas hospital, but reports conflict. CBS says he is dead. After John F. Kennedy was assassinated, Lyndon B. Johnson replaced him as president. When Lyndon Johnson takes the presidency, he tells the country that the legacy of John Kennedy is civil rights. And to submit it, we need the Civil Rights Act. This Civil Rights Act is a challenge to all of us. Something that Kennedy might not have been able to get past, but Johnson is able to get past. To go to work in our communities and our states, in our homes and in our hearts, to eliminate the last vestiges of injustice in our beloved country.

50:18And the court can look at the Civil Rights Act and say, we were right, and now Congress agrees that we were right. A decade after Brown v. Board, Congress and the president were agreeing with the vision first proposed by the court, a desegregated nation with equal rights for all. The court is identified quite properly as the vanguard in civil rights among the branches of government. So it's a tremendous validation by Congress of what the court had been doing. And Lyndon Johnson at one time, a couple of years later, stated, never in American history have the three branches of government worked so well together.

51:06You have each of the branches of government doing what it can do to further the national interest. In other words, there was no pushback. All three branches had the same shared goals, which meant they weren't going to stand in each other's way. And just as fast as the federal government's power was growing, states' power was shrinking. There's no doubt that the court has very little respect for states' rights. So what you have is a nationalization of criminal procedure, forcing a number of states, all the southern states, a number of northern states to change the way that they do business.

51:55Furthermore, the court for the first time gets involved in elections. This is a voting rights case. It says that it's not a problem for the federal judiciary to evaluate state and federal elections. They are the intended and actual victims of a statutory scheme which reduces their right to vote to about one-twentieth of the value of the vote given to certain rural residents. And then that turns out to be one person, one vote? One person, one vote. In a series of Supreme Court cases that came to be known as the apportionment cases, the court decided that electoral districts had to be divided up according to population size.

52:48We're not arguing for absolute mathematical equality here. We're asking for the reasonable equality required for the 14th Amendment. Therefore, making each district roughly equal in population, which meant black voters would be more fairly represented in their districts. In the eyes of liberals, the court was behind a lot of the success of the civil rights era. And by the late 1960s, any doubts they'd had about judicial supremacy were pretty much gone. Liberals who've been skeptical of the court from the New Deal period are changing. Hey, this is working. Plus, there was now a black Supreme Court justice, the first ever.

53:30Historians will note this hour at the White House. In a Rose Garden ceremony, a 58-year-old great-grandson of a slave is nominated by President Johnson to be a Supreme Court justice. He is Solicitor General Thurgood Marshall, acknowledged the best-known Negro lawyer of the century. As for conservatives who hated the decisions of the Warren Court, they were still totally fine with the principle of judicial supremacy. They were just biding their time till the court flipped conservative again. So for the first time in American history, there was consensus across the board that the Supreme Court should have the final say over the Constitution.

54:09So that settles that who has final authority debate. And the debate shifts from who has final interpretive authority, now everybody says it's the court, to how the Constitution should be interpreted.

54:30At almost midday Eastern time, NBC News projected Richard Nixon, the 37th president of the United States. It was so close, it took forever, but he won it. It was, again, one of the closest elections in American history. After Richard Nixon, a Republican, was elected president in 1968, the tables began to turn on the court. Over the next few years, Earl Warren and several other liberal justices would leave the court. and Nixon would replace them with more conservative justices. As the Warren Cordero wound down, the court tried to advance individual rights. Its swan song was Roe v. Wade, in which the court ruled that restricting access to safe and legal abortion was unconstitutional.

55:21Roe v. Wade is the last gasp of that reform I mean, liberalism. And from that point on... It's been a steady march to the right in terms of the court's ideology. The irony is the subsequent courts have been using the Warren court's credibility, the court's credibility from the Warren court, to undo everything the Warren court accomplished over the last 50 years. So most of what the court has done has been trying to reverse decisions and trends and bodies of doctrine that the Warren court set into motion. Functionally, they're saying, you guys showed us how to do it. Now we're going to do it our way.

56:01You had your Warren court. We want our Warren court. And that may be what the three Trump appointees to the Supreme Court will provide, that now the Republicans may have their Warren court. And it doesn't matter whether it's a liberal court like the Warren court, a moderate court like the Berger Court or a conservative court, like the Rehnquist and Roberts Court, all of them have been the same in this, which is they just keep expanding their power because there's nobody pushing back.

56:48That's it for this week's show. I'm Randa Abdel Fattah, and you've been listening to ThruLine from NPR. This episode was produced by me, Ramtin Adablui, and... Jamie York. Lawrence Wu. Lane Kaplan-Levinson. Julie Kane. Victoria Whitley-Berry. Parth Shah. Thank you to Austin Horn, Travis Lux, Pranjali Shah, and Jess Berry for their voiceover work. Thanks also to Irene Noguchi, Julia Redpath, Yolanda Sanguene, Beth Donovan, Liana Simstrom, and Anya Grunman. Our music was composed by Ramtin and his band, Drop Electric, which includes... Naveed Marvi, Sho Fujiwara, Anya Mizani. If you have an idea or like something on the show, please write us at throughline at npr.org.

57:34Or leave us a review on Apple or Spotify. Thanks for listening.

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