[0:00]More perfect. The honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez, oyez, oyez! All persons having business before the honorable, the Supreme Court of the United States are admonished to draw near and give their attention. Oyez, oyez, oyez! For the court is now sitting. Oyez, oyez! God save the United States and this Honorable Court. [MUSIC] Oyez! Oyez! Oyez! Oyez! Oyez! Oyez! Oyez! Oyez! Oyez! Oyez! Oyez! Oyez! Oyez! Hey, I'm Jad Abumrad. This is More Perfect, a mini-series about the Supreme Court. To begin... And by the way, I will explain the title of this podcast at the end. We live in a democracy with three branches in it: You've got the Executive branch, the Legislative branch, and the Judicial branch. Now that third branch, the Judicial, the courts, consists of a hundred-ish federal courts. And on top of those courts is THE COURT... This temple. Of nine - now eight - unelected lifetime appointees who seem to have this tremendous power. Almost tyrannical power. They are wickedly important and we're reminded of this... Scalia's death throws a huge unknown factor into this campaign... Every time we turn on the TV. We are one justice away from losing our fundamental rights in this country... Because here we are in this election, and the phrase that you hear a lot... One of the most important things in that election, I think. This might be the most important thing to those of you who are young, I'll cite it. Is that one of the most important things the next president is gonna do... This next president may very well appoint... Between one and three... Four Supreme Court justices. Now never mind that most Americans don't know who the justices are, two thirds can't even name a single justice... I can't even name the one that just died. I honestly couldn't tell you any of their names. No, I can't even tell you any. I don't either. The only name of a judge I know is Judge Judy. Doesn't matter. We all know that whoever they are, they're incredibly powerful people. That they can boom, instantly strike down a law that took years to pass... The Supreme Court reversed a century of law that I believe will open the floodgates... They can undo Executive orders, they can even change like these long-held definitions, like what is a person... what makes a marriage... They can even decide an election... Justice Scalia? My usual response is get over it. Get over the possible corrupting of the American Presidential system? [LAUGHING] Now with all the background chatter in the election it's sort of interesting to to think about the fact that when it comes to the court and their power, it didn't have to be this way. It didn't have to be this way. And it wasn't for a long time. And it wasn't for a long time. Yeah. Reporter Kelsey Padgett will take it from here. I mean, if you go back in time, say like early 1800s, the court had so little power. In fact, they were... Meeting in the basement of Congress. That's Linda Monk, Constitutional scholar. One newspaper refers to it later as a dark, dank potato hole. Potato hole? Like it was damp or something? I mean, DC at this time was like a swamp, so I imagine there were spiders in there and they said there weren't very many windows. Well, Maybe it wasn't that bad, but still. We think of three separate branches. It's kind of hard to think of yourself as a separate branch when you're meeting in the basement of Congress. Not only that... When Congress actually sets up the first Supreme Court, they created originally a Supreme Court of six justices. That's Yale law professor, Akhil Redamar. An even number. How odd. Today we're freaked out, oh, the court could be divided four-four, what's going to happen? Oh my God... The Supreme Court is not designed to function with an even number of justices... You know, we're in a crisis.
[3:56]So should cable news be creating their Constitutional crisis graphics? But originally, the first Congress, they created six members because they're not imagining the court as deciding everything. In other words, like you know if the court is split...who cares? Because at the time they weren't deciding big cases. They weren't deciding like affirmative action, Roe v. Wade, nothing like that. They were handling like these little tiny rinky dink cases. And most of their time was spent literally riding in carriages from town to town. Trying cases around the country, and that's a big hassle. They don't even get to sleep in their own beds. Wait, why are they riding around? Well so they actually each had a separate geographical zone that they're in charge of. So that's actually still true today. But unlike today, where people come to the Supreme Court. Back then... People weren't coming to them! Why would I do that!? That's Elie, Elie Mystal, our legal editor. Why would I go seek out these guys someplace else, to hear my local issue in South Carolina? If they have something to say about it, they can come to South Carolina, sit on my farm and talk to me. Gotta think about the country in 1800, in 1804. This is a states rights, states centric country. All of which is to say, that being a Supreme Court Justice, at that time... It's not a great gig. It's rough. Consequently, the people who chose to do this... Well, They're kind of misfits. Uh, yeah, totally! Who are like really smart, but like a motley crew that isn't organized. That's Ari Savitsky. He's a lawyer, Constitutional history enthusiast. He says at the time on the court, you had this guy nicknamed Old Bacon face... Who is like a maniac. [MUSIC: WILD THING] He's like the kind of like the Charlie Sheen, wild thing in “Major League” type character. Very hot tempered, had a foul mouth. There's another one that is, you know, four foot nine and really silent. The Supreme Court was a pretty rag tag bunch. All of this happens, and I think it's important for people to understand, all of this happens, in part, because the Constitution is embarrassingly silent on what the Supreme Court is, what it should do, how it should be constituted. Article 3 says, Article 3 of our United States Constitution says, there shall be a Supreme Court. Thanks, guys. [LAUGH] It's true, I mean it's kinda weird. Like if you read the Constitution... Boy it spends a lot of time talking about the House of Representatives, how are you gonna count slaves. And it's gonna be by population, there has to be a census every ten years. 'Cause the House is important. But when it comes to the Supreme Court, all you get is like a couple of sentences. Almost nothing at all. You know, and that's kinda the puzzle of this. Like, how did they get so powerful? I mean, they started out as these nobodies in a basement, and now they're these all powerful, you know, priests of the Constitution. The Supreme Court of the United States. Nine men... And women. High in government, who sit in judgment on many of the great questions before our nation. So how did that happen?
[7:12]Especially when there's, like, arguably nothing in the Constitution to say that that SHOULD happen. All right, so how did that happen? Well... You could trace so much of this back to one move...by one man. John Marshall! John Marshall. The new Chief Justice. He arrives to the court in 1801. Marshall like calls his first meeting of the court [GAVEL POUNDING] [CRICKETS CHIRPING] And one person shows up. [LAUGHS] What do you mean the other- Eh, out of town, got something better to do, like they just don't show up. Actually it was three people, but still... Wait, before we go too deep... Can you just like- Oh, they all look the same to me. [LAUGHS] He didn't mean that. He was tall. He was gaunt. He had a square jaw. Very jowly. Piercing eyes. Marshall was a smart cookie. And he would need to be because he ends up getting in this very famous fight with his very famous second cousin, that would change the course of the American history forever. Who is his very famous second cousin? Well, just a little old man named Thomas Jefferson. Oh. TJ. Now, John Marshall and Thomas Jefferson really, really, really don't like each other. Whew. I mean on a personal level. You think Hamilton and Jefferson is something on Broadway. Actually it was Marshall and Jefferson who really despised each other. And yet they both come from Virginia, they both come from the back country. Why all the hate? Well I mean part of it was like this family beef. At one point John Marshall's wife's mother rejected Thomas Jefferson romantically. What? Yeah. Wait. His wife's mother? So his- Yeah. His mother-in-law. Said no to the great Thomas Jefferson? I know. But that doesn't seem like enough of a reason. Well I mean, OK, so the main reason, the non-gossipy reason, the non-fun reason is because they were in opposite political parties. I think the important thing to understand about Marshall is that he's a party man. He's a party man. Like he likes to party? he's committed to his team. And his team are the Federalists. The Federalists. They love big government. Let's have a national bank, let's rev up national power. The Republicans, Thomas Jefferson's people, they like small tiny government. Let the states have the power. You know, we're maybe in favor of the view that states can veto Federal law if they don't like it. So these two guys, these two cousins. Both national figures. Totally different philosophies. And even before Marshall hits the court... They're going at it. They beef and they beef and they beef. It's actually a slugfest. To paraphrase: Marshall, you're dishonest. Jefferson you're a hack. Marshall, you and your friends are poisoning America. It's like, it's a food fight. It's very difficult to stop the tendency to view the people that you disagree with as... as evil. [LAUGHS] We need somebody that can take our jobs back because we're going to hell! It's really hard, we do that all the time today, right? They, even as much or not more than today, they thought the other side was trying to destroy the America that they had just created.
[10:28]Anyway. Throughout the 1790's, the Federalists are in power. The Federalists hold all the branches of Government. John Adams is president. Mostly loved by his own party. Hated by Thomas Jefferson's party. They literally call him like his rotundity. [LAUGH] So Adams is in power...and ultimately, our guy, John Marshall... Marshall is secretary of state, one of the highest officials in the Adams administration. You know, A party man. And for a while, things are going well for his party. But then, in 1800...
[11:07]Thomas Jefferson and the Republicans sweep in and CRUSH...absolutely crush...the Federalists. Like landslide crush? Yeah. Fleetwood Mac style. The Republicans ran the table in 1800. They're going to take over the House, they're going to take over the presidency. So John Adams is like crap, what do I do? We need to save the republic! The Federalists have basically been swept out. But in his dire moment he has this idea. He's thinking like, oh I've lost the House, I've lost the White House. Oh. The Supreme Court, the Supreme Court. Normally, nobody cares about the Supreme Court, but in this moment he's thinking oh my gosh, this is my last hope. And in fact... As luck would have it, a vacancy pops up. A vacant chief justice position. So just as Justice Scalia has recently died and there's a vacancy, well, the sitting Chief Justice, Oliver Ellsworth, steps down. And Adams picks his secretary of state, John Marshall, to be the new Chief Justice. Tah dah. That's how we got John Marshall. And John Adams does one other thing.
[12:12]In the waning seconds of his presidency. Adams and these repudiated Federalists jam through a whole bunch of Federal judgeships. They create scores of new judges. And they throw Federalists into almost all of those positions. Like 40 appointments. He just throws in 40 judges at the last minute? Congress creates 40 judges at the last minute, and then he appoints 40 judges at the last minute. Wow, if I were Jefferson I'd be PISSED. Jefferson is pissed. Which we'll get to in a second but in the meantime, Adams has just a few days left in his presidency, he's like frantically trying to get these judges in. Nominate these people. Confirm them. Once you confirm these people, you have to like give them their commission. You can't just go around claiming you're a judge or claiming you're a whatever— you have to have a commission. Like a piece of paper with the formal seal and the signature of the president. And as the story goes... As the clock is striking midnight on John Adams' last day... Adams and his team are in his office, and they're trying to get these papers out the door, they're frantically signing them and stamping them. I just imagine, like, young boys sprinting through the dead of night waving these papers over their head. Your commission, your commission! In fact I think the totally apocryphal story is that Jefferson's attorney general, like busts in the door at midnight and he is like put down your pen! [LAUGHS] Don't do it! But apparently some of the commissions don't get delivered.
[13:30]They just are left sitting on the desk. Was it like an oversight or something? Clerical error? It's not even like a clerical — They just ran out of time. But they thought like if a couple are left on the desk it's no big deal. Because, like, it's a signed commission from the president. It's like still a binding document. The fact that it wasn't formally delivered? You still get your appointment. Well, when Jefferson comes to power, apparently he finds those papers and is like, oh. Look at this. You didn't deliver these commissions. Guess you can't get those positions. Sorry.
[14:40]And one of the people that lost out because their commission did not get delivered was one Mr. William Marbury. He was a businessman. 39 years of age. He got appointed to be justice of the peace. It's a pretty low ranking position. So he's sitting there, he's waiting for his commission to show up and like, of course, it never does. And it—finally it dawns on him, oh the Jefferson administration has it. I'm going to go get it. He files a lawsuit. So—and what he does actually ends up being really important, but he files a lawsuit directly in the Supreme Court.
[15:15]Wait, you can do that? You can go right to the Supreme Court? Like first? Well, at this time Congress had just passed a law saying in certain strange circumstances you can go directly to the Supreme Court. He goes directly to the Supreme Court and he says, I have a right! I have a legal right!
[15:35]Thomas Jefferson, give me that darned piece of paper that says I'm really a judge. The case gets named Marbury v. Madison because James Madison is Jefferson's secretary of state, who he's actually suing, but... He's essentially suing the president! Forcing Marshall and the court to have this confrontation with Jefferson. So now it's the showdown between Marshall's ragtag team and Jefferson.
[20:00]So basically what happens is the court has a trial. Marbury and his lawyers, they get up there and they're like, what happened to the papers? Where is the commission? Did you have them? What'd you do with them? Jefferson's people get up there and say...I don't know what you're talking about. I won't answer the question of what happened to them. They stonewall. These are all like important official documents signed by the president, like no one knows what happened to them? Like, it's kind of like- They go back and forth... Things get very tense. And you know I mean to their credit like no one gets punched out. Eventually, they stop arguing about whether or not the papers exist, and they are, like, this is the more important question: does the Jefferson administration have to honor those papers? Do they have to give the commission to Marbury? Are they required? Is there a legal requirement that they give it to him? And in Marshall's head it's a resounding hell yeah, he should have gotten that commission. Cause the law is the law. And if you just decide you're not gonna follow the law just because you don't like the guy who made the law or you don't think it's fair, that's anarchy. That's—I mean, we talk a lot in this country, we pat ourselves on the back in this country about our peaceful transition of power. Yeah, good for us. But how did we actually get to that point? And this is a key reason why we've gotten to that point because the decisions of the past administration still hold value even when that administration is kicked out of office, kind of overthrown by popular vote, their decisions still have sway, still have legal force. Jefferson was quite obviously negating that. So Marshall wants to say, to Jefferson, you know, suck it up, cousin. Give this guy his papers. You're an official, do your job. But... He thinks twice. He understands how weak his court is. According to Akhil Redamar, Marshall's afraid that if he orders Jefferson to give over those papers, Jefferson is going to straight up... Laugh in his face and say, You and what army? I'm not gonna do it. Literally they just got back from a congressionally mandated you can't come to work time. Jefferson knows full well that he has no intention of granting that commission. He will never give that commission. Jefferson knows this. Marshall knows this. Marshall knows that if he tells Jefferson to give him the commission, Jefferson is going to ignore him, and then the power of the Supreme Court basically evaporates. Because Elie says, like if you think about it, if the executive branch is going to say right at the jump that if you make a decision I don't like, I'm just gonna ignore that, then every executive branch going on from Jefferson, throughout the rest of our history, is just going to ignore the Supreme Court when the Supreme Court does something that the executive doesn't like. So basically, Marshall is kinda stuck. If he rules for Jefferson and he's selling out the law and making the court look weak. If he rules against Jefferson, Jefferson is gonna ignore the court and they're gonna look weak. Either way...Jefferson wins. And either way...the Supreme Court maybe disappears forever.
[23:14]Marshall needed to find a way to get through this. He needed to find some way to kick the case. And to be clear, John Marshall is running away from a fight with Thomas Jefferson. He says all these sorts of things, but he knows that Thomas Jefferson, you know, straight up has more power. And so he's retreating. Wow, so suddenly it feels like an apocalyptical moment. Yeah. Well so the thing that he does, it's like the most Jedi master-ish thing ever. [LIGHTSABER SFX] He writes this hundred-something page decision...and in the beginning... If you actually read the decision, it's a lot of pages of telling Jefferson... [LIGHTSABER SFX] How he's wrong. How he can't do what he did. How he's, you know, ruining America! Right, There's a lot of that in the Marshall decision. But then, when he gets to the matter at hand, he does this little shift.
[24:11]So he says OK, hold up. Yes. Mr. Marbury is right. He should have gotten that commission. And yes, Mr. Jefferson should no be doing this. But... We, the Supreme Court, we don't have jurisdiction to hear this case. A court needs to have the power to hear a case. And if a court doesn't have the power to hear a case, even if you're completely right, even if your position is right, you can't get relief. Wait, why would he say that they don't have jurisdiction? What's their- This is like where he uses the force. You know earlier I had mentioned that Marbury brought this case under a law Congress had passed that said Marbury could come straight to the Supreme Court, like for this kind of situation. Well, John Marshall he goes back to his Constitution. He's reading around and he's like, uhh. Trying to figure out what he can do here. And he finds this little sentence. Yeah. So it's article 3, section 2. In the Constitution that says like, basically, you're not supposed to go to the Supreme Court first. You're supposed to go to a different court and then the Supreme Court. It's an appeals court. Wonky. Exactly. But he basically he tells Marbury, the plaintiff, you came in, and you came to the Supreme Court first. And you did that because Congress passed a law that said that you could come to the Supreme Court first. But the Constitution says that you can't come to the Supreme Court first. So I can't help you. Nope. It's not your fault, Mr. Marbury. But that law was unconstitutional. And we're not going to follow that unconstitutional directive. You see what he did there? I—maybe I see—I don't know if I see. Well OK so it's—you know that part in "Star Wars"... Your father was a weak old man. The first one where Obi Wan Kenobi is fighting with Darth Vader and he says... If you strike me down, I shall become more powerful than you can possibly imagine. This is like that but real. Marshall is agreeing to lose - he's like found this way to lose, to like let Darth Vader strike him down. And that's actually going to make him more powerful. He basically saying to his cousin, OK, you don't have to give Marbury his commission. And the reason you don't have to give Marbury his commission is because that law doesn't work, because we, the court, we get to decide when something agrees with or doesn't agree with the Constitution. So like, congrats, you win cousin. Oh and by the way, we the court have the power to declare things unconstitutional. That was the sort of Jedi master move. That's the move. Instead of jumping off the cliff or laying down, he jukes to the right and he establishes a new rule of the game. Unconstitutional.
[26:51]Inside this one highly technical, highly political drama between these two cousins, John Marshall sneaks in an atomic bomb, this incredible power. And in Marshall's decision he wrote... It's emphatically the duty and province of the judicial department to say what the law is. To say what the law is. To say what the law is. And with those words, he made the court what it is today. The U.S. Supreme Court ruled Monday a law allowing Americans born in Jerusalem to list Israel as their place of birth is unconstitutional. Is unconstitutional. Unconstitutional. Unconstitutional. Unconstitutional. Unconstitutional. And no one had ever done that before? Well, I mean like people had talked about it and there was lots of theories about it in smaller courts and smaller decisions, but this is the first time that the Supreme Court does it. And he does it in the face of the president.
[27:56]And that set us on this path.
[28:01]Today the court is so much more powerful, it's grown into the 800 pound gorilla when it says jump other branches tend to say how high. We'll hear argument now number 00949 George W. Bush and Richard Cheney- And we just take it for granted. Three words. Bush v. Gore. They decided a presidential election and and no one blinked.
[32:19]In the end, for better or worse, we the people still have the power.
[35:44]Seriously. More Perfect is produced by me, Jad Abumrad, with Suzie Lechtenberg, Tobin Low, Kelsey Padgett and Sean Rameswaram. With Soren Wheeler, Elie Mystal, David Herman, Alex Overington, Karen Duffin, Katherine Wells, Bari Finkel, Andy Mills, Dylan Keefe and Eva Dasher. Special thanks to Judith Resnick, Paul Boger, Liam Tole, Jessica Miller, Annie McQuen, Matthew Matt Kelly, Alethia John, Mead Bernard, Nadia Sorota, and John Hanrahan. Supreme Court audio is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part by The William and Flora Hewlett Foundation, The Charles Evans Hughes Memorial Foundation and the Joyce Foundation.
