The Week of March 14, 2021: On this Day in SCOTUS History
1933, March 15
Justice Ruth Bader Ginsburg’s Birthday
Joan Ruth Ginsburg was born in Brooklyn, New York to Celia (née Amster) and Nathan Bader. Her name at birth was Joan, and her family referred to her as Kiki (because she was a kicky baby), but she started going by Ruth in grade school when it was discovered that there were at least a few other Joan’s in her class. Ruth, whose family attended a conservative synagogue, was upset that she was not allowed to have a bat mitzvah ceremony, due to the fact that she was female.
Much has been written about Justice Ginsburg and there is not a lot I can add here, except to say that I personally believe that not only was her irritation about the bat mitzvah a sign of things to come, but that this early slight was the formative event that drove her to enter arenas where women were rarely seen and that launched her into a career that had the rights of women at its center. I also think that having all of these different names led her to believe that she could be anything and anyone she wanted.
Am I serious, or am I being tongue in cheek? You decide. Just know that I love and respect and miss her terribly.
Meanwhile, please enjoy this video of last week’s unveiling of the Ginsburg statue in Brooklyn, courtesy of NBC New York.
1942, March 18
Executive Order 9066 Authorizing the War Relocation Authority
President Franklin D. Roosevelt signed executive order 9066 authorizing the War Relocation Authority and the mass incarceration of nearly 120,000 Japanese-Americans. This action would later be upheld in the case Korematsu v. United States, 323 U.S. 214 (1944), but has been repudiated since. https://supreme.justia.com/cases/federal/us/323/214/ . Nevertheless, the Trump administration cited Korematsu as precedent for keeping a registry of immigrants, thus bringing to the foreground Justice Antonin Scalia’s warning that Korematsu “could happen again in wartime.” We cover Korematsu in more detail in a later post.
It’s important to note that the rounding up of Japanese-Americans started well before the internment. Within hours of Pearl Harbor Federal agents arrested Buddhist priests and Japanese teachers and civic and community leaders all up and down the West Coast. Curfews were imposed on Japanese Americans, and not on the general population, though anyone who looked Asian would’ve found themselves suspect. Military detention camps, temporary prisons, were set up on racetracks and fairgrounds long before the mass incarceration took place. Justification for the incarceration was based on lies and on the suppression of facts. There is a fascinating Amicus podcast, dated January 2, 2021, that discussed the documentary “Alternative Facts: The Lies of Executive Order 9066.” Dahlia Lithwick on the Amicus podcast summarizes the controversy nicely:
“I think there are three parts to this playbook, and it’s a playbook that tyrants have used since time immemorial. One, appeals to prejudice, to fear monger and scapegoat and traffic in conspiracy theories, falsehoods and alternative facts. And when you combine all of those three things where facts don’t matter, where the press is the enemy of the people, a culture that says Mexicans are drug dealers and rapists and Muslims are terrorists, Chinese bring disease, any number of these things, once they become normalized and they grip the culture, then almost anything is possible.”
We often say “never again” to injustices like this, but the demonization of minority cultures continues and has only increased under this country’s recent flirtation with populism. I encourage you all to check out the Amicus podcast linked below and to consider how American perceptions of Asians continue to express themselves today in rhetoric and random acts of violence, including the mass shooting in Georgia on March 16, 2021.
Also posted here is a 1943 production about the internment put out by the U.S. Office of War Information, narrated by Milton S. Eisenhower, son of Dwight D. Eisenhower, who was director of the authority. Posted on YouTube by The Oregonian. The film attempts to put a positive spin on the internment.
1963, March 18
Gideon v. Wainwright, 372 U.S. 335 (1963)
The U.S. Supreme Court, in Gideon v. Wainwright, ruled unanimously that state courts were required to provide legal counsel to criminal defendants who could not afford to hire an attorney on their own. https://www.law.cornell.edu/supremecourt/text/372/335. The Sixth Amendment guarantees that “in all criminal prosecution, the accused shall enjoy the right … to have the Assistance of Counsel for his defense” in federal court proceedings. Gideon’s argument was that counsel should also be provided for indigent defendants in state courts, not just federal, under the Fourteenth Amendment. Prior to Gideon, counsel was provided to state indigent defendants in capital cases only. (Capital cases are cases where the death penalty can be imposed.)
Note: the right to state-provided counsel is not available for civil procedures, or for appellate or writs of habeus corpus.
Below is a wonderful CBS Reports from 1964, complete with Aaron Copeland introduction, based on the book about the case, Gideon’s Trumpet by Anthony Lewis. I includes extended interviews with Clarence Earl Gideon himself and reenactments of the court proceedings. It is a wonderful slice of history and we are fortunate to have it.
Also, as a thought exercise, consider the logic from which Gideon bases his argument — that the justice system should be the same for poor people as for rich — and ask yourself where else this logic could be applied. (I’ll go first. THE BAIL SYSTEM!)
1993, March 19
The Resignation of Justice Byron R. White
Justice White might be best know for being the person who, upon retiring, created the opportunity for then President Bill Clinton to nominate Ruth Bader Ginsberg. Justice White did, however, have one of the longest tenures on the Court (31 years, 73 days), and prior to being a Supreme Court justice he was, for all practical purposes, Superman. Read this and tell me if you disagree. (Bonus: Reading this might win you a trivia contest some day!)
Byron White had a stellar academic record. He was his high school’s valedictorian, was student body president and graduated Phi Beta Kappa and valedictorian from the University of Colorado with a BA in economics, and is a Rhodes Scholar. During his time in England he became acquainted with the Kennedys, Joe and John. (Joseph Kennedy, the patriarch, was ambassador to London at that time.) He then went to Yale Law School where he was top of his class his first year, but he turned down editorship of the Yale Law Journal in order to, get this, play professional football.
Byron White had a stunning and legendary athletic career. (My online search of Byron White pulled up more videos about his athletic success than about his jurisprudence.) White was an All-American halfback at Colorado and was runner-up for the Heisman Trophy. He also played baseball and basketball. He helped lead the football team to an undefeated regular season only to lose at the Cotton Bowl. He was later inducted into the College Football Hall of Fame. He was selected in the first round, fourth overall, in the NFL draft. (He deferred his Oxford Rhodes Scholar attendance for a year to play football.) He led the NFL in rushing as a rookie and was, at the time, the NFL’s highest paid player. (Oh, in college he also played baseball and basketball.)
White cut short his NFL career in 1942 in order to enlist in the Navy to support the war effort. He was an intelligence officer in the Pacific Theatre and was awarded two Bronze Stars. He also wrote the intelligence report on the sinking of President Kennedy’s PT boat. After the war, rather than go back to football, he went back and finished law school where he graduated magna cum laude and first in his class. (You cannot make this stuff up.)
Then he did a clerkship and worked for a law firm and chaired John F. Kennedy’s campaign in Colorado and served as the number two man in the Justice Department, blah blah blah and eventually made the Supreme Court.
I offer here Justice White’s Retirement Profile as compiled by CSPAN, and a video of President Bill Clinton’s reaction to the retirement (look how young he was!). Also, for those who want more, I’ve included a 1-hour analysis of Justice White’s tenure.
2016, March 16
President Barack Obama Nominates Merrick Garland to the Supreme Court Seat Left Vacant by Justice Antonin Scalia.
*Sigh* You know the story. Please don’t make me repeat it.
AND AS IF THAT WEREN’T ENOUGH. . .
2017, March 17
The Trump Administration No Longer To Provide ABA with Special Access to Background Information on Judicial Candidates Prior to Their Nomination
The American Bar Association (ABA) has been reviewing federal judicial nominees and providing recommendations since the Eisenhower administration. ABA Standing Committee consists of a 3-year rotating panel of 15 members from all of the federal circuits. The Committee focusses exclusively on integrity, professional competence, and judicial temperament. The candidates are given a rating of well qualified, qualified, or not qualified.
In a letter dated March 17, 2017, within months of taking office, the Trump administration informed the ABA that they would not longer be given special access to background information for the purposes of making these recommendations. The letter is full of pretty words. The finer point is buried on the second page, the very last sentence of the first paragraph.
https://www.documentcloud.org/documents/3533779-Letter-to-ABA-From-White-House-Counsel.html
Naturally, the ABA continued to provide their recommendations, and the results were … embarrassing.
During his four years in office, the ABA rated 264 of President Trump’s nominees; 187 were rated “well-qualified,” 67 were rated “qualified,” and 10 were rated “not qualified.” -Ballotpedia
This is the second consecutive Republican administration to do exclude the ABA. George W. Bush did the same in 2001.
Fortunately, none of the “not qualified” nominees were Supreme Court nominees.
You can contact the author through his LinkedIn page: https://www.linkedin.com/in/ronalddrodriguez/ .
