Official Newspaper of Eddy County since 1883
Official Newspaper of Eddy County since 1883
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The Supreme Court defies its platform in service of an Imperial Presidency For years to come, constitutional scholars and historians will long note the irony of the Supreme Court’s defiance of its own intellectual platform in rendering a decision in Trump v. United States, on the eve of the anniversary of the Declaration of Independence, that creates out of whole cloth the dangerous doctrine of executive immunity in service of an Imperial Presidency. The very concept of clothing the American Presidency with protection that placed the English Ki...
The Declaration of Independence, which Abraham Lincoln referred to as the “sheet anchor of the Republic,” set forth the proposition, as he said in the Gettysburg Address, that “the United States was conceived in liberty and dedicated to the proposition that all men are created equal.” The principle of equality, Lincoln admitted, was “aspirational.” Its implementation would await the arrival of America’s maturity, that moment when the societal, cultural and political forces would accept the legalization of racial equality. There was no invisi...
The 80th anniversary of D-Day, justly commemorated as history’s greatest military invasion, reminds us of the fact that World War II was waged to defeat the forces of authoritarianism abroad so our constitutional democracy and all that comes with it – freedom, justice and the rule of law – could be preserved at home. When American soldiers stormed the beaches at Normandy on June 6, 1944, they fought for the cherished principles embodied in the Constitution and those trumpeted by the Bill of Rights: limited governmental powers confined by the C...
Rising concerns about the U.S. Supreme Court’s lack of impartiality amid increasing calls for judicial recusals, reforms and transparency, form a historical backdrop of anxiety as Americans are, once more, bracing themselves for a landmark ruling that will have a direct bearing on the future of our constitutional democracy, the Bill of Rights and the rule of law. In this case, Trump v. United States, the question is whether the president enjoys absolute immunity from criminal prosecution. The Court will render a decision that may determine, a...
On May 17, 1954 – 70 years ago this week – the U.S. Supreme Court delivered a landmark ruling in Brown v. Bd. of Education, that marked its historic first full step toward securing the nation’s commitment to equal protection of the law for all Americans. As Justice Stanley Reed, a southerner from Kentucky who made the courageous decision to reject his region’s sentiments on race to form the Court’s unanimous 9-0 ruling, told one of his law clerks, “if it was not the most important decision in the history of the Court, it was very close.” In...
Abe Fortas had always wanted to be a Supreme Court justice and, for as long as he had known him, his friend and benefactor had wanted to appoint him to the nation’s High Bench. It came as no surprise to anyone when, in July 1965, President Lyndon Johnson nominated his old friend, counselor and attorney to the Supreme Court. There were no questions about Abe Fortas’ qualifications and credentials. Fortas was a lawyer’s lawyer, possessed a wealth of government experience and enjoyed the admiration of the Supreme Court, which had appointed him to...
The U.S. Supreme Court writes opinions to explain and justify to the American people the decisions it reaches in cases it hears and resolves in conference. The explanation of the Court’s interpretations of statutes, constitutional provisions, precedents and, ultimately, its results, is critical to the partnership between the judiciary and the citizenry, one that hinges on the public’s trust in the Court’s rationales and exercise of awesome power over the life of the nation. In a constitutional democracy grounded in reason and persuasion, the H...
While oral argument provides the citizenry with a fascinating glimpse of the Supreme Court Justices at work, the heavy lifting is undertaken behind the scenes, far removed from public view, beginning with the High Tribunal’s private, indeed, highly secretive weekly conferences in which decisions are made that will affect American lives and the life of the nation. The justices meet twice each week to conduct the Court’s business. This includes consideration of petitions seeking review of lower court decisions and deliberations on cases bef...
Oral argument before the U.S. Supreme Court is the most important, fascinating and visible part of the justices’ public work on the High Bench. It represents a forum for lawyers to persuade the Court to embrace their perspective on a case and a canvass for a legal artist to produce a memorable masterpiece. In his argument to the Court in 1818 in the landmark case of Dartmouth College v. Woodward, which involved the state’s power to fundamentally change Dartmouth’s charter, Daniel Webster closed with words that have become immortal in the annal...
Historically, U.S. Supreme Court justices have avoided drama. A bookish group, given to tranquility and docility, the justices mark their time in the quiet of elegant court chambers, deciding cases and writing opinions. There is, however, an exception to this institutional serenity – the Terry Affair – one that captured the attention of the country and the citizenry’s lurid interest in sex, scandal and murder. In the summer of 1889, Justice Stephen Field, an iconic 19th century conservative jurist who sat on the Supreme Court for 34 years...
President George Washington’s nomination in 1796 of Oliver Ellsworth to serve as the third Chief Justice of the U.S. Supreme Court was met with universal approval. Ellsworth boasted a record of experience that few then, and none since, could match. Above all, Ellsworth was a genuine heavyweight in the Constitutional Convention, among a handful of delegates who spoke frequently and authoritatively and played a key role in shaping the final version of the Constitution that the American people ratified in 1787-1788. Washington, who had known E...
The remarkable influence of the Four Horsemen, as demonstrated by their success in thwarting on constitutional grounds President Franklin D. Roosevelt’s New Deal plans to resuscitate an economy brought to its knees by the Great Depression, reminds us of the capacity, for better or worse, of the Supreme Court to rewrite Alexander Hamilton’s modest description of the judiciary as the “least dangerous branch.” The pitched battle between the Four Horsemen – Willis Van Devanter, James McReynolds, George Sutherland and Pierce Butler – and Preside...
The adage that the Supreme Court follows the election returns certainly did not apply to the Four Horsemen – Willis Van Devanter, George Sutherland, James McReynolds and Pierce Butler. President Franklin D. Roosevelt had earned landslide victories in the 1932 and 1936 presidential elections, but that was not discernible in the behavior of the four conservative justices who were in control of the Supreme Court. As he faced the most dire economic circumstances in United States history and the grim challenge of dispensing hope to a nation c...
The intriguing President’s Day news that President Abraham Lincoln granted a pardon 160 years ago to President Joe Biden’s great-great-grandfather revived Americans’ fascination with the purpose, concerns, scope and history of this sweeping executive power. Thanks to the good work of historian David J. Gerleman, we now know that President Lincoln pardoned Moises J. Robinette, a civilian hired as a veterinary surgeon for the Union army, who was court martialed on charges resulting from a brawl on the evening of March 21, 1864. Robinette was f...
The photos and images of U.S. Supreme Court justices portraying earnest men and women wrestling with momentous legal issues and controversies, the resolution of which will shape American society, politics and the constitutional landscape, fairly capture the serious side of those seated on the nation’s High Tribunal. But that’s not the justices’ only side. There is another. In the beginning, indeed, on the first day that the Supreme Court of the United States convened – February 2, 1790 – the most important issue confronting the Justices...
When the U.S. Supreme Court, in Richmond Newspapers v. Virginia (1980), in the words of Justice John Paul Stevens, “squarely held that the acquisition of newsworthy matter is entitled to constitutional protection,” it was protecting under the First Amendment’s free press clause the essential foundation of our democracy. The conception of the press as a pillar of strength for a free people who mean to govern themselves is as old as the republic itself. In 1765, in his acclaimed treatise, “A Dissertation on the Canon and Feudal Law,” a youthful J...
The First Amendment’s free press clause, which Thomas Jefferson declared indispensable to republicanism, has long been regarded as the “people’s right to know.” Without knowledge of governmental programs, policies and practices, the people would have little ability to hold government accountable. The press, as Jefferson and the founders recognized, could provide the crucial informing function that would make self-government possible. Historically speaking, protection of the informing function is precisely why the Supreme Court has protect...
Justice Robert H. Jackson’s departure for Europe in September of 1945 to serve as chief prosecutor for the United States at the historic Nuremberg trials of Nazi war criminals annoyed some of his fellow justices and heightened the internal tensions that gripped the Supreme Court. Jackson’s acceptance of an appointment by President Harry Truman to lead the prosecution affected the workload and decision-making of the Court and renewed a lingering debate on the wisdom and propriety of tasking justices with non-judicial responsibilities. Chief Jus...
Every now and again, the public displays an intense interest in the question of whether Supreme Court Justices ought to recuse themselves from a particular case because it appears that they have a conflict of interest that might prevent them from delivering an impartial ruling. In 1816, Chief Justice John Marshall recused himself from participating in the landmark case, Martin v. Hunter’s Lessee, because he had a conflict of interest. The public was aware of his conflicts. He had appeared as counsel in an earlier phase of the case and had a f...
Few nominees to the U.S. Supreme Court have been as well prepared, let us say, groomed, for a seat on the nation’s High Tribunal than Robert H. Jackson, who was appointed in 1941 by President Franklin D. Roosevelt. Jackson’s remarkable career in his run up to joining the Court – brilliant New York attorney, intimate adviser to the nation’s most powerful leaders, history making stints as Solicitor General and Attorney General, legal architect of an international deal at the outset of World War II that proved critical in saving England – richl...
Former President Donald Trump’s legal team has filed briefs with the D.C. Court of Appeals, which will hear oral argument in the federal insurrection case on Jan. 9, claiming to find presidential immunity from criminal prosecution in the impeachment clause of the Constitution. Trump’s lawyers have advanced two arguments, each of which tortures the language of the impeachment clause, distorts the history and purposes surrounding the provision, and draws baseless inferences from the Framers’ careful steps to construct a power to protect the n...
In his landmark opinion for the U.S. Supreme Court in Marbury v. Madison (1803), Chief Justice John Marshall defined the over-arching responsibility of the High Bench: “It is emphatically the province and duty of the judiciary to say what the law is.” Marshall, the greatest name in our constitutional jurisprudence, observed that the Supreme Court is a law court, not a political court, a crucial distinction for a nation founded on the rationale that ours is a government of laws, not men. With notable exceptions, the Court, historically, has bee...
Jack Smith, the special counsel prosecuting former President Donald Trump for his efforts to illegally overturn the 2020 election, made a bold and strategically wise move in a rare request to the U.S. Supreme Court to rule “expeditiously” on Trump’s claim of absolute immunity from criminal prosecution. Trump’s assertion that he is above the law represents a profound threat to the rule of law. Smith’s extraordinary request to the High Court to grant “certiorari before judgment,” represents the best opportunity to preserve Trump’s sched...
I had the great privilege and pleasure, twice, to interview Justice Sandra Day O’Connor on stage at a conference on women and leadership that I organized and hosted. I asked about her heroes. She replied, “You mean, sheroes?” Her answer, a playful and deserving rebuke to my pitiful bias (long since corrected, by the way), reflected the life and career of a trail-blazing woman who had endured waves of gender discrimination, but somehow summoned the fortitude to persevere and triumph, ultimately carving out a judicial legacy that will comma...
Unlike Alexander Hamilton, a more famous Founding Father who wrote extensively about the proposed Constitution and championed its ratification – and later became a 21st century cultural icon who made it to Broadway two hundred years after his death – James Iredell had to settle for a mere appointment to the first U.S. Supreme Court. Iredell’s name, image and likeness are nowhere to be found outside of North Carolina, which he had served as a judge on the state’s superior court and as attorney general, before President George Washington named h...
