Heather Cox Richardson:

From CAFE and the Vox Media Podcast Network, this is Now & Then. I’m Heather Cox Richardson.

Joanne Freeman:

And I’m Joanne Freeman. Today we’re going to talk about an issue really that’s raised by the revelations that have been surrounding Supreme Court Justice, Clarence Thomas’s Financial non-disclosures, and what they say about the status and nature of the United States Supreme Court and what Americans expect of it, assume about it or don’t think about when they think about the Supreme Court. One of the things that the revelations about Thomas’s conduct have brought to the fore is that the Supreme Court justices are not subject to a formal ethics code. It’s also raised questions about the relationship between the court and Congress. We’re talking about some fundamental issues here about Jackson Balances and the fundamental nature of constitutional governance in the United States. So in a way, some of the issues being brought up here, constitutional structure and ethics are pretty enormous, and in a sense they’ve been leaking out bit by bit to the point that there’s a certain point at which eyebrows became raised.

Heather Cox Richardson:

I do think we have to distinguish between the junkets he took and the donations that were made to the organization for which Clarence Thomas’ wife Jenny worked and she took a big salary from which fall under, they’re not necessarily something that had to be disclosed by the letter of the law, although my hair’s on fire over here. But then there is also the real estate transactions and the real estate transactions did have to be disclosed.

I do want to point out, one of the things that really jumped out to me about this ethics crisis on the Supreme Court was when Senate judiciary chair, Dick Durbin asked John Roberts to testify about the court’s ethics or lack thereof and reform, he made it clear that he would not compel Roberts to testify because of the separation of powers and the fact that he doesn’t want to subpoena a chief justice of the Supreme Court, which I totally get. I’m an institutionalist, but then I’m also like, excuse me, like every year at my university, I have to put down every potential conflict of interest, and I’m thinking, “I am not until you pony up a little bit better going on half million dollar junkets on your private yacht.”

Joanne Freeman:

The irony right of this, a Supreme Court justice saying, “I didn’t get the rules.”

Heather Cox Richardson:

And in this case, it feels to me particularly egregious in that this particular Supreme Court has come down so hard on people at the other end of the spectrum who didn’t necessarily get the rules, not least in the last few years, the Supreme Court decision that made it impossible to appeal a death sentence at the federal appellate level unless it had been brought up at the state level. So if your state lawyer screwed up, well, you can’t appeal your death sentence, but oopsy poopsy, let me just go ahead and redo my financial disclosures for, I don’t know, the gazillionth time. So walk us through this a little bit, Joanne. I mean, if he hasn’t broken any laws, or at least in terms of accepting the junkets and all that, who cares?

Joanne Freeman:

The fact of the matter is if you are taking vast amounts of money or things that are worth a vast amount of money from someone out in the world and that is forging a close relationship between you and this person and that person has strong political views that might influence you as a justice, at the very least that should be apparent. At the very least, you should be saying here, “Okay. You want to know about me? Here it is. It’s all out in the open. I’m a Supreme Court justice. I need to be clear and open about what I’m getting and where I’m getting it from, and then I will go and make my decisions.” When you’re not clear in that way, in essence, you’re hiding networks of support that are grounded on money that could very easily be a basis of influence. So part of the problem here is this is a mode of influence that was hidden. The excuse for it is I didn’t understand the rules.

Heather Cox Richardson:

I mean, one of the things that jumps out to me and see if this is right is that it is about the money, but it’s not just about the money. It’s about where your loyalties lie and how open you are to other arguments. So if in fact you manage to keep a bit of a wall between you and any specific interest groups, you have a better chance of looking at the world as a whole rather than just looking at what your friends want.

Joanne Freeman:

Or if there’s just one window open and it’s a window looking upon your friend. Yeah.

Heather Cox Richardson:

Well, but that speaks then to the importance of the justice system and of the judges on the justice system that they are supposed to be holding the playing field level for everybody. And if you are only socializing with to the tune of gazillions of dollars, you are carrying into your understanding of the law a very specific ideology that is probably exclusionary.

Joanne Freeman:

Part of what’s interesting about this to me is there are ways in which you can grab at political influence or there are ways in which you can skew things deliberately but covertly and powerfully, and the courts are one of those things. I would argue traditionally speaking, if you go all the way back to the founding period and look and see what the Federalist Party, which were the, I suppose by our standards or by our former standards, the Conservative party, what they did when they became out of power, they grabbed three things. They grabbed at classrooms trying to control schools, they grabbed at culture and they grabbed at the courts.

The courts can be used as political tools, and in part that’s because of the personal nature of the judicial process. Oddly enough, it’s institutional, it’s judicial, but who the judge is, who the justice is matters. Who they know matters, their personality matters. People can say, “Well, that’s just him.” There are all kinds of ways I think in which the actual person of a justice shapes justice itself, and I don’t want to say that’s a liability, but that’s a fact.

Heather Cox Richardson:

Maybe this is not the place to leap, but now I’m really curious. It really is interesting when you read the Constitution, how they’ve got tons on how Congress is supposed to work and slightly less, but still tons on how the presidency’s supposed to work. And then they get to the judiciary and they’re like, “Yeah, we need a judiciary.” Okay, next. And there’s so little on the judiciary. I always joke with my students that they were just tired and they’re like, “Whatever. We need some judges.” But is there a reason that they didn’t really put any fences or give any duties except dealing with the federal executive and adjudicating between states in the Constitution?

Joanne Freeman:

Well, one of the interesting things about what worried people at the constitutional convention is actually the flip side of this, and that is the power of the people, that is democracy and the strength of democracy and how much power would the people have and how would it be exercised? So for example, if you’re going to have one president, you have to have an electoral college, you have to have barriers, you have to have electors choosing someone. That issue took a lot of concern. I think there was an assumption that you needed as one of your branches as a check and a balance, a judicial branch. Hamilton argues in the Federalist essays that it’s the least dangerous branch for this precise reason that the other branches have explicit powers. The judicial branch is about investigating and bearing on broader issues, but it doesn’t or seemingly didn’t at the outset at least have that supreme independent power that grows over time and begins really in the early 19th century.

Heather Cox Richardson:

I always wonder about the establishment of judges to serve on good behavior and as long as they behave well, my take on it is that until World War II and until really the 1960s when we had reliable plane travel and modern medicine, people resigned from the judiciary because they didn’t want to ride the circuits and they didn’t want to have to travel. I mean, I used to joke about many of the elderly justices, but I used to joke about Ruth Bader Ginsburg riding our horse to Washington. I feel like the Constitution had not deliberately built into it, but because of the lack of transportation and or comfortable transportation and the lack of medical care during good behavior could be very short. And in fact, Supreme Court Justices resigned, retired.

Joanne Freeman:

And it goes along with the idea that politician wasn’t seen as a job, that these positions were seen as public service, which is not to say that people weren’t corrupt who took them. Some were, but it wasn’t seen as a lifelong profession per se. I will be a senator for 60 years. Politician wasn’t a job, and actually sometimes if you called someone a politician, it was an insult. You were serving in public service, you were doing what an elite White gentleman was supposed to do in your community and potentially in the nation. But yeah, a totally different understanding even of what a Supreme Court justice was and what a job it was.

Heather Cox Richardson:

Until very recently, often it was an elected official who became a Supreme Court justice anyway. I think it’s an unprecedented time when we haven’t had an elected official on the Supreme Court that is somebody who served in an elected position before joining the court since Sandra Day O’Connor, and they just bring a very different attitude. My understanding from listening to you on this because I really didn’t know anything about the early justices, is that they really were supposed to be the old wise men, and in the early era they might be lawyers, but they were just supposed to be smart people who would have the best interests of the country in mind. Is that correct?

Joanne Freeman:

I would say in addition to that, when we think about partisan justices, there certainly were distinct. I always call them umbrellas of ideas at the time. There was Federalist and Jeffersonian Republican, but there weren’t organized discipline parties in the way that we now assume to be the basis of our political system. Whatever was happening in a partisan way in the early Republic on the national level was assumed to be something wrong. And when things get really, really partisan in the late 1790s, the assumption Jefferson, sorry to say the J word calls it the reign of witches. It’s these New England Federalists are doing all these warping things that aren’t supposed to be happening.

So the other thing to bear in mind in this era when the Constitution’s being created and the early years in which it’s being acted out, there are no assumptions about permanent political parties that have to be dealt with. There’s just an assumption that how in the world could you ever have anything that’s national in that kind like a political party?

Heather Cox Richardson:

So this is a really good transition to Supreme Court Justice Samuel Chase, because with the rise of political parties, like you say, a lot of the constitution suddenly is out of whack, if you will. Because for example, one of the things that always jumps out to me is that the check that is supposed to be there and easily usable for the president or for any official who oversteps his in those days bounds was impeachment.

Joanne Freeman:

And I want to be sure it’s clear about what I just said when I said there weren’t organized political parties. That doesn’t mean there wasn’t partisanship because that’s what we’re going to be hearing about now when we talk about Chase, there was definitely partisanship and there were definitely people on one side who were opposed to other people. It just wasn’t structured and organized and assumed to be permanent.

Heather Cox Richardson:

Which is really going to happen with Jackson in the thirties.

Joanne Freeman:

That’s when you start to get actual structured parties in a way that seems like it’s benefit and is organized. So Supreme Court Justice Samuel Chase remains the only Supreme Court justice to be impeached and his 1804 impeachment and then subsequent 1805 Senate trial basically concerned the issue that Heather and I are talking about here, which is his partisanship, the fact that he was a Federalist, he was allowed and opinionated Federalist, he was really outspoken.

Heather Cox Richardson:

In the courtroom?

Joanne Freeman:

Certainly in the courtroom in certain cases, yeah, he was outspoken, he was openly federalist, and he’s doing that. If you’re talking 1804 and 1805, you’re talking about a moment when the Jeffersonian Republicans have pretty much taken control of the government. So Chase is born to a clergyman in Maryland in 1741, and he is involved in a lot of the major political founding moments of the time. He signs the Declaration of Independence. Initially, he rallies for the inclusion of a Bill of Rights for the US Constitution, which formerly speaking would’ve made him an anti-federalists. The Federalists were the people who really were rallying for a very strong central government and Constitution. After you get a Bill of Rights, chase becomes a different Federalist, which is the Federalist of the 1790s, the party of Hamilton and others. I call them partisan alliances because they’re not really parties, but he becomes a Federalist.

So again, one of the people who believes there should be a very powerful centralized government in this new government, which is controversial because a strong national anything is controversial in this period. He’s chief justice of the Maryland General Court until President Washington appoints him to the Supreme Court in 1796. He actually kept much of his judicial responsibility in Maryland in addition to his Supreme Court duties, which is raises an important fact, which is the Supreme Court and justices generally were spreading themselves around. It wasn’t as though, I am a Supreme Court, justice was seen as again, a job, a position. You are in it, you do nothing else. John Adams actually had a little bit of difficulty finding someone to go on to the Supreme Court. So again, we’re looking at a very different political climate.

In 1800, Chase openly campaigned for Federalist presidential candidate and he’s president at the time, John Adams. And the election of 1800 was a really contentious election, pretty much the most partisan election up until that point with wild charges on both sides. And in August of 1800, the start of the Supreme Court term was even delayed because Chase was continuing to campaign on behalf of Adams in Maryland. So to say he was a fervent Federalist is almost an understatement. You asked before Heather about whether he was saying federalist things in court, and here we have an example of that. While charging a grand jury in Baltimore Circuit Court during a Supreme Court recess in May of 1803, Chase made several attacks on Jeffersonian Republicans, particularly against the repeal of Adam’s Judiciary Act of 1801, which, and this gets back to what you said earlier too, had lifted requirements on Supreme Court justices from their circuit court riding around from court to court to court, their responsibilities. And he also just lashed out at the Jeffersonian move toward universal male suffrage.

So he says, while charging a grand jury in this Baltimore Circuit Court, “The late alteration of the federal judiciary,” which has to do with the Judiciary Act, and that being changed and, “the recent change in our state constitution by the establishing of universal suffrage will take away all security for property and personal liberty, and our republicans constitution will sink into mobocracy, the worst of all popular governments.” So Federalists are uneasy about democracy as they defined it. And here you see Chase really pronouncing that to a grand jury.

Jefferson responded by writing to Marilyn Congressman Joseph Nicholson, referring to those partisan comments. Jen Jefferson said he’s he’s blunt. “You must have heard of the extraordinary charge of Chase to the grand jury at Baltimore. Ought this seditious and official attack on the principles of our constitution and on the proceedings of a state go unpunished and to whom so pointedly as yourself, will the public look for the necessary measures. I ask these questions for your consideration for myself, it is better that I should not interfere.”

Heather Cox Richardson:

I’m sorry. Are you saying that Jefferson wanted to use the instruments of the state to punish a political opponent?

Joanne Freeman:

When Jefferson’s president, he becomes interesting concerning some of his fundamental ideas and ideals.

Heather Cox Richardson:

We’ve done a show on the Alien and Sedition Acts and everyone’s like, “The federalists wanted to get rid of the Jeffersonians,” and then the Jeffersonians getting powered and they’re like Alien and Sedition Act here we go.

Joanne Freeman:

Now I’ve co-edited a book called Jeffersonians in Power, but now I want it to be Jeffersonians in Power.

Heather Cox Richardson:

Well, it works, doesn’t it? It does. It totally works.

Joanne Freeman:

It does. So roughly a year later, democratic or Jeffersonian republicans in the house introduce eight articles of impeachment against Chase, focusing on his tendencies towards really projecting his federalist biases onto Maryland Circuit court judicial cases, and these impeachment charges concerned three distinct things that he did. So number one, Chase presided over a case in 1799 concerning John Fries. He was a Pennsylvania farmer, he’s accused of treason. During America’s quasi war with France, the Adams administration had passed a land tax to raise military funds. US Marshals had held a group of farmers on charges of insurrection for refusing to pay the tax. This is actually not the first time such a thing has happened, and Fries responded to that by rallying a group of fellow farmers to confront the marshals. Chase broke legal norms by forbidding Fries’ defense from citing a number of seemingly valid precedents, essentially setting up the jury for a guilty verdict, and Fries was sentenced to hang, although Adams later pardoned him, and that was controversial as well.

Chase also presided over that trial in 1800 of the sensationalistic journalist James Calendar, who was very, very, very Jeffersonian in his leanings. He had been charged with seditious libel under the Alien and Sedition Act for a pamphlet that he wrote, the Prospect Before Us, which claimed that President Adams was a, “Professed aristocrat,” which I know sounds so mild by today’s standards, but was a rally and cry. Chase seated a juror who had expressed a bias in that case, struck from the record the testimony of a defense witness and then treated the defense counsel with hostility throughout the entire trial.

And then last but not least is what I just mentioned, Chase’s anti Jefferson rant before the Baltimore Grand Jury and the articles of impeachment said that that rant reflected Chase’s tendency to, “Prostitutes the high judicial character with which he was invested to the low purpose of an electioneering partisan gasp.” So in December of 1804, the House adopted the articles, January, 1805, Chase has his impeachment trial in the Senate overseen by Vice President Aaron Burr.

Heather Cox Richardson:

So in a way, this is really the question of whether the judges really are supposed to be impartial holders of the scales of justice. I mean, he set the dude up to hang.

Joanne Freeman:

Fries.

Heather Cox Richardson:

And in calendar’s case, he threw out the testimony of a defense witness. I mean, that doesn’t sound okay.

Joanne Freeman:

No, it does not sound okay. Again, which is why there are indeed impeachment charges filed. But the larger question here, and it’s one that we’ve been talking about from the beginning, how should partisan politics, what role should it play when it is bumping up against the Supreme Court? So here you have defense counsel, John Hopkinson who says, puts that very plainly. He says, “If a judge is forever to be exposed to prosecutions and impeachment for his official conduct on mere suggestions of Caprice,” that could be argued and, “to be condemned by the mere voice of prejudice, can he hold that firm and steady hand his high functions required?” So that’s again what he is saying there is an underlying logic of justice is holding their position during good behavior. They shouldn’t be able to be easily swatted at for partisan purpose.

Heather Cox Richardson:

But this is so interesting in terms of impeachment because yeah, that’s the crux of it. Is this politically partisan to go after somebody who just set a guy up to be hanged or are we trying to make somebody actually behave in a way that is best for the country? So what happens with Chase?

Joanne Freeman:

Well, so interestingly, the Senate follows along with Hopkinson’s argument and essentially says there is no evidence of higher criminality that could set a dangerous precedent. And he’s acquitted of all charges March, 1805, and although the Jeffersonian Republicans had 25 members in the Senate and they could have convicted chase with only 23, there were not enough people who stayed true to the Jeffersonian Republicans to even allow that to happen. And John Quincy Adams says point blank here, how he thinks that the attempt to come up with something specific chargeable that Chase had done wrong was petty. John Quincy Adams writes to his father John Adams. “In short, Sir Gravity himself could not keep his countenance at the nauseating littleness, which were resorted to for proof of atrocious criminality and indignation melted into ridicule to pure perseverance.” This is so John Quincy Adams, “With which nothings were accumulated with the hope of making something by their multitude.” So what John Quincy Adams is saying there is they were desperate to show he did something wrong and they were grasping at straws and there weren’t enough straws to really accomplish an impeachment.

Heather Cox Richardson:

I don’t have a dog in this fight at all, but it does seem to me from this vantage point of a great deal later that when you skew the actions of your courtroom so that a defendant is sentenced to death, that’s not a small thing.

Joanne Freeman:

I would agree with you. I would also say that in this time period, you’re talking about a time when Federalists considered that kind of, I don’t know what to call it, revolt insurrection, people rising up against attacks or against something that the government is imposing as a potential attempt to overturn the government. So it is worth saying, not that I’m saying yeah, it’s fine to condemn someone to death, but that at the time what Fries did was seen as more threatening than it might be seen today, and there would’ve been a vast difference between someone of Fries’ nature as far as status and class goes and the people who are passing these kinds of laws and opinions.

It’s the same logic that Alexander Hamilton uses with the Whiskey Rebellion years earlier. The Whiskey Rebellion was farmers who didn’t want to pay an excise tax on whiskey, and Hamilton essentially says, “You can’t let that thing go because it’ll just bring the government down. People have little enough respect for this new government. You can’t let people simply dismiss what it does and assume that the government will continue.” So for Federalists, as small as these crimes might appear to be, they seem like a major threat, and I’m not excusing them and saying, go Federalists, but that would’ve been their logic at the time.

Heather Cox Richardson:

So we have with the Chase case is the idea that impeachment can’t be used for political reasons, but it also seems to me that it gives us the concept that impeachment is about politics, not about the good of the country, and that’s been a problem since. There certainly have been impeachments that were not political and the people weren’t convicted because of politics, and we all have also had impeachments that were explicitly political. But it almost feels to me like the Chase case not only sets up the idea that you can’t impeach somebody for political reasons, but the idea that trying to get rid of somebody who is behaving outrageously is a political operation as opposed to saying, “Hey, this isn’t okay for the country.”

So now the next person to talk about is a really colorful character from the middle of the 19th century who raises a different issue, not that of obvious partisanship, but rather big business influence on the court. The person that I’m talking about here is Justice Stephen Johnson. Field. Justice Field is named to conjure with when you do late 19th century judiciary matters because he was deeply involved with big business in the late 19th century, the era of what we call Robber Barons when we’re feeling grumpy about them. He was born in Connecticut in 1816 and he is a member of that extraordinary field family, one of nine children who was born to a congregationalist minister, David Dudley Field. So if you look at the 19th century, their Fields running all around.

Fields siblings were also incredibly influential. His brother Cyrus, I spent a lot of time with because he led the attempt to create the transatlantic cable that’s everywhere in the period immediately after the Civil War. We actually talked about him as I recall in our disinformation and democracy episode in December, 2021. Another brother is also deeply involved in the law, David Dudley Field Jr is involved in codifying American law and ends up being the lawyer to boss Tweed and Jay Gould, two formative people in New York City in the late 19th century. So Stephen Field was a New England lawyer and he goes west in the gold rush and that’s going to establish him on the west coast. So he’s going to be the mayor of a Gold town Marysville. He gets elected to the State House of Representatives in California. He gets elected to the California Supreme Court in 1857 as an anti-slavery Democrat.

While he is out there, develops a close friendship with Leland Stanford and Leland Stanford is a rising California railroad man and in the 1850s, in the 1860s, Stanford joins up with a number of other entrepreneurs in California at the time, and they’re known as the Big Four. It’s Stanford, Charles Crocker, Mark Hopkins and Collis P. Huntington who incorporate the Central Pacific Railroad, which is eventually joins into the transatlantic railroads and they become really the movers and shakers in the business world of California. Stanford then gets elected governor of 1862, and he’s really going to push business interest, especially railroad interests in California.

So if that’s the setup in 1863, Leland Stanford joins together with Stephen Fields’s brother David… I swear there’s only like six people in the 19th century and they do the rest with mirrors… to lobby President Lincoln to appoint a westerner to the Supreme Court and that Westerner they want is Stephen J Field and Lincoln does. Lincoln puts field on the Supreme Court in ’63 and also he is the head of the brand new Pacific Region Ninth Circuit court field from the beginning is seen as the voice of railroad interests. He also was a really headline grabbing wild man and his fellow justices are aware that he is perhaps a problem for the legitimacy of the court, which is just coming out of the Dred Scott era and trying to rebuild its legitimacy after that.

Joanne Freeman:

Once again, in part what we’re talking about is the personal proclivities of a justice and the ways in which that affect the reputation and nature of the court.

Heather Cox Richardson:

That’s a really good point because Field is survival to some of the more modern day justices who grab headlines for their behavior in service to an ideology or an interest. But it is interesting that he causes a lot of waves in the late 19th century, but he isn’t removed from the court, so that too establishes a precedent. So he lobbies the Chief Justice Morrison wait to write a majority opinion in US versus Union Pacific Railroad Company, which is a somewhat complicated case about whether or not the Union Pacific Railroad has to pay interest on government bonds. The court ruled in the railroad’s favor, and although Field wanted to write the opinion Weight, said to him it would not be a good look. Weight said, “We cannot conceal from ourselves the fact that in the excited state of feeling which exists with the public in respect to the connection of the government with the Union Pacific, there may be some disappointment at the result of this case.”

And it’s worth pointing out that this is in the middle of the recession of 1873, which people believed was caused by the railroads. And at a time when the government was really messing with the money supply in such a way that it helped people like railroad barons and hurt ordinary workers. Weight continued, “It seems to me therefore to be specially important that the opinion should come from one who had not only been understood to be watchful of the government purse, but who would not be known as the personal friend of the parties representing these railroad interests.”

Joanne Freeman:

Personal friend of the parties representing an interest.

Heather Cox Richardson:

Now it gets even more interesting because Field is obviously wildly pro-business and he is really the driving force behind the interpretation of the 14th Amendment as protecting corporations. So that argument comes out of brief prepared by Roscoe Conkling from New York. Conkling was on the committee that debated and then wrote the 14th Amendment, and he argued in 1882 in San Mateo County versus Southern Pacific Railroad that the Congress people had intended the 14th Amendment to cover corporations. That was ridiculous. That was absolutely not on the table. But because Conkling put it forward, Field started to rely on it, and he doesn’t say so explicitly until later on in that decade. But the two of them working together established the idea that due process established in the 14th Amendment was not just designed to cover the rights of individuals in the states that were suffering under the legal restrictions put on Black Americans after the Civil War, but that in fact it was designed to protect corporations. Speaking of one individual’s personality and friendships mattering to everybody.

Field argued in the San Mateo case that the Southern Pacific Corporation had the same rights as an individual over certain financial matters. And he said, “Surely these great constitutional provisions which have been not in aptly termed a new Magna Carta, cannot be made to read as counsel contend nor shall any state deprive any person of life, liberty or property without due process of law, unless he be associated with others in a corporation. Nor deny to any person within its jurisdiction the equal protection of the laws unless he be a member of the corporation. How petty and narrow would provisions thus limited appear in the fundamental law of a great people.” Fascinating paragraph there saying, how could we be so small as to say that people come together into this new business entity, they don’t have the same protections as Black sharecroppers in the South. Yeah.

Joanne Freeman:

Just to say how petty and small that would be.

Heather Cox Richardson:

Then he went on to explain why he thought this way, because he was part of this rising concept that the way to really move society forward was through corporations. He said, “There’s nothing which is lawful to be done, to feed and clothe our people, to beauty and adore in their dwellings, to relieve the sick, to help the needy, and to enrich an ennoble humanity.” And here’s the kicker, “Which is not to a great extent done through the instrumentalities of corporations. Worldview it’s all going to be done by the wealthy people.

Joanne Freeman:

So in December of 1882, while the San Mateo cases before the Supreme Court, Field dines at a rather elegant Washington DC restaurant, Chamberlain’s, with Stanford and several Southern Pacific attorneys including Roscoe Conkling, and the dinner not surprisingly got a lot of public attention. The San Francisco Chronicle argued that Fields’s choice to be publicly seen enjoying a dinner with lawyers of a case before the Supreme Court was a major faux pas. The Chronicle said, “The unanimous verdict of lawyers and others is the justice field did a very indelicate thing to say the least in view of the fact that he tried the case in California originally. No other member of the United States Supreme Court participated in the banquet. Indeed, it is safe to say that no other of the justices were invited for the reason that it was known they would not attend.”

The Chronicle also suggested that field always took the side of the railroads and that his 14th amendment interpretations were based on his corporate connections rather than on any intellectually honest interpretation of the law. Saying, “Whenever Field has a case before him in which the community and the corporations are arrayed against each other, his lights always lead him to discover points against the people.”

Heather Cox Richardson:

It was true too. I mean he’s involved with the railroads, he’s also involved with mining and all kinds of other stuff.

Joanne Freeman:

So ultimately the Supreme Court ruled in favor of the Southern Pacific and the case which also concerned mortgage regulations on corporate taxes. While the court did not explicitly rule on the 14th Amendment contentions, that Field had put forth in his circuit court decisions, the ruling became a major precedent in later cases that were arguing for corporate personhood.

Heather Cox Richardson:

That still me pisses off. The fact that Conkling argued that this was on the minds of the people arguing about the 14th Amendment, it’s just a lie.

Joanne Freeman:

Bad history.

Heather Cox Richardson:

It’s just bad history,

Joanne Freeman:

Bad history.

Heather Cox Richardson:

If you want to make that argument fine, but admit you’re making it out of whole cloth.

Joanne Freeman:

I’ll conclude this by just saying that Field continued on ruling in Stanford’s favor in later cases and was never censured for his close relationship with Stanford. He remained on the Supreme Court until 1897. His 34-year term is the second longest of all time after only Justice William O Douglas’s, 36th year tenure. In 1891, a little coda on this story, just two years before Stanford’s death, the railroad magnate made justice field, one of the founding trustees of Stanford University, how tidy.

Heather Cox Richardson:

So that moment is an interesting one because it is Field obviously corrupted in his decisions by the company he keeps, and part of that is the ideology that he embraces, the idea that it’s these rich guys who basically run society. So he’s always deciding for them.

Joanne Freeman:

There’s personal networks, personal connections, and this ideological frame, and it’s those things together. Not just, I’m doing this because I have these connections. Well, there’s an ideological framework being imposed on this as well, which makes it, as you can see actually throughout this episode, we’re talking about people making decisions based on personal proclivities of one kind or another, personal friendships, personal networks.

Heather Cox Richardson:

It seems to me that the problem is not necessarily the ideology that somebody like Field embraces, even though it’s not one I happen to share, so long as it is balanced and you actually have a court that reflects a number of different ideas, that’s actually quite healthy, it would seem to me. Our problem now is that we have a court that has been so dramatically skewed in favor of one ideology over the one that is the most popular in the country right now.

Joanne Freeman:

No, I would totally agree. It’s not that ideology is problematic, but it’s when it is linked with, and sometimes even covering this personal relationship.

Heather Cox Richardson:

Well and political agenda, it’s not just a personal, it’s also that field is really pushing the interests of the Republican Party. All right. So Field contrast really interestingly with Abe Fortas, who’s been in the news a lot lately because he is the Supreme Court justice that people remember more than they remember Field when they think about corruption. Fortas was on the Supreme Court in the late 1960s and his experience with people of wealth was way less serious than Field was, and yet the mood of the country had changed. So Fortas actually pays quite a high price for his ties to business.

Joanne Freeman:

Fortas was born in Memphis, Tennessee in 1910. His parents were Eastern European Orthodox Jewish immigrants, and after excelling in debate, a fine thing to do if you want a political career of some sort at Memphis’s Southwestern University. Fortas went to Yale Law School entering at only 20 years old and as any high achieving Yale Law School student did, he edited the Yale Law Journal, graduated second in his class in 1933 and joined the faculty at Yale Law School two years later. He joined the Roosevelt Administration during World War II. He was a very influential member of the Council of the WPA, the Works Progress Administration, and was under Secretary of the Interior during World War II.

He founded an influential corporate law firm in Washington, still exists today, and in 1948 began a long partnership with Lyndon B. Johnson after agreeing to represent Johnson in his contested election to the US Senate, which was plagued by allegations of ballot fraud. And that led to not surprisingly, a lifelong friendship between the two. In 1962, Fortas gay national prominence when he represented the indigent Clarence Gideon in the Supreme Court case, Gideon v. Wainwright. And we talked about this in our April, 2022 episode on Ketanji Brown Jackson Criminal Justice and Public Defense. And Fortas basically argued that Gideon, who was convicted of a theft felony without legal representation deserved an attorney. The court ruled that defendants in state court were indeed entitled to counsel even in non-capital criminal cases.

Heather Cox Richardson:

And the Gideon case is a really big deal. It reinforced the right of individuals, even poor individuals to have equal representation before the courts. It really was an example of an individual standing behind the other side of the scale from Stephen Field.

Joanne Freeman:

And less than three years after the Gideon case, President Johnson nominated Fortas to the Supreme Court and during a news conference on July 28th, 1965, President Johnson offered a shower of praise for Fortas saying…

President Lyndon B. Johnson (archival):

For many, many years, I have regarded Mr. Fortas as one of this nation’s most able and most respected and most outstanding citizens, a scholar, a profound thinker, a lawyer of superior ability, and a man of humane and deeply compassionate feelings toward his fellow man, a champion of our liberties. That opinion is shared by the legal profession and by the bar of this country, by members of the Congress and by the leaders of business and labor and other sectors of our national life.

Heather Cox Richardson:

But Fortas starts to get into trouble. Three months after he was sworn in January of 1966, he received $20,000 from the Wolfson Foundation, which was a nonprofit organization organized by Louis Wolfson, and he got the money for consulting on charitable contributions. So he’s taken consulting money. Wolfson was an early corporate Raider. He had built his financial empire out of construction, streetcar and marine salvage companies during the 1950s and had come under fire from the Securities and Exchange Commission in that era for trying to dump stock in a company he controlled called American Motors Corporation. But he had come out from that investigation successfully. However, months before Fortas joined Wolfson’s Foundation, his handling of a marine salvage company came under new scrutiny because he was accused of bribing a Boston financier to buy shares of that company.

Now, Fortas apparently didn’t know about that and about the investigation into it, and he continued to socialize with Wolfson. And when the Supreme Court went into recess in June of 1966, Fortas flew down to Wolfson’s horse breeding farm near Ocala, Florida. Then the day after he gets there on June 15th, 1966, the Securities and Exchange Commission complaint against Wolfson hits the public media. Fortas leaves the farm the next day and in December of 1966, as Wolfson’s legal troubles are getting worse, Fortas returned the $20,000 consulting cheque to the Wolfson Family Foundation. The controversy doesn’t really get a lot of attraction until 1968, when Johnson nominates Fortas to replace the chief justice of the Supreme Court, who’s retiring back in the days when Chief Justice is retired, Earl Warren. And Fortas comes under fire initially, not for his connections to Wolfson, but for an honorarium he had taken to give 11 lectures at American University. He had taken $15,000 to do that, and it had been paid by former clients of his corporate firm, some of whom had cases that were coming up before the Supreme Court.

So Republicans then dredged up the news that Fortas had also advised President Johnson on a several non-correlated issues while he was acting as a sitting justice, including discussing the Vietnam War. So armed with the American University honorarium and the fact that Fortas had talked to Johnson again in those days, theoretically, Supreme Court justices didn’t talk to members of the Executive branch, South Carolina, Senator Strom Thurmond began one of his famous filibusters against the vote on Abe Fortas for Chief Justice, recognizing that his vote was in trouble because of Thurmond. Fortas asked President Johnson to withdraw the nomination, and Johnson was beside himself.

And mind you, the backstory here of course, is that Strom Thurmond is appalled by Lyndon Johnson’s efforts to desegregate the United States and to get through the Civil Rights Act of 1964 and the Voting Rights Act of 1965. And here’s this way to get back at him with the guy who was after all protected individuals in the Gideon case. And Johnson says, “The action of the Senate, a body I revere, and to which I devoted a dozen years of my life is historically and constitutionally tragic. I urge all involved with and concerned about our constitution and its form of government to pledge now that this shall be no precedent, that the Senate hereafter will act by majority will and never fail to address itself to the issues which it has the constitutional duty to answer, as in cut it out with the filibuster.”

Joanne Freeman:

Basically, do your job.

Heather Cox Richardson:

Do your job. Fortas stays on the court without a lot of further incident until May of 1969 when a journalist for Life Magazine named William Lambert broke the story about Fortas and Wolfson wide open. That incident happened three years. Before it hadn’t gotten a lot of traction then. In early May of 1969, the Magazine ran a piece by Lambert outlining the $20,000 arrangement under the headline, “The Stock Manipulator and the Justice.” Fortas opted to resign 11 days later. He wrote Chief Justice Warren, who was not retired of course, because there hadn’t been able to replace him, suggesting that he was not admitting misconduct, but that he wanted to protect the court by ending the controversy.

Joanne Freeman:

Fortas said, “There has been no wrongdoing on my part. There has been no default in the performance of my judicial duties in accordance with the high standards of the office I hold. So far as I am concerned, the welfare and maximum effectiveness of the court to perform its critical role in our system of government are factors that are paramount to all others. It is this consideration that prompts my resignation, which I hope by terminating the public controversy will permit the court to proceed with its work without the harassment of debate concerning one of its members.” So he’s talking about the welfare and maximum effectiveness of the court and resigning in the service of those things. Now, his liberal allies on the court, particularly William Brennan, begged Fortas to stay on the court knowing that President Richard Nixon, who took office in January of 1969 was gearing up to nominate a particularly conservative replacement justice.

Heather Cox Richardson:

So interestingly enough, people are looking back to Fortas now as they’re considering what’s happening with Justice Thomas and Adam Cohen in the New York Times recently said, “if our body politic were as healthy today as it was in 1969, leaders of both parties would be demanding Justice Thomas’s resignation, and he would be as worried about being impeached by a Republican House as Fortas was by a Democratic one.” But what really jumped out to me about the Fortas case and how different it was than the Field case when we were prepping for this was this Joanne, and I want to see what you have to say about it because it struck me that one of the reasons we are at the position we are in this moment is that really beginning with Nixon, the Republicans ignored norms and really just said, “Well, we don’t care. We’re going to do whatever we want.”

And the Democrats continued to try to accept norms to say, “Okay. I’m going to resign even though I didn’t do anything wrong. It looks like I did. So I’m going to back down.” And I wonder if the Democrats had early on done what the Republicans were doing that is Fortas said, “Hey, forget it. I’m staying here.” That there would’ve been such a popular outcry that we would’ve gotten the kinds of court reforms that we need. Whereas instead, because you could always look at Fortas and say, “Hey, look, the court’s fine. People are retiring when they need to, or they’re stepping down when they look corrupt.” Or the many different times that there have been something that looked bad on the Democratic side and the Democrat has said, “Okay. I’ll step down.” Whereas on the Republican side, they’ve just said, “No. We’re going to brazen it out.”

So we have George Santos still in the House of Representatives and some of the other people as well who’ve been questioned for their behavior. And the stuff that we covered last week about how corrupt the Tennessee legislature appears to be, that maybe the correct thing for Fortas to have done was not to resign, but to openly take bribes and say, “Yeah. You don’t like it, fix it.” Instead of giving people the excuse of saying, “Well, no. We’re really okay because half the people are behaving.”

Joanne Freeman:

That’s like the ultimate constitutional game of chicken. Essentially what you’re saying is, well, if the Republicans were violating norms, the Democrats should have done the same thing because then it would’ve been such an obvious problem that people would’ve cried out and pushed against it. So that is a game of constitutional chicken because it’s assuming people would’ve pushed back. And one of the interesting things that has drifted through this episode is the fact that although the Supreme Court justices serve for life during good behavior and are supposed to be separate and apart from the other branches of government, and in some way are not supposed to be shaped by popular will, is that the mood of the country and the assumptions of a country and what is right and wrong actually still can shape what happens to a Supreme Court justice.

Heather Cox Richardson:

It is an intellectual exercise here advocating not playing by the rules, but what we’re talking about with the court as opposed to necessarily with Congress in this case really does come down to the individuals because Abe Fortas said, “Okay. I’m out of here. I don’t like the way this looks. I care about the institution. I’m gone.” Today’s Supreme Court has destroyed the court’s legitimacy. They’ve just destroyed it. And instead of being like, “Man, we are really worried about the court’s legitimacy.” They’re like, “Throw me off.” The fact that Justice Thomas is yet again just amending his financial disclosures, considering everything that has come out about that man is mind boggling.

Joanne Freeman:

Why are you assuming that back in time, if there had been widespread corruption, that there would’ve been a loud outcry and response? I mean, why are you assuming that the American public would’ve responded differently? And maybe part of the answer to that is the body politic was in a different place. Assumptions about norms were in a different place. I don’t know. But what is your answer to that?

Heather Cox Richardson:

Both of the things you just said, but I think I’m actually looking at something slightly more instrumental in a partisan system, it’s easy to whip up one side of the equation against a corrupt justice as Strom Thurmond attempted to do and successfully did with Abe Fortas. But if half the population could say, “No, no, no, no, my guys are fine, and we get rid of all your bad guys,” there isn’t a bipartisan outcry against ethical breaches. So what we’ve got now is we’ve got a whole bunch of Democrats and some independents looking at the Supreme Court and going, what on earth do you people think you’re doing? Whereas the hardcore Republicans are like, “Hey, we love these guys.” And because it’s only happening on one side of the equation, I think you lose out on having everybody say, Hey, we got a systemic problem. And them simply saying, “No, this is all just about politics.”

Joanne Freeman:

This leads me to a realization that I’m not all that fond of, which is I’m not entirely confident that there would be an outcry if the Democrats were doing the same thing. There would be an outcry on the right, but do I think that there would be a people coming together and saying, “This isn’t right.” I’m not entirely convinced that there would be because of the current partisan climate that we’re in, and that fact alone is alarming.

Heather Cox Richardson:

Well, we would at the very least have people on both sides saying, “Hey, your guy shouldn’t be behaving in the way he or she is.”

Joanne Freeman:

But in the current political climate that we’re in, would that become just an increasingly strident, loud howling on each side about what the other side was doing? Or would there actually be a coming together in a creation of some an ethical or moral, we, to push back? And I’m not sure, and in essence, and I guess this is what’s disturbing me, is I’m wondering if Americans would be forced basically to come together by the fact that everyone in one way or another was behaving corruptly. Would they come together and support and defend and institute some idea of ethics over the court, or would they simply become more strident? And in the current political climate I’m not sure, and I don’t like the fact that I’m not sure.

As you and I have said many, many times, we are in this moment of extreme contingency in so many ways. And what that means is that it’s possible for things to go right and for there to be positive outcomes out of circumstances that don’t necessarily predict that that will happen. But the other side of that is when there’s such extreme contingency, things could go really sour, things could go really badly, and maybe the court, the what we’re talking about here with the Supreme Court in corruption is a great example of that.