Throughline - The Supreme Court (2020)

Episode Date: September 23, 2021

When, why, and how did the Supreme Court get the final say in the law of the land? The question of the Court's role, and whether its decisions should reign above all the other branches of government, has been hotly debated for centuries. And that's resulted in a Supreme Court more powerful than anything the Founding Fathers could have imagined possible.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This message comes from Indiana University. Indiana University performs breakthrough research every year, making discoveries that improve human health, combat climate change, and move society forward. More at iu.edu forward. There it is with the 2-0 pitch. And this ball smashed high and deep to center field. It is won! Oh, you got it! That ball driven to right. Is it fair?

It is a home run! When I was growing up, I remember my dad having this strange love of baseball. He was new to this country. Everything about it was foreign to him. Different food, different languages, different politics. But baseball? That made sense. There's a drive to right center field by Piazza. His first major league hit.

He'll go into second. He didn't know all the rules necessarily, but he got the basic gist of it. One person throws the ball, the other tries to hit it. And the person behind the plate, behind the catcher, the person calling the strikes or balls. Two balls and a strike. That's the umpire.

The arbiter of justice. What he says goes. No questions asked. Well, Oh, bullshit! Bullshit yourself! Most of the time. Really upset.

Barking at the home plate. Joe Girardi is kicking dirt. You gotta be kidding me. But even when people don't like the ump's call, they have to live with it. Or get thrown out. That's just the way the game was set up. But this isn't an episode about baseball. I solemnly swear. I, Amy Coney Barrett, solemnly swear. This is an episode about the Supreme Court. That I will support and defend the Constitution of the United States.

Which some people like to think of as America's umpire. Judges are like umpires. To be an umpire as a judge, I think, means to follow the law and not to make the law. Calling the shots for the country, no questions asked, right? It's been one year since Justice Ruth Bader Ginsburg passed away. Supreme Court has decided not to block the new restrictive abortion law in Texas. My body, my body, my body. Tonight, outrage in Texas.

The court has the power of life and death. Progressive activists are calling on Supreme Court Justice Stephen Breyer to retire before next year's midterm elections. The more the court expands into every area of American society, the bigger ticket item it becomes. You're listening to ThruLine from NPR. Where we go back in time to understand the present. The Supreme Court as America's umpire may not be a perfect metaphor, but it gets at a really important point. Nowadays, the Supreme Court has the final say over so much of our lives, which hasn't always been the case. For most of our history, people thought of the Supreme Court as like the coach, with some say over the flow of the game, but definitely not the final say.

OK, we're going to stop with the baseball metaphors now. There's no such thing as too many baseball metaphors. Anyway, in the beginning, back in 1787, when the framers of the Constitution were designing how this federal government would work, you know, three branches, checks and balances, the way they saw things. The president controlled the army, Congress controlled the money, and the courts, the judiciary, well, as Alexander Hamilton put it, the judiciary, on the contrary, has no influence over either the sword or the purse, no direction either of the sword or purse, the Supreme Court didn't have much power to enforce its decisions, making it the least dangerous and least powerful branch.

It was just no notion that it would be powerful. It wasn't yet in really anybody's imagination that they had to worry about. That's Larry Kramer. Formerly the dean of Stanford Law School. And I wrote a book called The People Themselves, Popular Constitutionalism and Judicial Review.

So the framers came up with Article III. The Constitution in Article III gives Congress the power to shape what the federal judiciary is. The judicial power of the United States shall be vested in one Supreme Court. There's a Supreme Court and any other courts that the Congress at the time wanted to create. Being a Supreme Court justice in these early days wasn't glamorous. I mean, the original Supreme Court didn't even get its own building. The Supreme Court is going to be situated in the basement of the Capitol. And that gives you a sense, actually, of the hierarchy of what people at the time thought about the Supreme Court. By the way, this is Rachel Sheldon. I'm a historian of politics,

law, and the Constitution in the 19th century. And for the purpose of this episode, I'm working on a book about the politics of the court in the 19th century. They sat at individual desks as opposed to sort of what we assume today of that sort of long bench. They did not have separate offices the way that we think of today. And that was only when they were in Washington, D.C., where they spent just some of the year. The rest of the time, they were doing this thing called riding circuit, meaning they would basically travel around the country. A judge would, in fact, yes, ride around horseback or really in a carriage and go from town to town where the circuits were held. And they would preside over trials.

Keep in mind, there wasn't a vast web of federal judges around the country that could filter some of these cases for the court like there is today. So the Supreme Court justices rode around and handled things themselves. At the end of the day, the justices would, you know, take off their judge hat. They would go and stay in their boarding houses. These boarding houses were typically shared with the lawyers who were trying the cases. Getting to know the town, spending time with the political folks who are around. Lots of the lawyers who tried cases in front of the circuit courts tended to be state legislators. Everything's a lot looser, you know, than it subsequently becomes.

At this time, politics and the Supreme Court were very intertwined. The justices saw no separation between the two. They viewed themselves as perfectly capable of participating in political debate as judges. In fact, the court was so political that many of the justices just saw their job as a stepping stone in their quest for political power. They didn't hang around that basement for very long, if you know what I mean. But some people, even then, had a different vision for the court. They wanted the court to be taken seriously,

to reign supreme. And over the next 200 years, that vision would slowly be realized. I'm Ramteen Adab-Louie. I'm Randa Abdel-Fattah. And on this episode, we're diving into the long, complicated political history of the highest court in the land, the Supreme Court of the United States. How did it become America's umpire? And when did it get the final say on human rights, health care, and I'm calling from Washington, D.C.,

and you're listening to ThruLine from NPR. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today or visit WISE.com. T's and C's apply. Part 1. Whose say is it anyway? We start our story with a contested presidential election, the election of 1800, one of the most partisan showdowns in our country's history. It's the most divisive period in American history except for the Civil War and possibly today.

The country was still pretty new, and everybody was trying to figure out how this democracy thing was going to work. Things like trade, taxation, foreign relations, state versus federal power. It's a period of a lot of turmoil. And there's essentially one huge division, you know, around which the political parties form. The United States didn't start out with any political parties, no teams. But competing visions of government were pulling people apart, which led to the creation of these two parties. The Federalists, the party of incumbent President John Adams, and the Democratic Republicans. Always confusing because it has both Democrat and Republican in it. The party of candidate Thomas Jefferson.

These parties had radically different outlooks on government. Almost all of the debates are around, what is it that we mean by, you know, they would have said republicanism, we would say democracy. That is to say, how popular is it supposed to be? The Democratic Republicans were fans of popular politics. This is our law. Allow more power to grow up from the people themselves. Final interpretation rests with us in the community. Jefferson famously said, I hold it that a little rebellion now and then is a good thing

and is necessary in the political world as storms in the physical. The much more conservative Federalists push back in all sorts of ways, interpreting the Constitution in ways that would limit the capacity for popular politics to grow. The Federalists wanted more stability. And they thought in order to get that, the federal government ought to have more power. They believed their still very young country needed a strong centralized government with lasting institutions that would be around much longer than elected officials.

Institutions like the courts. The Federalists were the party of power throughout the 1790s. But in the election of 1800, they faced defeat. Adams lost the race and Jefferson became president. So Congress becomes a Democratic-Republican and you have Jefferson in the White House. But as outgoing President John Adams' term was coming to an end, he and his party made one final power grab. Adams nominated a bunch of Federalist judges at the very end of his term, so-called midnight judges, as well as a new chief justice of the Supreme Court, John Marshall. He becomes sort of the foundational chief justice in terms of thinking about development of the court as an institution.

Marshall's a straight up federalist. He was secretary of state for John Adams, and then he made him the Chief Justice. He's now in control of only one branch with the Federalists in charge. As Chief Justice, John Marshall made a lot of symbolic changes to the Supreme Court. So the story goes that Marshall wore a black robe at his swearing in, and that after that, this became common practice. There was a degree to which some people did not like to see Supreme Court justices in robes at all, thinking of it as a royal court as opposed to sort of a democratic body.

He wants all the justices to board together and to work together. He is a big proponent of having unanimous opinions. He thought that that had the tendency to make the court seem more important. Marshall dreamt of a Supreme Court with national authority. A Supreme Court that gets to interpret the Constitution, basically be the umpire for the entire country. He believes in judicial supremacy. Which is much more what we accept today, the idea that the Supreme Court is the final arbiter of constitutionality.

This idea, judicial supremacy, gives the Supreme Court final say over what's constitutional and what's not. And then everybody has to do what they decide. The law of the land. But again, this was a dream. It's just not how things worked then. But there was this other thing, a much more restricted power, that was on the table. Judicial review.

So judicial review is the notion that in a case before it, the court can say whether a statute that is raised in the case is in fact constitutional and therefore enforceable. The court gets to decide what's constitutional in a case, but the ruling doesn't extend beyond that specific case. So it's the law of the case, but not the law of the land. The whole idea of judicial review without judicial supremacy is that you have three co-equal branches, each with equal authority to interpret the Constitution.

Remember, that was how the federal government was designed to work. No one branch was supreme over the others, so they could all keep each other in check. Marshall himself was interested in having more of that supreme power for the court, but he also understood it was not possible. He operates in this world in which he knows he's a minority, especially when the Democratic Republicans led by Thomas Jefferson and James Madison are in power. Plus, there was some personal beef. Marshall and Jefferson were cousins.

They famously did not like each other. In 1803, the cousins, Chief Justice John Marshall and President Thomas Jefferson, met in court, going head-to-head in a case called Marbury v. Madison. Probably the most famous decision and sort of the beginning of most constitutional law experiences is Marbury v. Madison. We won't get into all the details of the case, but in short, the Jefferson administration was being sued for refusing to acknowledge some of those midnight judges that John Adams had appointed right before leaving office.

William Marbury was one of them. He and the other appointees were able to take the case directly to the Supreme Court, thanks to a provision in a federal law that Congress had passed more than a decade earlier. And Marshall saw this as an opportunity. He sees this as a situation in which he needs to preserve the power of the court that had existed and try to grow it in opposition to the other branches of government. Marshall wanted to flex his authority as the head of the judicial branch, but... He knows if he actually tries to order Jefferson,

Jefferson's going to ignore him. So that will make the court look weak. Remember, the court didn't have the power to enforce its decisions. No money, no army. It all depended on how much the other branches chose to respect its decisions. But there was one tool that Marshall could use.

The power of judicial review. Up to this point, judicial review had only been applied sporadically. But in Marbury v. Madison, John Marshall formally established it. It was a calculated tradeoff. Marshall was like, fine, we know we can't force these appointments through, but you know that provision in the federal law Congress passed, the one that allowed Marbury to bring the case directly to the Supreme Court? Well, we've decided that provision is unconstitutional. We, the Supreme Court, have the power to interpret the Constitution in any case, state or federal, even if that means overriding an

act of Congress. We have the power of judicial review. It is emphatically the duty of the judicial department to say what the law is. It's one of those instances of playing politics. So he finds a way to say, you know, we don't have jurisdiction. I can't tell Jefferson what to do. But I'm going to tell you, he violated the Constitution. This was wrong. The government of the United States has been emphatically termed a government of laws and not of men. It becomes the first case in which the Supreme Court strikes down a federal law for violating the Constitution. In other words, this is the first time the Supreme Court flexed its power to say that what another branch of the federal government wanted to do was not constitutional. It was the moment when judicial review, which had been around but heavily debated, solidified as part of the court's power.

This case would reverberate for centuries to come. For somebody reading it at the time, it's screamingly clear that he is not pushing the judicial supremacy, the court as umpire with final say. He was a visionary, though, and he knew he had to play the long game. During his three decades on the bench, he helped plant the seed of what the court could be and the amount of power the Supreme Court could have in the future. In the next iteration of the court, where Roger Taney becomes Supreme Court Justice, Chief Justice of the Supreme Court, tends to be a little bit less involved in striking down laws. I mean, they don't strike down a federal law again until Dred Scott v. Sanford in 1857. Dred Scott was an enslaved man who was suing for his freedom. As the controversy over slavery in the territories heats up, there are people who start to say, why don't we have the Supreme Court settle this? Like, wouldn't that be

great if the Supreme Court settled it? Before we get into the case, let's set the scene. This is more than 50 years after Marbury v. Madison, and by now, the country had more than doubled in size. Louisiana, Indiana, Mississippi. Adding a dozen states to the union. Alabama, Maine, Missouri. It's the decade leading up to the Civil War. Abolition is the defining debate of this time. And with the Dred Scott case, the court was about to wade deep into that debate.

Dred Scott was born into slavery in Virginia, and he was moved around a lot. First to Alabama, then to Missouri, both slave states, and then on to Illinois, a free state, and then the Wisconsin Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott filed suit in court for his freedom, claiming that because he'd lived in a free territory and state, he was now a free man, a U.S. citizen. The case eventually made its way to the Supreme Court.

Taney is going to give the ultimate determination, but it takes a while. They start, they evaluate what they ought to do over the course of not just, you know, a few months, but over a year. And while the case is being determined, members of the court are in discussion with politicians in the area. Finally, the court came to a decision. The long-trumpeted decision of the Supreme Court in the Dred Scott case was pronounced by Judge Taney yesterday, having been held over from last year. And the court holds that Scott cannot be a citizen because he's Black. And Africans can never be citizens. They had no rights which the white man was bound to respect,

and that the Negro might justly and lawfully be reduced to slavery for his benefit. The court's opinion was an outright racist endorsement of slavery throughout the country. It denied all Black people, enslaved as well as free, any chance at citizenship. It is too clear for dispute that the enslaved African race were not intended to be included and formed no part of the people who framed and adopted this declaration. It seems to like give the South everything it wanted. It was a huge explosion in the North. And this sets off all kinds of anger among quite a few people.

Republicans at this point, a new party that want to eliminate slavery from the territories with the idea that eventually it would die out. The Supreme Court of the United States has polluted its garments in the filth of pro-slavery politics. From this day forth, it must stand as a self-disgraced tribunal. And from this day forth, it will be one of the great and leading aims of the people of the free states to obliterate this shameful record and undo what has been done. This is from an

article in the New York Tribune, one of the largest newspapers aligned with that new political party, the Republicans. And one of the most vocal critics of the decision, a rising star in the Republican Party, was a former congressman from Illinois named Abraham Lincoln. Lincoln is very unhappy, and he says that this is a conspiracy to extend slavery across the United States. He believes Dred Scott was wrongly decided. He also believes that it does not have to be permanent law. After becoming president, Lincoln, as the executive, basically just ignores the Supreme Court and its rulings. During the Civil War, as his power grows, their power wanes. And by the end of the war, abolition has become the law of the land. And the court's decision in Dred Scott puts them on the wrong side of history. Dred Scott certainly hurts the court's credibility for a good generation. Takes them a while to rebuild credibility after that.

When we come back, the Supreme Court fights to restore its legitimacy as a president challenges its power at every turn. This is Jose Santana from Navajo, Connecticut, and you're listening to ThruLine from NPR. I really love you guys. Thank you for bringing so much information to us. Bye. Support for this podcast and the following message come from Autograph Collection Hotels, with over 300 independent hotels around the world, each exactly like nothing else.

Autograph Collection is part of the Marriott Bonvoy portfolio of hotel brands. Find the unforgettable at AutographCollection.com. Part 2. The switch in time saves nine. I am prepared, under my constitutional duty, to recommend the measures that a stricken nation in the midst of a stricken world may require. On March 4th, 1933, President Franklin D. Roosevelt took office, and he was up against the worst economic disaster in American history. In his inaugural address, the biggest applause line was not, we have nothing to fear but fear itself, was instead that I may have to take on the powers of a wartime president. Broad executive power to wage a war against the emergency as great as the power that would be given to me if we were in fact invaded by a foreign force.

He has a mandate, which is to do something about the Great Depression. Prosperity is just around the corner, say the hopeful headlines. But around the corners wind the lengthening bread lines, and a whole new class of citizens appears in American society. The new poor. You've got unemployment running at 25%. Not since the Civil War has such pressure, political, economic, social, centered on the White House. And so Roosevelt, you know, pushes through the first New Deal.

And the court strikes it all down. By this time, the Supreme Court was beginning to find its voice again, to come out of the shadows. But you can't expect to be taken more seriously and expand your power if you're stuck in a basement. Construction on a new Supreme Court building was underway when Roosevelt took office. And not long after Roosevelt tried to pass the first New Deal, the court moved into its fancy new building. Amid the architectural glories that grace our nation's capital, the United States Supreme Court building is one of the most imposing. A worthy meeting place for the highest tribunal of the land. This was a real step up from their old basement quarters. It's big, regal, like something out of ancient Greece, with a wide oval plaza, tall imposing columns lining the front, marble statues on either side, and a staircase perfect for a rocky-style training montage welcoming you to the entrance, which is inscribed with the words,

Equal Justice Under Law. There's a statement in The New Yorker in 1935 as the new Supreme Court building, the current Marble Palace, is open for the justices. And the quip was, the new building has wonderful large windows to throw the New Deal out of. My name is Lucas Poe, Jr. I'm a professor of law and government at the University of Texas. My specialty is the United States Supreme Court. OK, so why were the newly enthroned Supreme Court justices so staunchly against Roosevelt's plans?

Well, first of all, this was still a conservative court and they didn't like his populist agenda. And second, Roosevelt was dramatically expanding the power of the presidency as they were trying to expand their power. But Roosevelt was like, OK, you want to fight? I'll give you a fight. He begins using all the old themes that have been there all along, pushing back that the court doesn't have this authority, shouldn't have this authority, that it shouldn't be able to strike these laws down in this way. Roosevelt was determined to push through a second New Deal, which he saw as the

only way to rescue the country from the ongoing depression. Congress was on board. The only thing that stood in his way was the Supreme Court, which was threatening to strike down that deal too. And he's putting more and more pressure on the court, and they're still holding out to do it. It was like a game of chicken. Who would blink first? Eventually, Roosevelt reached his breaking point. The president of the United States. And decided to reset the rules of the game. I want, as all Americans want, an independent judiciary as proposed by the framers of the Constitution. He proposes a plan to add new justices to the court.

What is my proposal? It is simply this. It would allow a new justice for every justice over the age of 70 not retiring. And at that time, the court was the oldest in American history, and that would have given Roosevelt six new appointees for a 15-member court. I seek to make American democracy succeed. You and I will do our part. It's disingenuous. You know, everybody understands why he's really doing it. He was going to point yes men to the court.

And there's a cartoon of that era that shows you a jury box when everyone is filled with an image of FDR voting aye. And that's what people feared would happen, Republicans especially. It's not particularly popular, but it is still a huge amount of pressure on the court because he's Roosevelt and he's got a lot of political capital to use. You know, it's a warning shot that you've gone too far.

And it's working its way through Congress and it's not clear what's going to happen. Roosevelt's court packing plan set off a heated debate in Congress. But this wasn't the first time a president had proposed changing the number of justices on the court. Turns out right now to be the last time, but it wasn't the first time at all, right? Back in 1801, John Adams did it right before leaving office. They shrunk the court from six to five so that Jefferson wouldn't get to make any appointments. But Congress increased the number to seven.

Then Andrew Jackson added a couple and Abraham Lincoln added one more. Congress increases its size from seven to ten. Under Andrew Johnson, it shrunk. To seven so that he won't get any appointments. In 1868, Ulysses Grant was elected. They increased it again to nine. And it stayed there till Roosevelt came along. Roosevelt was the last serious effort.

No one had ever doubted its constitutionality. And the way Roosevelt saw it. The court had this outmoded, outdated interpretation that did not fit the modern world at all. And that there was no way that theirs should be the final and binding interpretation. So how do you push back at them to get them to stop striking down laws? You use the tools the Constitution provides, which include that the political branches get to decide how the court is made up. So I'm going to add some justices.

It's a way to turn it around. They're all just ways of pushing these controversies back out to the people who are the ultimate deciders. People themselves are actually the interpreters of their own constitution. With the court packing plan on the table, the future of the court was uncertain. And after months in limbo, the court retreats. The court backing plan just scared the hell out of the justices and caused what the best con law professor at the time, Thomas Reed Powell, said,

the switch in time that saves nine, as the court changed. In 1937, Roosevelt's second New Deal was upheld. Case after case came before the court, and they basically just greenlit everything. A minimum wage, Social Security, the right of workers to unionize. And not long after. One of the five justices who were the conservative majority holding this all back, Van De Vanter, retires in the middle of all this. And Roosevelt is able quickly to replace him. So now he's got the law that he wants. The court has retreated. He's got the court that he wants. So he lets the court packing plant go. He doesn't need it. He's

gotten what he needed. And in the next couple of years, the rest of them retire and he's able to appoint other justices. So Roosevelt did get the court he wanted, just not in the way he expected. From the time of the court packing plan onward, the court simply rubber stamps the federal government. Whatever the federal government does, the court is going to approve. But the court's bid for judicial supremacy wasn't over just yet. Tucked away in one of the cases decided by this court was a footnote that said, we are reserving heightened judicial entanglement in a certain number of areas. They refer to discreet and insular minorities and the protection of individual rights.

Individual rights, life, liberty, the pursuit of happiness. Nobody paid much attention to that footnote because in the 150 years before then, none of those issues had actually been major issues in constitutional law. So it'd be like me saying, I'm going to let you control the whole house, but I'm going to keep this corner over here. Like, fine, keep that corner. What do I care? To be clear, that corner was the civil rights corner. And then what the Warren court does is pick that up in ways that actually nobody had really thought would happen and runs with it. Takes those doctrines and turns them into major issues of constitutional law for the first time.

When we come back, we enter the Warren court era and the battle for judicial supremacy reaches a tipping point. This is Dano from Phoenix, Arizona, and you're listening to ThruLine from NPR. This message comes from NPR sponsor, the NPR Wine Club, a place to explore the exciting world of wine, including wines inspired by popular NPR shows, like a place to explore the exciting world of wine, including wines inspired by popular NPR shows, like Weekend Edition Cabernet. Whether buying a few bottles or joining the club, all purchases help support NPR programming and fund quality reporting developed to connect people to their communities and the world they live in. More at nprwineclub.org slash podcast. Must be 21 or older to purchase.

Part 3. The Ceiling and the Floor. Little Rock, Arkansas, and the first phase of the trouble. The white population are determined to prevent colored students from going to the school their own children attend. Picketing the school, they crash with the police. Little Rock, Arkansas, September 25, 1957. An angry mob stands outside Central High School, a formerly all-white school, waiting to see if nine Black students will show up. Minnie Jean Brown-Trickey was one of those students. The world came to Little Rock to see what would happen. Years of rising tensions had led to this moment.

Here is a sequence of events in the development of the Little Rock school case. In 1952, the issue of school segregation went to the Supreme Court in the case Brown v. Board of Education. A lawyer named Thurgood Marshall, then the chief attorney for the NAACP, argued for the plaintiffs. He argued that segregation in schools was a violation of the 14th Amendment of the Constitution, and the court unanimously agreed. They ruled that segregation in public schools was unconstitutional. Now, states across the country had to figure out a way to integrate their schools, which made a lot of people, especially in the South, really angry.

They resented the idea that the federal government could just come into their state and tell them what to do. All the people of the South are in favor of segregation. And Supreme Court or no Supreme Court, we are going to maintain segregated schools down in Dixie. And that included Little Rock. In 1955, the Little Rock School Board approved a moderate plan for the gradual desegregation of the public schools in that city.

But white community members refused to carry out that plan. So the courts pushed back. The Supreme Court issued a follow-up decision, known as Brown 2, ordering school districts to integrate. And in Arkansas, a federal district court judge followed up with another order. Still, the community resisted, vocally and sometimes violently. It's just chaos in the Little Rock schools, and it's impossible for the students to attend. And the protesters got backup from the governor of Arkansas. The governor calls out the National Guard. They're not going to allow the integration to take place.

If it interferes for a time with certain other liberties, then that has always been the case. Which reminds me of a statement of Abe Lincoln one time when he said, if I tried to answer all the charges that come to this office, that I might as well close up shop for any other business. That if I am right, then all the things they say won't matter in the end. As pressure mounted to carry out the court's order, a mob formed outside the high school. Little Rock became a tinderbox, ready to ignite at any moment. And by September 1957, President Eisenhower decided he had to step in.

Our personal opinions about the decision have no bearing on the matter of enforcement. The responsibility and authority of the Supreme Court to interpret the Constitution are very clear. Mob rule cannot be allowed to override the decisions of our courts. Phase 2. President Eisenhower sends troops of the 101st Airborne Division of the United States Army to Little Rock by night. They are to keep order and to see that the law of the land is obeyed. Nine Black students escorted by federal troops prepared to enter Central High School. They would come to be known as the Little Rock Nine. It's early morning in Little Rock, and a new school day is dawning.

What about you, sir? Do you think the college students will show up? If I got anything to do with it, they won't show up. They meet here and are conducted to school by the Army to make sure of their safety. We entered the side of the building. Thousands of people up front. And we were entering the side, and I could just get a glimpse of this group. And in the car, I could hear on the car radio, I could hear that there was a mob. And I knew what a mob meant.

And I knew that the sounds that came from the crowd were very angry. This was an important moment for the Supreme Court. The president had sent in federal troops to defend their decision, to back up their authority. But the drama wasn't over. A few months later, the Little Rock School Board petitioned to postpone their integration plan. That case, Cooper v. Aaron, eventually made its way to the Supreme Court. And the Supreme Court, feeling bold, decided that the state of Arkansas wasn't allowed to undermine their ruling in Brown v. Board. And then...

They go way beyond that. The court, for the first time, explicitly asserts that it is supreme in the interpretation of the Constitution. It was a claim of judicial supremacy, the likes of which had never occurred at the Supreme Court. And cites Marbury. Marbury v. Madison says it's the function and duty of the Supreme Court to interpret the Constitution, but it didn't say everybody's bound by it. Right, but the court takes a sentence out of context. So there's the famous line in it where Marshall says, It is emphatically the duty of the judicial department to say what the law is.

As we learned earlier in the episode, what that meant in 1803 was that the court could decide what the law is only in the case at hand. But in 1958, the court was asserting that it had carte blanche power, a decision in one case applied to everyone everywhere in the country. In other words, judicial supremacy. We set the floor and we set the ceiling. Thing is, not everyone was bought into the idea of judicial supremacy yet. It's greeted with widespread skepticism because, remember, most of the people on the left had fought the earlier court battles.

They were Roosevelt people. And the idea of judicial supremacy was anathema to their understanding. How could they give final say power to a court that had stood in the way of so much legislation they believed in? But there is a new generation of rising liberals who, seeing an activist liberal court, like, love this. So they embrace the idea of judicial supremacy because they're looking at a court that's enabling them to do all sorts of things that they think are good and right and important. I believe that we can and that we must restore integrity in government and the confidence of people in the integrity of their government. This is the voice of Earl Warren. He was Chief Justice of the Court during both Brown v. Board and Cooper v. Aaron, which marked the beginning of what would come to be known as the Warren Corps era.

And over the next decade, the 1960s, under his leadership, the court will expand its power like never before. I think on this day, many of us didn't realize just how important our movement was to humanity. The real invader is integration. And as we integrate, we shall very quickly disintegrate. The people will get to the promised land. My eyes have seen the glory of America. America! The 60s are a time of incredible ferment because African Americans in the South are starting to demand the rights that the Constitution gave them a century earlier.

You've got Martin Luther King. You have demonstrations. You have sit-ins. You go to a counter and sit down beside him. You cause no violence. You're friendly. It sort of helps to project the idea that here sits beside me another human being. And the South is fighting to maintain white supremacy. Well, it's just not the things we're used to down here. I mean, I wasn't raised with them. I never have lived with them, and I'm not going to start now. And the court is at the forefront of the national government

in trying to bring civil rights to the fore. Remember that footnote in the case back in the Roosevelt era? The one about the civil rights corner being reserved for the Supreme Court to look at cases in which civil rights might have been denied? Well, during the 1960s, the Supreme Court started getting case after case relating to civil rights issues. And in case after case, the court ruled in favor of expanding civil rights nationwide. It was slowly setting the precedent on the most important issue of the day.

And the real tipping point came in 1963. President Kennedy is reported to be fighting for his life in a Dallas hospital, but reports conflict. CBS says he is dead. After John F. Kennedy was assassinated, Lyndon B. Johnson replaced him as president. When Lyndon Johnson takes the presidency, he tells the country that the legacy of John Kennedy is civil rights, and to cement it, we need the Civil Rights Act. This Civil Rights Act is a challenge to all of us. Something that Kennedy might not have been able to get past, but Johnson is able to get past.

To go to work in our communities and our states, in our homes and in our states, in our homes, and in our hearts to eliminate the last vestiges of injustice in our beloved country. And the court can look at the Civil Rights Act and say, we were right, and now Congress agrees that we were right. A decade after Brown v. Board, Congress and the president were agreeing with the vision first proposed by the court, a desegregated nation with equal rights for all. The court is identified quite properly as the vanguard in civil rights among the branches of government. So it's a tremendous validation by Congress of what the court had been doing. And Lyndon Johnson at one time, a couple of years later, stated never in American history have the three branches of government worked so well

together. You have each of the branches of government doing what it can do to further the national interest. In other words, there was no pushback. All three branches had the same shared goals, which meant they weren't going to stand in each other's way.

And just as fast as the federal government's power was growing, state's power was shrinking. There's no doubt that the court has very little respect for states' rights. So what you have is a nationalization of criminal procedure forcing a number of states, all the southern states, but a number of northern states, to change the way that they do business. Furthermore, the court, for the first time, gets involved in elections. This is a voting rights case.

It's brought here on a- Says that, no, it's not a problem for the federal judiciary to evaluate state and federal elections. They are the intended and actual victims of a statutory scheme which reduces their right to vote to about one-twentieth of the value of the vote given to certain rural residents. And then that turns out to be one person, one vote? One person, one vote. In a series of Supreme Court cases that came to be known as the apportionment cases, the court decided that electoral districts had to be divided up according to population size. We're not arguing for absolute mathematical equality here.

We're asking for the reasonable equality required for the 14th Amendment. Therefore, making each district roughly equal in population, which meant Black voters would be more fairly represented in their districts. In the eyes of liberals, the court was behind a lot of the success of the civil rights era. And by the late 1960s, any doubts they'd had about judicial supremacy were pretty much gone. Liberals who'd been skeptical of the court from the New Deal period are changing. Hey, this is working. Plus, there was now a Black Supreme Court justice, the first ever.

Historians will note this hour at the White House. In a Rose Garden ceremony, a 58-year-old great-grandson of a slave is nominated by President Johnson to be a Supreme Court justice. He is Solicitor General Thurgood Marshall, acknowledged the best-known the decisions of the Warren court, they were still totally fine with the principle of judicial supremacy. They were just biding their time till the court flipped conservative again. So for the first time in American history, there was consensus across the board that the Supreme Court should have the final say over the Constitution.

So that settles that who has final authority debate. And the debate shifts from who has final interpretive authority, now everybody says it's the court, to how the Constitution should be interpreted. At almost midday Eastern Time, NBC News projected Richard Nixon, the 37th president of the United States. It was so close it took forever, but he won it. It was, again, one of the closest elections in American history. After Richard Nixon, a Republican, was elected president in 1968, the tables began to turn on the court. Over the next few years, Earl Warren and several other liberal justices would leave the court. And Nixon would replace them with more conservative justices.

As the Warren court era wound down, the court tried to advance individual rights. Its swan song was Roe v. Wade, in which the court ruled that restricting access to safe and legal abortion was unconstitutional. Roe v. Wade is the last gasp of that reforming liberalism. And from that point on... It's been a steady march to the right in terms of the court's ideology. The irony is the subsequent courts have been using the Warren court's credibility, the court's credibility from the Warren court, to undo everything the Warren court accomplished over the last 50 years.

So most of what the court has done has been trying to reverse the decisions and trends and bodies of doctrine that the Warren Court set into motion. Functionally, they're saying, you guys showed us how to do it. Now we're going to do it our way. You have your Warren Court. We want our Warren Court. And that may be what the three Trump appointees to the Supreme Court will provide, that now the Republicans may have their Warren Court. And it doesn't matter whether it's a liberal court like the Warren Court, a moderate court like the Burger Court, or a conservative court like the Rehnquist and Roberts courts, all of them have been the same in this, which is they just keep expanding their power because there's nobody pushing back.

I think what's really interesting about kind of arriving at this conclusion that the court has the final say is it kind of does elevate the court suddenly almost above the other two branches. It makes it more, I don't know, holy. Like it makes it seem like it's more above changing, you know, like the idea of court packing today is like, it's like blasphemous for some. Right. Well, once the left embraced it, then these tools which had been used and were clearly constitutional needed to be delegitimated. So that basically what we're told is, you know, because the judiciary is the weakest branch, the only way to give it its authority is to make it de facto the strongest one, which is what we've done. So now there's nothing you can do except

wait for some of them to change their mind or decide that they want to retire or to die, and then hope that you can replace them with people more to your liking. I mean, you could not think of a dumber way, to be honest, to structure a branch of government to give that kind of power. And now, right, look at the incentives it creates. Presidents appoint children, the younger the better, so that they can extend their say to generations. It's like, we're going to have people who were appointed 30 years ago, who were educated 50 years ago, whose political sensibilities developed in an entirely different era, and we're going to give them say over the most important parts of our law. It's like

completely insane. And nobody else in the world does it. Nobody. I mean, today, given the incredibly divided political landscape, why is it important for people listening to know this history and to kind of contextualize this final say power of the court that we take for granted nowadays? Yeah. Well, I think it's important because it cuts right to the heart of what it means to be a democracy in the modern world. So as I say, there's something very peculiar about giving that kind of power to have such significant consequences for people's lives, for people's rights, for the way government operates, to have it in what amounts then to an oligarchy or a set of mini-life monarchies? And the fear people have is if we don't have that, then we have utter chaos. To me, it's like, no, look across the first 150 or 200 years of American history. It's nothing like chaos. It's just simply the court's power becomes less relative to the political branches, but it's still there. And it's just a different kind of negotiation in which there's much more interaction and you get a much healthier system. Now, right now,

what's clear from this election is that's not going to happen now because we are actually divided. We are in one of those periods. Government is divided because the public is divided. And Larry Kramer says the balance of power between the branches, which has been at the heart of our democracy for centuries, needs to be restored. What's at stake if it's not? The preservation of this amazing system that has enabled peaceful transfers of power after elections by people. The democratic culture is what matters, and it requires that people be bought into it and recognize it's important to put it ahead of their short-term policy fights. You know, it's like, do I care about winning this game or do I care about the game? Will I break all the rules of baseball in order to win this match? Or do I

actually play within these rules even if I lose this match so that we can have future matches? There it goes! Deep to left, really deep! See ya! That's it for this week's show. Thank you to Austin Horn, Travis Lux, Pranjali Shah, Jamie York, Lawrence Wu, Parth Shah, and Jess Berry for their voiceover work. Thanks also to Yolanda Sangwini, Beth Donovan, and Anya Grunman. Our music was composed by Ramtin and his band, Drop Electric, which includes... Naveed Marvi, Sho Fujiwara, Anya Mizani.

And just a note, Larry Kramer is currently the president of the William and Flora Hewlett Foundation, which gives funding to NPR. If you have an idea or you like something on the show, please write us at ThruLine at NPR.org or find us on Twitter at ThruLine NPR. Thanks for listening. This message comes from NPR sponsor Grammarly. What if everyone at work were an expert communicator? Thank you. understands your business and can transform it through better communication. Join 70,000 teams who trust Grammarly with their words and their data. Learn more at Grammarly.com. Grammarly. Easier said, done. Support for NPR and the following message come from the Kauffman Foundation, providing access to opportunities that help people achieve financial stability, upward mobility, and economic prosperity, regardless of race, gender, or geography. Kauffman.org.