Last Chance for Justice

By Eugene E. Siegel

LAST CHANCE FOR JUSTICE

Inside the History of the United States Supreme Court

 

Presented in a popular and accessible style, this story of the powerful United States Supreme Court highlights the Court's political and social impact on American life. It emphasizes the Court's historical role in the areas of civil rights, minority relations, freedom of speech and religion on everyday Americans. The cruel, and sometimes heartless decisions, and occasional bravery to stand for what is right, is detailed. The justices, litigants and personalities and surrounding backgrounds bring to life the times and decisions that continue to affect us all. This is not a dry text or research volume but a popular informative and interesting look at the great cases, justices, lawyers and the ordinary persons who came before the Supreme Court seeking a Last Chance For Justice.

• Language: English
• Publisher: Eugene Siegel
• Release date: Apr 7, 2020
• ISBN: 9781393586432

Eugene E. Siegel

Author Eugene E. Siegel is an attorney at law and member of the California, Federal and U.S. Supreme Court bars and has served 12 years as a Court Commissioner for the Los Angeles County Superior Court. Professor Siegel has taught law at the Glendale University College of Law, guest lectured at USC and is presently an adjunct professor at Antelope Valley College in Lancaster, Ca.  Professor Siegel is a Philip M. Schwabacher Lifetime Achievement recipient for his legal work. He has been honored by the Bar Association and the Los Angeles County Board of Supervisors. 

Book preview

By

Eugene E. Siegel

Attorney at Law

Copyright 2020

All Rights Reserved

Dedications

––––––––

Osiris Zamora

Leslee Sipress

Michael Siegel

Jennifer Siegel

Coco

Special Thanks to

Rocio Garibay Brandt

Preface

Juniper Hills, California

Law school was my initial introduction into Supreme Court cases and its defining impact on American law. The Supremes, throughout its history, has often been an anchor on social change.  And some of the decisions have bordered on cruelty.  But here and there were brave justices who refused to conform to the ultra-conservative posture of their brethren and gave validity to what the Supreme Court was intended to be – a place of final justice and fairness under the law and the balance in the tri-partite governmental system as a co-equal branch.

Being neutral is an important aspect of writing a credible non-fiction book. This is especially true about a subject such as the Supreme Court with all of its controversial decisions over its multi-century existence.  Where it was important, I let the justices speak for themselves through their case decisions.  Yet, it was hard not to have opinions and have them color the writing.  While I fully stand by the accuracy of the research, a case such as Dred Scott, for example, cannot help but cause the reader some shock from its blatant racism.  The rejection by the Court of a woman’s right to vote, Holmes upholding sterilization, the failure to stop the roundup of Japanese citizens in World War II and the endless rejection over the decades of African-American pleas for equality cast a critical light on the Court.  But from John Marshall’s attempt to save the Cherokees from Andrew Jackson’s genocidal plan to Harlan’s rejection of constitutionally protected segregation to Earl Warren and the Court’s civil and criminal rights revolution, there is Supreme Court redemption mixed into its history.

If nothing else, my hope is that Last Chance for Justice provides an understanding of this most powerful government institution and its mixed history.  Perhaps that understanding will provide context as the Court continues to decide cases in the future with direct impact on the nation and all of our lives.

Eugene E. Siegel 

The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court[1]

One

HOT DAYS IN PHILADELPHIA 1787

It was the point of no return.  The thirteen Colonies were at war. The disputes with the mother country, Great Britain, had reached the breaking point and the founders had decided to create an independent nation if they could. And so, the 1776 American Declaration of Independence, written primarily by Thomas Jefferson, announced to the world that the British Colonies in America were now an independent nation free of English domination.

The lofty words of the Declaration, that all men are created equal and have inalienable rights including the right to the pursuit of happiness, were, and continue to be, inspiring to the world. Underneath this, of course, is the unstated limitation of these rights to White European stock only and not Africans, Asians, Native Americans or Women. The fight to include these groups in the meaning of this language of rights is a focus of the story of the Last Chance for Justice.

The dissemination of the Declaration of Independence fixed the position of the patriots and closed the door to reconciliation with England.  Benjamin Franklin summed up the significance of the issuance of the Declaration: We must indeed, all hang together or, most assuredly, we shall all hang separately. The winning of the war was now a matter of life or death to the new fledgling nation and those that supported the revolution.

After suffering numerous defeats from the professional British army, General George Washington, appointed by the Continental Congress as Commander in Chief of the revolutionary armed forces, brought his ragtag colonial soldiers to Valley Forge for the winter of 1777.  Valley Forge that winter was bitterly cold.  General Washington and his 11,000 man army suffered from the intense weather, lack of proper clothing and housing and deadly diseases.  The rebel army had recently lost the city of Philadelphia, only twenty-two miles away, to the British thereby preventing resupply and help from that population center. Plots were hatched to remove Washington as Commander in Chief due to how ineffective the army had been in the early war.

Washington, his wife Martha, future Chief Justice John Marshall, Alexander Hamilton, Lafayette and other patriots important to the future of the new nation, all spent the winter with the troops sharing in the misery. Washington was occasionally vain, had a ferocious temper and worried about his public image but had an inspiring presence and was able to keep his army together despite wretched conditions and lost battles.  With a warming spring, and goods and supplies finally arriving, the now well-trained and supplied army was ready to fight the British and win the war of independence.

There is a continuum from the earlier French and Indian War that led to the ultimate colony victory over England in the subsequent War of Independence.  French help during the Revolutionary war was instrumental in the American victory especially with its powerful navy.  And having been defeated by the British in the French and Indian War, France was pleased to help the colonies break away from hated England. In addition, popular American representatives to France such as Benjamin Franklin, John Adams and Thomas Jefferson became favorites, if not celebrities, at the French court and were persuasive in obtaining support for the revolutionary cause.

To the rescue, the French soon brought financial and military help to the rebel army. Surviving the horror of Valley Forge instilled in the army a new pride and determination. It took years, but the Colonists prevailed and Washington won the Battle of Yorktown in 1781 that sealed the doom of the British occupation of the American colonies. On September 3, 1783, the Treaty of Paris was signed ending the revolutionary war.

After declaring independence in 1776, the colonies understood the need for some type of governmental organization, although the war and fast moving events ill-prepared the representatives who met in 1777 to form a new country.  From this convention of the colonies came the stop-gap Articles of Confederation which was ultimately signed by all 13 colonies.

The articles provided the new name of the nation, the United States of America. It declared that each state retained its independence and sovereignty and all power except that expressly given to the new federal system.[2] Given the few expressed powers, primarily over foreign affairs, and with no executive or judicial branch, the federal system was purposely left weak and ineffective and without any way to resolve national issues. Each state kept its own militia.[3] And, of course, no Bill of Rights was included in the Articles.

The paramount reason for the failure of the Articles is that the federal government had no power of taxation.  Debts from the war piled up but the federal system had to rely on appropriations directly granted from the states and only when 9 states agreed. Parts of North Carolina broke off and declared a new state of Franklin and the Congress was unable to stop the chaos.  An army of farmers fought with Massachusetts and the Congress could not raise troops to stop that either. The articles were clearly a failure and it soon became apparent a different governmental structure with a stronger federal system was needed.

Calls for change led by George Washington, now a private citizen, gained momentum when it became clear that the Articles of Confederation would eventually fracture the states into thirteen separate countries in constant economic competition.  As an answer to the need for a central authority, a monarchy was considered with, presumably, Washington as King. This idea was flatly refused by the General, so in 1787 representatives from twelve states assembled in Philadelphia to form a new and hopefully better endowed national government.[4]

The Convention opened on May 25 and lasted until September 17 in the Pennsylvania State House[5] with searing summer heat and swarms of Black Flies. George Washington, Benjamin Franklin, Alexander Hamilton, James Madison and John Adams all attended months of hot summer days to create a new nation. Thomas Jefferson, on assignment in France, did not attend.  The public and press were excluded from the progress of the debate as a wall of secrecy was established so delegates could freely express their views.  The public was intensely interested in the Convention so the leadership shut the windows in the small assembly hall to protect the secrecy of the proceedings. Thus the attendees were forced to sit in the stifling heat in wool clothing with no air circulation. At times half the members would be absent.

The modern image of Washington is misleading. The former general of the revolutionary army deserves credit for organizing the convention and for his leadership in creating a new country. While projecting a calm and distinguished image he could be conspiratorial when necessary. He gamboled heavily and could swear with the best. Washington was quick to take offense and once he became angry at a person there was never any forgiveness. He, like his brethren, was racist and he owned over one hundred slaves. This gave him credibility with the southern states and he was the consensus choice to lead the convention. It was generally understood that Washington would be the first President under a revised governmental system.

The assemblage was all white men, half were lawyers, and many were wealthy farmers or businessmen, and included eight state judges and four governors.[6] Large states supported the Washington, Hamilton and Madison position that saw the need to establish a strong federal government with the ability to raise taxes without state permission. There was strong opposition to this approach from the small state representatives who feared a federal takeover of their state powers and independence.

The delegates arrived with many not expecting to create a whole new form of government but, rather, to fix the Articles.  But Washington, Madison and Hamilton had a different plan.  And soon it was clear where the dividing line existed between the two factions.

Should the power of the federal government to rule, and its membership be elected, proportional to the population or should each state, whether large or small, have electoral equality?  This was the dividing line that dominated proceedings for months. In addition was the slavery issue with the South adamant in protecting the institution.  Any rights for women were completely ignored.[7] These divergent views took titles. The Federalist faction favored a strong central government, and the Anti-Federalist faction advocated substantial power to the States.  The two views also differed on the amount of power to be allocated to the people via voting and on the slavery issue.  The seeds for future political parties were planted in these seemingly unresolvable disputes.

Finally, months in the heat, and probably due to an exhaustion factor, a compromise was reached. There would be executive and legislative branches each balancing and limiting the power of the other. And a directly elected House of Representatives by vote of the people with the amount of seats for each state based on population.[8] Southern states agreed to this after it was accepted each slave would count as 3/5ths of a person in the population total.  Native Americans were excluded in the count. A Senate with two members from each state would balance large and small.

The convention acted with little discussion and controversy over a proposed Article III, the judicial provision which stated: The judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.  The jurisdiction of the Court was set forth in Article III Section 2 which among other provisions gave the judicial power to all cases in law and equity [9] arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their authority. Various other cases within the Supremes’ jurisdiction were set forth in these sections.

There was no mention of a Chief Justice in Article III; however, in Article II of the Constitution, in the section on impeachment, it states "When the President of the United States is tried, the Chief Justice shall preside." It is from this that a Chief Justice position was established. Article III is also silent on the size of the Supreme Court.  While presently there are nine members the original Court had six. 

There is no discussion in the Constitution that the Court has the power to declare laws unconstitutional. There was significant discussion of this issue during the convention with some holding that Congress or the President should have this power. This remained unresolved at the creation of the Constitution.

The Federalist Papers[10] did discuss the issue of the Courts having the power to declare a law in violation of the Constitution. Hamilton, in particular, argued that the right of judicial review would bring the judicial branch closer in equal power to the other branches of government and protect the people from any unconstitutional acts of the legislature. "It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents.  It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority."[11] Hamilton’s theory of elevating the courts to a more equal check and balance with the other branches was not incorporated into the Constitution but would soon be a serious issue for Chief Justice John Marshall and the Supremes.

Its work done, the Constitutional Convention disbanded after eleven states agreed and signed the final version. Washington sent the text to the Confederation Congress for adoption.  There was no public vote on adopting the new Constitution. The public reaction was mixed.

This Constitution was the crowning achievement of the leaders of the early nation who fought and won a war of independence against a powerful British Empire and produced a governmental plan that has now existed for hundreds of years. The document was designed to adapt to any new and difficult challenges that would face the United States in the future. Over its long history the United States Constitution has survived as the primary law of the nation.

*

There were blind spots as the Constitution was debated and then adopted.  Slavery was firmly established in the new nation despite protests from the anti-slavery members of the Convention. The slave trade continued and brought 100,000 new slaves to America.  Women and Native Americans were ignored in the new Constitution.  The unresolved issues of slavery and equal rights for minorities and women would haunt the Supreme Court and be the source material for both its most despicable decisions and some of its finest and bravest.

Nine states were needed to ratify the new Constitution but a serious issue arose that almost killed adoption. No Bill of Rights was included.  This was forewarned when several prominent members of the Convention refused to sign the final draft unless or until a rights bill was adopted.  Their argument was that the Constitution says what the government can do but fails to state what it cannot do. Where was the section ensuring the rights of the individual so beautifully spelled out in the Declaration of Independence? Where were the protections for citizens from governmental overreaching? The result in the Continental Congress was that not enough states were willing to sign the proposed Constitution.

Both Madison and Jefferson led the lobbying for inclusion of a Bill of Rights. They pointed out that securing individual rights could be enforced by the new Supreme Court thus bringing the Court more fully into the checks and balances that was a primary goal of the framers of the new Constitution. On December 20, 1787, Jefferson wrote to the Continental Congress, [A] Bill of Rights is what the people are entitled to against every government on Earth and what no government should refuse.  Encouraged by Madison and Jefferson and others, a Bill of Rights became the condition precedent to approval of the new Constitution.

Viewed overall, the various proposed rights centered on this concept of limiting governmental action as it affects the individual and also the establishment of barriers as to how far the government may go in implementing its will. All the representatives who were anti-federalist feared an unrestrained government.  But then the vexing question arose of what rights to include.

As to religion, the consensus view among the advocates for a Bill of Rights was that the government must be completely secular and no enforced state religion, as was common in Europe, should ever be permitted in the United States.  There must also never be a religious test to hold public office. The choice of beliefs is for the individual to choose alone and allowed to be kept private. It was also generally agreed that what the Declaration of Independence called inalienable rights was freedom of speech and freedom of the press. There was insistence these rights be included in any new Bill of Rights and this was incorporated in the proposal.

To the founders, the Bill of Rights must also encompass protection from unreasonable governmental searches and seizures particularly in their homes. This was the concept incorporated into the 4th Amendment. There was an amendment against self-incrimination forever preventing the medieval use of torture to extract confessions.[12]  The right to trial by jury in a criminal case was included. Criminal rights against double jeopardy and cruel and unusual punishment were also included.[13]

The Bill of Rights consisting of 10 amendments to the Constitution was submitted to the Confederation Congress in 1789 and by 1791 adopted along with the full Constitution. The language of the new Bill of Rights would be front and center in centuries of battles in the Courts over the interpretation of these rights as they shaped the relationship between government and its people and the public’s relationship to each other. 

The new United States of America with its tri-partite form of government including a Supreme Court of the land was born.

Two

THE SUPREMES HOLD COURT IN A BAR

The new nation set about the business of establishing a government.  A Supreme Court was low on the list but eventually got some attention. Congress passed the Judiciary Act of 1789 which fixed the membership of the Supreme Court at 6. In addition, the act created judicial districts, one in each state and consisting of a District Court where trials were held and a Circuit Court for the first level of appeal.  The modern federal judicial system mimics this arrangement; trial level in the United States District Court, first appeal in the Circuit Court of Appeals and final appeal in the Supreme Court. The act also created a new cabinet position of Attorney General of the United States.[14]

The first session of the new United States Supreme Court was held in New York City on February 2, 1790, in a crowded room in the Merchant’s Exchange Building.  New York was then the capital of the new nation.  There were no cases heard that day and few cases over the next two years. There was confusion over exactly what role the Court was to have as part of the federal system. Was the Supreme Court the national equivalent of a neighborhood court or was it to assume a greater role as an actual contributor to the balance of power with the other branches? The Capital then moved to Philadelphia and the Court met in various locations with no permanent home of its own.  Riding circuit, the Justices often held court in a bar, hotel or a private residence. In 1800, the Court moved with the rest of the government to Washington, D. C.,[15]

The Justices of the Supreme Court, besides sitting as the highest Court in the land, had the duty to preside over the Circuit Courts once a year in their assigned district.  This was a hated duty given the difficult and often dangerous travel conditions especially as the country acquired territory further to the west. The endless travel, and boring cases, accounts for the fact justices often left the court within a few years citing the travel as a major issue in their decision to leave early. Early quitting was the norm in the first years of the Court.  Riding circuit was finally abolished in 1891.

Justices were, and are, appointed by the President and confirmed by majority vote in the Senate.  Historically, at times there have been hard fought battles over nominations in the Senate with some Presidential nominees refused.  Once appointed and confirmed Justices have lifetime tenure and can only be removed by impeachment.

George Washington, the winning commanding general of the Revolutionary War and chairman of the Constitutional convention, was installed as first President of the United States. Vice-President was John Adams and Washington selected Thomas Jefferson as Secretary of State.  Alexander Hamilton took over Treasury.  Adams was Vice-President because at that time the voting in the Electoral College[16] required a ballot with two names.  The one getting the most votes was named President, second place became Vice-President. This meant the President and Vice-President could be from different political parties with different agendas and unworkable as a team as when Adams became President and his most hated opponent, Thomas Jefferson, became Vice-President. In 1804, the 12th Amendment was passed creating the electoral system we know today.  The winning presidential candidate in the national election picks his own running mate and they go as a team to the electoral college.

President Washington then turned to the task of selecting a Chief Justice as well as the five associate justices. Washington chose John Jay of New York as the nation’s first chief.[17] Jay was born in New York in 1785 the sixth of seven children.  After completing his education, Jay practiced law in New York and advanced his social standing when he married the daughter of the New York Governor.  Jay did not fight in the Revolutionary War and it was suspected he had loyalist tendencies and had considered moving to England when the revolution began to heat up. However, Jay apparently had a change of heart and served as a diplomat for the Continental Congress during the war. He was assigned to Spain but the Spanish King Charles III did not like all that radical American talk of freedom and rights of the common man.  Getting no help from Spain, Jay moved over to France and participated in the Paris Peace Treaty of 1784 ending the Revolutionary war after England gave up.

Jay’s other foray into diplomacy occurred while he was still Chief Justice. Washington sent him to England to negotiate the United States position during another of the many French-English wars.  There were issues such as the English kidnapping American sailors off of U.S. ships for use on English ships, border disputes particularly at the Maine-Canada border and various trade issues.  Jay negotiated and signed the Treaty of Amity to secure friendship between England and the United States.

The public called this the Jay Treaty