Radiolab - Kittens Kick The Giggly Blue Robot All Summer

Episode Date: October 9, 2020

With the recent passing of Ruth Bader Ginsburg, there's been a lot of debate about how much power the Supreme Court should really have. We tend to think of the Supreme Court justices as all-powerful guardians of the constitution, issuing momentous rulings from on high. They seem at once powerful, and unknowable; all lacy collars and black robes. But they haven’t always been so, you know, supreme. On this episode of More Perfect, we go all the way back to the case that, in a lot of ways, is the beginning of the court we know today. Also: we listen back to a mnemonic device (and song) that we created back in 2016 to help people remember the names of the justices. Listen, create a new one, and share with us! Tweet The key links: - Akhil Reed Amar's forthcoming book, The Constitution Today: Timeless Lessons for the Issues of Our Era- Linda Monk's book, The Words We Live By: Your Annotated Guide to the Constitution The key voices: - Linda Monk, author and constitutional scholar- Akhil Reed Amar, Sterling Professor of Law at Yale- Ari J. Savitzky, lawyer at WilmerHale The key cases: - 1803: Marbury v. Madison- 1832: Worcester v. Georgia- 1954: Brown v. Board of Education of Topeka (1)- 1955: Brown v. Board of Education of Topeka (2) Additional music for this episode by Podington Bear. Special thanks to Dylan Keefe and Mitch Boyer for their work on the above video. Support Radiolab by becoming a member today at Radiolab.org/donate.      

Wait, you're listening. Okay. You're listening to Radio Lab. Radio Lab. From W and Y. C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C.C Do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do A few years ago, actually, four years ago, 2016, we created another little spin-off show. Don't be a yo-yo, a yo-yo, a yo-yo, a person's having business before the honorable, the supreme court of the United States or it's managed to draw near and give 40 to a yo-yo, a yo-yo, a boy who's now sitting. Uh, called more perfect than it was about the Supreme Court.

And it states in this honorable court. Yes. And the question that we get, and it's a very Supreme Court. And it states in this honorable card. Yes. And the question that we get, and it's a very flattering question, but uncomfortable one, we get it all the time, is what happened to more perfect? Is it coming back, Susie, what do you know, what can you tell us? I wish I had a satisfying answer to this,

but the answer for now is, I don't know, never say never, but we have so much to do at Radial Labs that maybe? Yeah, quite possibly, but not at the moment. But with there being so much attention on the court, with RBG passing, Mishi resting piece in Valhalla, and with all the attention around Amy Coney Barrett's nomination and confirmation process on the horizon, and with all the conversation about court packing

and whether to pack or not, it did call to mind an episode we created for more perfect 2016, four years ago, as you said, that really addressed one of the big questions that sort of lurks behind all of these recent events. Yeah, which is how much power should they have? How much power should nine unelected officials who have lifetime appointments have?

And how do they get that power? And why nine? Why nine? And this is kind of the origin story of how the Supreme Court got to be, I guess you could say, so supreme. So let's just roll it. More perfect. Okay, I'm Chad Amurad.

This is more perfect. A mini series about the Supreme Court to begin. it. Okay, I'm Chad. I'm Rob. This is more perfect. A mini-series about the Supreme Court. To begin, by the way, I'll explain the title of this podcast at the end. We live in a democracy with three branches in it. You got the executive branch, the legislative branch, and the judicial branch. Now, that third branch, the judicial, the courts, consists of about 100-ish federal courts, and on top of those courts is the court.

This, this, this temple of nine, now eight, unelected lifetime appointees who seem to have this tremendous power. Almost tyrannical power. They are wickedly important, and we're reminded of this. Schooly is death throws a huge unknown factor into this campaign. Every time we turn on the TV. We are one justice away from losing our fundamental rights in this country. Because here we are in an election and the phrase that you hear a lot. One of the most important things in that election I think.

This might be the most important thing to those of you who are young outside of that. Is it one of the most important things the next president is going to do? This next president may very well appoint between one and three. Four Supreme Court Justices. Now never mind that most Americans have no idea who the justices are. Two-thirds can't even name a single justice. I can't even name the one that just died. I honestly couldn't tell you any other names. I can't. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't know. I don't know any. I don't know any. I don't know any. I don't know any. I don't know any. I don't. I don't know any. I don't know any. I don't know any. I don't know. I don't know matter, we all know that whoever they are they are incredibly powerful people.

That they can BOOM instantly strike down a law that took years to pass. The Supreme Court reversed a century of law that I believe will open the floodgates. They can undo executive orders, they can even change, like these long held definitions, like what makes a person, what makes a marriage, they can even decide an election. Just a Scalia? My usual response is get over it. Get over the possible corruption of the American presidential system. Now with all the background chatter on the election, it's sort of interesting to think about the fact that when it comes to the court and their power, it didn't have to be this way.

It didn't have to be this way. And it wasn't for a long time. And it wasn't for a long time and it wasn't for a long time Yeah reporter Kelsey Paget will take it from here I mean if you go back in time say like early 1800s the court had so little power Hmm in fact they were meaning in the basement of Congress. That's a Linda Monk constitutional scholar one newspaper refers to it later as a dark dank potato hole. Potato hole. Like it was damn for something. I mean do you see it this time was like a swamp? So I imagine there were spiders in there and they said there weren't many windows. Well,

maybe it wasn't that bad, but still. We think of three separate branches. It's kind of hard to think of yourself as a separate branch when you're meeting in the basement of Congress. Not only that. When Congress actually sets up the first Supreme Court, they created originally as a Supreme Court of six justices. That's you law professor, Akhil Readamar. An even number. How odd. Today we're freaked out. Oh the court could be divided divided for four. What's gonna happen? Oh my god? It could be a four-four split. The Supreme Court is not designed to function with an even number of justice. You know, we're in a crisis. So should cable news be creating their constitutional crisis graphics? Originally, the first Congress, they created six members because they're not imagining the court as deciding everything.

In other words, like, you know, if the court split, who cares? Because at the time they weren't deciding big cases. They weren't deciding like affirmative action, row view, way, nothing like that. They were handling like these little tiny, rinky, dink cases. And most of their time was spent literally riding in carriages from town to town. Trying cases around the country, and that's a big hassle, they don't even get to sleep in their own beds. Wait, why are they riding around?

Well, so they actually each had a separate geographical zone that they're in charge of, and that's actually still true today. But unlike today, when people come to the Supreme Court, back then, people weren't coming to them. Why would I do that? That's Ellie, Ellie Mustal, our legal editor. Why would I go seek out these guys someplace else to hear my local issue in South Carolina?

If they have something to say about it, they can come to South Carolina, sit on my farm, and talk to me. Gotta think about the country in 1884. This. This is a state's rights states centric country All of which is to say that being a Supreme Court justice at the time. It's not a great gig It's it's rough Consequently the people who chose to do this well They're got a miss miss. Oh, yeah totally and who like really smart, but like a motley crew that isn't organized.

That's already so it's Geesaloyer. Constitutional, history enthusiast. He says, at the time on the court, you had this one guy nicknamed Old Baconface. Who has, is like a maniac. He's like the kind of like Charlie Sheen, Wild Thing, and Major League type character. Very hot tempered, had a foul mouth. There's another one who, you know, is like four foot five and like really silent.

The Supreme Court was like a pretty rag tag bunch. All of this happens, and I think it's important for people to understand. All of this happens in part because the Constitution is embarrassingly silent. On what the Supreme Court is, what it should do, how it should be constituted. Article 3 says, Article 3 of our United States Constitution says, there shall be a Supreme

Court. Thanks, guys. It's true. I mean, it's kind of weird. If you read the Constitution, well, it spends a lot of time talking about the House of Representatives. How are you gonna count slaves? And it's gonna be by population. There has to be a census every 10 years

because the House is important. But when it comes to the Supreme Court, all you get is like a couple of sentences. Almost nothing at all. You know, and that's kind of the puzzle of this. Like, how did they get so powerful? I mean, they started out as these like nobody's in a basement and now they're these all powerful you know

priests of the Constitution. The Supreme Court of the United States, nine men, and women, high in government who sit in judgment on many of the great questions before our nation. So how did that happen? Especially when there's like arguably nothing in the Constitution that said that that should happen. Alright, so how did it happen? Well, you could trace so much of this back to one move by one man. John Marshall! John man. John Marshall.

John Marshall. John Marshall. The new chief justice. He arrives to the court in 1801. Marshall calls his first meeting of the court. A- A- A-

A- And one person shows up. What do you mean the other? I totally got something better to do. Like they just don't show up. Actually it was three but still. Wait before we go too deep, can you just like, what did he look like?

Oh, they all look the same to me. He didn't mean that. He was tall, he was gaunt. He had a square jaw. For jaully. Piercing eyes. Marshall was a smart cookie. And he would need to be because he

ends up getting in this very famous fight with his very famous second cousin that would change the course of the American history like forever. Who's his very famous second cousin? Well just a little man named Thomas Jefferson. Oh TJ. Now John Marshall and Thomas Jefferson really, really, really don't like each other. Phew! I mean, on a personal level, you think Hamilton and Jefferson is something on Broadway. Actually, it was Marshall and Jefferson, who really despised each other. And yet they both come for Virginia, they both come from the back country. Why all the hate?

Well, I mean, part of it was this, like, family beef. At one point John Marshall's wife's mother rejected Thomas Jefferson? Vomantically? What? Yeah. With his wife's mother? Yeah, so his mother-in-law said no to the great Thomas Jefferson. I know.

But that doesn't seem like enough of a reason. Well, I mean, okay, so the main reason, the non-Gossipy reason, the non-Fund reason, is because they were an opposite political parties. I think an important thing to understand about Marshall is that he's a party man. Okay. He's a party man. Like he likes the party. He's committed to his team, and his team is, um, are the Federalists. The Federalists, they love big government. Let's have a national bank, rev up national power.

The Republicans, Thomas Jefferson's people, they like small, tiny government, let the states have the power, you know, where maybe even in favor of the view that states can veto a federal law if they don't like it. So these two guys, these two cousins, both national figures, totally different philosophies, and even before Marshall hits the court. They're going at it. They beef and they beef and they beef. It's actually a slugfest.

To paraphrase, Marshall, you're dishonest. Jefferson, you're a hack. Marshall, you and your friends are poisoning America. It's like the, it's a food fight. It's very difficult to stop the tendency to view the people that you disagree with as evil. We need somebody that can take our jobs back, right? Because we're going to hell. It's really hard.

We do that today all the time, right? They even, as much if not more than today, they thought that the other side was trying to destroy the America that they had just created. Anyway. the America that they had just created. Anyway. Throughout the 1790s, the Federalist's own power. The Federalist holds all the branches of government. John Adams is a president. Mostly loved by his own party.

Hated by Thomas Jefferson's party. They literally call him like his rotundity. Very offensive. So Adams is a power and ultimately our guide John Marshall. Marshall is Secretary of State, one of the highest officials in the Adams administration. You know, party man. And for a while, things are going well for his party. But then, in 1800...

Thomas Jefferson and the Republicans sweeping and crush. Absolutely crush the Federalists. Like landslide crush? Yeah. Fleetwood Mac style. The Republicans ran the table in 1800. They're going to take over the house. They're going to take over the presidency. So John Adams is like crap.

What do I do? Wetaste of the presidency. So John Adams is like, crap, what do I do? We need to save the Republic. The Federalist have basically been swept out. But in his dire moment, he has this idea. He's thinking like, oh, I've lost the house. I've lost the White House. Oh, the Supreme Court, the Supreme Court. Normally nobody cares about the Supreme Court,

but like in this moment, he's thinking, oh my gosh, this is my last hope. And in fact, as luck would have it, a vacancy pops up. A vacant chief justice position. So just as Justice Glee has recently died and there's a vacancy, well, the sitting chief justice all over Ellsworth steps down and Adams picks his secretary of state,

John Marshall, to be the new chief justice. Ta-da! That's how we got John Marshall. And John Adams is one other thing. In the waning seconds of his presidency... Adams and these repudiated federalists jam through a whole bunch of federal judgeships. They create scores of new judges. And they throw federalists into almost all of those positions.

It's like 40 appointments. He just throws in 40 judges right at the last minute. Congress creates 40 judges at the last minute, and then he appoints 40 judges at the last minute. Wow. I thought, Jefferson, I would be pissed. Jefferson is pissed. Which we'll get to in a second.

But in the meantime, Adams has just a few days left in his presidency, so he's like frantically trying to get all these judges in. Nominate these people, confirm them. Once you confirm someone, you have to give them their commission. You can't just go around claiming them. Once you confirm someone, you have to give them their commission. You can't just go around claiming your judge or claiming

your winner. You have to have a commission. Look at these paper with the formal seal, the signature of the president. And as the story goes, as the clock is striking midnight on John Adams' last day, Adams' team there in his office and they're trying to get these papers out the door. They're frantically signing them, stamping them.

I just imagine like young boys sprinting through the dead of night. He's waving these papers over their head. Your commission! In fact, the like, I think totally apocryphal story is that Jefferson's attorney general like busts in the door at midnight and he's like, put down your pen, you know? Don't do it. So, but apparently some of the commissions don't get delivered.

They just are left sitting on the desk because is- Was it like an oversight or something or a clerical error? It's not even like a clear- They just ran out of time. Wow. But they thought like if a couple are left on the desk, it's no big deal. Because like, it's a signed commission from the president. It's like still a binding doctor.

The fact that it wasn't formally delivered, you know, you still get your appointment. So this sets up this like kind of terrible situation for Jefferson. He shows up the next day to take power. And the judiciary is filled with ghosts of presidential pointy's past. Just a bastion of partisan judges. So as you can imagine, Jefferson and his friends think that this this is not fair. Jefferson sees Marshall and all of the other judges that Adams appointed as Adams's spies on his administration. So Jefferson, he decides to immediately retaliate, because he won the presidency. He won by a lot.

And he's like, you're shoving all these judges down my throat? And on top of that, the guy you've named to be the head of the judges, the head of the Supreme Court is my evil second cousin. What is this? So Jefferson is running the country and working with the Republican Congress

to, among other things. Cancel the Supreme Court term for 1802. They just canceled the whole term? They just canceled it. They were like, go home. Yeah, there were like, there's no more Supreme Court, sorry. Imagine if that happened today. When Obama's plan for immigration got smacked out, imagine him like instead of having

like that peaceful press conference where he like shows his disappointment, imagine instead he was like, supreme court? Go near him. No good punks. That's right. Anyhow, Marshall is sent away for over a year. There's no full Supreme Court meetings. And when he comes back, it's pretty clear to him that the Supreme Court is on life support.

The Republicans could pull the plug at any minute. Marshall knows already that there are rumblings that one of his colleagues, a man named Chase, old bacon face, you know. Baka. Back at. Should be impeached. So when he sees this motley crew, in a dark dang potato hole,

he's like, I gotta do something. We're fighting for our life here. I was thinking about this on the way over and it kind of reminds me of, you know, those like summer camp movies where there's like a baseball team and they're like super rag tag and let can't get together. And then like at the end they have to like play the really good team with like the nice movies where there's a baseball team and they're super raggedag and can't get together. At the end, they have to play the really good team with the professional uniforms. That's kind of like the judges on the Supreme Court.

And Marshall was the counselor or the camper with the new kid on the block who comes to the team and is like, we can do this guys, we can do it. Q80s movie training montage. I'm holding up for a hero to me and the night. He knows that if the US is even gonna have a court system with the Supreme Court, he's got a beef this team up. One of the first things that Marshall does is just professionalize the judiciary.

Like so, for example, he starts this tradition of wearing black robes. That made themized the judiciary. Like so for example, he starts this tradition of wearing black robes. That made them look the part. The judges appeared in their robes of justice. He figured that the black robes would make them look less like partisan hacks and more like, they're floating above the fray. Beyond politics.

Next. He moves all the justices into this one dorm. The same room and house. No wives, no family, all business. He's trying to create that more perfect union in the judiciary and just to grease the wheels a little bit. Has some maturem at my bit. It has some matured material. Is that some wine?

Yes, it's a fortified wine. It's a multi gold material. Justice Marshall would order it in great quantities. That many scholars think was part of John Marshall's secret. Okay, so he's professionalizing the team, he's getting them together, and then they get put to the test in 1803. It's a cousin on Cousin's Smackdown. That's coming up, and we continue it.

This is more perfect. Oh yeah, oh yeah, oh yeah! Hi, this is Nailib from Hemberg, Germany. Radio Lab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org Science reporting on Radio Lab is supported in part by Science Sandbox, a Simon's Foundation initiative dedicated to engaging everyone with the process of science. Gaiyam Jadai Bumrod back to our story from Kelsey Paget and we arrive at the pivotal moment

that cousin on cousin Smackdown that would change America. Okay, so remember how R.A. told us that some of those commissions didn't get delivered? Yeah. I think five. And that they were just like sitting on a desk somewhere. And how they thought it wasn't a big deal. Because it's still a binding document. Well, when Jefferson comes to power, apparently he finds those papers and is like, oh, look

at this. You didn't deliver these commissions. Guess you can't get those positions. Sorry. And one of the people that lost out because their commission did not get delivered was one Mr. William Marbury. Here's a businessman, 39 years of age.

He got appointed to be justice of the peace. It's a pretty low ranking position. So he's sitting there and he's waiting for his commission to show up and like, of course it never does. And it finally dawns on him like, oh, the Jefferson administration has it. I'm gonna go get it. He falls a lawsuit. So and what he does is actually ends up being really important, but he falls a lawsuit directly in the Supreme Court. But you can do that. You can just go right to the Supreme Court. Like first. Well, at this time,, you can just go right to the Supreme Court?

Like first? Well, at this time, Congress had just passed a law that said, like, in certain, very strange circumstances, you can just go directly to the Supreme Court. He goes directly to the Supreme Court and he says, I have a right. I have a legal right. I want you the Supreme Court to order... Thomas Jefferson, give me that darn piece of paper that says I'm really a judge The case gets named Marbury V Madison because James Madison is Jefferson's Secretary of State who is actually suing but

He's essentially suing the president forcing Marshall in the court to have this confrontation with Jefferson So now it's the showdown. It's between Marshall's Ragtag team in Jefferson So now it's the showdown, it's between Marshall's Ragtag team and Jefferson. So basically what happens is the court has a trial. Marbury and his lawyers, they get up there and they're like, what happened to the papers? Where is the commission? Did you have them? What'd you do with them? Jefferson's people get up there and say, I don't know what you're talking about. I won't answer the question of what happened to them. They stowd wall to which Marbury's lawyers are like, seriously? These are all like important official documents signed by the president.

Like, no one knows it happened to them. Like, they go back and forth, back and forth. Things get very tense. And, you know, I mean, to their credit, like, no one like it's punched out. Eventually, they stop arguing about whether or not the papers exist, and they're like, this is the more important question. Does the Jefferson administration have to honor those papers? Do they have to give the commission to Marbury?

Are they required? Is there a legal requirement that they give it to him? And in Marshall's head, it's a resounding hell yeah. He should have gotten that commission. Because the law is the law, and if you decide you're not going to follow the law just because you don't like the guy who made the law or you don't think it's fair That's anarchy. I mean that's we talk a lot in this country We pat ourselves on the back in this country about our peaceful transfer of power

Ellie must all again not how we seamlessly can go from one party to the other party without bloodshed in the streets and whatever Good for us, but how do we actually get to that point? And this is a key reason why we've gotten to that point because the decisions of the past administration still hold value even when that administration is kicked out of office, kind of overthrown by popular vote. Their decisions still have sway, still have legal force. popular vote, their decisions still have sway, still have legal force. Jefferson was quite obviously negating that. So Marshall wants to say to Jefferson, you know, suck it up, cousin. You have this guy, his papers. You're an official. Do your job. But he thinks twice.

He understands how weak his court is. According to Kiel Amar, Marshall is afraid that if he orders Jefferson to give over those papers, Jefferson is going to straight up laugh in his face and say, you and what army, I'm not going to do it. Literally, they just got back from a congressionally mandated, you can't come to work time. Jefferson knows full well that he has no intention of granting that commission. He will never give that commission. Jefferson knows this, Marshall knows this, Marshall knows that if he tells Jefferson

to give him the commission, Jefferson is going to ignore him and then the power of the Supreme Court basically evaporates. Because Ellie says like, if you think about it, if the executive branch is going to say, kind of right at the jump, that if you make a decision that I don't like, I'm just going to ignore that.

Then every executive branch going on from Jefferson throughout the rest of our history is going to just ignore this Supreme Court when the Supreme Court does something that the executive doesn't like. So basically, Marshall's kind of stuck. If he rules for Jefferson, he's selling out the law and he's going to make the court look weak. If he rules against Jefferson, Jefferson's going to ignore the court and they're

going to look weak. Either way, Jefferson wins. And either way, the Supreme Court maybe disappears forever. Marshall needed to find a way to get through this. He needed to find some way to get through this. He needed to find some way to kick this case. To be clear, John Marshall is running away from a fight with Thomas Jefferson. He says all sorts of things, but he knows that Thomas Jefferson, you know, straight up has more power, and so he's retreating.

Wow, this is like suddenly feels like an apocalyptic moment. Yeah. What does he do? Well, so the thing that he does, it's like the most Jedi masterish thing ever. a lot of things that are in the hakaliptical moment. What does he do? Well, so the thing that he does, it's like the most Jedi

masterish thing ever. He writes this hundred something page decision in the beginning. If you actually read the decision, it's a lot of pages of telling Jefferson how he's wrong,

how he can't do what he did. How he's, you know, ruining America. Right? There's a lot of that in the martial decision. But then when he gets to the matter at hand, he does this little... shift. So he says, okay, hold up. Yes. Marbury is right. He should have gotten that commission. And yes, Mr. Jefferson should have gotten that commission. And? Yes. Mr. Jefferson should not be doing this.

But we, the Supreme Court, we don't have jurisdiction to hear this case. Court needs to have the power to hear a case. And if a court doesn't have the power to hear a case, even if you are completely right, even if your position is right, you can't get relief. Wait, why would he say that they don't have jurisdiction? What's the... Well, so this is like where he uses the force. You know, earlier I had mentioned that Marbury brought this case under a law, Congress

had passed, that said Marbury could come straight to the Supreme Court, like for this kind of situation. Well, John Marshall, he goes back to his constitution, he's reading around, he's like, guys, hmm, trying to figure out like what's reading around. He's like, guys, hmm. Trying to figure out like what he can do here and he finds this little sentence. Yeah, so it's Article 3, Section 2. In the constitution. That says like, basically you're not supposed to go to the Supreme Court first. You're supposed to go to a different court and then the Supreme Court.

It's an appeals court. Wunky! Exactly, but he basically tells Marbury the plaintiff. You came in and you came to the Supreme Court first. And you did that because Congress passed a law that said that you could come to the Supreme Court first. But the Constitution says that you can't come to the Supreme Court first. So I can't help you. No, it's not your fault, Mr. Marbury. But that law was unconstitutional. And we're not going to law was unconstitutional.

And we're not gonna follow that unconstitutional directive. So you see what he did there? I... maybe I see what? I don't know. If I see, guess it. Okay, so you know that part in Star Wars? Star Wars a weak old man. The first one where Obi-Wan Kenobi is fighting with Darth Vader. And he says...

with Darth Vader and he says, This is like that, but real. Marshall is agreeing to lose. He's like found this way to lose. To like let Darth Vader strike him down, and that's actually going to make him more powerful. He's basically saying to his cousin, okay, you don't have to give Marbury's commission. And the reason you don't have to give Marbury's commission. And the reason you don't have to give Marbury's commission is because that law doesn't work because we, the court, we get to decide

when something agrees with or doesn't agree with Constitution. So like, congrats, you win, cousin. Oh, and by the way, we, the court, have the power to declare things unconstitutional. That was the sort of Jedi master move. That's the move. Instead of jumping off the cliff or laying down, he juxtaposed to the right,

and he establishes a new rule of the game, unconstitutional. Unconstitutional. I'm only not gonna hear it to the morning light. Inside this one, highly technical, highly political drama between these two cousins. John Marshall sneaks in an atomic bomb. This incredible power. And in Marshall's decision he wrote it's infatically the duty and province of the judicial department to say what the law is.

Say what the law is. To say what the law is. And with those words, he made the court what it is today. The US Supreme Court ruled Monday a law allowing Americans born in Jerusalem, to list Israel as their place of birth, is unconstitutional. Is unconstitutional? Down, Domea is unconstitutional. Unconstitutional.

Unconstitutional. Unconstitutional. And no one had ever done that before? Well, I mean, like, people talked about it, and there's like lots of theories about it and some smaller court, smaller decisions. But this is the first time that the Supreme Court does it, and he does it in the face of the president. Role against Wade, Ernesto, A Miranda petitioner versus Arizona, Nixon against the United States.

And that set us on this path. New York Times Company petitioner versus LB. Today, the court is so much more powerful. It's grown into the 800-pound gorilla when it, Slam says, jump. Other branches tend to say, how high? Well, here are your number 0949, George W. Bush, and Richard Danny. And we're just taking for granted. Three words, Bush v. Gore. They decided to press that election and no one blinked. And we just take it for granted.

Three words, bush-feigh-gor. They decided to press that selection and no one blinked. Let me just step in for one second. Yeah, yeah, yeah. Now, before we have to say this before we close, you could reasonably argue that Marbury vs. Madison was not the big moment when the court got its power, because it really depends on what you mean when you say power. Like, as we were talking with our legal editor, Ellie Mistalin, Constitutional scholar, Linda

Munk, they both said, like like look at what happens after this case. Just 30 years down the road, Ish, John Marshall still the Chief Justice, he gets into a dust-up with Andrew Jackson. And this is Jackson we're talking about, so generally it was I would like to do horrible things in Native Americans, and the court was like you probably shouldn't do horrible things in Native Americans, and Jackson was like shut up. I don't remember asking you a goddamn thing. To essentially you had a situation where Marshall makes a ruling saying we have to respect Native American sovereignty.

And Andrew Jackson famously said, Or supposedly said, we don't know if that's true. Look, I think it's more fun to believe that Jackson did say that. It works better in the musical. Okay, oh yeah. The court has made its ruling, now let them enforce it. John Marshall has made his decision. Now let him enforce it. And obviously he couldn't. So to make a long set story short, you get the trail of tears. Thousands of Native Americans were marched off their lands. There's evidence that they were purposefully moved during the winter

so that more people would die along the way. So while the court maybe had constitutional authority it didn't have actual power. Until... We just got a report here on this end that the students are in. Fast forward to the 1950s, court orders schools to desegregate they don't and the president sends in the troops. Takes Eisenhower, Executive Order, directing the use of troops under... Putting boots on the ground. Takes Kennedy. The president's a Alabama national godmen under putting boots on the ground takes Kennedy

Putting boots on the ground takes force it still so often comes down to an executive willing to put boots on the ground in order to enforce their laws that's when the power becomes real Although maybe not Ellie, I don't know a time before I went to college. And even shortly after I was in college where things were not separate. At one point as we were working on the story, Ellie talked to his mom and she told him that when she was growing up in the mid 60s, and he says years after desegregation, more than a decade past Brown V board, you would still never know what happened?

No one would know it and Clark Stumma's Mississippi at that time. There was a public library, but I was not allowed to go to that library. My father, who was Chinese, could go into the library. So many times I sit in the car, while that went into the library to get a book that I wanted.

And this is after the passage of the Solrite Act even. Yes. I'm saying high school. I graduated in 67. 67. Wow. Just yesterday, as we're recording this, a court had to issue, a current court had to issue another ruling ordering a town in

Mississippi to desegregate its schools. That didn't happen five years ago. That happened yesterday, man. Yesterday, the courts can make these laws, but if the people aren't willing to go along with it, then what do these laws mean? I think ultimately I agree with Learned Hand. He was a judge in New York in the early 1900s. That we place our hopes too much upon laws and courts and constitutions that these are

false hopes. Liberty lies in the hearts of men and women and when it dies there no law, no court, no constitution can save it. In the end, for better or worse, we the people still have the power. Okay, so we made that podcast in 2016, almost four years ago, exactly. Very different lineup on the court at that time, Scalia hadn't died yet. RBG was still alive. Kennedy hadn't died yet, RBG was still alive, Kennedy hadn't retired yet. As we mentioned at the top, most Americans couldn't even name a single of these justices.

We also found that when we went out, a lot of people had no idea how many justices there are. I do not know how many Supreme Court justices there are. I'm not sure. It's either 12 or a couple of hundred. One. There are seven Supreme Court justices. Twenty-four maybe. Twelve. Nine. Nine. There are seven Supreme Court judges. 24 maybe. 12, nine. Nine, yes, well now eight.

And so the whole idea, Susie, was that we should know these people. Yeah, we think you should know their names. Totally. And so the title of the podcast was a mnemonic device to help you remember the names of the justices who are on the court at that time. And who were they just to remind?

OK, you want me to do this? It was Kagan Kennedy, Thomas Ginsburg, Breyer, Robert Salito, Sotomayor, and potentially Merrick Garland, if he were to make it on the court. Kagan Kennedy, Thomas Ginsburg, Breyer, Roberts, Alito, Sotomayor, maybe Garland. So first letter last name, KKTG,

B-R-A-S, maybe G. What if he turned then to a song to help you remember? That was the thought. Four years ago. All summer, maybe goddamn kittens keep making blue robot all summer Maybe goddamn kittens keep looking at Blue Robot All summer, maybe got down kittens keep looking at Blue Robot All summer, maybe got down kittens keep looking at Blue Robot

All summer, maybe got to get us to keep looking at the road Oh, sir, maybe got to get us to keep looking at the road Oh, sir, maybe got to get us to keep looking at the road All summer. Maybe goddamn. Alright, so that was the song we can find out. We can find out. We can find out. We can find out. We can find out. We can find out.

We can find out. We can find out. We can find out. We can find out. All summer, maybe goddamn. All right, so that was the song, which you can find on our website, radiolab.org. So here, I don't know, Susie, like I feel like we should turn this over to the peeps. Yeah, I think there's a lot of potential here.

And it needs to be updated, because the chord has changed and it's gonna change some more. So now that that song that we just played as outdated, maybe we should just see what people come up with. Can you give us a new song with a new, new monic, new vibe, new genre maybe? Yeah, hit us up. Hit us up, right? Classic rock, like Smooth Jazz.

Progrock. So that's the task. Help us update this new monic 420, 20, and 2021. Send us submissions to radiolab at wnyc.org, radiolab at wnyc.org. Please send us some things. We'll update it. The one that we think is the awesomest. We will throw it back at you.

Let everybody hear it. Okay, I'm Chad Abumran. You want to say your name, too? I'm CZLector you. Let everybody hear it. Okay, I'm Chad Abumarad. You want to say your name too? I'm Susie Leicesterberg. Thank you for listening. Bye! Seriously, more perfect is produced by me, Chad Abumarad.

Susie Leicesterberg, Tobin Lowe, Kelsey Paget, and Sean Ramasfer. With Sorn Wheeler, Ellie Mistal, David Herman, Alex Overington, Karen Duffin, Katherine Wells, Barry Finkel, Andy Mills, Dylan Keith, and Eva Dashor. Special thanks to Judith Resnick, Paul Boeger, Liam Toll, Jessica Miller, Andy McHughan, Matthew Matt Kielty, Alithia John, Mead Bernard, Nadia Sarota, and John Hanrahann. Supreme Court Audio is from Oye, a free law project in collaboration with the Legal Information Institute at Cornell. More perfect is funded in part by the Legal Information Institute at Cornell. More perfect is funded in part by the William and Flora Hewlett Foundation, the Charles Evans Hughes Memorial Foundation, and the Joyce Foundation.

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