The Chief Justices Edition

Episode Notes

Transcript

@theBar
The Chief Justices Edition
05/08/2019

[Music]

Jon Amarilio: Hello everyone and welcome to CBA’s @theBar, a podcast where young and youngish lawyers discuss with our guests legal news, events, topics, stories and whatever else strikes our fancy.

I am your host Jon Amarilio of Taft Stettinius & Hollister, and co-hosting the pod with me today is Trish Rich of Holland & Knight, one of my best friends and the host of her own one-day award-winning podcast Chicago Dish.

Jon Amarilio: Hi Trish.

Trisha Rich: Hey Jon, thanks so much for that lovely introduction.

Jon Amarilio: You are very welcome. It will be deserved one day.

Trisha Rich: We will see.

Jon Amarilio: So Trish, we are joined today by another friend and a former CBA President Dan Cotter of Latimer LeVay Fyock. Did I pronounce that right, Fyock, sorry Dan.

Well, I have got a difficult name in my firm’s name too, I get it.

Dan has a diverse practice in both corporate law and litigation, but that’s not what he came here to talk about with us today. No, Dan has something far more interesting, at least for a history nerd like me, his new book ‘The Chief Justices: The Seventeen Men at the Center Seat, Their Courts, and Their Times’.

Dan, welcome to CBA’s @theBar.

Dan Cotter: Thank you Jon and Trish for having me.

Trisha Rich: We are so excited to be here with you today. I have been tracking the progress of this book for a long time and I am really excited that it’s finally out. So thank you so much for coming.

Dan Cotter: Well, thank you. Pleased to be here.

Jon Amarilio: So Dan, I am going to put it out there that this book just came out a few days ago. I have ordered my copy, but I have not read it yet, but I read your column in the Chicago Daily Law Bulletin religiously. I know you are a fantastic writer with a deep understanding of this topic and I am really looking forward to discussing it with you today as well.

Dan Cotter: Well, thank you, and a lot of the book will then look familiar to you, because a lot of the introductions to the chapters come from the Daily Law Bulletin.

Jon Amarilio: Oh, well, good. Okay, then I guess I have read some of it already, never mind then. But now that I have gotten that off my chest, let’s start at the beginning.

It occurred to me when I was walking over here today that most lawyers are professional writers in one capacity or another. A lot of us dream of one day writing a book, but very few of us have the nerve to actually go through with it and commit pen to paper in a disciplined way. You actually did it and I was wondering what compelled you to start.

Dan Cotter: That’s an excellent question Jon, and part of it is, is I have about 300 books on my shelves at home and my wife keeps asking when we are going to get rid of those, and so this was an opportunity to get those out. But it’s something I wanted to do and I have been thinking about for a long time since law school and trying to figure out what the Supreme Court, its place in history and kind of that, and like you said, I write a lot for the Daily Law Bulletin and other things, so it’s just a means for me to really dig deeper and get it out.

Jon Amarilio: So for those with similar ambitions, how would you describe the process of writing a book like this to them? What can they expect to get into?

Dan Cotter: It’s an arduous process for a lot of reasons. One is finding a publisher in this day and age. When I first started on this path in 2015, I went to the American Bar Association. They had that publishing arm that they have pretty much stopped doing non-substantive books and so for about a year I went back and forth, submitted drafts, got feedback, submitted more drafts, and then I got an email saying oh, we should have told you, we are not doing any more non-substantive books.

Jon Amarilio: Then they told you?

Dan Cotter: Then they told me.

Jon Amarilio: Okay. That explains a lot why the ABA is where it is.

Dan Cotter: Oh, that could be, I am not going to comment on that. I am in the House of Delegates.

Trisha Rich: We wish our friends at the ABA well.

Dan Cotter: We do, we do. And then trying to find a publisher, then I met Michael Hyman, who is a great resource for book publishing in the legal arena.

Jon Amarilio: Justice Hyman in the Appellate Court.

Dan Cotter: Justice Michael Hyman. He suggested I reach out to the North Carolina Academic Press. I did, and got feedback, again, they had just dropped their publication arm as well, but they had formed a partnership with Twelve Tables Press, and so that’s where we ended up.

Jon Amarilio: Is that a reference to the Roman Twelve Tables, I was wondering when I was looking at the card?

Dan Cotter: I think so, but I have never verified that with the publisher.

Jon Amarilio: Yeah. So what did you learn from the process other than obviously the substance of — behind the Chief Justices, like what did you learn about writing?

Dan Cotter: As you said, we are all professional writers as lawyers, but we all have word constraints and publication constraints. The biggest part I think I learned is just the discipline of actually writing and making sure that while I was reading and writing and referencing materials that I did it on the spot, so my Daily Law Bulletin columns, my Chicago Bar Association Record columns, all the stuff I have written in the past, it’s not footnoted or referenced, and so it’s much more difficult as you are going through to make sure that every sentence is cited, that you are not plagiarizing, that you are doing the right thing.

So that was really the process, and just the discipline. I started in October of 2017 with the contract. By July of 2018 I had about 30,000 words, so not a lot of written materials, and so I really sort of scheduled then that every day or every week I was going to have at least 1,000 or 2,000 words.

(00:05:06)

Jon Amarilio: Yeah, the Hemingway thing, one hour a day and then you can have whiskey for the rest of the day.

Dan Cotter: Yeah, right, right.

Trisha Rich: So that to me seems like a fairly complicated issue, because you are still juggling your full-time law practice and I have heard I mean other authors say they have a goal of writing an hour a day or 1,000 words a day or whatever, and so how good were you at keeping to that schedule? I find I am my own worst boss. I let myself off the hook pretty easily.

Dan Cotter: And Trish, that’s the same thing with me. So like I said, by the Fourth of July weekend I had 30,000 words. I knew I needed at least probably 90,000, and so from that point on until October 1st, almost every day I made it a goal to write at least 500 words, 750 on the weekends to really do a lot more.

But it’s difficult, right, you are working and then the week before it was due, I went down to Nashville for a conference; I was down there for four days. We drove, get to the hotel and I asked my wife where is my briefcase. She said how would I know? It turns out I had left it back in the kitchen by the garage door. And so for four days I had no ability to work on the actual draft.

Jon Amarilio: At least you knew where it was; it could have been worse.

Dan Cotter: It could have been much worse.

Trisha Rich: Well, this book is — would it be fair to think about it as like 17 different stories? I mean did that make the writing process easier that you could split things up by Chief Justice?

Dan Cotter: That did make it easier, because it is 17 stories, but it’s also trying to tell an overall overarching history and civics education of those 230 years, so that created some difficulties.

And one of the things I noticed again the Sunday before I was going to mail it overnight to the publisher, I was looking through and scrolling and I realized that Earl Warren’s chapter, midsentence I had stopped in about 1936 with his career, because I had done, just as you said, like different stories. I was reading the book about him and then they had referred to somebody else and so I went back to that chapter and then forgot about it, in probably those four days I was gone and didn’t have the ability to work on it. And so I panicked and had about another 3,000 or 4,000 words to write at 10 o’clock at night.

Jon Amarilio: I think that’s a right reaction there.

Dan Cotter: Right?

Trisha Rich: We have all been there.

Jon Amarilio: It occurred to me as you said that that there have only been 17 Chief Justices; I think we are on like 45 Presidents?

Dan Cotter: Right.

Jon Amarilio: I should know that.

Trisha Rich: It depends on how you count Jon.

Jon Amarilio: Yeah, 44 that count.

Dan Cotter: Right.

Jon Amarilio: Yeah.

Dan Cotter: 44 people have served 45 presidencies.

Jon Amarilio: Right. So I mean that’s remarkable. The tenure that some of these justices had. I think Marshall and Taney alone were more than half a century, right?

Dan Cotter: They were over 60 years, so they were the longest two serving justices in the Supreme Court’s history. It is remarkable and the first three only served 11 years combined, so we have 14 serving 219 years.

Jon Amarilio: Jay —

Dan Cotter: Rutledge.

Jon Amarilio: Rutledge and I forget.

Dan Cotter: Ellsworth.

Jon Amarilio: Ellsworth.

Trisha Rich: Jon likes to show off his history knowledge and I love it when he gets things wrong.

Jon Amarilio: I got two out of three.

Trisha Rich: Yeah, that’s good enough.

Jon Amarilio: Almost a passing grade.

Trisha Rich: Excellent.

Jon Amarilio: Thanks.

Trisha Rich: So in the book it seems as if you think that Chief Justice Marshall was the most influential of the justices, did I pick that up correctly?

Dan Cotter: That’s absolutely correct, and I do an appendix where I rank them with the caveat that it’s almost impossible, and the other day I was asked why Bill Rehnquist is number four, and a lot of reasons for that, but I do. And it’s not just because of Marbury v. Madison, which confirmed Federalist Paper 78. It confirmed what John Jay and Ellsworth and others had said about the Cordon Rule, but it’s McCulloch, it’s all the cases that came out and there was about an 11 or 12 year period where the court did not change and they had a slew of hits, that still to this day, or at least the last time we checked, the current Supreme Court were still precedential and they still stand the test of time. So he really was I think influential.

He also was just a driving force. So when you look at Jefferson and other presidents, they tried to pack the court with people that were more attuned to their political philosophy and he somehow still managed through his force of will, his force of intellect to get a majority and an unanimous decision in most of those cases, which is remarkable when you look at where we are at today again.

Jon Amarilio: He really staked out the court as a truly coequal branch of government whereas before it really hadn’t been, right?

Dan Cotter: Absolutely Jon. John Jay was asked to take the spot before Ellsworth did and John Jay rejected the invitation. He said that the court had no prestige. It was a pointless body and wasn’t co-equal. And so he really did. He established that, again not only in Marbury, but just in his style and approach. He had some nullification, some questions, some push back, but he forcefully again said that the court is the ultimate body to rule on these things and made it a coequal branch that it is today.

(00:10:14)

Jon Amarilio: I’m a fan of anyone who needles Thomas Jefferson, he was just a hypocritical jerk.

Trisha Rich: I saw Hamilton as well.

Jon Amarilio: Oh yeah that too but I thought that before so oh this is a high take Trish. All right.

Dan Cotter: When they were related, they were cousins.

Jon Amarilio: Right.

Dan Cotter: And that’s a big part of the fights that they had, they’re off of the Randolph family so –

Jon Amarilio: Yeah Virginia nobility was an incestuous issue as background.

Dan Cotter: Right.

Trisha Rich: So you teach a course on the Supreme Court at John Marshall right?

Dan Cotter: I do, although I haven’t taught it in a few years but did some other factors at the school.

Trisha Rich: Yada, yada, yada. So are you — how much of this book overlaps with your course? Any of it? I mean we were able to crib from your teachings.

Dan Cotter: I was able to crib a little bit. The reality though is if you’ve ever tried to teach a course at a law school in your adjunct or otherwise.

Trisha Rich: I have yeah.

Dan Cotter: Right you have and you have to go through the curriculum committee and so I sat down and said I want to teach it as more of a survey class with the 17 justices. It’s a 14 week course, we’ll do the first three in the first week and they came back and said, no, you can’t do that, it has to be more substantive. And so the way that they designed what I eventually taught and continued to teach is I pick one Chief Justice from an era and then an Associate Justice from a completely different era, and then we talk about their biographies and kind of compare it.

So it’s not exactly what I want to do but I was able to crib some things including I mentioned in the thing I think somewhere that although John Marshall was the fourth Chief Justice, even though I taught it and said look he was the fourth. The papers that I got back were John Marshall is the first Chief Justice, he was great and so because people think of that but I was able to use some of that materials and think about some of this stuff I talked back then.

Trisha Rich: So is it fair to say this book is an example of what you wanted that course to be.

Dan Cotter: Trisha, that’s very fair and I’d love to be able to teach this as a survey course.

Trisha Rich: Yeah.

Dan Cotter: Somewhere in the Chicago area or anywhere in the country for them.

Jon Amarilio: Enough with the introspection. Let’s get back to the book. So you said, you rank the Chief Justices that in order of influence, greatness?

Dan Cotter: It’s an order of what I thought was the most influential and had the greatest impact.

Jon Amarilio: So who are the top three.

Dan Cotter: It’s John Marshall, it’s Charles Evans Hughes and then it’s Earl Warren.

Trisha Rich: It was interesting.

Dan Cotter: Not Taney because I rank him towards the bottom just because one case made his career, Dred Scott. So and it’s unfortunate because if you were in a different time maybe it would be different but I write in the book about Taney and his actions as an attorney general and some of his memos and the case number one it was not unexpected or ill received –

Jon Amarilio: We’re talking about Dred Scott.

Dan Cotter: Dred Scott, it wasn’t received at the time and it was really followed his beliefs in terms of slavery, in terms of how they were seen in society. So it really wasn’t unexpected his decision but in retrospect, of course, it was a terrible decision that maybe precipitated the beginning of the civil war.

Jon Amarilio: So just to put that in context a little bit for our audience. If I remember correctly, it’s been a while since I’ve read Dred Scott but that was the decision where the Supreme Court said that African-Americans had never been citizens of the United States and that the Missouri Compromise was unconstitutional and that the Congress had no power to regulate slavery, right?

Dan Cotter: Jon that’s absolutely right. And it involved Dred Scott who had been free and then went to Missouri and then the question was whether or not in transportation that he lost his freedom and he took it up and it went through the court several times but that’s exactly right and that decision was in 1854 and the war started in 1861, so.

Jon Amarilio: And like you said that’s often cited as one of the possible — some of the kindling for the Civil War for lack of a better term. So assuming that’s true why wouldn’t he be in your top list of influencers, I mean that’s a pretty big thing.

Dan Cotter: Yeah I agree with you but the list that I put together was based more on positive legacy or outcomes and again, you can question why Rehnquist is up there but he’s universally if you look at list, he’s always at the bottom and it’s unfortunate in some ways because Scalia, Charles Evans Hughes, others have throughout history, talked about he was an excellent Supreme Court chief but again, that one case has put a damper on him and so he doesn’t get the elevation that he might otherwise get sure.

(00:15:01)

Trisha Rich: So I think Dred Scott and I have probably have read it even less recently than Jon, is widely thought to be probably the worst Supreme Court decision or at least the most famous worse Supreme Court decision. Do you agree with that or is there another one that stands out to you as particularly bad?

Dan Cotter: I think that’s a terrible case but you also have Plessy versus Ferguson, which was a terrible case in reconstruction. You have Korematsu, which was a terrible case. And so I think there’s other bad cases but that case just sticks out again because it again may be precipitated the Civil War. It probably would have happened anyway if you look at the timing in the early 1800s to mid 1800s before the war as Jon, the historian would know. But I do think it’s probably one of the worst, if not the worst decisions and so he has that legacy.

Jon Amarilio: So that’s a fun game. Let’s talk about favorites and least favorites, moving away from decisions and in terms how you would rank the justices in terms of influence. Who’s your personal favorite justice?

Trisha Rich: I actually think I know who it is and I think it’s mine too but I wouldn’t –

Jon Amarilio: Wait, no, okay so, you write it down. Okay all right.

Dan Cotter: My favorite is probably John Marshall. Now you got it wrong.

Jon Amarilio: Wrong.

Trisha Rich: I picked John Paul Stevens. He is my favorite.

Dan Cotter: You’re talking about non Chiefs or —

Trisha Rich: Oh I thought we were talking about all justices.

Dan Cotter: Are we talking about all justices. Justice John Paul Stevens is one of my judicial idols for sure.

Jon Amarilio: That was kind of a moving target that was not fair.

Trisha Rich: Sorry. Once again I screwed up the game.

Dan Cotter: But I think — again I think just in terms of the story and the influence and I went to the law school named after him and just again where he sits in the whole hierarchy of chiefs. I think it would be John Marshall.

Jon Amarilio: Okay the least favorite now that’s — here’s the fun one.

Trisha Rich: Oh gosh.

Dan Cotter: Least favorite.

Trisha Rich: The list is long. I am not even going to try to guess.

Dan Cotter: This long to an extent 1658 again Taney although again in the book I mentioned a lot of the tributes when he died and when they tried to put a bust of him in the Supreme Court at the time. There was a big fight about that about having him down there by the time he’d done it.

There’s probably John Rutledge just because again, he never actually sat as a chief justice. He was a recess appointment by George Washington. He, on the way up to take a seat, he badmouth John Jay and the Jay’s Treaty and also George Washington in the process and when Congress, when the Senate got back in session later that year in December, he was the first Supreme Court nominee to be rejected by a vote of 14 to 10.

He went home to Charleston, South Carolina and walked into the water to commit suicide and his slaves pulled him from the water and saved him and he’d never was republic, put to life again. Yeah so I told you there’d be a dramatic event again.

So and then there are some other ones that weren’t very effective, Waite and Fuller towards the end of the 19th century weren’t very effective in reconstruction. They narrowly interpreted the 13th, 14th, and 15th amendment, 14th mostly so that it really was strange that in some cases, some of the decisions favored the KKK for example through the 14th amendment and the rights of KKK members, vis-à-vis.

Jon Amarilio: That’s perverse.

Dan Cotter: It’s very perverse.

Trisha Rich: So you, as Jon mentioned in the beginning, you’re a former CBA president and you’ve been involved in the Chicago Bar Association for a very long time as long as I’ve been involved in the Bar Association and I don’t mean to say that you’re old, you’re more spry guys around here for sure, but for a long time.

And one of the CBAs we have justices come through this building about once a year or once every other year as they’re coming through Chicago. So do you have a personal story you could tell us about meeting a justice that you particularly enjoy.

Dan Cotter: Sure. And there are several when Ruth Bader Ginsburg was in a few years ago when I was the president of the CBA. We had a talk with Judge Williams at the time she was on the bench.

Trisha Rich: I remember that.

Dan Cotter: Yeah and at the end of it that was right around the time that the notorious RBG was just starting and I had a t-shirt I’d ordered, I never used, it was like a 3x my size and I gave it to —

Jon Amarilio: For our listeners, Dan is a big man.

Trisha Rich: A professional bodybuilder, a semi-professional bodybuilder. Weightlifter?

Dan Cotter: Power lifter.

Trisha Rich: Power lifter, yes.

Jon Amarilio: God, Trish.

Trisha Rich: I will see myself out.

Dan Cotter: She looked at — she was just like what I am going to do with this.

Jon Amarilio: This is like my beach towel.

Dan Cotter: She was great. The other person again that’s great in person is John Paul Stevens. He is 98 this week I think or Sunday maybe and his mind is incredible so again when we were going over and when he just had his book out, he was coming for the John Paul Stevens Award Luncheon.

(00:20:04)

Trisha Rich: The Second Amendment book.

Dan Cotter: It was that or it was the Five Amendments, I can’t remember which one at the time. And he was just fantastic and he remembered things and his memory is so crisp, and I remember again Judge Williams interviewed him and he is very particular, like that’s not exactly right he would say all the time and then he would go into what the precise thing was, but a very wonderful person.

Trisha Rich: Yeah.

Dan Cotter: And then we met — we have also had Sotomayor was here and I am trying to think if we have had other justices; Scalia spoke next door once or twice.

Jon Amarilio: Kagan.

Dan Cotter: Has Kagan been there?

Jon Amarilio: Justice Kagan was a speaker last year for this.

Trisha Rich: I that’s right.

Dan Cotter: Okay, I missed that. I wasn’t at that.

Jon Amarilio: So where would you rank our current Chief, Roberts?

Dan Cotter: That’s a great question Jon and I haven’t ranked him in the appendix just because he is midterm. I think it’s still an open question where he is going to end up. I think that his struggle in Joan Biskupic in her book ‘The Chief’ and in columns I have written in the Daily Law Bulletin and most people are saying it’s unclear whether he is going to be a true swing vote and a true centrist now that the court has become more right-leaning or if he is going to adhere to his ideology, which is very conservative. But he professes all the time about how he thinks of the prestige of the court and the long-term credibility.

And so I think he is an interesting person to watch. I think the Census Case yesterday that was heard, he tended to think that asking a census citizen question is fine and he mentioned something about the Voting Rights Act and protections under there, which to me doesn’t make any sense. I have never been —

Jon Amarilio: We know what he did to the Voting Rights Act before.

Dan Cotter: Well, right, he eviscerated that already, and the fact is I have never seen a census at any polling place. I have done voter protection since 2008 on national elections. Have you ever seen a census or anybody looking and saying are you a citizen, are you in the actual census?

Jon Amarilio: No.

Trisha Rich: Absolutely not. I work every Election Day. I have never seen it.

Dan Cotter: And what would it do anyway, because every 10 years, so people don’t move, like I don’t understand that. So I think that they will come down 5-4 there. I don’t expect him to be the centrist and so —

Jon Amarilio: It is remarkable though that he is kind of considered the swing vote now.

Trisha Rich: Yeah, the court has — don’t you think the court has moved pretty dramatically to the right in the last 15 years?

Dan Cotter: It’s moved very dramatically to the right and so, although it’s only 5-4 right now; in 1991, it was 8-1 when Clarence Thomas was in the court, but you have to consider that we had Souter, a Kennedy, O’Connor, and Stevens on the court. And Stevens again, Stevens was a Republican appointee, he was not a liberal, but by the time he finished on the bench, again, because of the makeup, it looked like he was a liberal more in the center with some of the liberals.

Trisha Rich: Yeah, I have heard Justice Stevens say over and over again like I am still a Republican.

Dan Cotter: Right.

Trisha Rich: And it’s really interesting to hear him say that.

Dan Cotter: Right. And even Sandra Day O’Connor in the book ‘First’ that just came out recently, there is a story about her and how concerned she is about Samuel Alito being her replacement and how again that shifted the court to the right. He is very conservative and so the question is for Chief Justice Roberts, again, does he look more towards the long-term legacy of the court and be more of an evolutionary type of Chief Justice that can drive some of that or is he the revolutionary justice that Rehnquist started in his term.

Jon Amarilio: So that’s a perfect lead in to a question that’s been on my mind, which is what qualities, in studying all these chief justices and learning so much about them, what did you learn about the qualities that it takes to make for a great chief justice?

Dan Cotter: That’s an excellent question. I think first and foremost, when you look at the top three that I mentioned in my appendix and that I think are the most three influential and many people agree; Warren, Hughes, and Marshall, they all had a great intellect, number one; but number two, they had a great ability to listen and they had a great ability to politick, not only in conference, but in general and to influence how their courts were seen long-term.

And there is a story that I mentioned in the book in the chapter on Earl Warren, on his last day in 1969, he wanted to retire in 1968, but they could not find a replacement, so LBJ was unable to replace him. So he agreed to stay on for next year. And so in 1969, his last day on the bench, he issues his rulings and Richard Nixon, who was a Supreme Court Bar member steps up to the podium, and although he hated Earl Warren, they were absolute enemies, he got up and blew smoke up his skirt; he was saying oh, you are so great, what a great man.

And Earl Warren said — in response he kind of made a warning to the nation and to Nixon, he said whenever nine individuals on this bench, nine men had the same views on social issues, the Supreme Court is done being a credible body and a coequal branch of government.

(00:25:00)

And so I think when you look at those three again, when you look at Earl Warren in Brown v. Board, that was a 5-4 decision likely the other way according to Frankfurter and all the other justices that that remained when Vinson had a heart attack and somehow he got a 9-0 decision, and one of the justices was crying from the bench when it was read, because he said he could never go home to the south again because the people won’t accept him.

So you think about that and then you think about Rehnquist and Roberts and you think about Burger, they did not have that kind of cohesiveness, that intellectual force and that personality of just being able to move the court so that it doesn’t become this revolutionary body that it’s becoming.

Jon Amarilio: If I remember correctly, one of Marshall’s secrets was just getting all the justices to eat dinner and drink together every night, right, that’s how they started to get along?

Dan Cotter: That’s very true. At that time they lived together and roomed together, they rode circuit together, but he had an extensive wine inventory, especially Madeira, and so they would sit around and make decisions together. And again, when you read and look at this stuff about him, again, by his force of will, there were people that were dissenting, but Johnson, for example, was on the court, and he was quoted as saying, I was going to dissent, but I just decided it wasn’t worth it and I just went along and silenced my opposition because Marshall is just that forceful.

Trisha Rich: That’s so interesting. And I read that story in the book about Chief Justice Warren and I really liked it and I liked your description of him, which I wrote down in my notes here, that he was a masterful coalition builder, and it strikes me that that’s one of the most important qualities you can have in a chief justice.

Do you agree with that?

Dan Cotter: I absolutely agree, because again, if you look at some of the more ineffective justices, they didn’t have that ability and they didn’t have the leadership and there were some tough courts, so when Taft was on, when Hughes was on, there were some tough blocks and voting blocks and ideologies. Frankfurter was a tough personality, for example, but justices like Earl Warren just had that ability again to move the court and to get it consistent with the long-term view.

Trisha Rich: When I read that in the book, one of the things that reminded me of is something I had read years before, and I don’t know where was that, Chief Justice Roberts wants to be seen as a consensus builder on the court, but he has, and I don’t know if this is true, I have not fact checked it, so I am probably going to get the side eye from Jon, but that he has more 5-4 opinions than any court in history. Number one, do you know if that’s true; and number two, why do you think that is? Do we have a more fractured court now? Is it a failing of Chief Justice Roberts? I mean what is the issue there?

Dan Cotter: Trish, that’s a great question. I think we do have a more fractured court. We don’t have swing voters and the caveat is, is that when you look at Sandra Day O’Connor, when you look at Justice Kennedy, they were limited swing voters. Kennedy was more of a libertarian, so on a couple of things like same-sex, he was very libertarian and let people do what they liked to do. Sandra Day O’Connor was conservative, but not as conservative.

But I do think it’s become more fractured and one of the stories that I write about in the book is Roe. So Roe was a 7-2 decision; five of the majority were Republicans and that was well received. It didn’t become an issue for this nation until Ronald Reagan got to the White House and ran on a platform of overturning Roe. And because when you think about it, it had nothing to do with abortion. It had to do with doctors and being in states and states’ rights. And so it was a 7-2 decision, including three of the justices that Richard Nixon had appointed as law and order justices.

And so now, Sheldon Whitehouse, Senator Sheldon Whitehouse has put together kind of this open forum. He wrote an op-ed that I did a concurrence on in Daily Law Bulletin. He talks about 73 decisions that are 5-4, where the five are the Republicans on the court, at least five Republicans over the last 13 years and that they have all been reducing individual rights and corporate interests have been promoted. And so I do think that’s the case.

There is a thing in the book about 1918 or 1916, I think, and they said up to that point there had never been a case other than one tax case where all party appointed justices had been on the same side of an issue.

Jon Amarilio: Really?

Dan Cotter: I mean that’s an incredible thing, isn’t it?

Jon Amarilio: It’s fascinating.

Dan Cotter: And so now — you see a lot of the studies, so you see Law Review articles, you see other — POLITICO and other places, where they say well, this court has more unanimous decisions than anybody else, but again, those are on cases of regulatory and water rights and statutory interpretations on these key issues that affect really our future and individual rights and those types of things, there have been more 5-4 decisions in the last two quarts, so Rehnquist and Roberts.

(00:30:10)

Jon Amarilio: So, a friend of the pod, retired judge, Richard Posner late of the Seventh Circuit is famous for saying that he no longer considers the Supreme Court to be a functioning court but really more of a political body. Is that something you agree with?

Dan Cotter: Jon, I’ve thought a long and hard about that and I’m starting to really — I do start to agree with that. One of the things that as I was investigating the book and just in general that we all know is that the last three nominees to the court, there were $20 million in dark money spent on those three nominees, $7 or $10 million was spent against Garland, so that he did not get on and the other money has been spending the last two nominees, and I have real concerns about that. Again, there’s no quid without a quo right. In my view, we don’t know who these —

Jon Amarilio: Court in the Supreme Court there is.

Dan Cotter: Well, right, and they say, it has no influence.

Jon Amarilio: The case a couple years ago with the Virginia Governor I think.

Dan Cotter: The other startling thing I saw somewhere and I haven’t verified it is that the Chamber of Commerce, which again might be behind some of that money is in about half of the cases that appear before Supreme Court or funding amicus briefs who are involved. So again —

Trisha Rich: Does that make you a little bit nauseous, because it kind of makes me a little bit nauseous when you’re saying that.

Dan Cotter: It makes me very nauseous, and it makes me very nauseous and concerned that we have a president and we have times where things are going to get to the court. We saw that today, President Donald Trump tweeted that if he is impeached, he’ll run right to the US Supreme Court. That should be a no-brainer because the Constitution lays out separation of powers for impeachment, but in this day and age you wonder. In the pit of your stomach says, okay what’s the court going to do on this issue.

Jon Amarilio: Have there been other eras of the court that seemed to be driven more by political ideology than legal philosophy, and if so, how did the court dig itself out.

Dan Cotter: Jon, there have been a couple of times where that’s kind of happened, but not as severe as now, but one time for sure would be in the 1930s, in FDR with his court packing plan, the switching time to save nine. There were four conservative justices, the Four Horsemen of the Supreme Court. That role is a conservative bloc. They took the limo to the Supreme Court every day. They talked about —

Jon Amarilio: They what?

Dan Cotter: Yeah.

Jon Amarilio: But today they were blocing.

Trisha Rich: I actually can’t wait to talk about this, because okay, so for our long time listeners of both this pod and my pod, lots of people know I grew up in Michigan, I’m a proud graduate of Michigan law.

Jon Amarilio: It has been like an hour since you’ve mentioned that.

Trisha Rich: And Michigan law has produced three Supreme Court justices, which are Frank Murphy, William Rufus Day and George Sutherland, and I actually have one of the best gifts anybody ever gave me, I have in my office over at Holland and Knight, which is a card that George Sutherland wrote to somebody that was thinking about going to law school where he talks about the practice of law being a noble profession and everything. And I dated hat guy for like three weeks, and it was like a best gift anyway for me.

Jon Amarilio: It was worth it.

Trisha Rich: Totally worth it, but anyway, when I was — and so George Sutherland of course, was a remember of the Four Horsemen.

Dan Cotter: He was.

Trisha Rich: And proud Michigan legacy, and when I got to that part in the book, in this footnote, you sort of drop in very casually that you think maybe Alito and Thomas and Gorsuch and Kavanaugh are the modern-day Four Horsemen, and if anything in this book gave an me absolute panic attack it was that footnote. I wondered if you could talk to us a little bit about that and tell us that that’s not true.

Dan Cotter: I hope it’s not true but I actually labeled them the Four Horsemen of the Fed Soc and there’s been some conversation, not conversation but some groups have asked me in other reigns, not to constantly I refer to the Federalist Society, but I do have that concern and what’s interesting is they’re very much like that.

The one difference might be that what Clarence Thomas is kind of in his own atmosphere of what he considers to be the law and where he’s at on originalism and all this stuff and some of the dissents that he’s written in recent weeks on death penalty and other stuff. But other than that I don’t see them not voting together on almost everything and that concerns me again, because we have some real issues and challenges in this nation as we always do and we’ve looked to the Supreme Court to kind of be that body that doesn’t have any power of the sword, part of the purse, but it has part of the word and it’s been accepted with some pushback sometimes.

But when I added that footnote that was towards the end of the process and one of the challenges of this book as an aside is that as I was writing it because it’s so timely and because things keep generating and Roberts occasionally will do something.

(00:34:58)

I was constantly updating and footnoting stuff, and eventually, my publisher said, enough, like these are just only — these are must-haves, no more any words ahead it. You can only make spelling corrections and grammatical changes.

So I hope it’s not true but at the same time I’m kind of a pessimist I would say and I do think that we’re headed there and I think it will just get worse. I think that this this term because Kavanaugh’s contentious confirmation hearings, I think we see Roberts being a little more moderating and not taking on some of the key issues and that’s common when anybody joins the court, but I do fear that.

Trisha Rich: One of the things and this may just be my misperception so I’m interested in your thoughts on it. One of the things in my head that I hadn’t really put together is I think of the Four Horseman as four people who really worked together and plotted together to literally like move the court, and it never occurred to me that these four justices on our current Supreme Court were literally like having secret meetings and limos to do this. Do you think that’s true? And please God say no.

Dan Cotter: Trish, no, that’s not what I — when I identified them as Four Horsemen more as kind of a consistent bloc that we’ve not seen in a long time, but I don’t think that they’re having secret meetings. I don’t think that that’s happening.

Jon Amarilio: Limos are a little passe anyway. That’s probably a good place for us to take a quick break.

[Music]

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Trisha Rich: So one other thing I wanted to ask you about is that there has been a lot of ink spilled in the last few years, and I think probably before that. But even as recently today, I saw that Justice Breyer spoke out about this, about the idea of term limits for Supreme Court justices, and potentially even more generally for federal judges.

And I think my understanding of the subject is that when we first wrote the Constitution, people weren’t living forever and that we weren’t contemplating that people would serve on the court until they were 80, 85, 90 years old. But now thanks to the marvels of modern medicine quite a bit different. So I wonder if you have any thoughts about instituting term limits either for the federal judges as a whole or just at the Supreme Court.

Dan Cotter: And that’s a great question Trish. The problem is and challenge is that the Constitution Article III says that, Article III judges serve on good behavior, which has always been interpreted from the beginning to be lifetime tenure unless you’re impeached or something else. So I think it would require a constitutional amendment.

You can change the number of course because the Judiciary Act of 1789 established that there would be six justices. It’s been seven, eight, nine, ten, and now it’s been nine since 1869. So you can change the numbers, but there’s a lot of proposals and a couple of weeks ago I had an op-ed in the Des Moines Register and I talked about the cautiousness that Democrats should take as they’re talking about these various proposals.

I don’t know Pete Buttigieg the other day proposed having five Republicans, five Democrats and then they would appoint five from the other Courts of Appeal.

Jon Amarilio: Jesus, seriously.

Dan Cotter: And unanimously pick them, and again advise of consent —

Jon Amarilio: It’s a horrible idea.

Dan Cotter: It’s a horrible idea, it’s unworkable, and if you can’t unanimously agree on the five Appellate Court justices or judges that would come up, then you can’t conduct business, because you’re under the quorum.

Jon Amarilio: What?

Dan Cotter: Right.

Trisha Rich: I am big fan of the Mayor of South Bend, but I agree that that’s a bad idea. So term limits then.

Dan Cotter: So term limits I don’t think is doable without a constitutional amendment.

Trisha Rich: But do you — if we could amend the constitution to do it, do you think it’s a good idea or a bad idea? That’s what we call a follow-up question.

Dan Cotter: Right. In the biz.

Trisha Rich: Yeah, in the biz, Dan.

Dan Cotter: And the follow-up answer is I still think we need to be cautious, because the whole intent of the Supreme Court and Article III was that they would be the least political branch, that they would serve without allegiance to a particular party or to a particular Senate or anything else and I worry with term limits a couple of things, one is that in terms of their independence; and two, is this revolving door. Once they are done then, do they go and work for the companies they ruled on previously.

(00:40:15)

Trisha Rich: Do they appear before the Supreme Court, right?

Dan Cotter: Do they appear before the Supreme Court? And there have been some retired Supreme Court justices that have appeared before the Supreme Court, but I just think we need to be cautious. I am not a fan in general of opening up the Constitution, because I think that’s a dangerous slippery slope. I know there is this balance budget and other initiatives where the states are going to vote and have a constitution of the states — a convention of the states.

I warned one of the founders of that, who is from Chicago, and a good friend of mine, a lawyer, that that’s what the intent was in Philadelphia in 1787 and the first thing they did was they went into secret meetings and what came out was the Constitution that looked nothing like the Articles of Confederation.

So I worry that if we open it up, things like the Thirteenth Amendment might be gone, parts of the First Amendment might be gone and then we will have a very different nation than we do now.

Trisha Rich: The Nineteenth Amendment.

Dan Cotter: Nineteenth Amendment.

Trisha Rich: Near and dear to my heart.

Jon Amarilio: And that sounds like a good place for us to take a break. We will be right back with Stranger than Legal Fiction.

[Music]

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[Music]

Jon Amarilio: And we are back. So Dan, you are a longtime listener, friend of the pod, I know you know the game, it’s Stranger than Legal Fiction. The rules are really simple. Trish and I have researched a strange law that is still in the book somewhere, but probably shouldn’t be. We have made another one up, if Trish is following the rules this time.

Trisha Rich: I am not very good at this.

Jon Amarilio: And we are going to quiz you and each other to see if we can distinguish strange fact from legal fiction. Are you ready to play?

Dan Cotter: I am game for it, sure.

Jon Amarilio: And Trish, you want to lead off?

Trisha Rich: I will do that. Thanks so much Jon. So option number one is as follows, In Mount Pulaski, Illinois, it is illegal to throw snowballs. And option number two is in Boulder, Colorado, it is illegal to move any boulders that are located on public property?

So you get to pick which one you think is actually allowed and which one isn’t.

Dan Cotter: I will go with the snowball. And do I have a snowball’s hell in chance of being right?

Jon Amarilio: Snowball is real or fake?

Dan Cotter: Snowball is real.

Jon Amarilio: Okay. I will go with the boulder one, just to keep it interesting. Why are you thinking the snowball one is real?

Dan Cotter: I don’t know, that just seems like I had read something about a snowball law somewhere in the country at one point.

Jon Amarilio: That’s some sharp legal reasoning.

Dan Cotter: Right, even boulder is in Boulder?

Trisha Rich: This is your classic law firm partner saying themselves.

Jon Amarilio: I know there is some authority out there that says this, go find it.

Trisha Rich: So you are both a little bit right. Well, Jon, you are actually right. In Boulder, Colorado it is illegal to move any boulders that are located on public property.

Jon Amarilio: Thank you.

Trisha Rich: Dan, it is illegal for girls to throw snowballs in Mount Pulaski, but it is not illegal for boys to throw snowballs in Mount Pulaski. And so that injustice is why I wanted to highlight that rule, and I think the next time that Justice Ginsburg comes to the CBA, we need to get her on this.

Dan Cotter: She needs to rectify that wrong.

Jon Amarilio: In Topeka, Kansas it is a misdemeanor to sing the Alphabet Song out loud in the street at night?

Trisha Rich: Gosh, I hope that’s true.

Jon Amarilio: In Iowa it is illegal to kiss someone in public for longer than five minutes? Which is real? Which is not? Dan?

Dan Cotter: I am going to go with the first one again, the Alphabet Song.

Jon Amarilio: Is the real one?

Dan Cotter: Is the real one.

Jon Amarilio: What do you think Trish?

(00:45:00)

Trisha Rich: I think it’s the Iowa law.

Jon Amarilio: Let’s get the reasoning, why do you think?

Trisha Rich: I mean there has got to be some sort of decency, morality, public policy behind it.

Jon Amarilio: Dan, why are you thinking the Topeka one is real?

Dan Cotter: It seems to me like something that should be banned, if it’s not everywhere.

Jon Amarilio: And you know what, you are right. The Iowa one is often floating around on the Internet on sources like BuzzFeed as a weird law.

Trisha Rich: You mean my main source of news?

Jon Amarilio: Yeah, that one. But it turns out it’s not, at least I couldn’t find it anywhere on the books.

Trisha Rich: Interesting.

Jon Amarilio: And I word searched extensively.

Trisha Rich: I am actually tickled pink to get this one wrong, because I agree with you, that should be illegal everywhere.

Jon Amarilio: And that’s going to be our show for today. I want to thank our guest Dan Cotter for joining us today to discuss his new book, ‘The Chief Justices: The Seventeen Men at the Center Seat, Their Courts, and Their Times’, just out by Twelve Tables Press and available wherever the finest books are sold.

I also want to thank everyone here at the CBA who makes this machine run, including my co-host Trish Rich, our Executive Producer Jen Byrne, Ricardo Islas and Jen Byrne on sound today, and of course everyone at the Legal Talk Network.

Remember, you can follow us and send us comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter @CBAatthebar. Please also rate us and leave us your feedback on iTunes, Apple Podcasts, Google Play, Stitcher or wherever you download your podcast, it helps us get the word out.

Until next time, from everyone here at the CBA, thank you for joining us and we will see you soon @theBar.

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