But to understand the larger forces that shape the law, one needs to know more than the story of the particular litigants and lawyers. One needs to know the story behind the story behind the case. If one thinks, as I do, that in the long run, social and political movements and trends play a larger role in shaping the law than do three-part doctrinal tests or the fortuity of which case wins the race to the courthouse, then one wants to know about how those larger forces interact with the legal system. That’s why the stories I collected in Constitutional Law Stories mostly aim to tell the latter sort of tale, using the stories of the particular litigants as illustrative or exemplary.
The ACLU has the backstory of the lead plaintiff from Employment Division v. Smith, which wrought RFRA.
Al Smith was in his mid 50s-a recovering alcoholic who had picked himself up from the street, rebuilt his life, and made a career of helping others do the same-when he began reclaiming his Native American heritage. After almost half a lifetime without moorings, the ancient traditions that had been lost to him as a child became a growing source of spiritual comfort.
“I was spiritually unbalanced, I was starving. Now my spirit’s so happy. I’m on the high road, back to the Creator from whence I came.”
When he was seven, Smith was taken from the Klamath reservation by the federal Indian Agency and enrolled, like thousands of other Native American children, in a succession of boarding schools where, instead of big skies and open vistas, he found high fences, concrete yards and indoctrination into the white man’s culture. Memories of his own people’s ways were blotted out.
“They took us off, took me from my mother and my grandmother, and we were forbidden to speak our native tongue. They took away my freedom, and I couldn’t understand why I was locked up like that. We weren’t recognized as people. I was 55 or 56 years old before I attended my first Native American ceremony. I don’t speak Klamath. I know no Klamath songs.”
In 1983, Smith was fired from a job he held in Roseburg as a drug and alcohol counselor because he participated in the sacramental use of peyote, a controlled substance that, like the wine of Christian communions, is at the core of the centuries-old Native American religious ceremony in which Smith took part. Smith was denied unemployment benefits by the State of Oregon on grounds that his firing was for just cause. The confrontation inflamed the scars of the past.
“Is this going to continue on? Or am I going to put a stop to it, finally, and say: ‘You can’t tell me that I can’t go to religious ceremonies.”
Smith stood up for his rights-represented by Oregon Legal Services, with the aid of the ACLU. More than six years of litigation followed, culminating in a 1990 U.S. Supreme Court decision that affirmed the state’s denial of Smith’s unemployment claims.
“People have individual rights and they have be aware of that, to have the energy, the courage to speak out and question. Otherwise, we’ll fall into being just like a herd.”
Smith had only lost the battle, not the war. The Courts decision in Employment Division of Oregon v. Smith galvanized religious leaders of all faiths because it brazenly swept aside the long-held doctrine that government must show a “ compelling state interest” before infringing on religious practices. Oregon has since joined 23 other states and the federal government in declaring the sacramental use of peyote in Native American ceremonies legal. And President Clinton in 1993 signed into the law the restoring the “compelling interest” doctrine.
“I’m seeing to it that my little children – my daughter is twelve and my son is seven – have a choice about what path to follow. I didn’t have a choice. But they know the ceremonies. They know what a sweatlodge is. They’ve participated in a sundance. They know about the drum. So the culture is not lost.”
Oh, those were the days when the ACLU supported RFRA.
And here is a photograph of the seal of the Employment Division of Oregon.
Thanks to M. for the picture.
While Halbig is not really a constitutional case (I think there is a non-trivial Article II take care issue at play in all of the Obamacare rewrites), it’s origin makes for a fascinating story. The Wall Street Journal has a detailed profile of Thomas Christina, a South Carolina lawyer who discovered that the text of the Affordable Care Act limited tax credits to exchanges “established by the states.”
The lawyer, who is not seeking the limelight, recalled that discovery was a “gradual process.”
“It wasn’t like lightning struck,” said Mr. Christina, 59, a shareholder at the labor and employment law firm Ogletree Deakins. “It was a gradual process. But I knew this was a significant enough issue that it would end up in the courts.”
Mr. Christina is reluctant to discuss his reasons for scouring the law. “It’s not really that I was looking for anything in particular,” he said. “My role at the firm was to be the person keeping up with the statute.”
Soon Christina got in touch with the American Enteprise Institute:
“He’s the person who came up with this,” said Thomas Miller, a resident fellow at the conservative American Enterprise Institute. “He deserves full credit.”
In December 2010, Mr. Christina presented his findings at the American Enterprise Institute. AEI’s Mr. Miller was intrigued. He saw the seed of a potential legal challenge to the health law.
And Jon Adler and Michael (not Mike) Cannon found out about it:
The issue gained steam in 2011 when Jonathan Adler, a law professor at Cleveland’s Case Western Reserve University, began looking at the language of the statute, he said, and did a Google search where he found information on Mr. Christina’s work. Mr. Adler emailed Michael Cannon, an acquaintance and the director of health policy studies at the libertarian Cato Institute, about the statute’s language. “When I got this email, my jaw dropped,” said Mr. Cannon, a vocal opponent of the law. In May 2012, the IRS issued a final rule allowing subsidies to be distributed to people who buy health coverage on the federal exchange. To Mr. Adler and Mr. Cannon, that ran afoul of the statutory language of the law.
Then CEI got involved, and retained Jones Day to bring the suit:
In June 2012, the Supreme Court handed opponents of the law a defeat by upholding the individual mandate. That day, Mr. Miller jumped on a conference call with Mr. Christina and others to discuss moving ahead with a lawsuit on the law’s language.
He drew on Sam Kazman, general counsel at the Competitive Enterprise Institute, a libertarian think tank. They coordinated the lawsuits and funded the effort. The institute reached out to Michael Carvin, a lawyer at Jones Day who brought the two cases the courts ruled on Tuesday. The first lawsuit raising the claim was filed in September 2012 and there are currently four cases in the courts.
Imagine if no one had ever discovered this flaw, and the government started paying out the tax credits in violation of the statute, without the benefit of the promulgated rules?
In McCullen v . Coakley, the Court struck down a Massachusetts law that imposed a 30-foot buffer zone, in the form of an arc, around the entrances to abortion clinics in the Commonwealth. McCullen, and her associates, attempted to counsel people entering the clinics at three Planned Parenthood facilities in Boston, Worcester, and Springfield.
The Court explains:
At the same time, the buffer zones impose serious bur dens on petitioners’ speech. At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to “sidewalk counseling.” For example, in uncontradicted testimony, McCullen explained that she often cannot distinguish patients from passersby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone. App. 135. And even when she does manage to begin a discussion outside the zone, she must stop abruptly at its painted border, which she believes causes her to appear “untrust worthy” or “suspicious.” Id., at 135, 152. Given these limitations, McCullen is often reduced to raising her voice at patients from outside the zone—a mode of communica tion sharply at odds with the compassionate message she wishes to convey. Id., at 133, 152–153. Clark gave similar testimony about her experience at the Worcester clinic. Id., at 243–244.
Here are Google Street View images of the three clinics.The images do give you a sense how far away McCullen would have to stand to initiate a conversation with someone entering the clinic.
Here is the facility in Boston:
As for the other two locations, the buffer zones are far outside the parking lots, which most people park in. The Court responds that they should have a right to stand near entering cars.
Finally, respondents suggest that, at the Worcester and Springfield clinics, petitioners are prevented from com municating with patients not by the buffer zones but by the fact that most patients arrive by car and park in the clinics’ private lots. Id., at 52. It is true that the layout of the two clinics would prevent petitioners from approach ing the clinics’ doorways, even without the buffer zones. But petitioners do not claim a right to trespass on the clinics’ property. They instead claim a right to stand on the public sidewalks by the driveway as cars turn into the parking lot. Before the buffer zones, they could do so. Now they must stand a substantial distance away. The Act alone is responsible for that restriction on their ability to convey their message.
In any event, here is the Springfield Planned Parenthood:
I recently acquired from eBay a copy of the National Intelligencer – Washington Advertiser from January 30, 1805 owned by none other than Joseph Story. At the top of the newspaper is his signature, “J. Story.” The seller offered these commentaries on why Story, who at the time was in private practice in Boston, would sign and maintain the newspapers:
These newspapers were bound in book format 200 years ago for Joseph Story himself comprising the years 1804 & 1805. The binding was deteriorated so I had removed the editions and have been selling one newspaper a week for over two years now and my supply is dwindling. As for your second question, Story would have had each issue wrapped and mailed to him while in Boston. The “intelligencer’ was at the time known as the best way to keep tabs on the happenings of our Nation’s capitol next to being there personally (he did eventually relocate). He must have really valued the information gleaned from the ‘Intelligencer’ so much that he had two years worth of issues bound for future reference, each one signed by him in the same right-hand section of the masthead.
The Story Newspapers were left to me by my grandfather, an avid collector of history for over 50 years. The method of obtaining out-of-town newspapers up until the mid 19th century was by individual subscription. If a merchant purchased bundles of newspapers 200 years ago he would have suffered a great loss with the papers that did not sell. Not until the age of the steamboat and steam press did newspaper publishers offer to buy-back unsold issues as they still do to this day. I am also sure that Postmasters were not allowed to sell newspapers or conduct any unauthorized business in their official capacity.
Here it is:
I also found fascinating the various articles and notices in the paper.
For example, the sale of a 236 acre plantation.
Here is an ad for a runaway slave.
Some time in April last a bright Mulatto woman named Fanny, she is nearly 6 feet high and stout in proportion, thick lips, middling large eyes, very large breasts, bends forward when she stands or walks, quick in speech, and has very large feet, her apparel is not remembered, took with her a large bundle thereof, and it is probable often changes them. I have been informed she is in the service of a Mr. Thompson in Georgetown, whoever secures her in Washington city jail so that her mistress Mrs. Sarah Brooks gets her again or will deliver her to the subscriber in Upper Marlboro shall receive ten dollars and all reasonable expenses paid by Saml. J. Coolidge.
Here is an address given by President JEfferson
I now have in my possession the Volume One of Blackstone’s Commentaries on the Laws of England (5th Ed. 1773). It was printed in Dublin. (The first edition was printed in 1765.) And it is in excellent condition. It is surreal holding in my hands a document older than the Declaration of Independence. The book, which was obtained from eBay, is in excellent condition. It was shipped from the U.K.
There are no distinctive markings on the front or back cover.
Here is the title page:
And the dedication page:
And on the very last page (p. 485), it says “The end of the first book.”
This is awesome. I should add a caveat to my previous note that I don’t use books. I make an exception for really, really old or rare stuff.
Many thanks to Militza for this awesome present.
Mike Dorf offers some insightful thoughts on the stories behind the stories of famous Supreme Court cases. Read the entire thing. Here is a snippet:
The story behind a case will typically be the story of individuals who, deliberately or not, come to stand in for a larger set of concerns–either accurately, as in Windsor and Perry, or somewhat fictionally, as in Lawrence. Knowing the story behind the case will provide insight into how the lawyers and judges framed an abstract issue out of concrete circumstances.
Teaching Brown v. Board of Education is an interesting experience. Most of my students come into constitutional law knowing, maybe 2 or 3 cases by name–Brown v. Board, Roe v. Wade, and perhaps Bush v. Gore. Students always expect Brown v. Board to be a broad pronouncement of equality under law. And then they read it, and are utterly disappointed. It is a fairly narrow opinion, that leaves a lot to be desired.
One of the most underwhelming aspects is its heavy reliance on social science research in the now-famous Footnote 11:
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of [347 U.S. 483, 495] Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).
At the New York Times Upshot Blog, historian Michael Bechloss has a feature on the study by Dr. Clark, which asked children to play with black and white dolls.
The social psychologists Kenneth and Mamie Phipps Clark sought to challenge the court’s existing opinion that “separate but equal” public schools were constitutional (Plessy v. Ferguson, 1896) by testing whether African-American children were psychologically and emotionally damaged by attending a segregated school.
As Kenneth Clark recalled in 1985, he would produce white and black dolls and say, “Show me the doll that you like to play with … the doll that’s a nice doll … the doll that’s a bad doll.”
A majority of the African-American children from segregated schools rejected the black doll. By Dr. Clark’s account, when those boys and girls were then told, “Now show me the doll that’s most like you,” some became “emotionally upset at having to identify with the doll that they had rejected.” Some even stormed out of the room.
As Dr. Clark recalled, he and his wife concluded that “color in a racist society was a very disturbing and traumatic component of an individual’s sense of his own self-esteem and worth.”
Here is a photograph from the experiment.
And, Bechloss has an excellent anecdote about Thurgood Marshall, who argued Brown:
As late as the early 1950s, social science findings did not often cross the radar screen of the nation’s highest court. But during preparations for the cases that made up Brown, the N.A.A.C.P. chief counsel (later Supreme Court Justice) Thurgood Marshall dismissed warnings by other civil rights lawyers that the justices would be offended if they were subjected to tales about dolls and wailing children.
In May 1954, he was proved right. When Brown was decided, the court cited the doll study as a factor in its deliberations. That night, at an exuberant dinner, Mr. Marshall raised a glass to Kenneth Clark and demanded of those once-skeptical colleagues, “Now, apologize!”
Are these fighting words?
Here is the famous “Heed Their Rising Voices” advertisement that ran in the New York Times on March 29, 1960.
Here is a transcript of the advertisement.
The New York Times
NEW YORK, TUESDAY, MARCH 29, 1960
“The growing movement of peaceful mass
demonstrations by Negroes is something
new in the South, something understandable….
Let Congress heed their rising voices,
for they will be heard.”
- New York Times editorial
Saturday, March 19, 1960
As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirma-tion of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights. In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom….
In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.
In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was pad-locked in an attempt to starve them into submission.
In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teen-agers, in face of the entire weight of official state appa-ratus and police power, have boldly stepped forth as protagonists of democracy. Their courage and amaz-ing restraint have inspired millions and given a new dignity to the cause of freedom.
Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter…even as they fear the upswelling right-to-vote movement. Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South-the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest. For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Con-ference-the organization which is spearheading the surging right-to-vote movement. Under Dr. King’s direction the Leadership Conference conducts Stu-dent Workshops and Seminars in the philosophy and technique of non-violent resistance.
Again and again the Southern violators have answered Dr. King’s peaceful protests with intimida-tion and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times-for “speeding.” “loitering” and similar “offenses.” And now they have charged with “perjury”-a I under which they could imprison him for ten years. Obviously, their real purpose is to remove him physi-cally as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South. Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle. The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South.
Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King. But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others. The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs…
We must heed their rising voices-yes-but we must add our own.
We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.
We urge you to join hands with our fellow Amer-icans in the South by supporting, with your dollars, this Combined Appeal for all three needs-the defense of Martin Luther King-the support of the embattled students-and the struggle for the right-to-vote.
Your Help is Urgently Needed…NOW!!
L.B. Sullivan, the Public Safety Commissioner of Montgomery, Alabama found the advertisement libelous, as there were several inaccurate statements. King was arrested four times, not seven times. Even though Sullivan was not named, he brought a libel suit in his capacity as head of the police department.
Sullivan is standing to the right of the horse.
Here is Sullivan talking with police officers.
Here is Sullivan with his family in 1962.
Here is a map of Baltimore, showing the location of Barron’s wharf on the harbor.
This is a copy of Bouldin Atlas (1833) showing Craig and Barron’s wharf. You can download a high-resolution version of the map here.
And here is the trial court opinion, which interestingly enough found that the 2nd, 3rd, 4th, 5th, and 8th amendments, but not the 1st, 6th, 7th, and 9th Amendments applied to the federal government.
Even more interesting, the opinion spells out what we would today call a regulatory taking–”deprived of the profits growing out of its tenure.” This is very similar to Holmes’s test in Penn Coal v. Mahon of a deprivation that “goes too far.”
You can see the entire record here.
This is Linda Brown, the third-grader who challenged the Topeka, KS law requiring her to enroll in a segregate school.
Here is Brown’s family.
(Linda Brown of Topeka (left), with her parents, Leola and Oliver, and younger sister Terry. )
Here are all of the plaintiffs from the various companion cases to Brown v. Board, and their parents.
Front row: Vicki Henderson, Donald Henderson, Linda Brown, James Emanuel, Nancy Todd, Katherine Carper
Back row: Zelma Henderson, Oliver Brown, Sadie Emanuel, Lucinda Todd, Lena Carper.
Here is an other photograph of all of the students.
This is Monroe Elementary School at issue in Brown v. Topeka Board of Education. Linda Brown, third grade, was forced to enroll in this all-black school. It was 21 blocks from where she lived.
Here are photographs from inside Monroe Elementary.
The white-Sumner Elementary School was much closer to where Linda lived.
The path to the Supreme Court’s decision in Brown was long and arduous, and quite complicated.
Here is a memo from Chief Justice Warren, dated May 7, 1954, querying whether it would be appropriate to have the state Attorneys General provide argument on the case as well.
Here is the oral argument sheet from decision day.
Here is Chief Justice Warren’s draft of the final opinion.
Here is a memo Justice Felix Frankfurter wrote to Chief Justice Earl Warren on decision day. It reads:
This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the results. I congratulate you. Felix Frankfurter.”
This iconic photograph is of George E.C. Hayes, Thurgood Marshall, and James Nabrit congratulating each other afther the Court announced the decision in Brown, on may 17, 1954.
Here is the entire NAACP Legal Defense Fund legal team:
Another iconic photograph of Linda Brown sitting on the Courthouse steps, with a newspaper blaring the headline,”High Court bans Segregation.”
This newspaper headline, however, belies the greatest limitation of Brown. Desegregation was only ordered with “All deliberate speed.”
Bolling v. Sharpe
This is Spottswood Thomas Bolling, Jr., twelve years old. He was not allowed to attend a new junior high school in Washington, D.C. reserved for for whites.
This is Norma McCorvey (“Jane Roe”) protesting outside the Supreme Court in 1989 with her lawyer, Gloria Allred, after arguments in Webster v. Reproductive Health Services.
Here is McCorvey in 1985.
Roe didn’t even make top billing in the Times. LBJ died on decision day.
In 1996, McCorvey came out as opposing abortion. She noted that she lied in affidavits submitted to the Supreme Court, and she was never raped, let alone gang raped.
This is William Baird, who went to jail eight times in five different states for giving contraception to unmarried people.
This is “Emko Vaginal Foam,” the product Baird distributed that got him arrested.
This ad says “Emko… used by more woman than any other non-prescription birth control product.” Note the model is wearing a wedding ring.
This ad shows a father with a (much younger) mother, and a young baby, with the headline “3 reasons for spacing your children.” Below, it says “When the family is spaced with the help of Emko foam, mother has time to regain her vim and vigor, baby gets the abundant love he can thrive on . . . and dad gets a break. Expenses are stretched out to where he can handle them with a smile.”
This is Carrie Buck. Why was she designated as “feebleminded”? Because she had an “illegitimate child,” and they charged her with “promiscuity.” The pregnancy resulted from a rape.
This is Carrie Buck with her mother, Emma Buck.
This is the “State Colony for Epileptics and Feebleminded,” where Carrie Buck was sterilized in the wake of Buck v. Bell.
Here is a rendering of Carrie’s Buck family tree, as performed by Dr. Harry H. Laughlin. F stands for “feebleminded.” Notice That Carrie Buck is designated with an F, her mother Emma was designated with an F, and her daughter, Vivienne, was designated with an F. There you have three generations of imbeciles. Enough.
Haughlin, impressed that Nazi Germany adopted his ideas, had this to say:
The fact that a great state like the German Republic, which for many centuries has helped furnish the best that science has bred, has in its wisdom seen fit to enact a national eugenic legislative act providing for the sterilization of hereditarily defective persons seems to point the way for an eventual worldwide adoption of this idea.
In 1936, Laughlin was invited by the Nazis to receive an honorary degree of Doctor of Medicine at the University of Heidelberg for his work in the “science of racial cleansing.”
Here are several pieces of American propaganda about Eugenics.
This piece of propaganda says “Eugenics is the self direction of human evolution.”
Speaking of social darwinism, and surivival of the fittest, here is Justice Oliver Wendell Holmes, Jr., who firmly believed that “Three generations of imbeciles are enough.”
Buck’s daughter, Vivian, was raised by foster parents, This is Vivian at 6 months old. She flunked her IQ test. So she was also deemed an imbecile:
It was Estabrook’s habit to photograph the subjects of his eugenical family studies, and one surviving photo shows Alice Dobbs holding Carrie’s baby. It appears that Mrs. Dobbs is holding a coin in front of Vivian’s face in an attempt to catch her attention. The baby looks past her, staring into the distance, apparently failing the test. Estabrook described that moment during his testimony at trial a few days later: “I gave the child the regular mental test for a child of the age of six months, and judging from her reaction to the tests I gave her, I decided she was below the average.”
In case you were wondering, the child was not an imbecile. Here is her report card from first grade. She was a solid B student, with an A in deportment, and on the honor roll. Vivian died at the age of 8 due to intestinal diseases.
Despite her sterilizations, Buck would go on to be married, twice. First to William Eagle.
Here is a sign in Virginia to commemorate Buck v. Bell.