The Recess Appointment power, seldom at the forefront of national discussion, resurfaced last week as a headline topic when President-elect Donald Trump declared that those Republicans seeking the title of Senate Majority Leader “must” agree that his nominations for the U.S. Cabinet should be installed as recess appointments, a move that would bypass approval by the U.S. Senate.  The unprecedented command from a president-in-waiting to an independent, co-equal branch of government raised the specter of the Senate surrendering a fundamental power, one that the Framers of the Constitution believed marked an essential distinction between a monarchy and a republic, to do the bidding of the president-elect.

Presidential elections have consequences, as they say, and national airwaves are filled with voices engaging in speculation and prediction about the legislation, policies, and actions that President-Elect Donald Trump will promote in his second term. Whatever Trump chooses to do, this much should be said about his presidency, as it should be said about any presidency: The nation’s chief executive has, by virtue of his Oath of Office, an obligation to preserve, protect, and defend the Constitution and the rule of law.

James Madison, writing in August of 1823 from his home in Montpelier, Virginia, to which he repaired in what turned out be a futile effort to retire from public life, continued to assess the defects of the Constitution, including the way America elects its president. Madison, who preferred direct election of the president, addressed what he regarded as a foundational weakness in our electoral system. In the case of a tie in the Electoral College, the Twelfth Amendment requires the U.S. House of Representatives to choose the next president. Madison called for a constitutional amendment to correct this flawed mechanism.

The presidential election of 1788, the first under the newly minted Constitution, was unusual and even unique in ways that 21^st Century Americans can scarcely imagine. For one, there was no campaigning. In the 18^th Century, it was an unwritten rule that any display of ambition would be unseemly. For another, George Washington, widely viewed as Father of His Country, was, for all practical purposes, anointed by his fellow citizens. As it happened, he was elected unanimously by the Electoral College, a feat that he would achieve, again, in the election of 1792.

Our ongoing review of the origins and rationales that undergird the Electoral College reveals a central point that cannot be ignored. The disturbing vice of the Electoral College, as we have seen, is that it undermines our political system by providing presidential candidates with an incentive to visit competitive states, particularly large competitive states, at the expense of small states.

One of the chief justifications for the Electoral College, advanced by its advocates, is that small, lightly populated states require protection for interests that would be overwhelmed by large states under a system based on the direct election of the president. Readers may be surprised to learn that in the Constitutional Convention, James Madison told fellow delegates that small states don’t need protection from large states. His own state, Virginia, like Massachusetts and Pennsylvania, he said, were divided by various interests, including economic and religious differences, among other circumstances and rivalries that undermined consensus and coalitions. The size of the state did not create a common interest.

Civic engagement, what the nation’s founders hoped would be a distinguishing feature of the young and energetic republic, can be manifested in various ways, including voting, participating in political parties and campaigns, displaying lawn signs, running for office, and writing letters to the editor. Newspaper readers who comment on public affairs and pose questions to columnists are part of a great tradition in the intellectual and public life of America. Recent columns on the Electoral College have generated much-appreciated questions about its origins and history, as well as its contradiction of the nation’s foundational principle of political equality—that no citizen’s vote should carry more weight than another’s.

Two previous columns on the origins of the Electoral College have sparked questions from discerning readers across the state who wonder why the United States continues to utilize this peculiar method of electing the president when the rationales and justifications for its creation have long since vanished. The Framers’ reasons for rejecting direct election of the president—lack of communication, transportation, and adequate knowledge of the qualifications and credentials of candidates—are no longer relevant. As many have observed, we sometimes know more about candidates than we care to know. In any case, these readers are among the 63 percent of American voters, according to a September poll conducted by the Pew Research Center, who believe the nation’s highest office should be the winner of a direct popular election.

The Framers of the Constitution seriously considered adoption of a direct popular vote for the election of the president until objections exposed the likelihood that lack of communication, transportation and adequate knowledge of candidates would hobble the ability of Americans to make a reasoned and informed choice.  Some feared that voters would not be familiar with national leaders and would reflexively support candidates from their own states.  Voter parochialism would undermine the prospects for national union. Although James Madison was an advocate for the popular vote, for its democratic nature, he observed that these challenges persuaded delegates to seek an alternative means of selecting the president, so long as it was grounded in the wishes of the voters.

With less than 50 days remaining in the 2024 presidential election, citizens are turning their attention to the “Electoral College Map,” fully aware that the next president will be the candidate who captures 270 electoral votes, rather than the winner of the popular vote. This is true even though most Americans continue to prefer a direct, nationwide election, one they view as more consistent with democratic principles, and wonder why the Framers of the Constitution chose such a peculiar method for electing the nation’s highest official.

Advocates of term limits for Supreme Court Justices, mindful of the overgrown, transformative power of the Court and the ethical lapses of some of its members, have recommended staggered, 18-year terms and regularized presidential appointments for Justices as a means of reducing the heated and divisive partisanship that has raised the confirmation process to a fever pitch and undercut public confidence in the judiciary, what Alexander Hamilton called “the least dangerous branch.” 

Plummeting public approval of the U.S. Supreme Court, now at record lows, reflects in part deep-seated concerns about recent rulings that have overturned precedents that protected fundamental rights, as well as an unprecedented ruling— the creation of presidential immunity from criminal prosecution—without foundation in our constitutional architecture. It is also true that the diminished confidence of the citizenry in the nation’s highest bench is a function of the ethical lapses of some current Justices. These factors, among others, have accelerated the gathering force of calls for the imposition of term limits on the Supreme Court.

The doctrine of checks and balances, central to the success of American Constitutionalism, is designed to curb abuse of power and promote governmental accountability. But the Constitution is not a machine that will run without good men and women at the helm. When those in positions of authority and responsibility are reluctant to turn the wheels of checks and balances to constrain the judiciary, for example, there is little to deter misbehavior. Justice James Iredell, a member of the first Supreme Court and one of the most penetrating thinkers of the founding period, told the North Carolina Ratifying Convention, “A man in public office who knows there is no tribunal to punish him, may be ready to deviate from his duty.”

Is the threat of impeachment sufficient to deter Supreme Court Justices from abusing power or engaging in other acts of misbehavior that would warrant their removal from the nation’s High Bench? The Framers of the Constitution thought so, as Alexander Hamilton explained, but many Americans across our nation doubt the premise. Consequently, they have become advocates for Supreme Court reform. Some lobby for an enforceable ethics code, some seek term limits for the Justices, and some argue for an expansion of the size of the Court, primarily to temper its present direction. Others assert the need for all three reforms.

In the Constitutional Convention of 1787, delegates debated the merits and virtues of vesting in federal courts the awesome power of judicial review—the authority to strike down laws of Congress that they find to be unconstitutional. In the end, the Framers agreed to grant the reviewing power to the courts, but not without some careful soul-searching, for it was at that juncture in world history unique in the realms of law and political science. Alexander Hamilton wrote in Federalist No. 78 that the courts were designed to keep the legislature within constitutional limits. He observed, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, fundamental law.” The judiciary, then, was charged with the duty of determining the meaning of the Constitution and policing its boundaries.

President Joe Biden’s proposed constitutional amendment – “The No One is Above the Law Amendment” – seeks to restore the cornerstone principle of American Constitutionalism by effectively overturning the U.S. Supreme Court’s recent ruling in Trump v. United States, which held that the president possesses absolute immunity from criminal prosecution for acts involving the exercise of “core powers.” The decision, criticized by scholars and judges of various political stripes, including the conservative heavyweight and revered retired Fourth Circuit Court of Appeals Judge J. Michael Luttig, clothes the president with the sort of immunity that the English King enjoyed at the time of the American Revolution.

President Joe Biden’s sweeping proposals to reform the US Supreme Court and the American Presidency are steeped in irony. It is not lost on the citizenry that the Court’s own acts have inspired Biden’s proposals to rein in presidential power and curb the excesses of the nation’s High Bench. The Court’s creation in Trump v. United States of absolute executive immunity from criminal prosecution for a president’s official acts stunned the nation, betrayed the rule of law, and left a sitting president, of all officials, to complain that it gives the presidency too much power. Thus, Biden has proposed a constitutional amendment—“No One is Above the Law Amendment”—to restore what the Framers of the Constitution intended and what has always been understood, at least until the Trump decision: that a president is amenable to the judicial process and possesses no immunity from criminal prosecution.

The possibilities of the Office of the Presidency, the Framers of the Constitution knew, would depend in large measure on the character of its occupant. The Presidency was constrained by the terms of the Constitution and the doctrine of checks and balances, designed to temper the vaulting ambition of future chief executives who might imitate those in European countries that aggrandized power for their own interests. But the presidency was also empowered to perform the responsibilities of the Office, which possessed the bandwidth to inspire the nation to pursue worthy policies and goals, in both domestic and foreign affairs. The success of future presidents hinged on their ability to employ what President Lyndon B. Johnson characterized as the “moral force” of the Office.

The use of force, including assassination and other forms of lethal political violence, as a means of altering governmental regimes and political systems—tyrannicide, regicide, and revolution—was part of the warp and woof of ancient politics and a central concern to the Framers of the Constitution. America, after all, was founded on revolution. Delegates to the Constitutional Convention, therefore, sought to create a republic sufficiently responsive to the will of the people to facilitate peaceful political reforms, which would eliminate the perceived need to resort to violence, the dark side of politics, to make changes.

President Joe Biden, seeking a second term, is running against the U.S. Supreme Court. Keenly aware of the Court’s declining approval ratings, the growing storm of concerns surrounding the ethics of some of its members, and the national outrage stemming from decisions that overturned precedents protecting voting rights and reproductive rights, Biden believes he has found an issue that resonates with American voters. Throw in the Court’s recent ruling that presidents possess breathtaking immunity from criminal prosecution, a declaration, as Justice Sonia Sotomayor stated in a dissenting opinion, that places the nation’s chief executive above the law, and Biden has a stump speech that will travel across 50 states. There is something in it for everyone.

For years to come, constitutional scholars and historians will long note the irony of the Supreme Court’s defiance of its own intellectual platform in rendering a decision in Trump v. United States, on the eve of the anniversary of the Declaration of Independence, that creates out of whole cloth the dangerous doctrine of executive immunity in service of an Imperial Presidency. The very concept of clothing the American Presidency with protection that placed the English King above the law was rebuked by the Framers of the Constitution, who sought, in the words of James Madison, to “confine and define” presidential power. The Supreme Court’s ruling rejected the wisdom and vision of Madison and the other delegates in the Constitutional Convention and infused the presidency with unconfined and undefined authority.

The Declaration of Independence, which Abraham Lincoln referred to as the “sheet anchor of the Republic,” set forth the proposition, as he said in the Gettysburg Address, that “the United States was conceived in liberty and dedicated to the proposition that all men are created equal.” The principle of equality, Lincoln admitted, was “aspirational.” Its implementation would await the arrival of America’s maturity, that moment when the societal, cultural, and political forces would accept the legalization of racial equality. There was no invisible hand that would push the nation across the finish line. As with all great changes in a democracy, leadership was required.

The 80^th anniversary of D-Day, justly commemorated as history’s greatest military invasion, reminds us of the fact that World War II was waged to defeat the forces of authoritarianism abroad so our constitutional democracy and all that comes with it—freedom, justice, and the rule of law—could be preserved at home.

The defining characteristic of the American experience is the premise of law as a check on governmental power. Challenged throughout our history and subjected to stresses and strains inflicted by indifference, partisanship, and political affiliations that prefer the ends-justify-the-means philosophy, the premise remains an ideal, though its fibers are frayed.

Rising concerns about the U.S. Supreme Court’s lack of impartiality—amid increasing calls for judicial recusals, reforms, and transparency—form a historical backdrop of anxiety as Americans are, once more, bracing themselves for a landmark ruling that will have a direct bearing on the future of our constitutional democracy, the Bill of Rights and the rule of law. In this case, Trump v. United States, the question is whether the president enjoys absolute immunity from criminal prosecution. The Court will render a decision that may determine, as former President Donald Trump asserts, that the nation’s chief executive should possess constitutional authority to order the assassination of his political opponents. The citizenry’s anticipation of this historic decision, expected any hour in the final days of the Court’s Term, has generated nationwide demands for transparency in the work of the High Bench at a juncture when public respect for governmental institutions, including the Court itself, is in sharp decline.

On May 29, 2024, at 11:28 EST, a New York jury of seven men and five women filed out of a Manhattan courtroom to begin deliberations on the 34 felony counts against Donald Trump for falsifying business records in the first criminal trial of an American president. The implications of this constitutional process for the former president are impossible to ignore. His immediate fate—whether he will be an exonerated defendant or a convicted felon—is in the hands of a jury of his peers. This landmark, five-week trial has generated intense international interest, evoked broad discussion about the Constitution and the rule of law, and provided a refresher course on the historic importance of the right to a jury trial to those who launched the American Revolution and drafted the Declaration of Independence and the Bill of Rights. To our nation’s founders, the right to trial by jury was central to democracy and self-government.

Justice Hugo Black loved the Supreme Court as much as anyone who has held a seat on the nation’s High Bench. When Black proposed marriage to his secretary, six years after the death of his first wife, he explained to her that he had been having a love affair with the Court for roughly 20 years. Accordingly, she, like Caesar’s wife, would have to be above reproach. Black wanted assurance from his fiancé that she would be above suspicion and, at all events, that she would be “a one-man woman.” He sought to avoid words and acts that would stain his, or the Court’s, reputation. Justice Black may not have had chocolate, flowers, and a diamond ring in hand, or poetic whisperings in his voice, but his standard was not unreasonable.

On May 17, 1954—70 years ago this week—the U.S. Supreme Court delivered a landmark ruling in Brown v. Board of Education that marked its historic first full step toward securing the nation’s commitment to equal protection of the law for all Americans. As Justice Stanley Reed, a southerner from Kentucky who made the courageous decision to reject his region’s sentiments on race to form the Court’s unanimous 9-0 ruling, told one of his law clerks, “If it was not the most important decision in the history of the Court, it was very close.”

In the aftermath of Justice Abe Fortas’s resignation from the Supreme Court on May 14, 1969, a decision provoked by his own  ethical lapses—political and financial—that were themselves products of an energy and temperament better suited for legal advocacy than the cloistered environment of a monastic order, President Lyndon Johnson lamented the manner in which he had pressured his old friend to accept a nomination to the High Bench. “I made him take the justiceship,” Johnson said. “In that way, I ruined his life.” 

Abe Fortas had always wanted to be a Supreme Court Justice and, for as long as he had known him, his friend and benefactor had wanted to appoint him to the nation’s High Bench.

The U.S. Supreme Court writes opinions to explain and justify to the American people the decisions it reaches in cases it hears and resolves in conference. The explanation of the Court’s interpretations of statutes, constitutional provisions, precedents, and, ultimately, its results, is critical to the partnership between the judiciary and the citizenry, one that hinges on the public’s trust in the Court’s rationales and exercise of awesome power over the life of the nation. In a constitutional democracy grounded in reason and persuasion, the High Bench has an obligation to satisfactorily explain its decisions to avoid charges of arbitrariness.

While oral argument provides the citizenry with a fascinating glimpse of the Supreme Court Justices at work, the heavy lifting is undertaken behind the scenes, far removed from public view, beginning with the High Tribunal’s private–indeed, highly secretive–weekly conferences in which decisions are made that will affect American lives and the life of the nation.

Oral argument before the U.S. Supreme Court is the most important, fascinating, and visible part of the Justices’ public work on the High Bench. It represents a forum for lawyers to persuade the Court to embrace their perspective on a case and a canvas for a legal artist to produce a memorable masterpiece. In his argument to the Court in 1818, in the landmark case of Dartmouth College v. Woodward, which involved the state’s power to fundamentally change Dartmouth’s charter, Daniel Webster closed with words that have become immortal in the annals of the Court’s history. “It is a small college . . . and yet there are those who love it.” And Webster shed a tear. Contemporaries observed that many in the courtroom were in tears. Chief Justice John Marshall acknowledged that he was moved, and Webster won yet another of his many cases in the Supreme Court.

Historically, U.S. Supreme Court Justices have avoided drama. A bookish group, given to tranquility and docility, the Justices mark their time in the quiet of elegant court chambers, deciding cases and writing opinions. There is, however, an exception to this institutional serenity—the Terry Affair—one that captured the attention of the country and the citizenry’s lurid interest in sex, scandal, and murder.

John Rutledge of South Carolina, a founding era titan who held virtually every important political office and judicial post from the pre-Revolutionary years through the Constitutional Convention, was one of George Washington’s favorites and easily fulfilled the first President’s seven criteria for an appointment to the first U.S. Supreme Court. Had it not been for President Washington’s interest in naming John Jay as the Court’s first Chief Justice, as a means of honoring the key State of New York, whose ratification of the Constitution had proved so decisive, he would have appointed Rutledge, which the South Carolinian and his supporters craved.

President George Washington’s nomination in 1796 of Oliver Ellsworth to serve as the third Chief Justice of the U.S. Supreme Court was met with universal approval. Ellsworth boasted a record of experience that few then, and none since, could match. Above all, Ellsworth was a genuine heavyweight in the Constitutional Convention, among a handful of delegates who spoke frequently and authoritatively, and played a key role in shaping the final version of the Constitution that the American people ratified in 1787-1788.

The remarkable influence of the Four Horsemen, as demonstrated by their success in thwarting on constitutional grounds President Franklin D. Roosevelt’s New Deal plans to resuscitate an economy brought to its knees by the Great Depression, reminds us of the capacity, for better or worse, of the Supreme Court to rewrite Alexander Hamilton’s modest description of the judiciary as the “least dangerous branch.” The pitched battle between the Four Horsemen—Willis Van Devanter, James McReynolds, George Sutherland, and Pierce Butler—and President Roosevelt, on the question of whether the Constitution empowered extensive governmental intervention to regulate a free market economy in a way that surpassed previous efforts, represented a historic contest for authority to shape and control the course of American governance. The spectre of “government by judiciary” had been brought center stage.

The adage that the Supreme Court follows the election returns certainly did not apply to the Four Horsemen—Willis Van Devanter, George Sutherland, James McReynolds, and Pierce Butler. President Franklin D. Roosevelt had earned landslide victories in the 1932 and 1936 presidential elections, but that was not discernible in the behavior of the four conservative Justices who were in control of the Supreme Court. As he faced the most dire economic circumstances in United States history and the grim challenge of dispensing hope to a nation caught in the clutches of despair, Roosevelt intended, through dramatic policies and programs, to lift the country from the depths of the Great Depression by taking the federal government into the relief business. But not if the Four Horsemen had anything to say about it.

The Four Horsemen of Supreme Court—not Biblical—lore represented one of the most important blocs of Justices in the history of our constitutional tradition. Their intractable opposition to New Deal legislation and reforms in the 1930s, in favor of an old-style conservatism that embraced laissez-faire economics and the view that the Constitution was an unchanging document in a universe governed by fixed and inexorable laws, marked the Four Horsemen, as contemporary newspapers characterized them, as the most polarizing judicial alliance in the Court’s history.  To the citizenry, they were either heroes engaged in a great mission to save the Constitution and the American way of life from the likes of President Franklin D. Roosevelt and his fellow liberals, or villains whose antiquated methods of interpretation and rigid conceptions of the roles and powers of government threatened to make permanent the national misery inflicted by the Great Depression.

The intriguing President’s Day news that President Abraham Lincoln granted a pardon 160 years ago to President Joe Biden’s great-great-grandfather revived Americans’ fascination with the purpose, concerns, scope and history of this sweeping executive power.

The photos and images of U.S. Supreme Court Justices portraying earnest men and women wrestling with momentous legal issues and controversies, the resolution of which will shape American society, politics, and the constitutional landscape, fairly capture the serious side of those seated on the nation’s High Tribunal. But that’s not the Justices’ only side. There is another.

When the U.S. Supreme Court, in Richmond Newspapers v. Virginia (1980), in the words of Justice John Paul Stevens, “squarely held that the acquisition of newsworthy matter is entitled to constitutional protection,” it was protecting under the First Amendment’s Free Press Clause the essential foundation of our democracy.

The First Amendment’s Free Press Clause, which Thomas Jefferson declared indispensable to republicanism, has long been regarded as the “people’s right to know.” Without knowledge of governmental programs, policies and practices, the people would have little ability to hold government accountable. The press, as Jefferson and the founders recognized, could provide the crucial informing function that would make self-government possible.

Justice Robert H. Jackson’s departure for Europe in September of 1945 to serve as chief prosecutor for the United States at the historic Nuremberg trials of Nazi war criminals annoyed some of his fellow Justices and heightened the internal tensions that gripped the Supreme Court. Jackson’s acceptance of an appointment by President Harry Truman to lead the prosecution affected the workload and decision-making of the Court and renewed a lingering debate on the wisdom and propriety of tasking Justices with non-judicial responsibilities.

Every now and again, the public displays an intense interest in the question of whether Supreme Court Justices ought to recuse themselves from a particular case because it appears that they have a conflict of interest that might prevent them from delivering an impartial ruling.

Few nominees to the U.S. Supreme Court have been as well prepared—let us say, groomed—for a seat on the nation’s High Tribunal as Robert H. Jackson, who was appointed in 1941 by President Franklin D. Roosevelt.

Former President Donald Trump’s legal team has filed briefs with the D.C. Court of Appeals, which will hear oral argument in the federal insurrection case on January 9, claiming to find presidential immunity from criminal prosecution in the Impeachment Clause of the Constitution.  Trump’s lawyers have advanced two arguments, each of which tortures the language of the Impeachment Clause, distorts the history and purposes surrounding the provision, and draws baseless inferences from the Framers’ careful steps to construct a power to protect the nation from presidential abuse of power and threats to republican principles and values.

Critics of the Colorado Supreme Court’s ruling that former President Donald Trump, under the express terms of Section 3 of the 14^th Amendment, is ineligible to appear on the ballot as a Republican presidential candidate, assert that the Disqualification Clause is undemocratic and, therefore, it should not be invoked to deprive voters of the right to decide who their next president will be.

In his landmark opinion for the U.S. Supreme Court in Marbury v. Madison (1803), Chief Justice John Marshall defined the over-arching responsibility of the High Bench: “It is emphatically the province and duty of the judiciary to say what the law is.” Marshall, the greatest name in our constitutional jurisprudence, observed that the Supreme Court is a law court, not a political court, a crucial distinction for a nation founded on the rationale that ours is a government of laws, not men.

Jack Smith, the special counsel prosecuting former President Donald Trump for his efforts to illegally overturn the 2020 election, made a bold and strategically wise move in a rare request to the U.S. Supreme Court to rule “expeditiously” on Trump’s claim of absolute immunity from criminal prosecution. Trump’s assertion that he is above the law represents a profound threat to the rule of law.

I had the great privilege and pleasure, twice, to interview Justice Sandra Day O’Connor on stage at a conference on women and leadership that I organized and hosted.

Unlike Alexander Hamilton, a more famous Founding Father who wrote extensively about the proposed Constitution and championed its ratification, and who became a 21^st Century cultural icon on Broadway 200 years after his death, James Iredell had to settle for a mere appointment to the first U.S. Supreme Court.

President Franklin D. Roosevelt wanted to nominate William O. Douglas to the U.S. Supreme Court to fill the vacancy left by the retirement of Justice Louis Brandeis in 1939, but there was a problem, a geographical problem.

William O. Douglas, the longest serving Supreme Court Justice in American history (1939-1975), whose outsized life on and off the bench required two autobiographical volumes and inspired both devoted followers and passionate detractors, was at the center of the Court’s most important 20^th Century rulings. President Franklin D. Roosevelt might have expected as much when he nominated Douglas, just 40 years old, to replace Justice Louis Brandeis, who was forced by a heart attack to leave the Judicial Palace. At the time of his appointment, Douglas had been an eminent law professor at Columbia and Yale and was at the forefront of important national reforms in the world of law, business, regulation, and the Security and Exchange Commission, where he served as its third chairman.

The odds were against Willis Van Devanter ever winning an appointment to the Supreme Court. Widespread talk that he suffered from “pen paralysis,” an affliction that subverted his production, made President William Howard Taft “hesitant” to nominate the Wyoming transplant to fill a vacancy on the nation’s High Court.

When President Herbert Hoover in 1930 nominated Charles Evans Hughes to be Chief Justice of the Supreme Court, an unprecedented second tour of duty on the nation’s High Tribunal, he didn’t find it necessary to offer much in the way of justification because, he said, “it was the obvious appointment.” Hughes’s forceful, forbidding Jovian aura commanded attention and respect. Justice Robert H. Jackson, a historic figure in American law, and comfortable in the company of great men, once said of Hughes: “He looked like God and talked like God.”

Charles Evans Hughes, one of the great names in America’s judicial history, remains the only person twice appointed to the U.S. Supreme Court. His remarkable resume—lawyer, governor, Secretary of State, presidential candidate, Associate Justice, Chief Justice, judge on the Permanent Court of International Justice—reflected a record of contributions to American government and law rivaled by few in our nation’s history.

The U.S. Supreme Court is a law court, of course, but it is primarily a political institution that guides the destiny of the nation. Its rulings mark the boundaries of power between the branches of the federal government and those between the federal and state governments, as well as determining the scope of liberties enjoyed by the citizenry.

William Howard Taft, the only man to serve as President of the United States and Chief Justice of the Supreme Court, once observed that the Court was his idea of what Heaven must be like. This prompted Justice Felix Frankfurter to declare that “he had a very different notion of heaven than any I know anything about.”

In response to previous columns about the appointment, importance, and influence of Justice Louis Brandeis, an enthusiastic reader has asked a most welcome question about the jurist’s contributions to the Supreme Court’s development of the law governing freedom of speech.

Louis Brandeis, known by the nation at the time of his appointment to the U.S. Supreme Court as “The People’s Lawyer” and years later affectionately nicknamed “Old Isaiah” by President Franklin D. Roosevelt, was one of the greatest jurists and most innovative legal minds in our country’s history.

By the time President Woodrow Wilson nominated him for a seat on the U.S. Supreme Court in 1916, Louis Brandeis, the nation’s first Jewish Justice, had forged a reputation as a brilliant, innovative, and influential attorney. He was an advocate to be feared. Judges at all levels acknowledged how much they learned from him. The Supreme Court embraced his novel legal arguments and approach to the law—“the Brandeis Brief”—which ushered in an era of “sociological jurisprudence” and enjoys enduring influence. On top of this, he was known as “the People’s Attorney.”

The emergence of Justice Oliver Wendell Holmes as a dominant influence in the work of the Supreme Court began in 1905, just three years after his appointment to the High Bench, in a dissenting opinion in Lochner v. New York that many scholars hail as the most famous dissent ever written.

Justice Oliver Wendell Holmes, Jr. once said, “If American law were to be represented by a single figure, skeptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.” It has been justly observed that if American law were to be represented by a second figure, it would be Holmes himself, since he was more influential in shaping the agenda for the 20^th Century Supreme Court than any other legal figure.

Former President Donald Trump’s invocation of the landmark Supreme Court ruling in the Scottsboro Boys cases (1931), as justification for delaying his trial on charges related to the subversion of the 2020 federal election, was sharply rejected by the federal court as inapt and by a retired state judge as “stunningly stupid.”

Justice Joseph Story stands as a giant among those who have held a seat on the Supreme Court. Story was one of the greatest legal figures in the 19^th Century, in the upper echelon of everyone’s list of outstanding judges in American history and the most scholarly of scholarly Justices.

Those Americans in the early years of the republic who idolized the elegant, regal, and graceful bearing of English judges could be forgiven their initial doubts about the potential of Chief Justice John Marshall to lead the Supreme Court. Although tall and erect, he was ungainly, awkward, and slovenly. His hair was unkempt and his clothes frequently disheveled, especially his knee buckles, which were dangling. And there was the mud on his boots. His appearance was not indicative of a man impressed with the high station that he had achieved.

Two centuries after his service to the United States as Chief Justice of the Supreme Court, virtually no one doubts John Marshall’s preeminent status in America law.  Justice Oliver Wendell Holmes, widely regarded as deserving of a seat on a judicial Mount Olympus, observed, “If American law were to be represented by a single figure, skeptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.”

It was altogether fitting that James Wilson, second in importance only to James Madison as an architect of the Constitution, would be nominated by President George Washington to the original Supreme Court. From this position, Justice James Wilson could defend the Constitution, which he had done so much to shape and define.

When the newly elected President George Washington turned his attention to the historic opportunity of nominating citizens to fill seats on the first U.S. Supreme Court in 1789, he knew exactly whom he wanted to name the nation’s first Chief Justice: John Jay.

We citizens know a lot about our presidents—their background, philosophy, and character—and sometimes more than we care to know. The same is true of our congressional representatives. By comparison, we know relatively little about our Supreme Court Justices. This needs to change.

The Justice Department’s announcement this week that the Constitution does not shield presidents from civil lawsuits stemming from a president’s defamatory remarks represents two important victories—one for constitutionally limited government and the other for individuals who could be destroyed by the words of the nation’s chief executive.

The Declaration of Independence—its words, elements, and ramifications—remains profoundly relevant in America. As the founding document of the world’s longest running democracy and the ultimate expression of the ideas, values, and principles that culminated in the American Revolution, it certainly deserves a special place in our national consciousness, debates, policies, and laws.  

It is difficult to overestimate the importance of the U.S. Supreme Court’s repudiation of the “independent state legislature” theory in Harper v. Moore. The widely admired conservative judge, J. Michael Luttig, called it “the most important case, since the founding, for American democracy.”

A reader’s question has captured the history-making nature of the forthcoming trial of former President Donald Trump: “What are the implications of the trial for the Constitution, presidential power and the rule of law?”

“What are the implications of the trial of Donald Trump for the Constitution, presidential power and the rule of law?” a reader asks, adding another important question: “Did the Framers of the Constitution adequately limit presidential power?”

Rising calls for Congress to enact new ethical standards for the Supreme Court, sparked by recent revelations that Justice Clarence Thomas failed to disclose financial transactions, have generated a debate on whether the legislative branch possesses constitutional authority to impose a code of conduct on the judiciary.

A reader recently wrote to ask a question on the minds of many Americans: “If the courts check the other branches of government, who checks the courts?” The reader continued: “Since the Supreme Court enforces constitutional limits on the presidency and Congress through the exercise of judicial review, who can restrain the Court, particularly at a time when public opinion registers strong opposition to the Court’s interpretation of the Constitution?”

The continued revival of interest among state legislatures in posting the Ten Commandments in public schools may present to the U.S. Supreme Court an opportunity to reverse yet another decades-old, landmark precedent, this time one that prohibits such displays on grounds that they promote religion in violation of the First Amendment’s Establishment Clause.

The debt ceiling standoff between President Joe Biden and House Republicans has illuminated the Public Debt Clause of the 14^th Amendment, one of the most obscure provisions in the Constitution and one seldom discussed since the Civil War. Its invocation may be the key to avoiding economic catastrophe.

In 1977, in McDaniel v. Paty, the U.S. Supreme Court delivered a landmark ruling that held unconstitutional one of the last anticlerical remnants of the founding era, a 1796 Tennessee law that prohibited ministers and priests from holding public office.

Delegates to the Constitutional Convention, as part of their commitment to separating church from state, unanimously adopted a clause in Article VI, declaring that “no religious Test shall ever be required as a qualification to any Office or public Trust under the United States.”

In February 1793, in Chisholm v. Georgia, the U.S. Supreme Court, fully mindful of the evolving political and legal tensions surrounding the nature of the nation-state relationship, rendered its first important decision on the scope of state authority.

In its first and only impeachment trial of a Supreme Court Justice, the U.S. Senate in 1805 acquitted Samuel Chase of charges against him, a historic decision that raises profoundly important questions about judicial independence and accountability and illuminates the challenges facing Justice Clarence Thomas.

National conversations surrounding the remote possibility of impeaching Justice Clarence Thomas for accepting—and failing to report—lavish gifts from a GOP billionaire with interests before the Supreme Court have prompted important questions from readers about the application of the Impeachment Clause to Supreme Court Justices.

Defendant Donald J. Trump and his supporters have assailed the 34-count felony indictment of the former president brought by the Manhattan District Attorney as resting on a flimsy, untested and novel legal theory that converts Trump’s alleged misdemeanors to felonies.

A federal lawsuit reflective of the nationwide culture wars is challenging the right of a University of Wyoming sorority to induct a transgendered woman, raising questions of central importance to the First Amendment Right of Freedom of Association and Title VII of the 1964 Civil Rights Act. The issues in the suit are likely to be replicated across the nation as the judicial system wrestles with legislative efforts to regulate, distinguish and deny opportunities and rights of the LGBTQ community.

Former President Donald Trump has said he expects to be indicted by a Manhattan grand jury any day now. Although widely anticipated, there is no certainty that he will be indicted by grand jurors in New York or, for that matter, by citizens serving on grand juries in Washington or Atlanta, led by prosecutors examining, respectively, his potential obstruction of justice of a federal investigation involving the “Mar-a-Lago Papers” or his effort to overturn the results of the 2020 election in Georgia.

In 1965, in the landmark case of Griswold v. Connecticut, the U.S. Supreme Court, for the first time in our nation’s history, invoked the right to privacy for the purpose of upholding the right of married couples to access contraceptives. Griswold was hailed by women, who had been fighting for the right to use contraceptives for well over a century. It granted women control over their own reproductive organs and provided married couples with the liberty to decide whether to procreate, plan families and make decisions associated with parenthood.

Racial discrimination in southern hotels and restaurants throughout the 19^th and 20^th centuries, Congress determined in 1964 through hearings and studies, had created for Black Americans great challenges and difficulties in their desire to travel from state to state. The Supreme Court had held a century before that Americans enjoyed a constitutional right to travel, but how could Blacks realistically exercise that right without access to lodgings and places to eat?

The immense pressures inflicted on the United States by the Great Depression of the 1930s forced the Supreme Court on several occasions to confront the scope of a state’s police power to regulate economic activity in the name of the general welfare.

In 1877, in Munn v. Illinois, the U.S. Supreme Court delivered a landmark ruling that, to this day, ranks as one of the most important victories ever rendered for farmers in American legal history. The decision rewarded Midwestern farmers for their broad and sustained political activism in a long campaign to protect their economic interests in a confrontation with the “all powerful railroads.”

Former Vice President Mike Pence plans to invoke the Speech or Debate Clause as justification for challenging a subpoena issued by Special Counsel Jack Smith in his investigation of former President Donald Trump’s efforts to overturn the 2020 election. Pence’s claim to immunity from the subpoena shines a spotlight on an important but largely inconspicuous constitutional provision. Article I, section 6 protects “Senators and Representatives” from arrest “for any Speech or Debate in either House,” and stipulates that “they shall not be questioned in any other Place.”

President Joe Biden’s delivery of what has become the annual State of the Union Address fulfilled one of the few constitutional obligations imposed upon the nation’s chief executive. 

The difficulties that college and university administrators from California to Massachusetts have faced over the past 30 years in protecting their students from harassment, within the context of America’s constitutional commitment to freedom of speech, were brought center stage once more in December of 2022 at the University of Wyoming, where a church elder was banned from the student union for harassing an LGBTQ student by name.

Questions surrounding news that President Joe Biden and former Vice President Mike Pence have disclosed possession of classified documents in their homes justify interruption of this column’s weekly focus on landmark Supreme Court rulings. Curious readers have asked about the constitutional, legal and historical foundations of government authority to classify documents.

Half a century later, Tinker v. Des Moines Independent Community School District (1969) remains the Supreme Court’s authoritative ruling on symbolic speech and the First Amendment rights of K-12 students to express their political views.

In a tragic, landmark ruling of historic dimensions, the Supreme Court, in 1927, in an opinion written by Justice Oliver Wendell Holmes, upheld the forced sterilization of a Virginia woman erroneously characterized by the state as “feeble minded,” grounded on the chilling rationale that, “three generations of imbeciles are enough.”

Congressman-Elect Ron Santos’s (R-NY) sweeping distortions of his personal and professional biography have triggered nationwide calls for the House of Representatives to prevent him from assuming his seat in the 118^th Congress. Americans have recoiled from his many false claims, including that he is Jewish and that his grandparents fled Nazi persecution, that he is a graduate of Baruch College and that he worked for Goldman Sachs and Citigroup.

In this season of peace, remembrance and celebration, we are beckoned by the ghosts of 1776 and 1787 to recall the historic work of this nation’s founders in establishing a republic grounded in the aspirational principles of liberty, equality and self-governance, and our duty as citizens to defend it.

It is unclear if the Department of Justice will charge former President Donald Trump with four crimes referred by the January 6 Committee, but there should be no doubt, constitutionally speaking, that an ex-president is subject to criminal prosecution.

For the generation that framed and adopted the Constitution, legislative despotism was not merely theoretical, but real. The Founders’ fears were drawn from their experience under Parliament, which saddled an aspiring Republic with laws that violated their rights and liberties and denied their goal of independence. Henry Adams, the preeminent historian of the founding period, observed, “a great majority of the American people shared the same fears of despotic government.”

As the entire world knows by now, former President Donald Trump, the presumptive leader of the Republican Party, has called for the “termination” of the Constitution to overturn the 2020 election. Trump’s landmark demand, if implemented, would eviscerate the Constitution, American democracy and the rule of law.

The public role of religion in American life, long a challenging issue for the Supreme Court in its interpretation of the Establishment Clause of the Constitution, commanded nationwide attention in 1984 when a lawsuit was brought against Pawtucket, Rhode Island, for its erection of a nativity scene in the center of the city’s downtown shopping district.

At this juncture in American history, when the citizenry seems to require frequent reminders of the landmark decisions and actions that poured and preserved the foundation of our constitutional democracy, we would do well to recall the transformative importance of Near v. Minnesota (1931), in which the Supreme Court delivered a ruling that built a wall of protection for freedom of the press against governmental censorship.

The enormous pressures and hardships—financial, medical and psychological—inflicted on the citizenry by the Great Depression required creative governmental responses that stressed the limits of the Constitution.

Two hundred years ago, in the landmark case of Cohens v. Virginia (1821), the future of our Constitution, the aspirations of national unity, and the status and role of the federal judiciary itself, were before the Supreme Court. We have seldom seen in one case the coalescence of so many issues fundamental to the integrity of our constitutional system.

The controversial use by college admission committees of an applicant’s race was the subject of a five-hour hearing before the U.S. Supreme Court this week in cases involving Harvard University and the University of North Carolina. The lengthy oral argument brought to a fever pitch the long-simmering question of the constitutionality of race-conscious programs—affirmative action policies—that were upheld in the Court’s landmark ruling in 1978 in Regents of University of California v. Bakke.

The 1807 treason trial of Aaron Burr, lost in the mists of early American legal history, stirs, at most, only faint recollections among members of the Bar, let alone the general public. But Chief Justice John Marshall’s landmark ruling that the president is required to obey subpoenas represents a principle that is fundamental to American Constitutionalism and the rule of law.

In 1996, the Supreme Court delivered a landmark opinion in United States v. Virginia that exalted women’s rights under the Equal Protection Clause of the 14^th Amendment by ending the 157-year-old tradition of all-male education at the Virginia Military Institute, one of the nation’s most distinguished military colleges.

The U.S. Supreme Court’s long, tortured road to recognizing women’s constitutional rights in the late 20^th Century was preceded by victories based, not on the principle of their equality, but on the perception of their inferiority. The Court had laid the groundwork in Bradwell v. Illinois (1873), by declaring women weak and therefore unfit for the practice of law. Their place, said the High Tribunal, was in the home. They required protection from the ugly occupations of civil life.

Not every landmark Supreme Court decision champions the rights of Americans or limits governmental power in a manner that preserves and protects our constitutional democracy. Some seminal rulings shock the conscience, rock the foundation of the nation and reflect crude and outdated prejudices which, when viewed from afar, are reminders that we have, indeed, made some progress.

American legal history firmly rejects the view advanced by some commentators and politicians that the president, not Congress, may decide when to initiate war.  It was, of course, decided by the U.S. Supreme Court in a series of rulings at the dawn of the republic that Congress alone possesses the constitutional authority, by virtue of the War Clause, to declare war and to determine its nature and scope.

Little v. Barreme, decided by the U.S. Supreme Court in 1804, may be among the least familiar landmark rulings ever rendered, but it settled momentous constitutional and legal questions that plumb the depths of American history.

In a stunning decision on April 12, 1937, with enormous constitutional, economic and societal importance, the U.S. Supreme Court, in National Labor Relations Board v. Jones & Laughlin Steel Corporation, upheld a law that transformed workers’ rights and labor relations.

The Supreme Court, in a landmark ruling in West Coast Hotel v. Parrish (1937), set against the backdrop of President Franklin D. Roosevelt’s controversial court-packing plan, shocked the nation when it upheld state authority to impose a minimum wage law, less than a year after it had declared that such laws violated the freedom of contract protected by the Due Process Clause of the 14^th Amendment.

In 1947, in the context of changing attitudes about race and a historic shift in federal policy on the practice of segregation in housing, punctuated by President Harry S. Truman’s spirited attack on discrimination in America, the Supreme Court delivered a landmark decision in Shelley v. Kraemer that rendered racial covenants unenforceable. In a 6-0 opinion authored by Chief Justice Fred Vinson, the Court destroyed the most efficient and systematic tool for maintaining Jim Crow traditions and denying racial minorities from accessing decent housing.