Sword & Scales

Spring 2022

The Third Pillar

I still vividly remember watching my first U.S. Supreme Court argument. It was a cold February morning in Washington, D.C., and I’d just flown in from St. Louis, where the previous day I’d attended a few of the nearly two dozen rallies held across the country in support of the homeowner plaintiffs in the very case I was about to observe, Kelo v. City of New London. Not yet a member of the Supreme Court Bar—whose most important perk may be the separate line inside the Court’s building—I took my place in line outside in anticipation of one of the most highly contested and nationally watched cases in decades about property rights and the scope of the Fifth Amendment’s Takings Clause.

Just a few months later, the Court announced its decision—a 5-4 loss for Susette Kelo and her neighbors. The outcome of the case taught me several lessons. The most consequential was that all American home and business owners were now at risk of losing their property for development through eminent domain. However, there was another, more subtle lesson that’s stuck with me during my subsequent years in public interest law—the Court’s membership isn’t especially partisan. Ideological, yes. But not bound by their own political preferences or those of the party of the president that nominated them or the senators that voted to confirm them.

If that was the case, things at the Court would be far more predictable. And they’re not. I witnessed that with Susette. I also witnessed the same thing years later at PLF when Donna Murr lost her property rights case at the Supreme Court in 2017 (though she and her family ultimately got from the legislature what they didn’t from the Court).

There’s a mistaken impression that the Justices’ purported political affiliation motivates their thinking and that they’re hyper-partisan apparatchiks. At least, that’s what a significant majority of the public thinks. What we aim to do with this issue of Sword & Scales is, well, take aim at that belief. Because, at the end of the day, not toeing what’s considered to be the party line is good—no, extremely good—for individual liberty.

Our Founders famously created our government to be counter-majoritarian, to check the prevailing impulses that may catch fire and quickly carry the day. So, having a Court untethered to and unaffected by the partisan political system means that the Court can go against the grain—whether that’s the ruling party or predominant opinion—and protect the rights that are fundamental to a free society. Or, to sometimes correct mistakes the Court has made in the past.

Later this year, PLF will be litigating its 17th case at the Supreme Court. It’ll be our eighth case since I arrived a little more than five years ago. And while I didn’t get to see Donna win her case, we’ve won six since then—and we’ll be going for win number 15. We’ve had several unanimous triumphs along with razor-thin margins. Looking back at PLF’s wins—and especially the lineup of Justices in those wins—there’s no doubt the Court operates independently. And in a country on whose birthday we commemorate that very ideal, that’s definitely cause for celebration.

Steven D. Anderson


A distorted image of the Court

Joseph G. Lehman

Joshua Thompson

Director of Legal Operations

The day after the Supreme Court delivered a victory for Pacific Legal Foundation in Cedar Point Nursery v. Hassid, Elie Mystal, justice correspondent at The Nation, published a column under this blistering, eye-catching headline: “Yesterday’s Union-Busting Supreme Court Decision Was a Segregationist Throwback.”

Chief Justice John Roberts’ decision, Mystal wrote, used arguments “effectively repurposed from arguments segregationists used against civil rights activists.” We shouldn’t even be surprised by the decision, he scoffed, because “[t]he court’s conservatives have done everything they can think of to de-unionize America in service of mega-corporate interests.” By siding with Cedar Point Nursery, the Court “not only opened the door to continued union-busting” but also “reinvigorated long-discredited views of how property owners might use that property as an excuse to deny civil rights across the spectrum,” Mystal wrote. “It’s a game changer for how white owners will seek to deny rights.”

Now: If you were a reader of The Nation who had never heard of Cedar Point Nursery before, you would be forgiven for assuming, based on Mystal’s article, that the case had something to do with (1) union-busting, (2) segregation, (3) race, (4) mega-corporate interests, and (5) the denial of civil rights.

You’d probably be outraged. You’d probably walk away from the article thinking that the six conservative Justices who sided with Cedar Point Nursey are radically anti-union and pro-segregation. They must be, because that’s what the Cedar Point Nursery case is about—right?

Distinguishing fact from fiction

Here’s the real story of Cedar Point Nursery v. Hassid:

At 5:00 a.m. on a cold October morning in 2015, a group of United Farm Workers organizers marched into the property of Cedar Point Nursery, shouting through bullhorns and waving signs. Cedar Point’s workers—100 full-time and 400 seasonal—were about to start their day’s work harvesting strawberry plants. Instead, they stopped, nonplussed, as strangers yelled at them through bullhorns from only feet away. Some workers left, intimidated.

Cedar Point Nursery couldn’t make the organizers leave the property because, according to a 1975 California labor regulation, union organizers had the right to enter private agricultural businesses for up to three hours a day, 120 days per year, to encourage union membership.

The owner of Cedar Point Nursery wasn’t a “mega-corporation.” It was Mike Fahner, a third-generation farmer. Mike passed away in November 2021, less than six months after the Supreme Court decided his case. I was the lead attorney on the case and spent a lot of time with Mike. He was a blue-collar guy who made others feel comfortable immediately, spoke fondly of his employees, and took obvious pride in his work.

Mike called the union organizers’ actions “basically an ambush.”

Where in this world can someone invade your house or your place of business with a bullhorn, disrupt everything you’re doing, walk out, and not face any repercussions?” he asked.

Mike Fahner, owner of Cedar Point Nursery.

The Supreme Court agreed. Chief Justice Roberts’ decision held that by giving union organizers the right to invade and occupy Mike’s property for three hours a day, a third of the year, the state had violated the Takings Clause of the Constitution, which prevents government from taking private property for public use without just compensation. Chief Justice Roberts compared Mike’s case to the 1946 case of United States v. Causby, where the Court held that the military’s frequent low-altitude flights over the Causby family’s farm violated the Takings Clause.

“The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation,” Roberts wrote. “As in those cases, the government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year.”

That’s what the Cedar Point Nursery decision was about. But that’s not how Elie Mystal described it to his readers.

And he wasn’t the only one to mischaracterize the case.

Ian Millhiser, senior correspondent at Vox, said the case “could endanger basic government functions such as fire inspection and workplace safety.” A Washington Post column by Erin Mayo-Adam said that “the court’s conservative majority has dealt what could be a mortal blow to [unions’] ability to organize,” and that it could also “compromise anti-discrimination and fair housing laws.” Writing in The Atlantic, Eduardo Peñalver called it an “obscure case that could blow up American civil-rights and consumer-protection laws.”

These commentators aren’t simply getting it wrong. Most of them know better: Mystal graduated from Harvard Law School, Millhiser graduated from Duke Law School and clerked on the Sixth Circuit, Mayo-Adam is a political science professor, and Peñalver is a law professor.

So why are they driving a media narrative that is inaccurate, hyperbolic, and inflammatory?

Painting a picture of a partisan Court

The Cedar Point Nursery coverage is part of a troubling phenomenon: Increasingly, when commentators disagree with a Supreme Court argument or decision, they denounce it in the most sweeping, politicized, divisive language possible. A campaign finance case is described as an attempt to legalize bribery. A discrimination case becomes a mandate to “treat men and women as interchangeable or get sued into oblivion.” A religious liberty case is called an attack on public education. A takings case is reframed as a blow to civil rights.

And these commentators continually cast the Court itself as a radical, partisan institution: According to The Guardian, the Supreme Court “has become one of the most powerful partisan weapons in America.” New York Magazine calls the Court “an illegitimate institution not fit for its purpose.” Washington Post columnist E.J. Dionne says it’s “runaway” and “radical.” According to Slate, the Supreme Court has shown “that when the rubber hits the road, partisan politics is what matters.”

To journalists’ delight, politicians have helped spark and fuel this media narrative. In December, Senator Sheldon Whitehouse and several colleagues penned a public letter alleging that the Court “has been captured by partisan donor interests” and that its independence “has been compromised.” Senator Elizabeth Warren called it an “extremist” Court that has “threatened, or outright dismantled, fundamental rights in this country.”

It makes sense that legislators who believe in a hefty federal government would try to undermine public trust in the Court: As a gridlocked Congress delegates more and more lawmaking authority to the president and federal agencies, the judiciary is the only check against unconstitutional Executive Orders or agency rulemaking. When the Supreme Court blocks a regulation—as it did in January with President Biden’s OSHA vaccine mandate—supporters of the regulation would rather smear the Court’s action as politically motivated than accept as legitimate the limitations the Court puts on federal power.

And smear the Court they do: After the OSHA vaccine mandate decision, some senators and congressmen immediately took to Twitter to denounce it as “Republican Supreme Court Justices deliver[ing] for dark money interests” (Senator Sheldon Whitehouse); “the conservative Supreme Court […] forcing Americans into unsafe conditions” (Congresswoman Marie Newman); and “an irresponsible decision by unelected extremists” that “will endanger millions” (Congressman Chuy García).

The consequences

Language like this—from politicians and the press—has consequences: It distorts people’s impressions of the Court.

More than 60% of Americans now believe the Supreme Court is motivated by politics, according to a November 2021 Quinnipiac poll. Only 32% believe Justices are motivated by the law. A similar 2021 poll from Gallup indicates that confidence in the Court is declining across the political spectrum—among Democrats, Republicans, and independents.

The Court doesn’t need voters to approve of the job it’s doing. In fact, the judiciary is the only branch of government not dependent on retaining people’s affection—which makes it least vulnerable to capture by political tribalism, demagoguery, and mob rule.

But there’s now a serious disconnect between what the Supreme Court actually does and what the majority of Americans believe it does. Driven by willfully inaccurate media coverage and self-serving politicians, the public’s perception of Supreme Court business is often grounded in fiction, not fact.

We saw how that happens when we compared media coverage of the Cedar Point Nursery case with the truth of that case. Let’s look at a couple other recent examples.

A ‘nihilistic’ ruling

When the Court upheld two Arizona voting regulations last July, the decision from Justice Samuel Alito was panned as dangerous for democracy and equality.

“Justice Alito and the other conservative justices are leading the United States back to a time when racial discrimination in voting was easy, voting lawsuits hard, and political activity conducted behind a veil of secrecy,” Slate declared. The New Republic called the decision “fully unmoored from legal reasoning,” cynical, un-American, and nihilistic. “Bigots have finally accomplished their goal of gutting the Voting Rights Act,” Elie Mystal wrote at The Nation.

But the case against the Arizona voting regulations was weak: Both the Biden administration and ACLU had acknowledged that there wasn’t compelling evidence that the two rules—one requiring in-person voters to vote at their assigned precinct, one preventing mass collection of mail-in ballots by third parties—were discriminatory in practice. Each Arizona county had the option of setting up voting centers instead of precincts, and every Arizona voter had the option of voting by mail. As Alito’s decision noted, “Arizona law generally makes it very easy to vote.” And the percentage of people who accidentally cast an out-of-precinct ballot was small. “A policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open,” Alito reasoned.

While media commentators made the decision sound like a callous rubber-stamping of discriminatory voting regulations, the facts of the case put the decision in an entirely different light.

A lawless power grab

When the Supreme Court overturned the CDC’s national eviction moratorium last August, it shouldn’t have come as a surprise to anyone: The Court had previously upheld the moratorium but had signaled that Congress would need to act in order to extend the moratorium past its scheduled July 31 sunset.

Congress and the White House failed to act. Yet they were quick to portray the Court’s decision as shocking and heartless.

The next day, Speaker Nancy Pelosi said, “Last night, the Supreme Court immorally ripped away that relief in a ruling that is arbitrary and cruel.” The White House said the decision meant “families will face the painful impact of evictions, and communities across the country will face greater risk of exposure to COVID-19.” Congressman Emanuel Cleaver said that the “far right Supreme Court’s decision to end the eviction moratorium has put millions of Americans at risk of eviction in the middle of a raging pandemic.”

This language was echoed almost word-for-word in media coverage. Jeff Stein, Washington Post economics reporter, described the decision on Twitter: “GOP-appointed Supreme Court striking down eviction moratorium puts millions of low-income renters at risk in the middle of delta variant.” Vox’s Millhiser said, “I see the Supreme Court did another evil.” In Salon, politics staff writer Chauncey DeVega wrote that “the Republican-dominated Supreme Court decided to literally throw thousands of Americans into the streets by ending the Biden administration’s moratorium on evictions during the coronavirus pandemic.” Jacobin called it a “lawless power grab by an increasingly out-of-control institution.”

Of course, the Court’s decision wasn’t a power grab by any reasonable definition. On the contrary: The Court was reminding Congress that only it, not the CDC, could authorize an extended eviction moratorium. Yet Members of Congress who bitterly criticized the ruling made no effort to propose or pass legislation extending the eviction ban they asserted was so necessary. “It is indisputable that the public has a strong interest in combating the spread of the Covid-19 Delta variant,” the Court’s per curiam decision read. “But our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”

Although it was portrayed as an activist political decision, the Court’s decision on the eviction moratorium was about respecting separation of powers—not about the merits of the moratorium itself.

Justices respond

A recent PBS documentary about the politicization of the Court was pessimistic that the public would ever again trust the Court as a legitimate, independent institution.

“The biggest tragedy is that we are now hopelessly divided on the last thing that used to unite us, which is our judicial system,” pollster Frank Luntz says in the documentary. “Now there’s nothing that pulls us together. Nothing.”

But despite all the relentlessly polarizing stories about the Court, and the inaccurate attacks on decisions like Cedar Point Nursery v. Hassid, the Justices on the Supreme Court are doing their best to change people’s minds. “My goal today is to convince you that this Court is not comprised of a bunch of partisan hacks,” Justice Amy Coney Barrett told an audience in Kentucky. Justice Elena Kagan has assured people that the Court should be seen as “above the fray.” Justice Neil Gorsuch said it’s “rubbish” to treat Justices as “politicians with robes.”

And Justice Stephen Breyer published a new book last fall, The Authority of the Court and the Peril of Politics. In interviews, he repeatedly stressed the integrity of the Supreme Court as a non-partisan institution. “Political groups may favor a particular appointment,” he explained. “But once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”

If you look closely at Supreme Court cases and decisions, you’ll be inclined to trust the Justices’ word. When PLF attorneys prepare our arguments for the Court, we view all nine Supreme Court Justices as motivated by the law, not politics—no matter what the headlines say.

Rejecting Rutledge: The Supreme Court’s first political scandal

Elizabeth Slattery

Elizabeth Slattery

Senior Legal Fellow

John Rutledge was not an easygoing man.

Born in 1739 to an Irish immigrant doctor and a blue blood South Carolinian mother, Rutledge was strong-willed and proud. He started studying law at 17 years old and soon earned his place among Charleston’s elite as a wealthy, prominent attorney. He served as governor of South Carolina during the Revolutionary War and earned the nickname “Dictator John” for seizing unprecedented emergency powers during the war.

Rutledge’s hardheadedness was sometimes an asset: In 1776, with the British Army bearing down on Charleston, Continental Army General Charles Lee ordered the troops stationed at Fort Sullivan in Charleston Harbor to evacuate. The fort was only half-built, and Lee assumed the British would easily overtake it. But in a fiery note to Fort Sullivan’s commander, Rutledge told the troops to stay put. “General Lee wishes for you to evacuate the fort,” he wrote. “You will not do it without an order from me. I would rather cut off my hand than write one.” The troops managed to successfully defeat the British in a victory that is still celebrated every year in South Carolina as Carolina Day.

Despite—or perhaps because of—Rutledge’s willfulness, he was among the Founding Fathers trusted to help draft the U.S. Constitution. He was an accomplished attorney, a proven leader, and a man that both George Washington and John Adams considered a friend. Patrick Henry called him the greatest orator at the Continental Congress.

But in 1795 Rutledge earned a new, ignoble distinction: He became the first Supreme Court nominee to be rejected by the Senate.

John Rutledge - National Portrait Gallery

John Rutledge, National Portrait Gallery.

The strange story of John Rutledge’s failed confirmation centers on an enduring norm that has been baked into the institution of the Supreme Court from its nascency: Justices, despite going through a nakedly political confirmation process, should not be political animals themselves. While the Court has never been untouched by politics, and Justices clearly have political views, the men and women who’ve served on the Court have largely adhered to this unwritten norm by refraining from divisive political rhetoric, being circumspect about matters of public policy, and avoiding behavior that would undermine the dignity of the Court as an independent, impartial, and nonpartisan institution.

John Rutledge is an example of what happens when you don’t do that.

The early Supreme Court

Rutledge was a natural pick for the Court in 1795—after all, he’d already briefly served on it.

The Supreme Court of early America was a work-in-progress. The Constitution, for all its ingenuity in designing the architecture of the national government, is surprisingly light on details when it comes to the mechanics of the judicial branch. Article III states that “the judicial Power of the United States, shall be vested in one supreme Court,” that judges “shall hold their Offices during good Behavior” (meaning, they don’t have term limits and may be removed only through the impeachment process), and that a Justice’s compensation may not be diminished while in office. The Constitutional Convention had debated whether the legislative or executive branch should be responsible for appointing Justices. The Founders settled on the executive, writing, in Article II, Section II, that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court.”  

The Constitution specifies in Article III, Section II that disputes between states as well as those involving ambassadors and other “public ministers” must be filed directly with the Supreme Court. Otherwise, the Justices hear appeals of “cases… arising under th[e] Constitution, the laws of the United States, and treaties made.”

And that’s about it: There’s nothing in the Constitution about how many Supreme Court Justices there should be, how often they should meet, or how exactly the Court should interact with inferior courts. The Constitution left it to Congress to fill in those details.

The Royal Exchange, the first meeting place of the Supreme Court.

That’s not to suggest that the judiciary was an afterthought for the Founders. The Declaration of Independence lambasted King George for making “Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” An independent judiciary free from powerful influence was essential to the Founders’ idea of America—so much so that in 1776, John Adams told a friend, “[B]etween you and me, there is one point that I cannot give up. You must establish your Judges’ Salaries—as well as Commissions—otherwise Justice will be a Proteus. Your Liberty, Lives and Fortunes will be the Sport of Winds.” Adams later declared in his draft of the Massachusetts state constitution that “[i]t is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.”

The Judiciary Act of 1789 established a six-Justice Supreme Court. President George Washington nominated John Jay, his secretary of foreign affairs, as Chief Justice, noting that the position “must be regarded as the keystone of our political fabric.” He also nominated five Associate Justices, John Rutledge among them. The Senate approved all six by voice vote two days later.

But life as a Supreme Court Justice was decidedly unglamorous in 1789. The Court had no building of its own. The Justices met first in the Royal Exchange in New York, then moved to a hall in Philadelphia when the nation’s capital relocated. Worse, Justices were expected to “ride circuit” twice a year: They had to travel by horseback through their assigned circuit region—which could be remote and rural—to hear cases.

Rutledge lasted only 18 months as an Associate Justice. He frequently skipped the Court’s meetings and resented being responsible for the Southern Circuit, which required especially arduous travel. (The Southern Circuit was so difficult to traverse that Rutledge’s successor on the Court, Thomas Johnson, lasted only five months.)

Rutledge abruptly left the Supreme Court in 1791 for a higher-paying job as Chief Justice of the South Carolina Supreme Court. There he might have been content to remain indefinitely—but in 1795, Rutledge’s pride and ambition led him to pen a letter to President Washington asking to be re-appointed to the Supreme Court, this time as Chief Justice.

He didn’t know it, but that letter marked the beginning of the end of his career.

The nomination

“I have held many posts of high rank and great importance,” Rutledge boasted to Washington in his letter dated June 12, 1795, “and have been under the necessity of refusing others; but they were offered spontaneously and handsomely.” He had never solicited a job, he assured Washington, “nor do I mean this letter as an application. It is intended merely to apprise you of what I would do if selected[.]”

Chief Justice John Jay had just resigned from the Court to serve as governor of New York after a particularly tumultuous period: Jay, despite being Chief Justice, had been tasked by President Washington and Treasury Secretary Alexander Hamilton with traveling to Britain as special envoy to negotiate a second treaty, which would become known—and derided—as the Jay Treaty. The British had failed to abandon all the American forts they’d agreed to exit in the 1783 Treaty of Paris. Moreover, British exports were flooding the American market, and Royal Navy ships had impressed American sailors into service and confiscated military supplies bound for France. James Madison and others were pushing for a trade war with Britain. But Washington and Hamilton wanted to de-escalate tensions between the two nations. Jay, under their guidance, negotiated a treaty that successfully closed British forts but let the British largely off the hook for other misdeeds.

Many Americans were furious. When Jay came back home, he said in jest that he could find his way from Boston to Philadelphia at night by the light of his burning effigies.

When Jay stepped down as Chief Justice in the summer of 1795, Rutledge seized his opportunity. In his letter to President Washington, he (rather boldly) suggested that he, not Jay, should have been made Chief Justice in the first place. “[M]any of my friends were displeased at my accepting the office of Associate Judge,” he informed Washington, “conceiving (as I thought, very justly) that my pretensions to the office of Chief Justice were at least equal to Mr. Jay’s in point of law-knowledge, with the additional weight of much longer experience and much greater practice.”

Washington wasn’t put off by Rutledge’s assertiveness. In his July 1 response, Washington told Rutledge that he was now Chief Justice of the United States, effective immediately. The Senate was not in session, so Washington was able to appoint Rutledge as a recess appointment, with Senate approval to come later.

“[W]ithout hesitating a moment, after knowing you would accept [the position of chief justice], I directed the Secretary of State to make you an official offer of this honorable appointment,” Washington’s letter read.

Rutledge had succeeded. He was now head of the highest Court in the nation.

But a few weeks later, despite the honor and judicial responsibility Washington had just bestowed upon him, Rutledge did something foolish.

“A delirium of rage”

On July 16, Rutledge attended a demonstration against the Jay Treaty at St. Michael’s Church in Charleston, where he gave a scathing speech. According to witnesses, Rutledge denounced the treaty and said “that he had rather the President should die, dearly as he loved him, than he should sign that puerile instrument,” and that he “preferred war to the adoption of it.”

John Jay, first Chief Justice,
National Portrait Gallery.

By the time he arrived in Philadelphia weeks later to take his seat on the Supreme Court for the August session—the recessed Senate still not having voted on his appointment—news of Rutledge’s ill-advised speech had spread across the country.

“The most prominent orator on that occasion was Judge Rutledge,” one newspaper reported, “who uttered the most gross invectives both against the President Washington, as well as Mr. Jay, for having sacrificed the interests of the American States to the king of Great Britain[.]” Another paper described Rutledge’s speech as consisting of “the silliest expressions that ever fell from human lips.”

Federalists, who largely supported the Jay Treaty, were furious. Rutledge had publicly and viciously come out against a policy decision of the president only weeks after accepting that president’s nomination. And the nominated Chief Justice had inserted himself into the heated political debate over the Jay Treaty in a way that even John Jay, for whom the treaty was named, had carefully avoided doing.

Alexander Hamilton published an editorial calling Rutledge’s speech a “delirium of rage” that brought “mortification” to the Federalist party, asking, “[W]hat are we to think of the state of mind which could produce so extravagant a sally?” Oliver Wolcott, one of the signers of the Declaration of Independence, called Rutledge a “driveller and fool.”  Secretary of State Edmund Randolph described Rutledge’s “attachment to the bottle, his puerility, and extravagances, together with a variety of indecorums and imprudencies.” Senator Oliver Ellsworth, coauthor of the Judiciary Act that had established the role of Chief Justice, said Rutledge had “act[ed] like a devil.” William Davie, a North Carolina politician (and founder of the University of North Carolina), publicly wondered whether Rutledge “raves on the bench as he does at a town meeting.”

With one speech, Rutledge had caused a political firestorm that was turning a whole party—technically, his own party—against him. He had “lost his Olympian position of a proud, preeminently honored and respected first citizen,” as the South Carolina Historical Society puts it. “He was now a highly controversial figure.”

But the Senate wasn’t scheduled to vote on his appointment until December. So, for four months, Rutledge served as Chief Justice—and waited to see if the axe would fall.

Rejected by the Senate

President Washington could have withdrawn his support for Rutledge. But despite the insults Rutledge had hurled in his speech at St. Michael’s Church, Washington formally submitted his appointment to the Senate on December 10, 1795, as promised.

Five days later, after an energetic debate, the vote to confirm Rutledge failed 10 to 14. Eight of the Senate’s 32 members did not participate in the vote, perhaps unwilling to go on record one way or another. Of the 14 who voted against Rutledge, 13 were Federalists and all 14 had voted in favor of the Jay Treaty.

“The rejection of Mr. Rutledge by the Senate is a bold thing,” Thomas Jefferson complained, “because they cannot pretend any objection to him but his disapprobation of the treaty.”

Rutledge, by speaking out so recklessly on a divisive political issue, turned his confirmation vote into a referendum on the Jay Treaty. He had also repulsed many Americans—including, perhaps, the eight senators who didn’t show up for the vote—who believed a Justice of the Supreme Court should be more publicly reserved on matters of politics. John Adams wrote in a letter to his wife that the Senate’s rejection of Rutledge “gave me pain for an old friend, though I could not but think he deserved it. Chief Justices must not go to illegal Meetings and become popular orators in favor of Sedition, nor inflame the popular discontents which are ill founded, nor propagate Disunion, Division, Contention and delusion among the people.”

John Rutledge reacted to the Senate’s rejection in about the worst way a man can: Two days after Christmas he tried to commit suicide by jumping off a Charleston wharf. After rescuers pulled him out of the water, Rutledge reportedly told them that “he had long been a Judge and he knew no law that forbid a man to take away his own life.”

A lesson for Justices

Less than a year after Rutledge’s failed confirmation vote, George Washington gave his farewell address. 

In it, he warned the nation about “the danger of parties in the State” and, in particular, about those who would “make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.” He closed his address by saying he looked forward to enjoying in retirement all that he helped create, including “the benign influence of good laws under a free government.”

America’s founders understood that the judicial branch, entrusted with the power to decide disputes implicating Americans’ rights, could not be steeped in the same partisan division and heated political rhetoric that already plagued the other two branches of government less than a decade into their existence. Supreme Court Justices needed to be above the fray and, to quote John Adams, “as free, impartial and independent as the lot of humanity will admit.” The promise of America as a just nation would depend on it.

While Supreme Court Justices have occasionally expressed their policy or political views over the years, on balance, they’ve been more careful in tone and substance than John Rutledge was in 1795. Most Justices have adhered closely to the ethical norms of the Court and refrained from speaking out in ways that could be seen as overtly partisan or divisive.

And when Justices do step out of bounds, they face public reprimand: Justice Samuel Chase, an outspoken Federalist known as “Old Bacon Face” who publicly supported John Adams’ re-election campaign in 1800, was impeached for “prostitut[ing] the high judicial character with which he was invested, to the low purpose of an electioneering partisan.” The Senate ultimately acquitted Chase in 1805.  

More than two centuries later, another presidential election prompted a Justice to share her thoughts. In 2016, after Justice Ruth Bader Ginsburg gave a series of interviews criticizing then-presidential candidate Donald Trump, The New York Times editorial board said it was “baffling” that Ginsburg would “call her own commitment to impartiality into question. Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.”

Shortly thereafter, Ginsburg released a statement saying she regretted her remarks. “In the future I will be more circumspect,” she said.

A hundred-year-old dissent haunts today’s judiciary

Joseph G. Lehman

Joseph Kast

Creative Manager
Joseph G. Lehman

Larry Salzman

Director of Litigation

When the Supreme Court blocked President Biden’s OSHA vaccine mandate in January, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor joined together in a firmly worded dissent. At issue, they said, was a “single, simple question”:

Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from any responsibility for any damage it causes?

But that question is not actually simple.

It’s derivative of a more fundamental question that has persistently divided judges when they think about their role in our system of government and how to do their jobs: When should the Supreme Court override a legislative majority or democratically elected president?

The answer to that question, rather than partisan politics, is what tends to sort Justices into different camps: those who believe the Court must defer to legislators’ and regulators’ judgment of what is right or appropriate, and those who believe the Court’s responsibility is to check the excesses of politics based on the Constitution and the principles that gave rise to it.

New York City in 1893.

More than a hundred years ago, a dispute over the hours worked at a small Utica, New York, bakeshop caused the Supreme Court to face this conflict. Reactions to that case—and in particular to one Justice’s short, biting dissent—continue to haunt the minds of Supreme Court Justices today when thinking about the role of the Court, its relationship to the other two branches of government, and how it should decide cases.

A New York bakery

In 1895, the state of New York passed the Bakeshop Act, the culmination of years of politicking from union activists and large factory bakeries. The Act was framed as a health measure, and much of it was unremarkable: standards for plumbing, ventilation, and washrooms. Had that been the extent of its provisions, it would have been just one among a multitude of business regulations characteristic of the early Progressive era. It was the inclusion of a hard cap on hours for employees (10 hours per day, no more than 60 per week) that set in motion one of the most consequential Supreme Court dissents in American history.

New York in the 1890s was experiencing rapid growth, thanks in no small part to the waves of immigrants arriving in the city each day. Small bakeries were on virtually every street corner—necessarily so in an era before supermarket chains, food preservatives, or plastic bags—and many of them were informal operations in tenement basements.

Hours were long, averaging 74 per week, but sometimes more. This, coupled with such cramped conditions, meant bakeshop owners had to pay higher wages than other businesses to retain workers. Immigrants, primarily younger German men, took many of these bakeshop jobs. The rough working conditions and long hours were less than appealing to many natives, but it presented a coveted opportunity for immigrants to get ahead in a new country. Immigrant-run bakeshops generally lacked the mechanical advantages of larger commercial shops; the only way they could close the competitive gap was to work harder, for longer.

Proponents of the Bakeshop Act defended the limit on working hours with a range of overlapping rationales: it would create more jobs; it would “spread the wealth”; it would improve public health; it would lower unemployment. Working fewer hours would even be a boon for democracy itself: If workers had more time off, they’d spend time educating themselves and thus become better citizens. One argument seemed ripped from The Communist Manifesto, arguing that bakeshop owners were inherently exploiting their employees: “An empty stomach can make no contracts. [The workers] assent but they do not consent, they submit but they do not agree.”

Indeed, the Bakeshop Act’s 60-hour limit seems to have been motivated more by politics than by a genuine concern for public health. It contained exemptions for bakers working in pie shops, hotels, restaurants, and clubs. Bakeshop owners were exempted as well. The 60-hour limit was likely as much about kneecapping smaller immigrant-run bakeshops as it was about public safety. More importantly, invoking “public health” can justify just about anything, including unconstitutional laws.

The Act passed unanimously through both houses of New York’s legislature, and little time was wasted in enforcing the new law. Of the 150 bakeries visited in the first three months after its passage, 105 were fined. But it was not any one of the hundreds of tenement basement bakeries of New York City that would prove the Act’s major challenge. Instead, a test case for the Act’s constitutionality was brought by a small bakery in Utica, over 200 miles from Manhattan.

Joseph Lochner left his native Bavaria when he was 20, in 1882. After working about eight years in another Utica bakery, he opened his own. In contrast to the cramped tenement basement bakeshops of New York City, Lochner’s shop was a “relatively airy and mechanized aboveground shop,” according to author Paul Kens, who describes Lochner as a “hardheaded man” who wasn’t going to be told how to run his own business.

Lochner worked alongside his wife and a handful of employees. A contemporary profile of him in the Utica Herald suggests a rags-to-riches story of success, noting that his bakery started off meagerly but “by neatness and the excellence of its products it soon won an enviable reputation” from customers.

Good baker or not, he soon found himself at odds with the bakers’ union for violating the hours limit provision of the Bakeshop Act. David Bernstein, author of Rehabilitating Lochner, describes Lochner as having:

a tempestuous relationship with the bakers’ union that started in 1895, when the union withdrew the union label from his goods and initiated a boycott of his bakery. The union claimed that he had a baker work more than sixty hours a week, and Lochner acknowledged violating union rules by allowing one of his employees, Aman Schmitter, to live above the bakery with [Lochner’s] family.

Schmitter, for his part, was happy to work more than the 60-hour limit. He asked the union for an exemption to the hourly cap, which was not granted.

In 1899, Lochner was hit with a $20 fine (about $600 in today’s dollars) for violating the hourly cap. He pled guilty, paid the fine, then continued to allow employees to work above the limit. The unions were displeased at his lack of interest in complying with the Act and launched boycotts against his bakery.

When Lochner was once again arrested and charged $50 for violating the bakeshop act, he appealed. His baker Schmitter signed an affidavit confirming that he worked beyond the 10-hour daily limit to learn the art of cake baking. Given their closeness, it is hard to believe the affidavit wasn’t a part of a larger strategy to take down the law. David Bernstein says,

Given that there could be no successful prosecution unless Schmitter was willing to testify against Lochner, and given the close and longstanding relationship between the two men … it seems likely that Schmitter’s complaint against Lochner was arranged by the Utica Master Bakers Association, of which Lochner was a member, to test the law.

Lochner gave no defense at trial in 1903, further suggesting that he and Schmitter had deliberately set out to bring a test case. His legal claim was that his right to contract for his labor was being violated. He and his employee Schmitter had entered into a private contract covering an agreement of hours worked, and the State of New York should have no say in it.

The state trial court differed, holding that the hours statute “does not prohibit any right, but regulates it, and there is a wide difference between regulation and prohibition, between prescribing the terms by which the right may be enjoyed, and the denial of that right altogether.” Writer Tom Bowden summarizes the ruling in an article discussing Lochner, “Justice Holmes and the Empty Constitution”: “In other words, a right is not violated unless it is annihilated.” The court upheld the conviction: Lochner would either have to pay the $50 fine or spend 50 days in jail. He appealed.

The first appellate court also ruled in favor of the hours law by a 3-2 vote. Because the limit on hours was part of a larger bill aimed in part at improving public health, the court’s majority argued that it was “reasonable to assume … that a man is more likely to be careful and cleanly when well, and not overworked, than when exhausted by fatigue, which makes for careless and slovenly habits, and tends to dirt and disease.” A health measure, the majority believed, was grounded in the state’s “police power,” a constitutional provision empowering state legislatures to enact laws for the “public good” of its citizens. As a matter of history, the concept of a state’s police powers is notoriously vague. The court noted “the impossibility of setting the bounds of the police power,” and hence the difficulty setting any judicial limit on legislatures or regulators.

The appellate court further opined that the Act’s limit on hours was required to protect workers’ health against the rapaciousness of free market capitalism, citing a popular legal treatise that suggested that

the feverish, intense desire to acquire wealth…inciting a relentless rivalry and competition, would ultimately prevent, not only the wage-earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature and obeying the instinct of self-preservation by resting periodically from labor.

One judge’s concurring opinion said invalidating the law would also “nullify the will of the people” since the Act had been democratically legislated.

But again, Lochner appealed to New York’s highest court, and again he lost in a 4-3 decision. The court felt it was “beyond question” that ensuring clean bakeries was a public good (therefore within the police power and not the judiciary’s job to check), and that this was best achieved by having well-rested bakers. One dissenting judge noted that little evidence had actually been presented that baking was unhealthy, and because self-employed workers were allowed to work as many hours as they wished, this was a labor law, not a health law. (We should note here that newer historical analysis suggests mortality rates in baking were below the average for all occupations at the time.)

Lochner, unperturbed, submitted a petition for his case to be heard before the Supreme Court. The Court accepted the case, which would be argued in early 1905. The debate in the lower courts revealed that there was a clear conflict between New York’s “police powers” and “liberty of contract.” Which had the weight of the Constitution in its favor?       

Lochner may have been optimistic about his chances at the Supreme Court, but he shouldn’t have been. His first lawyer dropped off the case, telling him and the Utica Master Bakers Association that the case was hopeless. Moreover, as Bernstein notes, “the Court had consistently upheld laws regulating labor regulations, including a maximum-hours law for miners … it had consistently refused to invalidate labor regulations as violations” of liberty of contract.

Sure enough, the Court was veering toward upholding the hours statute. But part of the magic of the Supreme Court (for better or worse) is that a well-argued dissent can change everything—even before the opinion is issued.

Tom Bowden describes the remarkable turn in Lochner’s favor:

At first the Court voted 5-4 in private conference to uphold Lochner’s conviction. But then Justice Peckham wrote a sharp dissent that convinced another Justice to change his mind. With a little editing, Peckham’s dissent then became the majority’s official opinion declaring the Bakeshop Act unconstitutional.

Peckham agreed that much of the Bakeshop Act was fair grounds for invoking police power. The limit on the number of working hours, however, wasn’t. It lacked “fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed.” It was a labor law, not a health law, and thus “necessarily interferes with the right of contract between the employer and employees.” The Court sided with Lochner and the right of contract, 5-4.

But that’s not where the story ends.

Justice Oliver Wendell Holmes dissents

The case ended up with three opinions: The prevailing one penned by Justice Peckham; a dissent authored by Justice John Marshall Harlan and joined by two others, the displaced prior majority decision; and a short dissent from Justice Oliver Wendell Holmes. While Lochner was the winner of the case, the Holmes dissent represented an emerging judicial philosophy that would have the most lasting change in American legal history—and not for the better.

In his brief dissent (just over 600 words), Holmes denied a constitutional right of contract. He argued that

the liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.

Holmes continued with a laundry list of laws the Court had recently upheld, including a state vaccine mandate and laws prohibiting lotteries, usury, and doing business on Sundays. Were not each of these a clear state interference with contractual liberty?

“Some of these laws embody convictions or prejudices which judges are likely to share,” Holmes wrote. “Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.”

Oliver Wendell Holmes,
National Portrait Gallery.

In other words, Holmes rejected the idea that the Constitution embodies a philosophical context and purpose that ought to influence judicial decision-making. In one of the dissent’s most famous lines, Holmes dismissively stated that “[t]he fourteenth amendment does not enact Mr. Herbert Spencer’s Social Statics.” Spencer was a Victorian-era polymath who espoused laissez-faire economics and wrote, in the relatively obscure but contemporary Social Statics, that “[e]very man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.” Holmes used the shibboleth to accuse the Court majority of superimposing 19th-century classical liberal sentiments into the Constitution, where—according to Holmes—no such general principles existed.

The big question

The Lochner decision was emblematic of what more modern historians refer to—either approvingly or disparagingly, depending on their view of economic liberty—as the “Lochner era.” But when the Court upheld a New Deal-era minimum wage law in 1937, the Lochner era abruptly ended—and Holmes’ dissenting view quickly gained momentum. In 1938, the Court made the sweeping decision that all government intervention in the economy should be assumed valid unless “a specific prohibition of the Constitution” said otherwise. Justice Felix Frankfurter, appointed to the Supreme Court in 1939, called Holmes’ Lochner dissent a “turning point” in a larger battle against “the unconscious identification of personal views with constitutional sanction.” He also praised Homes for his “refusal to defeat life by formal logic” and his “deference to local knowledge.”

Today, when a judge is said to “Lochnerize,” it means that he or she is substituting personal preferences over the legislature or will of the people. Even the conservative legal theorist Robert Bork (yes, that Robert Bork) criticized the Lochner decision as enforcing “an individual liberty that is nowhere to be found in the Constitution itself.”

But to believe that, you have to agree with Holmes’ contention that the Constitution says nothing substantive about the fundamental relationship between government and the individual. It means ignoring the entire political-philosophical context in which the Founders worked—as plainly stated in the Declaration of Independence—to create a government whose chief purpose is to secure individuals’ rights to life, liberty, and the pursuit of happiness. As Tom Bowden points out, each clause in the Bill of Rights places a strict limit on the government’s power over individual liberty and property. Article I of the Constitution prevents states from passing laws “impairing the obligation of contracts.” Herbert Spencer may not be embedded in the Constitution, but there is a set of general philosophical principles in the Constitution: the Enlightenment-era ideals of individual rights and limited government.

This does not mean the Constitution was perfectly drafted. Its internal contradictions and failures include, of course, its shameful treatment of the “peculiar institution” of slavery. But the fact that we recognize that as hypocrisy means we read fundamental principles into the Constitution—including the principle of individual liberty.

Many judges believe it is these Constitutional principles that give the Supreme Court the authority to override legislative majorities. But other judges (like Holmes) have disagreed. They dispute the idea that the Constitution embodies philosophical principles that should guide courts, and believe judges should show deference to regulators and legislators.

 Since the end of the Lochner era, this has been an ongoing debate in the legal community and judiciary. It’s a difference of judicial philosophy, not politics. But it’s a debate with high political stakes: If the Supreme Court were to become unmoored from the political philosophy that generated the Constitution, it would make itself entirely vulnerable to whichever political majority is in power.

A Court-packing scheme

Joseph G. Lehman

Oliver Dunford


America is suffering through a crisis for which there is no easy fix. The president is frustrated: The Supreme Court keeps knocking down his initiatives, dismissing them as unconstitutional expansions of federal power. The president fumes to reporters that the U.S. federal government deserves “the powers which exist in the national governments of every other nation in the world.” The Court, he complains, is relegating the government “to the horse-and-buggy definition of interstate commerce.”

It’s 1935. The president is Franklin Delano Roosevelt, and he’s been struggling to enact the New Deal, his plan to end the Great Depression.  

But the scenario should feel familiar to us today: The Biden administration, like FDR’s, has been dealt several embarrassing setbacks at the Supreme Court as it attempts to manage the COVID-19 pandemic. Biden’s OSHA vaccine mandate and CDC eviction moratorium were both tossed out by the Court.

Now White House allies, frustrated with recent Court decisions, are urging Biden to follow in FDR’s footsteps.

They want to try packing the Supreme Court.

In a Boston Globe op-ed, Senator Elizabeth Warren argues that expanding the number of Justices on the court is necessary “to restore America’s faith in an independent judiciary committed to the rule of law.” Congresswoman Alexandria Ocasio-Cortez says Democrats can either expand the Court “or do nothing as millions of people’s bodies, rights and lives are sacrificed for far-right minority rule.” Congressman Jerry Nadler says adding seats to the Court would “restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans led to its current composition.” Economist Robert Reich, secretary of labor under President Clinton, asks: “Can we finally stop pretending it’s radical to expand the Supreme Court?”

FDR in a 1935 painting,
National Portrait Gallery.

All this has happened before.

The Constitution doesn’t specify how many Justices should sit on the Supreme Court. Congress sets that number. There were initially six seats. The number dropped to five in 1801; went up to seven in 1807; increased to nine in 1837; increased yet again to 10 in 1863; dropped to seven in 1866; and went back up to nine in 1869, the year Ulysses S. Grant became president. It has remained nine ever since.

But by the mid-1930s, President Franklin D. Roosevelt was ready to change that.

He was at wits’ end with the Court. Once, while delivering a speech, FDR noted that Republicans had been in control of both Congress and the White House during the crash of Wall Street; then he went off script to quip, “I may add, for full measure, to make it complete, the United States Supreme Court as well.” As he worked with Congress to push through his New Deal agenda, FDR believed that the Court’s four stalwart conservative Justices—dubbed the Four Horsemen—would strike down New Deal laws whenever they were given the chance. Only three Supreme Court Justices—the Three Musketeers—were liberal. The remaining two—Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts—were moderates.

May 27, 1935, would be remembered by the Roosevelt administration as Black Monday: The Court handed down three unanimous decisions that seemed to spell doom for the New Deal. All nine Justices voted to strike down the National Industrial Recovery Act and the Frazier-Lemke Farm Bankruptcy Act. Congress, the Court ruled, was overstepping its constitutional bounds. The Court also decided that FDR had overstepped his authority by firing the Republican head of the Federal Trade Commission without cause.

Frustrated, FDR gave an hour-long Oval Office press conference. The press conference didn’t go over well; many thought Roosevelt went too far in complaining to reporters about the Supreme Court. With re-election quickly approaching in 1936, FDR refrained from making further public comments about the Court.

But in private, Roosevelt’s allies were as upset as he was—and wheels were beginning to turn.

“I tell you, Mr. President, they mean to destroy us,” Attorney General Homer Cummings wrote to FDR in a private letter. “We will have to find a way to get rid of the present membership of the Supreme Court.”

Homer Cummings was never supposed to be FDR’s attorney general.

A former Connecticut mayor and prosecutor in his 60s, Cummings was twice-divorced and had lost every national race he’d ever run. But he’d helped FDR in the 1932 election. To reward him, Roosevelt planned to appoint Cummings as governor-general of the Philippines, which was then a U.S. territory. FDR had chosen Senator Thomas J. Walsh from Montana—a striking, highly respected member of the Senate Judiciary Committee—to serve as attorney general. But on the train to FDR’s inauguration, Walsh suddenly dropped dead. His wife of less than a week was suspected of poisoning him. Scrambling, FDR tapped Cummings as attorney general instead.

Cummings—whom the Chicago Tribune described as “rotund, but not grotesquely rotund” and “bald, but not grotesquely bald”—was an ambitious man. He soon earned accolades in the press for his aggressive campaign against crime: In his first two years as attorney general, Cummings built the Alcatraz Federal Penitentiary, led efforts to make bank robbery a federal crime, and—with the help of his FBI director, J. Edgar Hoover—launched an all-out offensive against notorious gangsters, including John Dillinger, Baby Face Nelson, and Pretty Boy Floyd (all three of whom died in shootouts with federal agents).

After FDR handily won re-election in 1936, he and Attorney General Cummings began meeting in secret to discuss the launch of a different kind of offensive: an offensive against the Supreme Court.

The hits kept on coming after Black Monday: The Court knocked down the Agricultural Adjustment Act, the Guffey-Snyder Coal Act, and the Municipal Bankruptcy Act. The Justices also struck down a New York minimum wage law. In most of these cases, Chief Justice Hughes voted alongside the Three Musketeers while Justice Roberts voted with the Four Horsemen.

Roosevelt’s allies in Congress were getting impatient. “How much longer,” one senator grumbled, “will we let the Supreme Court sanctify the sweatshop and pervert democratic processes?” Another senator suggested Congress enact a new rule stipulating that only a unanimous vote by the Justices could declare an act of Congress unconstitutional. The Court’s decisions were “arbitrary, unjust, and reactionary,” according to one congressman. Another referred to the Justices as “nine black-robed fates.”

Pro-New Deal newspapers also took swings. “Instead of utilizing their unequaled independence to serve the Constitution, they twist the Constitution to serve their notions,” The Philadelphia Record editorialized. “The Supreme Court’s usurpation of power is the issue of the hour.” 

By early 1937, Attorney General Cummings had come up with a creative plan to remake the Court.

Six of the Supreme Court Justices—including all Four Horsemen—were over the age of 70. Cummings drafted a bill that would grant retirement at full pay to any Justice over the age of 70. If a Justice refused to retire within six months of turning 70 (and had already served at least 10 years on the bench), the president would have the authority to add an additional seat to the Court.

Roosevelt warmed to Cummings’ proposal, which provided (flimsy) cover for his true political motive: to pack the Court with New Deal-friendly Justices. Getting the bill through Congress shouldn’t have been difficult: Democrats had a supermajority in both the House and the Senate. If they passed the bill, FDR would be able to appoint six new Justices; and depending on how many of the current Justices refused retirement, the Supreme Court could expand to as many as 15.

Without giving Congressional leaders advance notice, FDR announced the proposal on February 5, 1937, first to Congress and then to the press. Modern complexities, he told Congress, called for

a constant infusion of new blood in the courts, just as it is needed in executive functions of the Government and in private business. A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future.

FDR and Cummings thought focusing on Justices’ age was a clever sleight-of-hand, but it immediately fell flat. For one thing, Cummings himself was 67 and FDR was in notoriously poor health. Their feigned concern about 70-year-old Justices’ “lowered mental and physical vigor” simply didn’t hold water. And with the press, FDR hadn’t bothered to conceal how clever he thought the proposal was. “He seemed to be asking the assembled newspapermen to applaud the perfections of his scheme,” one reporter wrote, “to note its nicely calculated indirections and praise its effectiveness.”

Cummings may have been even worse than FDR at subterfuge: When the Senate Judiciary Committee asked him whether he’d consider the scheme a success if, having expanded the Court to 15 Justices, the Court became divided 8-7 on New Deal cases, Cummings responded: “It would depend upon which side the seven were on and upon which side the eight were.”

The Court-packing bill was met with skepticism and hostility.

Congressmen—even Democrats who supported the New Deal—called it a “subversion of the Judiciary” and “destruction of the democratic process.” The Democratic-controlled Senate Judiciary Committee advised against it. “This bill is an invasion of judicial power such as has never before been attempted in this country,” the committee later warned in a report. One Democratic senator worried that “some future President might, by suddenly enlarging the Supreme Court, suppress free speech, free assembly, and invade other Constitutional guarantees of citizens.” Another Democratic senator told a friend that it was a mistake to assume “that because people of the United States were opposed to big business … that they are in favor of having all of their affairs run by big government.”

The proposal fared no better outside of Congress: Pro-New Deal newspaper The New York World-Telegram called the scheme “too clever, too damned clever,” and a law professor who supported FDR called it “tricky, and perhaps dishonest.” A few prominent lawyers and journalists formed the National Committee to Uphold Constitutional Government, which printed a quarter of a million copies of a pamphlet titled The Assault on the Supreme Court and arranged for a radio talk to be broadcast on 300 stations in which a progressive  minister warned that the Court-packing bill was “a surrender to impulses all too much like the action of Hitler in packing the courts of the German Reich.”

Justice Harlan Stone,
National Portrait Gallery.

Supreme Court Associate Justice Harlan F. Stone—one of the Three Musketeers—also disapproved. “Between ourselves,” he wrote in a letter to a friend, “the recent proposals about the Supreme Court are about the limit. To see it become the football of politics fills me with apprehension.”

About a month after Roosevelt first announced his plan to expand the Court, he tried to make his case to the public in a fireside chat. He described the three branches of government as “a three-horse team provided by the Constitution to the American people so that their field might be plowed.” Two of those horses were pulling in unison, he said. The third—the judiciary—was not. He said:

By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope … to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances…. This plan will save our national Constitution from hardening of the judicial arteries.

Only weeks later, however, circumstances changed.

On March 29, 1937, the Court handed down a surprise 5-4 decision in West Coast Hotel Company v. Parrish upholding minimum wage laws for women as constitutional. Justice Roberts, who had previously voted with the Four Horsemen to strike down New York’s minimum wage law, this time voted with the Three Musketeers and the Chief Justice.

Suddenly the Court wasn’t the immovable obstacle blocking the New Deal that FDR portrayed it to be—which killed any momentum the Court-packing bill might have had.

People speculated that Justice Roberts had intentionally switched his vote in order to dissuade Roosevelt from his Court-packing scheme. On April 14, 1937, a New York Post columnist wrote, “I’ve been thinking for an explanation of why Justice Roberts switched from the conservatives to the liberals. Is this it?—Maybe he figures that a switch in time’ll save nine.” That line (a play on “a stich in time saves nine”) quickly spread. In May, a Princeton professor wrote to Attorney General Cummings, “Apropos of the recent shift by the Court, have you heard the quip, ‘a switch in time saves nine’?” Cummings replied that he had not heard the line but “[i]t is very apropos.”

The truth, however, is that Justice Roberts didn’t switch his vote at all, much less for political reasons.  Months before FDR announced his Court-packing scheme, Roberts was already inclined to uphold the minimum wage law. A vote taken shortly after West Coast Hotel Company oral arguments proves it, as does a memo written by Roberts that was made public after his death by Justice Felix Frankfurter, whom FDR appointed to the Court in 1938. In fact, according to the memo, only a technicality had prevented Roberts from upholding New York’s minimum wage law in the previous case. What seemed like a political switch was actually consistent behavior from Roberts: He decided each case as it came, analyzing the case’s legal merits. Justice Frankfurter called it “one of the most ludicrous illustrations of the power of lazy repetition of uncritical talk that a judge with the character of Roberts should have attributed to him a change of judicial views out of deference to political considerations.”

That the public assumed Roberts’ vote in West Coast Hotel Company was politically motivated shows how much damage FDR’s Court-packing scheme did to the Court’s reputation in the short time the scheme lived.

In pushing to expand the Supreme Court, FDR treated the Court as just another political chamber he could manipulate to enact his agenda. Although Congress and the public resisted Roosevelt’s machinations, their view of Supreme Court Justices was altered: Justices could now be seen as making political, not legal, decisions. In his fireside chat, Roosevelt said Justices should decide “social and economic problems” with the benefit of their “personal experience and contact with modern facts and circumstances”—promoting an image of Supreme Court Justices as political minds who looked outside the legal scope of a case when making decisions.

Justice Owen Roberts, Library of Congress.

The Court-packing bill officially died a slow, summer death in the Senate. By then FDR had moved on: In May, Justice Willis Van Devanter—one of the Four Horsemen—announced his resignation. For a moment, FDR was in a pickle: He had long ago promised the first vacant seat on the Court to Senate Majority Leader Joseph Robinson, who was 65 years old. Putting a 65-year-old on the Court immediately after waxing poetic about “younger blood” would have made FDR look like a fool. But again FDR caught a break: Robinson, who’d been working overtime to gather votes for the Court-packing bill, had a heart attack and died. FDR, seeking “a thumping, evangelical New Dealer,” nominated 51-year-old Senator Hugo Black from Alabama instead. Black was a Klansman, but the Senate confirmed him anyway. He served on the Supreme Court until 1971.

By the time FDR died in office in 1945, he had appointed seven of the Court’s nine Justices and elevated Harlan Stone to Chief Justice. Although his Court-packing plan had failed, FDR got what he wanted: a Court full of Justices he’d handpicked to uphold the New Deal.

But he’d also managed to turn the Supreme Court into “the football of politics,” as Justice Stone put it—and in so doing, he permanently changed the way some people viewed the role of Supreme Court Justices.

That’s precisely what worries the legal community now, as President Biden’s allies openly urge him to pack the Court.

Last spring President Biden formed a bipartisan commission to explore potential reforms to the Supreme Court, including expanding it. The commission’s report didn’t take a position either way on Court-packing: It included arguments for and against. But it also included this memorable quote from a 1937 Senate Judiciary Committee report about FDR’s Court-packing bill:

Let us now set a salutary precedent that will never be violated. Let us, of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power or factional passion, approves any measure we may enact.

The senators who wrote that—all long-dead now—prioritized the independence of the Supreme Court over their own political agendas. May today’s politicians learn to do the same.

Protecting political speech

Joseph G. Lehman

Brittany Hunter

Editorial Writer
Joseph G. Lehman

Wen Fa

Senior Attorney

Andy Cilek woke up on November 2, 2010, got dressed, and headed to the polls to cast his vote. He’d gotten dressed thousands of times in his life. He never imagined that his T-shirt would take him all the way to the Supreme Court.

As soon as he arrived at the polls, Andy was told he would not be able to vote unless he went home and changed his shirt. The reason? The T-shirt in question featured an image of the Gadsden flag with the slogan “Don’t tread on me” and a small Tea Party Patriots logo.

Under Minnesota law, voters were prohibited from wearing political attire—T-shirts, hats, buttons—at polling places. It didn’t matter if the political attire in question had anything to do with any of the issues on the ballot; if an election official deemed it political in nature, you could be turned away from the polls.

For five hours, Andy was prevented from voting by local election officials. Even worse, they took down his name for potential prosecution.

Minnesota is not alone in banning political apparel. At the time, it was one of 10 states to do so. Eventually, Andy was allowed to vote, but the entire ordeal did not sit right with him. The First Amendment was supposed to protect his right to express himself. Yet Minnesota law made it illegal for him to wear his expressive T-shirt. Joining forces with his organization, the Minnesota Voters Alliance, Andy sued in federal court to overturn the law on the grounds that it violated his First Amendment right to free speech.

The lower courts rejected Andy’s claims. In a divided 2-1 opinion, the Eighth Circuit Court of Appeals stated the prohibition on “political T-shirts” was necessary to maintain “peace, order, and decorum” at the polls, and that the interest was significant enough to trample Andy’s First Amendment right.

Andy Cilek, PLF’s client
in Minnesota Voters Alliance v. Mansky.

Unwilling to sit idly by, Andy continued to fight back, this time with Pacific Legal Foundation at his side. Andy’s case, Minnesota Voters Alliance v. Mansky, eventually made it to the Supreme Court, which issued a ruling vindicating Andy’s First Amendment right to wear his expressive T-shirt at the polling place without fear of government retribution.

In 2018, eight years after the incident occurred, the Supreme Court affirmed in a 7-2 decision that the First Amendment protects individuals’ right to wear apparel expressing their views. It doesn’t matter if you are supporting the Second Amendment, the #MeToo movement, or AARP—the government cannot enact a law prohibiting you from expressing “political” views on your T-shirt at the polling place.

Not all of the seven Justices who struck down Minnesota’s law—including the late Justice Ruth Bader Ginsburg—were going to buy their own Tea Party Patriot shirts. Perhaps none of them have ever owned anything like it.

But agreeing with Cilek’s political views was not the point of the case.

English writer Evelyn Beatrice Hall coined the phrase “I disapprove of what you say, but I will defend to the death your right to say it.” Despite accusations that Supreme Court Justices are motivated by their own personal politics, the Court’s record on protecting political speech shows that Justices have consistently prioritized principle over politics. That is their proper role: to protect a person’s right to political speech, even if they do not personally agree with the views being expressed.

What happened to Andy is, unfortunately, not an isolated instance. Government entities have long tried to limit or outright ban political speech.

Throughout the course of U.S. history, the Supreme Court has had to address cases where controversial—sometimes reprehensible—political speech is called into question.

Nearly 30 years before the MVA decision, a group of Minnesota teenagers, cloaked in the cover of night, fashioned broken armchairs into a cross and burned it on the lawn of a black family who lived across the street.

It didn’t take long for the juveniles to be caught and charged with breaking a Minnesota law. The law stated:

“Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”

The teens fought back in court, asserting that the law was too broad and impermissibly content based, meaning it targeted not just the act of cross-burning itself but also the views expressed by the speaker. The government is not allowed to nullify free speech simply because it doesn’t agree with the content of the opinion expressed—no matter how abhorrent it is.

The case, R.A.V. v. City of St. Paul, eventually went before the U.S. Supreme Court, where the ordinance was struck down in a unanimous decision. In his opinion, Justice Antonin Scalia expressed that the state law was unconstitutional because it amounted to discrimination on the basis of viewpoint.

He explained: “One must wholeheartedly agree with the Minnesota Supreme Court that ‘[i]t is the responsibility, even the obligation, of diverse communities to confront such notions in whatever form they appear,’ but the manner of that confrontation cannot consist of selective limitations upon speech.”

To be sure, what the teens in R.A.V. did was despicable and likely punishable under different laws governing trespassing and arson. But it is not the government’s job to punish an individual for their beliefs—even racist beliefs.

That all nine Justices protected individuals’ right to express deplorable, racist beliefs should underscore Justices’ commitment to constitutional principles even over their own personal predilections.

The First Amendment was not conceived to protect only speech deemed acceptable by the public. It was created to protect every individual’s right to think, and the concurrent right to share her thoughts. 

And it is the role of the courts to protect this right.

As Justice Scalia wrote, “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”

Before the landmark ruling in the R.A.V. case, in 1984, Gregory Lee Johnson—a member of the Revolutionary Communist Youth Brigade—came under scrutiny after he burned an American flag in front of the Dallas City Hall. 

In protest of the 1984 Republican National Convention and the Reagan administration, an unruly crowd of demonstrators marched through the streets chanting, breaking windows, and destroying private property. When they reached city hall, one protester stole an American flag from the building and handed it to Gregory, who doused it with kerosine and set on fire.

To be clear, breaking a storefront window is certainly a crime. Burning a flag could even be a crime, if a state had a law against burning all flags. But burning an American flag on public property should not be punishable just because most Americans hold the symbol in high esteem. Yet, the state charged Johnson with violating a Texas law that prohibited the vandalization of “respected objects.”

The charge was upheld and he was ultimately convicted, sentenced to one year in prison and fined $2,000 dollars.

When Texas v. Johnson was finally heard by the Supreme Court, the Court ruled 5-4 that Gregory Johnson’s act was protected by the First Amendment. The Court declared that the law prohibited “expressive conduct” and political speech, and that Texas could not punish Johnson for expressing his views just because Texas found those views to be “offensive.”

In the majority opinion, Justice William Brennan wrote: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

For many Americans, the flag is sacred. It is likely that many of the Justices disagreed vehemently with what Johnson did. Justice Scalia later remarked, “”If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” 

In concurrence, Justice Anthony Kennedy added:

“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. […]

Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace, and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”

Justice Kennedy’s comment hits the nail on the head.

The Johnson decision cited, among other precedents, the 1969 case of Tinker v. Des Moines—another case involving speech that was considered anti-patriotic.

The Vietnam War saw a spike in antiwar sentiment in America. As young men were sent off to die for unclear American interests in distant jungles of the South Pacific, many of those back home watched in horror.

The Des Moines-based Tinker family always had a passion for civil rights. The mother, Lorena, was even a leader of the Peace Organization of Des Moines.

In December 1965, Lorena’s 13-year-old daughter, Mary Beth, organized a demonstration in which she and a group of fellow students would wear black armbands to school in protest of the war.

The school board was made aware of the plan and put the kibosh on it before it even began. As soon as Mary Beth arrived at school, she was told to remove her armband and was promptly suspended, along with her brother John and another student, Chris Eckhardt.

The students were told they would not be permitted on school property until they removed their armbands. While they ultimately complied, they still felt compelled to express their anti-war beliefs. They returned without armbands, but they wore black clothing for the rest of the year. They also filed a lawsuit on the grounds that the school district had violated the students’ right to freely express themselves.

The legal battle waged on for four years. Initially, the district court dismissed the claims, deeming the school’s decision reasonable. The Court of Appeals for the Eighth Circuit agreed. The students’ case was then heard in front of the Supreme Court.  

The case posed an interesting question, because the students were minors in school, and it was unclear whether they had a right to free speech.

In a 7-2 decision, the Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This not only protected political speech but also affirmed that even minors attending school have the right to express their political opinions.

For the school board’s punishment to be valid, it would have to prove that the acts “materially and substantially interfere[d]” with the other students’ learning. But the school punished the kids before the demonstration even began. The disciplinary measures came from the fear of what would happen, and not from any actual occurrence.

Justice Abe Fortas delivered the opinion of the Court, saying:

“In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students… are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.”

We don’t know whether any individual Justice was pro- or anti-war. But we do know that the Justices believed in the Constitution and its protection of political speech.

Each one of these cases builds upon the other. Without them, who knows if Andy Cilek would have been able to secure a victory decades later. The Minnesota Voters case was not the first of its kind, and it surely will not be the last.

PLF fervently believes, as the Supreme Court does, that the right to express one’s political views transcends partisan politics. That is precisely why we have fought so hard to defend individuals like Andy. Our freedom to express our political opinions cannot be infringed by the government. Fortunately, the Supreme Court tends to agree. Freedom of speech has enjoyed consistent, cross-ideological protection from the Supreme Court. Part of PLF’s mission is to ensure that other core rights—including property rights and equality under the law—are elevated to that same status.

Strange bedfellows: Cross-ideological agreement on the Court

Joseph G. Lehman

Anastasia Boden

Senior Attorney

It sounds like the set-up for a Veep-style political satire: In 2012, the U.S. Fish and Wildlife Service declared Edward Poitevent’s Louisiana land—which had been in his family since the end of the Civil War—a critical habitat of the dusky gopher frog, a species that hadn’t been seen in Louisiana for 50 years. Poitevent was leasing the land to a timber company at the time. By locking down the land, the feds were freezing $34 million in economic activity—all for a frog that didn’t live there.

The U.S. Fish and Wildlife Service claimed the Endangered Species Act gave it sweeping powers to preserve Edward’s property for the missing-in-action amphibian.

Pacific Legal Foundation attorneys disagreed. We brought Edward’s case to the Supreme Court, together with the timber company, Weyerhaeuser, that leased Edward’s land.

You’re probably thinking this sounds like a politically charged case that would divide the Supreme Court, pitting Justices with a soft spot for federal agencies—and tiny frogs—against Justices with a penchant for property rights and business.

But that’s not what happened.

In Weyerhaeuser Co. vs. United States Fish and Wildlife (2018), the Supreme Court handed down a unanimous decision for PLF and Edward Poitevent. Only eight Justices participated in the case because Justice Brett Kavanaugh was still being confirmed when oral arguments took place. But all eight Justices agreed that the U.S. Fish and Wildlife Service had wildly overreached.

“According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat,” Chief Justice John Roberts wrote in the opinion. “Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as a critical habitat unless it is also habitat for the species.”

Even Justice Sonia Sotomayor—who, according to the Sierra Club, has “the best environmental credentials of anyone nominated to the Supreme Court in the modern environmental era”—took Edward Poitevent and the timber company’s side over the U.S. Fish and Wildlife Service and the dusky gopher frog.

Many people believe 6-3 or 5-4 decisions are the norm at the Supreme Court, and that Justices usually split along consistent ideological lines. The assumption is that liberal-leaning Justices and conservative-leaning Justices rarely agree with each other. When the Supreme Court handed down a unanimous decision in the NCAA antitrust case last summer, sports commentator Trey Wingo told his 980,000 Twitter followers that unanimous Supreme Court rulings are rare. “A 9-0 Supreme Court ruling is the equivalent of finding a unicorn and a Yeti at the same time under a rainbow with a pot of gold and they’re both speaking three languages,” he tweeted.

But Wingo was wrong: A unanimous decision is actually the most common type of Supreme Court decision. In the 2020-21 term, Justices issued unanimous rulings in 29 cases—or 43% of the total 67 decisions issued during the term. Another 10 cases were decided 8-1. Only 15% of decisions were polarized along ideological lines.

This is as it should be. The Supreme Court is not “a third house of the national legislature,” as FDR once called it. Justices are not voting for the outcome they want; they’re ruling on matters of law. Unanimous decisions have always been common because in a large chunk of cases, Justices agree on what the law is or means.

In fact, of PLF’s 14 victories at the Supreme Court, a whopping seven were decided unanimously. An eighth case, Minnesota Voters Alliance v. Mansky (2018), was decided 7-2: Justices Ruth Bader Ginsburg and Elena Kagan voted with the majority, with only Justices Sonia Sotomayor and Stephen Breyer dissenting. Sotomayor and Breyer didn’t even dissent on the merits; they just thought the Minnesota Supreme Court should have had “a reasonable opportunity to pass upon and construe the statute.”

Supreme Court Justices have repeatedly tried to tell the public that their rulings are not reflections of partisan politics or personal preferences.  

While speaking at the University of Notre Dame last fall, Justice Clarence Thomas fielded a question about public misconceptions of the Court. “I think the media makes it sound as though you are just always going right to your personal preference,” Justice Thomas answered. “So if they think you are antiabortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician. That’s a problem. You’re going to jeopardize any faith in the legal institutions.”

Justice Amy Coney Barrett made a similar point during a speech at the University of Louisville. “Here’s the thing,” she told the audience. “Sometimes I don’t like the results of my decisions. But it’s not my job to decide cases based on the outcome I want.”

The late Justice Antonin Scalia may have said it best: “The judge who always likes the results he reaches is a bad judge.” For Justice Scalia, being a good judge meant he once found himself writing a blistering dissent in defense of a rape suspect’s Fourth Amendment rights. In Maryland v. King (2013), the Supreme Court held that the State of Maryland did not violate criminal defendant Alonzo Jay King, Jr.’s rights when it collected King’s DNA prior to conviction and matched it to an unsolved rape. The Court’s decision was 5-4, but it wasn’t split neatly by ideology:  Justice Breyer joined the so-called “conservative” Justices in the majority opinion, while Justices Scalia, Ginsburg, Kagan, and Sotomayor dissented.

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes,” Justice Scalia acknowledged in his dissent. “[T]hen again, so would the taking of DNA samples from anyone who flies on an airplane … But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

The late Justice Ginsburg, who strongly supported First Amendment and immigrant rights, once found herself writing a unanimous opinion that allowed the prosecution of an immigration advocate. Evelyn Sineneng-Smith ran an immigration consulting firm in San Jose, California. She was charged with violating a federal law that prohibits anyone from encouraging illegal immigration for financial gain. The Ninth Circuit found that the law violated the First Amendment, but the Supreme Court unanimously reversed the Ninth Circuit’s decision. Writing for the Court in United States v. Sineneng-Smith (2019), Justice Ginsburg chastised the Ninth Circuit for ruling on the issue of constitutional overbreadth when that issue hadn’t been raised by Sineneng-Smith. “[A] court is not hidebound by the precise arguments of counsel,” she wrote, “but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”

Supreme Court in 2021, clockwise from the back: Justice Kavanaugh, Justice Kagan, Justice Gorsuch, Justice Barrett, Justice Sotomayor, Justice Breyer, Chief Justice Roberts, Justice Thomas, and Justice Alito.

Yet people seem to forget that the justices are, to put it simply, lawyers doing law. When Justices find consensus or make legal conclusions that appear to contradict their personal sympathies, their votes often surprise the public.

The New Yorker called the Supreme Court’s 2020-21 term “surprising” because “[d]uring a time when the country has been starkly divided on matters ranging from the pandemic to the Presidency, the Court has largely avoided partisanship.”

“So much for a rock-solid 6-3 conservative Supreme Court majority,” Bloomberg Law wrote.

It’s not just the unanimous decisions that surprise people; it’s also the number of “strange bedfellow” alignments in which the High Court split along non-ideological lines. The Justices voted in 21 different patterns over the 2020-21 term. When you look closely at their reasoning in these “strange bedfellow” cases, you see that judges are ruling on the specific meaning of laws—not making sweeping policy pronouncements.

In Borden v. United States (2020), for example, the lineup was “strikingly nonideological,” as one law professor put it. Justice Gorsuch, appointed by President Trump, joined three Democrat-appointed Justices in a plurality opinion arguing that reckless aggravated assault should not be considered a “violent felony” under the definition set by the Armed Career Criminal Act. Justice Thomas, appointed by President George Bush, wrote a separate concurrence that agreed (mostly) with the conclusion of the plurality but focused on a different phrase in the Act. “The plurality focuses on the latter part of the operative language: ‘against the person of another,’” Justice Thomas wrote. “I rest my analysis instead on a separate phrase: ‘use of physical force.’” Meanwhile, the other conservative-leaning Justices dissented.

In HollyFrontier Cheyenne Refining v. Renewable Fuels Association (2021), Justices Breyer and Barrett both found themselves aligning with unexpected benchmates: Justice Breyer, appointed by President Clinton, joined the majority opinion, written by Justice Gorsuch, which held that fuel refineries could ask the Environmental Protection Agency to extend their exemptions from a renewable fuel requirement even if the refineries’ previous extension had lapsed. Meanwhile Trump appointee Justice Barrett penned a dissent, joined by Obama appointees Justices Kagan and Sotomayor, which argued that the word “extend” necessarily implies continuity of something still in existence. (“Consider a hotel guest who decides to spend a few more days on vacation,” Justice Barrett wrote. “That guest likely would ask to ‘extend [her] visit.’ Now suppose the same guest returns to the same hotel three years later and, upon arrival, requests to ‘extend’ her prior stay. The hotel employee would no doubt scratch her head.”)

In the so-called “Cursing Cheerleader” case, Mahanoy Area School District v. B.L. (2021), every Justice except Justice Thomas agreed that a public school could not punish a student for her off-campus speech. After Pennsylvania high school student B.L. failed to make the varsity cheerleading team or to secure her preferred softball position, she posted a Snapchat photo with the caption: “F—k school f—softball f—k cheer f—everything.” Even though she posted it over the weekend while off-campus, the school suspended her from the junior varsity cheerleading team for a year. The Court held that the school violated B.L.’s First Amendment right to express herself.

What’s particularly interesting about the Cursing Cheerleader decision is that Justice Breyer—at the time considered the second-most liberal Justice on the Court, after Justice Sotomayor—wrote the majority opinion, while Justice Alito—considered the second-most conservative Justice, after Justice Thomas—wrote a separate concurrence. By comparing the two writings, you can see how two very different Justices can find themselves in alignment on a case. While Justice Breyer wrote about “America’s public schools [as] the nurseries of democracy” and argued schools have a strong interest in protecting the “marketplace of ideas,” Justice Alito focused on the fact that “In our society, parents, not the State, have the primary authority and duty to raise, educate, and form the character of their children.” While parents delegate some of that authority to schools when their children are on campus, that authority will rarely extend to off-campus speech. True, B.L’s speech eventually made its way to campus, but it wasn’t disruptive.  It merely “upset” some other students. And “[t]he freedom of students to speak off-campus would not be worth much if it gave way in the face of such relatively minor complaints,” Justice Alito wrote. (Justice Thomas, for his part, analyzed the scope of free speech at the time the Fourteenth Amendment was passed (which incorporated the First Amendment against states) and argued that because B.L.’s off-campus speech was later shared on-campus, and because it had “a proximate tendency to harm the school environment,” the school was within its rights to suspend the cheerleader.)

By looking closely at decisions like this—or by looking at PLF’s own successful record at the Supreme Court, with 14 victories over 35 years, half of them decided unanimously—we see that when attorneys build strong legal cases, they can achieve a cross-ideological consensus on the Court and win.

PLF’s victories at the Supreme Court

In the past 35 years, Pacific Legal Foundation has won 14 cases at the Supreme Court.

Breaking: PLF is going back to the Supreme Court

Joseph G. Lehman

Damien Schiff

Senior Attorney

IMAGINE YOU OWN a piece of land. It’s not in the wilderness; it’s in a subdivision. You start to build a home there.

But the Environmental Protection Agency says your small plot of land contains wetlands. Even though it’s in a subdivision surrounded by other houses, the EPA says you can’t continue construction—and they’re threatening to fine you tens of thousands of dollars a day.

This kind of thing really happens. For years, the EPA, under the purported authority of the Clean Water Act, has been designating land as “navigable waters” (also known as “waters of the United States”) and then forcing property owners to spend thousands of dollars in permits or fines. Countless acres across America are sitting empty, frozen in regulatory limbo, while the EPA uses its multi-billion-dollar budget to intimidate and harass homeowners.

But this fall, the Supreme Court could stop the EPA from ever doing it again.

The Court has agreed to hear Sackett v. EPA, the case of an Idaho couple who has been battling the EPA—with PLF’s help—over a half-acre of land for 15 years.

This will be PLF’s 17th time at the Supreme Court. This time, we’re hardly starting from scratch.

The Sacketts’ empty lot in Idaho, surrounded by neighboring houses.

We’ve already won one victory for the Sacketts at the Supreme Court, back in 2012. (Yes, that’s how long we’ve been working to free this half-acre of Idaho land from EPA control.)

The EPA initially claimed property owners didn’t even have the right to challenge its compliance orders in court. PLF took the agency to court anyway—all the way to the Supreme Court, where we won a unanimous decision holding that the Sacketts had the right to a judicial review of the EPA’s actions. 

Our case now cuts to the heart of the matter: The EPA has been abusing its Clean Water Act authority by radically stretching the definition of “navigable waters” to include, as the Ninth Circuit put it in the Sacketts’ case, “a soggy residential lot.” The agency is asserting its regulatory power over residential land that doesn’t meet any commonsense definition of navigability, or even of just plain “waters.”

Unbelievably, federal regulators are also extracting thousands of dollars from hopeful homeowners through byzantine permitting processes and fines. After telling the Sacketts they could be fined $37,500 a day if they didn’t return the land to its original condition, the EPA later argued in court that the fine could be as much as $75,000 a day—as if it’s acceptable for EPA regulators to act like gangsters shaking down the neighborhood.

PLF Senior Attorney Damien Schiff giving a press conference in front of the Supreme Court in 2012.

Even before PLF started representing the Sacketts, we were laying the groundwork for this showdown with the EPA in an earlier case: Rapanos v. United States (2006).

John Rapanos’ fight with federal regulators dates all the way back to 1989, when the Michigan developer was clearing a 54-acre site to build homes and a shopping mall. Regulators brought civil and criminal charges against John, claiming that because the property next to John’s had a drainage ditch through which water could flow dozens of miles to the Great Lakes, and because John’s adjacent property was soggy, John’s parcel qualified as “navigable waters.”

While PLF won a victory for John at the Supreme Court, the Justices weren’t able to produce a majority opinion—meaning, the five Justices who voted in John’s favor couldn’t agree on reasoning. In a plurality opinion written by the late Justice Antonin Scalia, four Justices agreed that “waters of the United States” at most denote “relatively permanent, standing or flowing bodies of water,” and that the feds can regulate a wetland as such a “water” only if the wetland has a “continuous surface connection” with that water. But Justice Anthony Kennedy argued in a concurrence that a wetland doesn’t need any such surface connection but rather only a vaguely defined “significant nexus” to some downstream navigable water.

The Court’s split decision allowed the feds to continue to abuse their authority.

In the 16 years since Rapanos was decided, presidential administrations have come and gone. Each administration has attempted to codify its own idiosyncratic interpretation of the Clean Water Act—and each time, the next administration has disagreed and started over.

Meanwhile, the only Supreme Court guardrail protecting homeowners from EPA overreach is Justice Kennedy’s opaque “significant nexus” test for wetlands. The test’s lack of clarity has allowed federal bureaucrats to assert much more power and authority than they should have—as is bureaucrats’ nature.

If PLF is able to win the Sacketts’ case at the Supreme Court next term, the victory will affect thousands of property owners. It could free up millions of acres across America for new homes, farms, and businesses.

What no presidential administration can achieve, the Supreme Court can. It can definitively say what the EPA is, and isn’t, allowed to do. After all, the role of the Supreme Court is “to say what the law is,” as Chief Justice John Marshall wrote in Marbury v. Madison (1803).

That’s what makes the Supreme Court a uniquely powerful institution—and that’s why PLF has fought so hard to bring Sackett v. EPA to the Court.

Leveraging personal, principled activism for a freer future

“I feel it’s our obligation to protect our Constitution, our rights, our civil liberties, and our property from people in government who would do them harm.

“I was really pleased to find PLF. For the first time, I understood the work of a public interest law firm: Doing pro bono work for the little guy, for the homeowner, and for the business that’s been threatened by overzealous, unethical regulations and overreach.

It’s not easy to get my trust… and I don’t just give away money. The bulk of my estate is going to charities, and a big portion is for PLF because I trust in the importance of their work.”

—Linda Miley, PLF Legacy Partner

Linda Miley’s generous bequest will ensure PLF can continue to work for the little guy and protect everyday Americans’ constitutional rights well into the future.

We invite you to join our Legacy Partners, who—like Linda—have added PLF to their will, trust, or other estate plans.

For assistance, contact Jim Katzinski, Gift Planning Officer, at (916) 288-1395.