Conservative Historian

A Brief History of the United States Supreme Court – Part III: Two Presidents and a Marshall

July 24, 2022 Bel Aves
Conservative Historian
A Brief History of the United States Supreme Court – Part III: Two Presidents and a Marshall
Show Notes Transcript

In Two Presidents and a Marshall we look at Court Packing and Brown v. Board of Education of Topeka.  

A Brief History of the Supreme Court of the United States– Part III: Two Presidents and a Marshall.  


July 2022


“I’m skeptical of court packing because I do not know where it stops. You could end up with a 100-person Supreme Court that changes every four years.” 

Senator Angus King, Independent, of Maine


“The more responsible thing to do is to keep the US Supreme Court at nine justices.” 

Senator Mark Kelly, Democrat of Arizona


“Our whole constitutional heritage rebels at the thought of giving the government the power to control men’s minds.” 


 “Racism separates, but it never liberates. Hatred generates fear, and fear, once given a foothold, binds, consumes, and imprisons. Nothing is gained from prejudice. No one benefits from racism.”


“The measure of a country’s greatness is its ability to retain compassion in times of crisis.”

Thurgood Marshall


The lists. I get it. I see lists ranking quarterbacks, movies, heck, pizza toppings, and I am one of the clickbait idiots eager to check it out. (BTW – Tom Brady, Spielberg’s Lincoln, and Pepperoni).  In history, we have the presidential rankings. I have even been drawn in. In my book, the Conservative Historian, Collected Works, I too feature a presidential order, but mine is not like the one you are likely to see on the news wires. With those typical ones by mainly university-employed historians, even counting on his slaveholding, George Washington still ranks number one or two, with Abraham Lincoln getting the other slot. The first president who set all the precedents and the guy who preserved the union. But since the first of these, in 1948, just four years after his death, Franklin Delano Roosevelt has been ensconced in the number three position.  


We live in a time when the likes of Alexandra Ocasio Cortez get a lot of press. This very weak she was featured with selective photographs apparently being arrested and apparently being handcuffed. Neither was true. Protesting at a pro-choice rally, the New York representative was detained by police, escorted away from the building, and left at a park, after which she took a photo op with her fellow squad mates. No handcuffs, arrest, Mirandizing, stuffed into a police cruiser, or a mug shot. She did not have to spend time in a cell with someone nicknamed Psycho.  


When I was 15, a few buddies and I went to a local beach with a six-pack of beer (courtesy of older brothers) and drank about half a can when the police showed up. We quietly dropped the cans into the lake and were told to leave by the police, which we did forthwith. This was more traumatic than anything AOC encountered, but to hear the media talk about it, it was the second coming of Solzhenitsyn in the gulag archipelago.  


I have opened with this because so much of Franklin Roosevelt’s presidency was this type of performative politics, but when one looks at his actual list of accomplishments, his terms do not seem quite so triumphant. Five years after the inception of the New Deal, in 1938, unemployment spiked again, and the Great Depression was only solved by the advent of World War II. As Commander in Chief of the armed services, his administration was surprised by the Japanese attack at Pearl Harbor, though the Empire of Japan had been saber rattling throughout 1941. During the war, he interred over 70,000 American citizens of Japanese descent in what was essentially prisoner of war camps. Though knowing he was dying, FDR failed to bring Vice President Harry S Truman in on any of the critical initiatives going on in the administration. Crucial months were lost in 1945 as Truman tried to get up to speed. And finally, there was Court Packing.  


The Constitution does not stipulate the number of Supreme Court Justices; Congress sets the number instead. There have been as few as six, but since 1869 there have been nine Justices, including one Chief Justice. Those progressives who keep citing “precedent” as an explanation for why it was heinous to overturn Roe seem not to notice that for over 150 years, a precedent in the form of a number of Justices has been set. But the bad idea to change that number, like so much else burdening this nation today, started with bad governance ideas emanating from the 1930s and Roosevelt himself.  


On February 5, 1937, Roosevelt announced a plan to expand the Supreme Court to as many as 15 judges, allegedly to make it more efficient. Critics immediately charged that Roosevelt was trying to “pack” the court and thus neutralize Supreme Court justices hostile to his New Deal.

During the previous two years, the high court had struck down several key pieces of New Deal legislation on the grounds that the laws delegated an unconstitutional amount of authority to the executive branch and the federal government, which of course, they did! Flushed with his landslide reelection in 1936, President Roosevelt issued a proposal in February 1937 to provide retirement at full pay for all members of the court over 70. If a justice refused to retire, an “assistant” with full voting rights would be appointed, thus ensuring Roosevelt a liberal majority. It just so happened that Republican-appointed, New Deal opposing justices were all over 70, a coincidence, I am certain. Yet, most Republicans and many Democrats in Congress opposed the so-called “court-packing” plan.


Much is made of how this plan was rejected, but what does not get as much press is how Roosevelt’s threat of court packing altered a critical decision. Like an earlier version of John Roberts rewriting the Affordable Care Act to make it constitutional, there were a few justices with an eye toward institutional preservation rather than the law itself. 


In April 1937, however, before the court-packing bill came to a vote in Congress, two Supreme Court justices came over to the liberal side and, by a narrow majority, upheld the National Labor Relations Act and the Social Security Act as constitutional. The majority opinion acknowledged that the national economy had grown to such a degree that federal regulation and control were now warranted. Roosevelt’s court-packing plan was thus unnecessary, and in July, the Senate struck it down by a vote of 70 to 22. Soon after, Roosevelt had the opportunity to nominate his first Supreme Court justice, and by 1942 all but two of the justices were his appointees.


What these justices and even a very smart man such as Roberts miss is that when an institution becomes more concerned with self-preservation than adhering to its mission, it loses integrity and thus indirectly, but inevitably, undermines its raison d'être or reason for being. SCOTUS does not exist to preserve SCOTUS; it exists to interpret the laws passed by the legislative bodies.  


Yet Roosevelt succeeded, and this lesson has not been lost on our modern-day New Deal types. Emma Camp, writing for Reason Magazine, notes, “On Monday, eight House Democrats held a press conference on the Capitol steps to advocate for a court-packing scheme that would expand the number of US Supreme Court justices from nice to 13, thus allowing President Biden to add four more judges to the court. Four more judges, it just so happens, is exactly the number Democrats need to overturn the court’s current 6-3 conservative majority.” Camp goes on to note just a few downsides with this scheme.


“Court-packing advocates seldom acknowledge the downsides of expansion. As Reason Senior Editor Damon Root wrote in February 2021, “Court-packing is a naked power grab and an attack on the independence of the judiciary. It is a tit-for-tat race to the bottom. One party expands the size of the bench for nakedly partisan purposes, so the other party does the same (or worse) as soon as it gets the chance.”


On Monday, Bill Scher argued in Washington Monthly that court-packing is unlikely to lead to long-term success for Democrats. “Once you can breezily change Court composition on a partisan basis, you no longer have an independent judiciary,” he wrote. “In other words, court-packing doesn’t secure reproductive freedom. Instead, over the long term, it only locks us in our current predicament, where our rights are subject to the whims of the electorate.” Now, I purposely included liberals arguing against court-packing. Still, I also like “whims of the electorate piece.” These are the same folks arguing for democracy but then decrying democracy when it means something with which they disagree.  


So now we turn from the ridiculous to the weighty. According to the website celebrating Thurgood Marshall was, “Born in Baltimore, Maryland on July 2, 1908, Marshall was the grandson of a slave. His father, William Marshall, instilled in him from youth an appreciation for the United States Constitution and the rule of law. After completing high school in 1925, Thurgood followed his brother, William Aubrey Marshall, at the historically black Lincoln University in Chester County, Pennsylvania. His classmates at Lincoln included a distinguished group of future Black leaders such as the poet and author Langston Hughes, the future President of Ghana, Kwame Nkrumah, and musician Cab Calloway. Just before graduation, he married his first wife, Vivian “Buster” Burey. Unfortunately, their twenty-five-year marriage ended with her death from cancer in 1955. Marshall’s first major court case came in 1933 when he successfully sued the University of Maryland to admit a young African American Amherst University graduate named Donald Gaines Murray. Applauding Marshall’s victory, author H.L. Mencken wrote that the decision of denial by the University Of Maryland Law School was “brutal and absurd.” Nevertheless, they should not object to the “presence among them of a self-respecting and ambitious young Afro-American well prepared for his studies by four years of hard work in a class A college.”

Biographer Gilbert King wrote, “With his far-reaching triumphs in landmark cases he argued before the Supreme Court Thurgood Marshall would indeed redefine justice in a multi-racial nation.” What is interesting is that 20 years before the civil rights movement began in earnest, Marshall, starting in 1940, “fought countless battles for human rights in stifling antebellum court houses where white supremacy ruled. To Marshall, the representation of powerless blacks falsely accused of capital crimes became his opportunity to prove that equality in courtrooms was equally vital to the American model of democracy as the fight for equality in the classrooms and voting booths.” 


He was also a fascinating, imposing figure at six feet two inches tall; he liked bourbon and moved about the South on trains, spending a great deal of time in segregated cars talking to the porters sitting on the luggage and, sometimes, caskets. Marshall constantly traveled to small, dusty, scorching courtrooms throughout the South at one point, overseeing as many as 450 simultaneous cases. Among other significant victories, he successfully challenged whites-only primary elections in Texas, in addition to a case in which the Supreme Court declared that restrictive covenants that barred Black people from buying or renting homes could not be enforced in state courts. He eventually became the first Black U.S. Supreme Court Justice.

By the time Marshall argued Brown V Board of Education, he had argued numerous times in front of the Supreme Court. He argued 32 cases before the US Supreme Court, winning 29. Some of his notable cases include Smith v. Allwright (1944), which found that states could not exclude Black voters from primaries, Shelley v. Kraemer (1948), which struck down race-based restrictive housing covenants, Sweatt v. Painter(1950), which deemed separate facilities for Black professional and graduate students unconstitutional. He also argued a case in the notorious Groveland Four cases in which four African Americans were wrongly accused of raping a 17-year-old white female. It is also interesting that one of the more recent feature films of Marshall’s life, starring the late, and by this writer, lamented actor Chadwick Boseman, in 2017, focused not on the famous Brown case or Marshall’s later tenure as the first African American Supreme Court Justice, but a 1940 case, The state of Connecticut v. Joseph Spell,


As Marshall moved about the country, it is worth comparing the performative nature of activism or resistance today with that of 70 years ago. There was a decent chance that if Marshall found himself in the wrong place at that wrong time, his body, and life, would be in danger. Today when protesters take to the streets, the worst thing that would happen to them is to have to hear an alternative opinion screamed at them by the opposition. The best is fame and wealth in the form of lucrative CNN gigs, book deals, and five, or six, figure speaking deals. Activism, or the acquisition of wealth and fame, used to be the road to legislative power, whereupon things could be done. This was the road taken by John Lewis, another of those 1960s figures who faced mortal dangers. Today it is the opposite. The House of Representatives is now nothing more than a platform, a title, to accrue Twitter followers, get on TV, and line up future largesse. Legislation? Bills? Committee work? Research? That is for the dullards. But Tik Tok videos is where it is at.  


I note this to say that, like Dobbs, the road to changing Plessy v Ferguson was not years but decades in the making. Adoring TV coverage puff pieces dominated no instant gratification. Instead, it was the painstaking work of assembling the cases, arguing them in all areas of the judicial system, and making the points. Piece by piece, Marshall and other lawyers set the stage for eliminating the separate but equal law codified by the 1896 Plessy v Ferguson.  


But before we get to Brown, we will meet a president very different from Roosevelt. 

Though Dwight D Eisenhower was inextricably linked to FDR through World War II, these were different men. Roosevelt loved being the center of attention, and many of his closest advisors were so because they liked to stand in his shadow. In contrast, Eisenhower surrounded himself with brilliant people, if not downright egotists. 


During the war, he navigated personalities such as Roosevelt, Winston Churchill, Bernard Montgomery, George Marshall, and George Patton. All thought themselves his superior in intelligence, but it is always one of those historical marvels that looking back, Eisenhower always seemed to get what he needed and wanted. At times, those personalities seem to be serving him, not the other way around.  


His presidency was similar. Eisenhower came off to the public as the avuncular president more interested in playing golf than the tedious details of the presidency. But in situation after situation, from ending the Korean War to the Suez Crisis to his treatment of Israel and his management of the Supreme Court, he seems more like a hidden puller of strings than any marionette. 


Today we have one of the least diverse Supreme Courts in history. Wait, what? We have two African Americans, a Latina, and Four women! Yet, all nine attended the same two universities. All were lawyers, SCOTUS law clerks, and professors. None have held elective office. None have started or owned a business. 


Consider one of the Chief Justices from years past. He was a Governor of the Philippines, War Secretary, oh, and President of the United States. Now as much as it makes sense to add people who know the law to interpret the law, note that much of what they do is look at the law through the prism of issues ranging from the environment to commerce to campaign financing to reproductive rights. 


Again, their first order of business is to interpret the laws passed by Congress, and they are not enacting their versions of the law. But perhaps just a little diversity (and being a wise Latina, as Sonia Sotomayor stated) is not quite what I am talking about.  


That is why it is interesting that Eisenhower decided to go with a relatively conservative Governor of California (Cally was a different place back in the 1950s than today) as his Chief. Eisenhower appointed California Governor Earl Warren as Chief Justice on October 5, 1953, using a recess appointment. In 1952 Warren had stood as a “favorite son” candidate of California for the Republican nomination for president but withdrew in support of Eisenhower. Warren was reported to have offered to support Eisenhower’s campaign in return for an appointment to the Supreme Court at the first possible opportunity. Eisenhower wanted a conservative justice and commented of Warren that “he represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court... He has a national name for integrity, uprightness, and courage that I believe we need on the Court”. Warren was formally nominated on January 11, 1954, and was confirmed by the United States Senate by voice vote on March 1, 1954. Rumors that Eisenhower regretted the appointment had been debunked not just by scholars but by his subsequent actions as president. Assuming some of the Eisenhower naysayers are correct and he opposed Brown, his later actions make him even more impressive. Since Dobbs, President Biden has done much to undermine the ruling, and his party, up to and including the claims of the court’s illegitimacy, has gone far to mar our very system of governance. 


In the late 1940s, the National Association for the Advancement of Colored People (NAACP) began a concentrated effort to challenge the segregated school systems in various states, including Kansas. There, in Topeka, the NAACP encouraged several African American parents to try to enroll their children in all-white schools. All parents’ requests were refused, including Oliver Brown’s. He was told that his daughter could not attend the nearby white school and instead would have to enroll in an African American school far from her home. The NAACP subsequently filed a class-action lawsuit. While it claimed that the education (including facilities, teachers, etc.) offered to African Americans was inferior to that offered to whites, the NAACP’s main argument was that segregation by its nature was a violation of the Fourteenth Amendment’s equal protection clause. A US district court heard Brown v. Board of Education in 1951, ruling against the plaintiffs. While sympathetic to some of the plaintiffs’ claims, it determined that the schools were similar. It cited the precedent of Plessy and Gong Lum v. Rice (1927), which upheld the segregation of Asian Americans in grade schools. The NAACP then appealed to the US Supreme Court.


Marshall’s argument, which began on December 8, 1953, started with the concept of federalism. I think this part of our government is crucial, but as Marshall notes, “The argument of judicial restraint has no application in this case. There is a relationship between federal and state, but there is no corollary or relationship to the Fourteenth Amendment.


The duty of enforcing, the duty of following the Fourteenth Amendment, is placed upon the states. The duty of enforcing the Fourteenth Amendment is placed upon this court, and the argument that they make over and over again, to my mind, is the same type of argument they charge us with making, the same argument Charles Sumner made. Possibly so.” He went on to say of the 14th amendment, “They can’t take race out of this case. From the day this case was filed until this moment, nobody has in any form or fashion, despite the fact I made it clear in the opening argument that I was relying on it, done anything to distinguish this statute from the Black Codes, which they must admit, because nobody can dispute, say anything anybody wants to say, one way or the other, the Fourteenth Amendment was intended to deprive the states of power to enforce Black Codes or anything else like it.” And the Marshall got to the heart of the matter. The very concept of why there was a separation in the first place, again in violation of the 14th amendment. “So whichever way it is done, the only way that this court can decide this case in opposition to our position is that there must be some reason which gives the state the right to make a classification that they can make in regard to nothing else in regard to Negroes, and we submit the only way to arrive at that decision is to find that for some reason Negroes are inferior to all other human beings.


Nobody will stand in the court and urge that, and in order to arrive at the decision that they want us to arrive at, there would have to be some recognition of a reason why of all of the multitudinous groups of people in this country you have to single out Negroes and give them this separate treatment.” 


Marshall would go on, as noted, to become the first African American to serve on the Supreme Court. He would also begin to support liberal opinions that I, as the conservative historian, cannot support.  But for those days in the 1940s and 1950s, he was not just a symbol of the liberty of which all Americans should enjoy, but would see agenda through the law.  


On May 17, 1954, US Supreme Court Justice Earl Warren delivered the unanimous ruling in the landmark civil rights case Brown v. Board of Education of Topeka, Kansas. State-sanctioned segregation of public schools was a violation of the 14th amendment and was therefore unconstitutional. This historic decision marked the end of the “separate but equal” precedent set by the Supreme Court nearly 60 years earlier in Plessy v. Ferguson. In addition, it served as a catalyst for the expanding civil rights movement during the decade of the 1950s.


Arguments were to be heard during the next term to determine how the ruling would be imposed. Just over one year later, on May 31, 1955, Warren read the court’s unanimous decision, now referred to as Brown II, instructing the states to begin desegregation plans “with all deliberate speed.”


Despite two unanimous decisions and careful, if vague, wording, there was considerable resistance to the Supreme Court’s ruling in Brown v. Board of Education. In addition to the obvious disapproving segregationists, some constitutional scholars felt that the decision went against legal tradition by relying heavily on data supplied by social scientists rather than precedent or established law. On the other hand, supporters of judicial restraint believed the court had overstepped its constitutional powers by essentially writing new laws.


In fairness, I can make that argument. My issue here is that Brown, and indeed Marshall’s opening argument, relied less on social science and more on the 14th amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” By designating that a public school system, or even those private institutions open to the public, can decree separated facilities based on race would be somehow equal and is ludicrous. And here, the 14th amendment is clear. The abridgment of rights in separating the races is clear. And just as Dobbs does not even get to the argument of whether a child is alive at day one or fifteen weeks, Brown does not address the concept that segregating the races in and of itself is a very bad idea. It instead rests on the fact that segregation itself will mean segregation of rights, especially in the context of a public offering such as a publicly funded school district. 


As noted above, it was a sought-after goal of Warren that the verdict was unanimous. Much is made of this, but it is hard today, with the changes wrought by the selection of SCOTUS justices, especially after Bork, Thomas, and Kavanagh, to reach a unanimous verdict. But note that Eisenhower selected not a judge but a successful politician. Part of Warren’s plan was not to push the decision too hard. As Benjamin Barton writes for the New York Daily News, “Brown is a masterwork of restraint and persuasion. Warren wrote a short, plain-spoken, and relatively modest unanimous opinion that explained in non-legalese why Plessy was wrong and needed to be overruled. The decision itself is a tidy ten pages and has only 14 footnotes. The opinion is light on citations and certainly does not try to argue that all of the court’s earlier proclamations led to this result, nor that the court was required to rethink large swaths of older cases, with the notable — and, of course, critical — exception of Plessy v. Ferguson. Consider the stirring conclusion: “We conclude that in the field of public education, the doctrine of ‘separate but equal has no place. Separate educational facilities are inherently unequal.”


Warren was actually criticized at the time for writing an opinion that was too short and under-theorized. But he knew the court was making a radical decision and wanted an opinion that all Americans could read and understand, whether they agreed with the final ruling or not.” This was a politician’s, more than a judge’s take.  


As noted, Eisenhower’s response was relatively muted, “The Supreme Court has spoken, and I am sworn to uphold the constitutional processes in this country, and I will obey,” he said. But as noted by David Nichols, another of Eisenhower’s biographers, agreed Eisenhower’s statement was lukewarm but said the president nevertheless felt strongly about desegregation and fought hard to accomplish it. “It is much more important what he DID, not what he said or failed to say,” he said. Eisenhower, who grew up in Abilene, Kan., helped lay the groundwork for school desegregation in 1953 by choosing then-California Gov. Earl Warren as the 14th chief justice of the Supreme Court.


At the time, Nichols stressed, Eisenhower was in the process of taking steps that brought about the desegregation of all Armed Forces combat units by October 1954. Eisenhower demonstrated his enthusiasm for civil rights by taking steps that included fighting successfully to pass the Civil Rights Act of 1957 and sending federal troops that year to Little Rock, Ark. after Gov. Orval Faubus called in the Arkansas National Guard to block nine black students from entering a formerly all-white high school.


The federal troops subsequently escorted the “Little Rock Nine” into the school.“That was extraordinary, the first time federal troops sent into a Southern state since the Civil War,” Nichols said. 


As noted, among a majority of people in the United States in 1896, there was not a widespread backlash against Plessy but several backlashes against Brown. That is an item of consideration for those progressives now railing about how over 50% of Americans supported Roe. And this very week, Justice Elena Kagan stated, “I’m not talking about any particular decision or any particular series of decisions. But if the court loses all connection with the public and the public sentiment over time, that’s a dangerous thing for democracy,” Kagan said. “We have a court that does important things, and if that connection is lost, that’s dangerous for the democratic system as a whole.”


But that is beside the point. Dobbs was ruled by point of law, as was Brown.