Oct 8, 2020

Kittens Kick The Giggly Blue Robot All Summer

With the recent passing of Ruth Bader Ginsburg, there's been a lot of debate about how much power the Supreme Court should really have.

We tend to think of the Supreme Court justices as all-powerful guardians of the constitution, issuing momentous rulings from on high. They seem at once powerful, and unknowable; all lacy collars and black robes.

But they haven’t always been so, you know, supreme. On this episode of More Perfect, we go all the way back to the case that, in a lot of ways, is the beginning of the court we know today.

Also: we listen back to a mnemonic device (and song) that we created back in 2016 to help people remember the names of the justices. Listen, create a new one, and share with us!

The key links:

- Akhil Reed Amar's forthcoming book, The Constitution Today: Timeless Lessons for the Issues of Our Era
- Linda Monk's book, The Words We Live By: Your Annotated Guide to the Constitution

The key voices:

- Linda Monk, author and constitutional scholar
- Akhil Reed Amar, Sterling Professor of Law at Yale
- Ari J. Savitzky, lawyer at WilmerHale

The key cases:

- 1803: Marbury v. Madison
- 1832: Worcester v. Georgia
- 1954: Brown v. Board of Education of Topeka (1)
- 1955: Brown v. Board of Education of Topeka (2)

Additional music for this episode by Podington Bear.

Special thanks to Dylan Keefe and Mitch Boyer for their work on the above video.

Support Radiolab by becoming a member today at Radiolab.org/donate.    

 

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INTRO

 

JAD ABUMRAD: 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 9 -- now 8 -- unelected life-time appointees who seem to have this tremendous power

 

CLIP: ALMOST TYRANNICAL POWER

 

JAD: They are wickedly important and we’re reminded of this

 

NEWS CLIP: Scalia’s death throws a hunge unknown factor into this campaign

 

JAD: Every time we turn on the TV.  

 

NEWS CLIP: We are one justice away from losing our fundamental rights in this country

 

JAD: Because here we are in this election, and the phrase that you hear a lot

 

NEWS CLIP: One of the most important things in that election, I think,

 

NEWS CLIP: This might be the most important thing to those of you who are young I’ll say today

 

JAD: Is that one of the most important things the next president is gonna do

 

NEWS CLIP: This next president may very well appoint

 

NEWS CLIP: Between one and three

 

NEWS CLIP: Four Supreme Court justices.

 

JAD: Now never mind that most Americans don’t know who the justices are, two thirds can’t even name a single justice

 

CLIP: I can’t even name the one that just died

 

CLIP: I honestly couldn’t tell you any of their names

 

CLIP: No I can’t even tell you any--

 

CLIP: I don’t either

CLIP: The only name of a judge I know is Judge Judy

 

JAD: Doesn’t matter. We all know that whoever they are, they’re incredibly powerful people

 

MUSIC IN

 

JAD: That they can boom, instantly strike down a law that took years to pass

 

CLIP, OBAMA: The Supreme Court reversed a century of law that I believe will open the floodgates

 

JAD: 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

 

CLIP: Justice Scalia

 

CLIP, SCALIA: My usual response is get over it.

 

CLIP: Get over the possible corrupting of the American Presidential system?

 

CLIP, SCALIA: [LAUGHING]

 

JAD: Now with all the background chatter in the election it’s sort of interesting to think about the fact that when it comes to the court and their power, it didn’t have to be this way.

 

JAD: It didn’t have to be this way

 

KELSEY PADGETT: And it wasn’t for a long time

 

JAD: And it wasn’t for a long time

 

KELSEY: Yeah

 

JAD: Reporter Kelsey Padgett will take it from here

 

KELSEY: I mean, if you go back in time, say like early 1800’s, the court had so little power. In fact they were

 

LINDA MONK: Meeting in the basement of congress

 

KELSEY: That’s Linda Monk, constitutional scholar

 

LINDA MONK: one newspaper refers to it later as a dark, dank potato hole.

 

JAD: Potato hole [LAUGHS] Like it was damp or something

 

KELSEY: 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

 

LINDA MONK: Well

 

KELSEY: Maybe it wasn’t that bad, but still

 

LINDA MONK: 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 a congress.

 

KELSEY: Not only that...

 

AKHIL REDAMAR: When congress actually sets up the first supreme court they created originally a Supreme Court of six justices,

 

KELSEY: That’s Yale law professor, Akhil Redamar

 

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?

 

NEWS CLIPS: The Supreme Court is not designed to function with an even number of justices

 

AKHIL REDAMAR: You know, we’re we’re in a crisis.

 

CLIP: So should cable news be creating their constitutional crisis graphics

 

AKHIL REDAMAR: But originally, the first congress, they created six members because they’re not  imagining the court as deciding everything.

 

KELSEY: 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

 

AKHIL REDAMAR: trying cases around the country, and that’s a big hassle.  They don’t even get to sleep in their own beds

 

JAD: Wait, why are they riding around?

 

KELSEY: 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

ELIE MYSTAL: People weren’t coming THEM! Why would I do that!?

 

KELSEY: That’s Elie, Elie Mystal, our legal editor.  

 

ELIE MYSTAL: 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.

 

KELSEY: All of which is to say, that being a Supreme Court Justice, at that time

 

ARI SAVITSKY:  It’s not a great gig

 

KELSEY: It’s a rough. Consequently, the people who chose to do this

 

ARI SAVITSKY: Well

 

CIRCUS MUSIC

 

KELSEY: They’re kind of misfits

 

ARI SAVITSKY: Uh, yeah, totally! Who are like really smart, but like a motley crew that isn’t organized.

 

KELSEY: That’s Ari Savitsky.  He’s a lawyer, constitutional history enthusiast. He says at the time on the court, you had this guy nickname Red Old Bacon face...

 

ARI SAVITSKY: Who is like a maniac

 

MUSIC WILD THING!

 

ARI SAVITSKY: He’s like the kind of like the Charlie Sheen, wild thing in “Major League” type character

 

KELSEY: Very hot tempered, had a foul mouth

 

ARI SAVITSKY: There’s another one that is you know four foot nine and really silent.  The Supreme Court was a pretty rag tag bunch.

 

ELIE MYSTAL: 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.

 

PAUSE

 

ELIE MYSTAL: Thanks guys.

 

KELSEY: [LAUGH]

 

KELSEY: It’s true, I mean it’s kinda weird. Like if you read the constitution...

 

AKHIL REDAMAR: Boy it spends a lot of time talking about the house of representative, how are you gonna count slaves.  And it’s gonna be a population, there has to be a census every ten years. Cause the house is important.

 

KELSEY: But when it comes to the Supreme Court, all you get is like a couple of sentences

 

AKHIL REDAMAR: Almost nothing at all

 

KELSEY: And you know, 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

 

CLIP: The Supreme Court of the United States. 9 men

 

KELSEY: And women

 

CLIP: High in government, who sit in judgement on many of the great questions before our nation.

 

KELSEY: So how did that happen?

 

MUSIC POST

 

KELSEY: Especially when there’s like arguably nothing in the constitution to said that that SHOULD happen.

 

JAD: All right, so how did that happen?

 

KELSEY: Well…

 

MUSIC OUT

 

KELSEY: You could trace so much of this back to one move...by one man.

 

ARI SAVITSKY: John Marshall!

AKHIL REDAMAR: John Marshall,

 

LINDA MONK: John Marshall

 

AKHIL REDAMAR: The new chief justice

 

KELSEY: He arrives to the court in 1801

 

ARI SAVITSKY: Marshall like calls his first meeting of the court [SFX] and one person shows up.

 

JAD: [LAUGHS] What do you mean the other--

 

ARI SAVITSKYI: Eh out of town, got something better to do, like they just don’t show up

 

KELSEY: Actually it was three people, but still

 

JAD: Wait, before we go too deep… Can you just like--

 

JAD: What did he look like?

 

ELIE MYSTAL: oh they all look the same to me

 

KELSEY: [LAUGHS]

 

KELSEY: He didn’t mean that.

 

ELIE MYSTAL: He was tall. He was gaunt.  

 

KELSEY: He had a square jaw

 

ELIE MYSTAL: Very jowely.

 

KELSEY: Piercing eyes

 

ELIE MYSTAL: Marshall was a smart cookie

 

KELSEY: And he would need to be because he ends up getting in this very famous fight with his very famous second cousin, that would change the course of the American history like forever.

 

JAD: Who is his very famous second cousin?

 

KELSEY: Well, just a little old man named Thomas Jefferson

 

JAD: Oh. TJ

 

LINDA MONK: Now, John Marshall and Thomas Jefferson really really really don’t like each other. Whew.

 

MUSIC

 

LINDA MONK: 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.

 

JAD: Why all the hate?

 

KELSEY: Well I mean part of it was like this family beef.  At one point John Marshall’s wife’s mother rejected Thomas Jefferson romantically

 

JAD: What?

 

KELSEY: Yeah

 

JAD: Wait. His wife’s mother? So his--

 

KELSEY: Yeah. His mother in law

 

JAD: Said no to the great Thomas Jefferson

 

KELSEY: I know

 

JAD: But that doesn’t seem like enough of a reason

 

KELSEY: Well I mean, OK, so the main reason, the non-gossipy reason, the non-fun reason is because they were in opposite political parties...

 

ELIE MYSTAL: I think the important thing to understand about Marshall is that he’s a party man.

JAD: He’s a party man

 

ELIE MYSTAL: He’s a party man

 

JAD: Like he likes to party?

 

ELIE MYSTAL: [LAUGHS] he’s committed to his team.  And his team are the Federalists.

 

KELSEY: The Federalists. They love big government.

 

ARI SAVITSKY: let’s have a national bank, let’s rev up national power.

 

KELSEY: The Republicans, Thomas Jefferson’s people, they like small tiny government. Let the states have the power

 

ARI SAVITSKY: You know, we’re maybe in favor of the view that states can veto Federal law if they don’t like it.

 

KELSEY: So these two guys, these two cousins.   Both national figures. Totally different philosophies.  And Even before Marshal hits the court

 

MUSIC

 

KELSEY: They’re going at it

 

ARI SAVITSKY: they beef and they beef and they beef

 

AKHIL REDAMAR: It’s actually a slugfest

 

KELSEY: To paraphrase: Marshall, you’re dishonest. Jefferson you’re a hack. Marshall you and your friends are poisoning America.

 

AKHIL REDAMAR: It’s like, it’s a food fight.

 

ARI SAVITSKY: It’s very difficult to stop the tendency to view the people that you disagree with as evil… [LAUGHS]

 

CLIP, TRUMP: We need somebody who can take our jobs back because We’re going to hell!

 

ARI SAVITSKY: 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 just created.

 

SFX

 

ARI SAVITSKY:  Anyway

 

MUSIC

 

ARI SAVITSKY:  Throughout the 1790’s, the Federalists are in power.  The Federalists hold all the branches of Government.

 

KELSEY: John Adams is President.  Mostly loved by his own party. Hated by Thomas Jefferson’s party.

 

ARI SAVITSKY: they literally call him his rotundity

 

KELSEY/JAD: [LAUGH]

 

ARI SAVITSKY: Very offensive!

 

KELSEY: So Adams is in power...and ultimately, our guy, John Marshall

 

ARI SAVITSKY: Marshal is secretary of state, one of the highest officials in the Adams administration.

 

KELSEY: You know

 

ELIE MYSTAL: a party man

 

KELSEY: And for a while, things are going well for his party.  But then, in 1800

 

MUSIC SHIFT

 

KELSEY: Thomas Jefferson and the Republicans sweep in and CRUSH

 

MUSIC

 

KELSEY: ...absolutely crush...the Federalists.

 

JAD: Like Landslide crush?

 

KELSEY: Yeah. Fleetwood Mac style

 

ARI SAVITSKY: The Republicans ran the table in 1800. They’re going to take over the House, they’re going to take over the presidency.

 

KELSEY: So John Adams is like crap, what do I do?   

 

ARI SAVITSKY: We need to save the republic!

 

AKHIL REDAMAR: The Federalists have basically been swept out

 

KELSEY: 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.

 

AKHIL REDAMAR: And in fact

 

KELSEY: As luck would have it, a vacancy pops up

 

AKHIL REDAMAR: 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.

 

KELSEY: Tah dah

 

LINDA MONK: And that’s how we got John Marshall

 

AKHIL REDAMAR: And John Adams does one other thing

 

MUSIC

 

KELSEY: In the waning seconds of his presidency

 

AKHIL REDAMAR: Adams and these repudiated Federalists jam through a whole bunch of Federal judgeships

 

ARI SAVITSKY: They create scores of new judges

 

KELSEY: And they throw Federalists into almost all of those positions.

 

ARI SAVITSKY: Like 40 appointments

 

JAD: He just throws in 40 judges at the last minute?

 

ARI SAVITSKY: Congress creates 40 judges at the last minute, and then he appoints 40 judges at the last minute.

 

JAD: Wow, if I were Jefferson I’d be PISSED.

 

ARI SAVITSKY: Jefferson IS pissed.  

 

KELSEY: 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

 

ARI SAVITSKY: Nominate these people. Confirm them.  Once you confirm these people, you have to give them your commision.  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.

 

KELSEY: And as the story goes

 

AKHIL REDAMAR: As the clock is striking midnight on John Adams’ last day…

 

KELSEY: 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

 

JAD: I just imagine, like, young boys sprinting through the dead of night waving these papers over their head.

 

ARI SAVITSKY: 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!

 

JAD: [LAUGHS]

 

ARI SAVITSKY: Don’t do it!  But apparently some of the commissions don’t get delivered.

 

MUSIC STING

 

ARI SAVITSKY:  They just are left sitting on the desk

 

JAD: Was it like an oversight or something?  Clerical error?

 

ARI SAVITSKY: it’s not even like a clerical -- They just ran out of time

 

KELSEY: But they thought like if a couple are left on the desk it’s no big deal

 

ARI SAVITSKY: 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.

 

KELSEY: That sets up this kind of terrible situation for Jefferson. He shows up the next day to take power

 

AKHIL REDAMAR: And the judiciary is filled with ghosts of presidential appointees past

 

ARI SAVITSKY: Just a bastion of partisan judges

 

AKHIL REDAMAR: So

 

KELSEY: As you can imagine

 

AKHIL REDAMAR: Jefferson and his friends think that this is not fair.

 

ELIE MYSTAL: Jefferson sees Marshall and all the other judges Adams appointed, as Adams’s spies on his administration.

 

KELSEY: So Jefferson, he decides to immediately retaliate.  Because you know, he won the presidency, he won by a lot, and he’s like, you’re shoving all these judges down my throat?  And on top of that, the guy you’ve named to be the head of the judges, the head of the Supreme Court is my evil second cousin? What is this?

 

ARI SAVITSKY:  So Jefferson is running the country…

 

MUSIC

 

ARI SAVITSKY: and working with a republican congress to,

 

MUSIC

 

ARI SAVITSKY: among other things

 

SFX

 

ARI SAVITSKY: Cancel the supreme court term for 1802

 

JAD: [LAUGHING] They just canceled the whole term?

 

ARI SAVITSKY: They just canceled it. They were like--

 

JAD: What did they say? Like go home?

 

ARI SAVITSKY: Yeah, they were like there’s no more supreme court sorry.

 

KELSEY: Imagine if that happened to day, when Obama’s plan for immigration gets smacked down, imagine him like instead of him having that peaceful press conference where he like shows his disappointment, imagine instead if he was like, Supreme Court

 

ARI SAVITSKY: Go to your room

 

CLIP, OBAMA:  no good punks! That’s right!

 

KELSEY: Anyhow

 

MUSIC

 

KELSEY: Marshall is sent away for over a  year... there’s no full supreme court meetings… And when he comes back...and it’s very clear to him, that the Supreme Court it’s on life support.

 

MUSIC SHIFT

 

KELSEY: That the Republicans could pull the plug at any minute.

 

AKHIL REDAMAR: Marshall knows already that there are rumblings that one of his colleagues, a man named Chase

 

KELSEY: Old Bacon Face.  You know…

 

MUSIC, WILD THING

 

KELSEY: That guy

 

AKHIL REDAMAR: Should be impeached

 

KELSEY: So when he sees this

 

ARI SAVITSKY: this motley crew

 

LINDA MONK: in dark dank potato hole

KELSEY: He’s like, I gotta do something. We’re fighting for our life here.

 

ARI SAVITSKY: I was thinking about this on the on the way over and it kind of reminds me of you know, those summer camp movies, where there’s like a baseball team and they’re like super ragtag and they can’t get it together. And then like at the end they have to play the really good team with like the nice professional uniforms, that’s kind of like the judges on the Supreme Court. And Marshall is like either the counselor or the camper or the new kid on the block who comes to the team and says we can do this guys! We can do it!

 

KELSEY: Que 80s movie training montage

 

MUSIC

 

KELSEY: He knows if the US is gonna even have a court system and a Supreme Court...he’s gotta beef this team up.

 

ELIE MYSTAL: one of the first things Marshall does is, just professionalize the judiciary.

 

ARI SAVITSKY: Like for example, he starts this tradition of wearing black robes.

 

ELIE MYSTAL: That made them look the part.

 

CLIP: The judges appeared in their robes of justice!

 

KELSEY: He figured that the black robes would make them look less like partisans hacks and more like

 

MUSIC

 

KELSEY: They’re...floating above the fray. Beyond politics. Next

 

MUSIC SHIFT

 

KELSEY: He moves all the justices into the same dorm.

 

LINDA MONK: the same rooming house

 

KELSEY: No wives, no family,  all business

 

LINDA MONK: He’s trying to create that more perfect union in the judiciary

KELSEY: And just to grease the wheels a little bit

 

MUSIC

 

LINDA MONK: Have some madeira my dear!

 

KELSEY: is that some wine?

 

LINDA MONK: Yes, it’s a fortified wine.

 

TON LOC: the funky cold medina!

 

LINDA MONK: Justice Marshal would order it in great quantities. That, many scholars think, was part of John Marshall’s secret.

 

KELSEY: OK so he’s professionalizing the team, he’s getting them together, and then they get put to the test in 1803. It’s a cousin on cousin smackdown

 

MUSIC IN

 

JAD: That’s coming up when we continue. This is More Perfect.

 

ADVERTISEMENT

 

JAD: Hey I’m Jad Abumrad, this is More Perfect. Back to our story from Kelsey Paget and we arrive at the pivotal moment, the cousin on cousin smackdown that would change America

 

KELSEY: OK so remember how Ari told us that some of the commissions didn’t get delivered?

 

JAD: Yeah

 

ARI SAVITSKY: I think five

 

KELSEY: And that they were sitting on a desk somewhere

 

JAD: Mhm

 

KELSEY: And how they thought it wasn’t a big deal

 

ARI SAVITSKY: Because it’s still a binding document

 

KELSEY: Well, when Jefferson comes to power, apparently he finds those papers and is like, oh. Look at this.

 

JAD: [LAUGHS]

 

KELSEY: You didn’t deliver these commissions. Guess you can’t get those positions. Sorry.

 

ARI SAVITSKY: And one of the people that lost out because their commission didn’t get delivered was one Mr. William Marbury

 

KELSEY: He was a businessman. 39 years of age.

 

ARI SAVITSKY: He got appointed to be justice of the peace. It’s a pretty low ranking position

 

KELSEY: So he’s sitting there, he’s waiting for his commission to show up and 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.

 

ARI SAVITSKY: He files a lawsuit.  So-- and what he does actually ends up being very important, he files a lawsuit directly in the Supreme Court.

 

JAD: Wait you can do that? You can go right to the Supreme Court? Like first?

 

KELSEY: Well, at this time Congress had just passed a law saying in certain strange circumstances, you can go directly to the Supreme Court.

 

ARI SAVITSKY: He goes directly to the Supreme Court and he says, I have a right! I have a legal right!

 

AKHIL REDAMAR: I want you, the supreme court, to order

 

LINDA MONK: Thomas Jefferson, give me that darned piece of paper that says I'm really a judge.

 

KELSEY: The case gets named Marbury v. Madison because James Madison is Jefferson’s secretary of state, who he’s actually suing but

 

LINDA MONK: He’s essentially suing the President!

 

KELSEY: Forcing Marshall and the court to have this confrontation with Jefferson.

 

SFX

 

KELSEY: So now it’s the showdown between Marshall’s ragtag team and Jefferson

 

MUSIC

 

ARI SAVITSKY:  So basically what happens is

 

LAW AND ORDER SFX

 

ARI SAVITSKY: The court has a trial.

 

MUSIC

 

KELSEY: Marbury and his lawyers they get up there and they’re like, what happened to the papers?

 

ARI SAVITSKY:  Where is the commission?  Did you have them? What’d you do with them?

 

KELSEY: Jefferson’s people get up there and say...I don’t know what you’re talking about.

 

ARI SAVITSKY: I won’t answer the question of what happened to them.  They stonewall.

 

KELSEY: ...to which Marbury’s lawyers are like, seriously.

 

ARI SAVITSKY: 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--

 

KELSEY: They go back and forth…

 

ARI SAVITSKY: Back and forth

 

KELSEY: Things get very tense.

 

ARI SAVITSKY: And you know I mean to their credit like no one gets punched out.

 

KELSEY: Eventually, they stop arguing about whether or not the papers exist, and they

Re like, this is the more important question: does the Jefferson administration have to honor those papers? Do they have to give the commission to Marbury?

 

ARI SAVITSKY: Are they required? Is there a legal requirement that the give it to him?  

 

KELSEY: And in Marshall’s head it’s a resounding

 

ARI SAVITSKY: Hell yeah, he should have gotten that commission.

 

KELSEY: 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.

 

ELIE MYSTAL:  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.  

 

KELSEY: Elie Mystal again

 

ELIE MYSTAL: About how we seamlessly can go from one party to the other party without bloodshed in the streets and whatever.  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.   

 

KELSEY: So Marshall WANTS to say, to Jefferson, you know, suck it up, cousin. Give this guy his papers.

 

ARI SAVITSKY: You’re an official, do your job.

 

KELSEY: But he thinks twice

 

AKHIL REDAMAR: He understands how weak his court is.

 

KELSEY: According to Akhil Redamar, Marshall’s afraid that if he orders Jefferson to give over those papers, Jefferson is going to straight up

 

AKHIL REDAMAR: Laugh in his face and say, “You and what army? I’m not gonna do it.”

 

ARI SAVITSKY: Literally they just got back from a congressionally mandated you can’t come to work time

 

ELIE MYSTAL: Jefferson knows full well that he has no intention of granting that commision.  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

 

KELSEY: Because Elie says, like if you think about it

 

ELIE MYSTAL: If the executive branch is gonna 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.

 

KELSEY: So basically, Marshall is kinda stuck. If he rules for Jefferson and he’s selling out the law and making the court look impotent. If he rules against Jefferson, Jefferson is gonna ignore the court and they’re gonna look weak. Either way…

 

ELIE MYSTAL: Jefferson wins

 

KELSEY: And either way...the Supreme Court maybe disappears forever

 

ELIE MYSTAL: Marshall needed to find a way to get through this

 

ARI SAVITSKY: He needed to find some way to kick the case.

 

AKHIL REDAMAR: 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.

 

JAD: Wow so suddenly it feels like an apocalyptical moment

 

KELSEY: Yeah

 

JAD: What does he do?

 

KELSEY:  Well so the thing that he does, it’s like the most jedi master-ish thing ever.

 

LIGHTSABER FX

 

KELSEY: He writes this hundred-something page decision...and in the beginning...

 

ELIE MYSTAL: if you actually read the decision, it’s a lot of pages of telling Jefferson…

 

LIGHTSABER SFX

 

ELIE MYSTAL: How he’s wrong.  How he can’t do what he did.

 

LIGHTSABER SFX

 

ELIE MYSTAL: 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.

 

KELSEY: But then, when he gets to the matter at hand, he does this little shift. So he says OK, hold up


ARI SAVITSKY: Yes

 

KELSEY: Mr Marbury IS right.

 

ARI SAVITSKY:  He should’ve gotten that commission

 

KELSEY: And

 

ARI SAVITSKY: Yes

 

KELSEY: Mr Jefferson should no be doing this  

 

ARI SAVITSKY:  BUT...

 

KELSEY: We, the Supreme Court?

 

ARI SAVITSKY:  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.

 

JAD: Wait, why would he say that they don’t have jurisdiction? What’s their--

 

KELSEY: 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.

 

ARI SAVITSKY:  Yeah. So it’s article 3, section 2

 

KELSEY: 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

 

JAD: Wonky

 

KELSEY: Exactly. But he basically he tells Marbury, the plaintiff...

ARI SAVITSKY: 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.

 

KELSEY: So I can’t help you

 

ARI SAVITSKY: Nope

 

KELSEY: It’s not your fault, Mr Mabury.

 

ARI SAVITSKY: But that law is unconstitutional

 

AKHIL REDAMAR: And we’re not going to follow that unconstitutional directive

 

KELSEY: You see what he did there?

 

JAD: I-- Maybe I see--I don’t know if I see.

 

KELSEY: Well OK so it’s--you know that part in Star Wars

 

CLIP: Your father was a weak old man

 

KELSEY: The first one where Obi Wan Kenobi is fighting with Darth Vader and he says

 

CLIP: If you strike me down, I shall become more powerful than you can possibly imagine

 

KELSEY: 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.

 

AKHIL REDAMAR: Oh and by the way, we the court have the power to declare things unconstitutional.

 

KELSEY: That was the sort of  Jedi master move.

 

ARI SAVITSKY: That’s the move.

 

KELSEY: Instead of jumping off the cliff or laying down, he jukes to the right and he establishes a new rule of the game

 

ROBOT: UNCONSTITUTIONAL

 

MUSIC

 

KELSEY: Inside this one highly technical, highly political drama between these two cousins, John Marshal sneaks in an atomic bomb, this incredible power. And in Marshall’s decision he wrote

 

AKHIL REDAMAR: It’s the emphatically the duty and province of the judicial department to say what the law is

ARI SAVITSKY: To say what the law is.

 

LINDA MONK: To say what the law is.

 

KELSEY: And with those words, he made the court what it is today

 

CLIP: The US Supreme Court ruled Monday a law allowing Americans born in Jerusalem to list Israel as their place of birth is unconstitutional

 

MASHUP NEWS CLIPS

 

JAD: And no one had ever done that before?

 

KELSEY: 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

 

MONTAGE OF IMPORTANT DECISION NAMES

 

KELSEY: And that set us on this path

 

MONTAGE CONT.

 

AKHIL REDAMAR: 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

 

CLIP: We’ll hear argument now number 00949 George W. Bush and Richard Cheney--

 

KELSEY: And we just take it for granted

 

AKHIL REDAMAR: Three words. Bush v. Gore. They decided a presidential election and

no one blinked

 

MUSIC

 

JAD: Let me just jump in for one second

 

KELSEY: Yeah. Yeah yeah.

 

JAD: Now you could--we have to say this before we close. You could reasonably argue that Marbury v. Madison was not the big moment when the court got its power because it really depends on what you mean when you say power. Like as we were talking with our legal editor Elie Mystal and constitutional scholar Linda Monk, they both said like look at what happens after this case. Just 30 years down the road, ish, John Marshall is still the chief justice. He gets into a dust up with Andrew Jackson

 

ELIE MYSTAL: And this is Jackson we’re talking about, so generally it was I would like to

do horrible things to Native Americans and the court was like, you probably shouldn’t do horrible things to Native Americans. And Jackson was like shut up.

 

JAD/KELSEY: [LAUGH]

 

ELIE MYSTAL: I don’t remember asking you a goddamn thing

 

JAD: So essentially you had a situation where Marshall makes a ruling saying we have to respect Native American sovereignty

 

ELIE MYSTAL: And Andrew Jackson famously said

 

LINDA MONK: Or supposedly said, we don’t know if that’s true

 

ELIE MYSTAL: Look, I think it’s more fun to believe that Jackson did say that. It works

better in the musical

 

LINDA MONK: OK [LAUGHS]

 

ELIE MYSTAL: The court has made its ruling, now let them enforce it

 

LINDA MONK: John Marshall has made his decision now let him enforce it

 

JAD: And obviously he couldn’t. So to make a long, sad story short you get the Trail of Tears. Thousands of Native Americans were marched off their lands

 

LINDA MONK: There’s evidence that they were purposefully moved during the winter so

that more people would die along the way

 

JAD: So while the court maybe had constitutional authority, it didn’t have actual power. Until

 

CLIP: We just got a report here on this end that the students are in

 

JAD: Fast forward to the 1950s, court orders schools to desegregate, they don’t, and the president sends in the troops

 

ELIE MYSTAL: Takes Eisenhower

 

CLIP: --directing the use of troops under--

 

ELIE MYSTAL: Putting boots on the ground. Takes Kennedy

 

CLIP: Residents of Alabama National Guardsmen

 

ELIE MYSTAL: Putting boots on the ground. Takes force. It still so often comes down to

an executive willing to put boots on the ground in order to enforce their laws.

 

JAD: That’s when the power becomes real. Although maybe not

 

ELIE MYSTAL’S MOM: Elie, I don’t know a time before I went to college and even shortly

after I was in college where things were not separate

 

JAD: At one point, as we were working on this story, Elie talked to his mom and she told him that when she was growing up in the mid 60s--and this is years after desegregation, more than a decade past Brown v. Board, you would still never know what happened

 

ELIE MYSTAL’S MOM: No one would know it in Clarkesville, Mississippi at that time.

There was a public library, but I was not allowed to go to that library. My father, who was Chinese, could go into the library. So many times I’d sit in the car while dad went into the library to get a book that I wanted.

 

ELIE MYSTAL: And this is after the passage of the Civil Rights Act even.

 

ELIE MYSTAL’S MOM: Yes. I’m saying high school. I graduated in 67

 

JAD: 67, wow

 

ELIE MYSTAL: Just yesterday as we were recording this a court had to issue--a current court had to issue another ruling ordering a town in Mississippi to desegregate its schools

 

JAD: Yeah. Yeah.

 

ELIE MYSTAL: That didn’t have five years ago. That happened yesterday, man. Yesterday. The courts can make these laws, but if the people aren’t willing to go along with it, then what do these laws mean?

 

MUSIC IN

 

LINDA MONK: I think ultimately I agree with Learned Hand

 

JAD: He was a judge in New York in the early 1900s

 

LINDA MONK: That we place our hopes too much upon laws and courts and

constitutions that these are false hopes. Liberty lies in the hearts of men and women and when it dies, they are no law, no court, no constitution can save it

 

MUSIC

 

JAD: In the end, for better or worse, we the people still have the power.

 

MUSIC

 

JAD: OK, so why do we call this podcast the strange thing we called it? As it turns out--well I guess we mentioned this at the top, vast majority of Americans, like 66 percent, cannot name a single Supreme Court Justice. We also found when we went out a lot of people had no idea how many justices there are

 

CLIP: I do not know how many Supreme Court justices there are

 

MONTAGE OF GUESSING

 

JAD: Nine, yes. Well now eight. We think we should know about these people. We should at least know their names. So the title of this podcast is a mnemonic device to help you remember the names of the justices. So their last names are: Kagan, Kennedy, Thomas, Ginsberg, Briars--sorry Briar, no S there. Roberts, Alito, Sotomayor, and if Merrick Garland gets on then you’ve also got Garland. Kagan, Kennedy, Thomas, Ginsberg, Briar, Roberts, Alito, Sotomayor, maybe Garland. So first letter last name: K K T G B R A S maybe G. What if you turned that into a song to help you remember?

 

KITTENS KICK SONG

 

JAD: You can find that song on our website, radiolab.org/moreperfect. And maybe you make one and send it to us. Seriously.

 

CREDITS