The episode begins with host introducing political science Professor Meg Mott, known as the ‘Constitution Wrangler’ who tackles issues regarding interpretation of US founding documents and the role of three branches of government. Mott will update info on the courts relating to two segments she helped produce on two judges who pertained to the Brattleboro area for the Brattleboro Words Trail: Judge James L. Oakes (Brattleboro) and Supreme Court Chief Justice Harlan Fiske Stone (Chesterfield, NH). Host interviewed Mott about the relevance of the two judge’s work on our understanding of the court system and Supreme Court today in order to update the two stories about each judge. From about 4:00 to 7:00, Mott talks about the role of judiciary in a republic, how the Constitution differentiates between the three branches of gov starting with how Article 1 lays out power in the legislature. She describes the executive and electoral college and how the judiciary lacks democratic accountability and is the weakest branch of government. She quotes Alexander Hamilton on the judiciary having ‘no sword, no purse’. She starts with Judge Oakes. He was a Nixon appointee but bucked him on Pentagon Papers case in favor of First Amendment free speech, exemplifying the ideal of an independent judiciary. Mott reminds us that the federal judiciary, many of them Trump appointees, rejectedTrump’s challenges to the 2020 election and validated election. We cut to piece on James L. Oakes narrated by Elizabeth Caitlan who worked for Judge Oakes. She describes judiciary structure and 2nd Circuit court of appeals and Oakes role in the Pentagon Papers case, the first time US gov tried to stop a newspaper (The New York Times) from running a story, ruled no prior restraint of free speech. At 9:40 we hear the voice of James L Oakes regarding the interplay between national security vs. free speech. Oakes speaks at 10:25 on the Bill of Rights ‘the idealization of our humanity.’ Caitlan tells us Oakes understood law as a developing system for managing human behavior. Describes Oakes’ relationship with Supreme Court Justice Sotomayor with whom he shared fundamental values. Oakes at 11:50 introduces pressure cooker metaphor, says thinking like a judge requires ‘kitchen wisdom and professional expertise’. At 12:40 we hear how Oakes definition of recreation helped conservationists protect land. At 13:54 the Words Trail story about Harlan Fiske Stone begins. He was 'a Wall Street guy' everyone thought would side with business and ‘liberty of contract’ during the Progressive Era, but he didn’t. He’s famous for ‘Footnote #’ which sets out ‘levels of scrutiny’ for when the Supreme Court should rule on a lower court case. Stone said court should defer to state legislatures, democratic process to make a legislative, rationale basis for law. ‘Tiers of scrutiny’ means court should defer to legislatures, but if a legislature severely restricts, discriminates against the rights of discreet minority, the supreme court should strike it down. Mott discusses how Supreme Court Justice Clarence Thomas has been bypassing ‘tiers of scrutiny’ with strict historical assessment of texts and how ‘tiers of scrutiny’ is much more workable. She discusses how ‘operating with self-restraint’ was a Stone legacy, he understood the importance of limits. She discusses 1936 case, US v Butler, Congress enacts progressive legislation, SC Court wants to strike it, Stone dissents saying ‘Appeal lies not to the court but to the ballot and processes of democratic gov.’and how it relates to the Dobbs decision / Roe v. Wade. At 24:39 Harlan Fiske Stone story begins with Mott narration. At 28:44 discusses Footnote 4, judge will rule against anything that discriminates against a ‘discreet minority.’ We hear Stone is known for his legacy on the court for ‘exercising self restraint’ because he always understood the limits of human beings while executing the power of the court.
The segments on the two judges used in this episode of the Brattleboro Words Trail Podcast were produced and edited by Sally Seymour. Research, scripts and most narration is by Meg Mott. Some narration and commentary on the Judge Oakes segment was by Elizabeth Caitlin. The voice clip of Judge Oakes was from an October 23, 1979 James Madison Lecture at New York University and is used courtesy of the James L Oakes Collection at the Vermont Law School. The updating interview with Meg Mott was produced by Lissa Weinmann at BCTV studios in downtown Brattleboro. Segments on Oakes and Stone were mastered by Guilford Sound. Final podcast editing and mastering was by Alec Pombriant. Special thanks to Mara Williams for her help on the Judge Oakes segment. Thanks also to the sixth grade class at Chesterfield School who in 2021 pelted Mott with many questions about the Supreme Court and local hero Judge Stone.
Archives of the Honorable James L. Oakes https://www.vermontlaw.edu/wp-content/uploads/2024/07/Oakes-guide-Final.pdf
Judge Oakes on being an American citizen: https://www.myretrospect.com/stories/a-borrowed-story-from-my-neighbor-a-judge/
TWO JUDICIAL LEGENDS: JUDGES JAMES L. OAKES AND HARLAN FISKE STONE
AUGUST 2024 PODCAST TRANSCRIPT
WELCOME to the Brattleboro Words Trail Podcast.
HOST LISSA WEINMANN: This is LIssa Weinmann. I'm host of the Brattleboro words trail podcast and I'm here today with Professor Meg Mott. She is known as the 'Constitution Wrangler' in this part of town, and statewide and maybe even nationally at this point Meg – you've been out there talking about the Constitution and the Bill of Rights. A couple of years ago, you helped us produce two segments relating to two justices in our area.
One was James L. Oakes. Judge James L. Oakes had his office at the Brattleboro post office here in town – a wonderful jurist very well loved.
And the other was Justice Harlan Fiske Stone, who grew up in Chesterfield, New Hampshire and whose name appears on the Exit Three bridge that leaves Brattleboro and goes over to Chesterfield.
So we're happy to have you here with us today to talk about how the lives and work of those two justices relate to what's happening with today's Supreme Court so that we can just get a sense of their relevance.
MOTT: Yeah, great. Well, thank you, Lissa. I always like talking about the Supreme Court and the federal judiciary. So as you mentioned, Judge James Oakes is a was a federal appellate judge in the Second Circuit, and he is a very interesting person. And so first, maybe I'll just talk a little bit about Judge Oakes and then I'll go to Justice Harlan Fiske Stone, and what we can learn by understanding history, and then how it might pertain today.
So first, Judge Oakes. He was Nixon appointee. And one of the things that's very important in any Republic, I'm not just talking about the United States, I'm talking about any Republic, key ingredient, more than anything, even representative government.
According to Montesquieu, the one who came up with this idea of a republic in the modern era, was that you had an independent judiciary. There was one other thing, and that was separation of powers. So the reason that we have this very complicated form of government, three branches, legislative is Article One executive is Article Two, judiciary is Article Three. And that’s the way it's understood is that the legislative branch actually has the most power. Why? Because it has democratic legitimacy. There's a sense that there's a majority. And if a decision is made, and the majority is behind it, it must be right. So we give a lot of deference to the democratic process. And that's why Article One is, number one.
The Executive is a mix. It's somewhat democratic, but as you know, that's not how we elect presidents, it's through the Electoral College. There's a specific design reason for that: tyranny of the majority. We always should be cautious about everybody agreeing on the same thing. So that's why we have an electoral college. And then we also have voting that happens through the states, not through the population at large.
And finally, you have the judiciary. And the judiciary does not have much democratic legitimacy behind it. These are appointed positions, life tenure. There's not much democratic accountability. When this branch of government first started, nobody wanted it. Who wanted to be on this silly little court. It had no authority. It just had great arguments. So that's sort of the way our system is designed.
People talk a lot about the Supreme Court and the power of the Supreme Court, particularly when they're not happy with the decision. So one thing I just also want to remind people is that it is truly the weakest branch. It has no enforcement power. This comes out of the Federalist Papers. Alexander Hamilton says, “It has no sword, it has no purse”, all it has is argument. So in some ways, it doesn't have any power whatsoever.
And and yet we are the type of people who care enough about the law, that when they speak, we actually take it seriously. So there's an interesting little dilemma there.
Judge Oakes was appointed by Nixon. He was not proud of that. He was, he may have been a Republican, but he was not crazy for Nixon. And one of his big decisions, which we talked about in the segment, is that the Nixon administration wanted to chill speech, New York Times case, and Pentagon Papers. Judge Oakes, Nixon appointee says, ‘We have free speech.’ And so he took minority rights, First Amendment rights. And he said to the executive branch, ‘hold your horses, you cannot chill speech’. And he was in the dissent. And then it got appealed. And the Supreme Court agreed with his dissent.
So I think that's an important piece to remember, sometimes we tend to politicize all Supreme Court justices. Now, Judge Oakes was a federal judge. He's not a Supreme Court justice, but we tend to politicize the Supreme Court and pay an awful lot of attention to who nominated them, and not actually read their decisions. And I think, currently, the media is misrepresenting a lot of the decisions and just weighing in on who appointed them. And anyway, I don't need to go down that road too far. We should always remember that we do have in this country, an independent judiciary, once Judge Oakes got onto the court, he did not follow the will of the president.
Most recently, when former President Trump was trying to make cases for why the election was stolen, the federal judiciary said NO. Many of those judges were Trump appointees. So something to just hold onto is that this independent judiciary is something that we still have.
Anyway, I know, sometimes in more progressive circles, that's not fully appreciated. but that's what I've been seeing for the most part.
HOST: Now what about Harlan Fiske stone? I thought, re listening to the segment on him, I was reminded about his import you can you comment on bring us up to date on him?
MOTT: Yeah. And he is so important right now, I mentioned that famous footnote number four, famous footnote number four from a case that has to do with Carolyn milk products. And it's a very obscure thing. But basically what he does there is he sets out the levels of scrutiny. So that I said the judiciary doesn't have that much power. Nobody can force it, they can't get money. They're really not paid very well. It's a funny operation we have here.
HOST: So can you give us the timeframe. This is a 1938 case. And he also
came into he was a Coolidge appointee in 1925.
MOTT: I believe,1925 Coolidge. And then he comes, he becomes the chief justice. I think I said he was a 12 Justice known as the 12, Chief Justice, Justice of the Supreme Court. And he comes in, he's worked on Wall Street, and everybody thinks that he's in the pockets of the wealthy. Right?
HOST: And he come and then FDR takes off.
MOTT: Yeah, exactly. And so everyone thinks this guy, Stone, Justice stone is going to be a problem. He's gonna go with whoever appointed him. No, he's a very independent minded person, maybe because he was a farmer from New Hampshire, right? We can play that little trope. And what he ended up doing is pushing back on many of the decisions that were happening at that time. Some people call it the Lochner era.
Basically, there were justices who did not like the idea of legislation coming forward, that disrupted in their mind ‘liberty of contract’. And the depression is happening workers in a terrible place, farmers are in a terrible place. And state legislatures are trying to improve conditions by reducing the number of hours you could work in a day, reducing child labor, reducing the number of days you can work in a week.
HOST: All the hallmarks of the progressive era.
MOTT: Exactly. And all the former Supreme Court justices, and then they get a fifth one, keep shooting down this legislation. But Stone is one of those dissenters who starts saying, ‘No, you can't do this’. The court cannot keep overturning democratic will.
So he comes up with this theory. If there is a legislative, rational basis for a specific law, the court should defer to the democratic process. That’s the lower level of scrutiny, we're going to defer to state legislators because we believe they are more in touch with the needs of the people. And the democratic process should make these decisions, not the judiciary.
HOST: Right. And it’s important to just remind people that the Supreme Court at that time, as you said, was trying to block any efforts to prevent child labor and to infringe on businesses.
MOTT: Right. Exactly, exactly. So we weren't here we have democratic will, coming from state legislatures with progressive agendas, Supreme Court very much protecting ‘liberty of contract’, which we could see as business interests. So we have those two things fighting against each other. And Stone, the Wall Street guy, goes with progressive agenda. But he's got to come up with some reasons for why he wants to do this, because he's very aware of the fact that maybe the court doesn't have any power to enforce or power of the purse. But it does have the ability to strike down legislation. And it's doing that regularly. So he's he doesn't want to give up completely. That's a big role of the Supreme Court to make sure that the legislation is constitutional.
So that's why this famous footnote number four, he begins this idea of the ‘tiers of scrutiny,’ we're going to defer to legislatures as long as they can prove there's a rational basis. So they give us evidence, social science, whatever, that it shows that they have a rational basis for what they're doing. We should defer to them.
However, if a piece of legislation severely restricts the rights of discrete and insular minorities, and my guess is this he's thinking race at this point, or ethnicity, or even maybe religious minorities, any discrete in insular minority where their rights are being undermined or they are being discriminated, based on the type of law that is being passed, the Supreme Court should strike that down.
So let's begin, we get stuck, we start to get the strict scrutiny. Anything that's discriminatory to a specific group, or undermining a fundamental right is going to be challenged. If the state can't prove it, really prove it, right or use the narrowest means to achieve an end, the Supreme Court just throw it down. But if the state can provide evidence its going to go with it. So this became like tiers of scrutiny. And we've had that up until fairly recently, when the courts now playing with this history, text, tradition, Justice Thomas is quite enamored of this theory of being able to ‘read the law.’ I don't think it's going to be as practical as tiers of scrutiny, you can already see people starting to go back to tiers of scrutiny. But regardless of what kind of methodology is, you do want a Supreme Court that is being transparent about how it's reaching the decisions, it's reaching.
HOST: Exactly. And just to be clear, when we're talking about tiers of scrutiny word we're talking about T I E R S, not the tears that we cry, although sometimes we might want to.
MOTT: Yeah, I think when the I think it was a Bruin decision, or Thomas, this is a New York State gun law case. And Thomas says, no, no, you can't do that. And he goes back into ancient history to try and determine what Second Amendment should have meant. And it gets very convoluted. And all of a sudden, historians are thrilled. Oh, great. We're gonna be called into all these courts. And they were, this has been great for historians. But it's unworkable in the federal court system, because tears of scrutiny gives you something very specific to look at text. All right, text history and tradition, people are too confused. Right? So.
HOST: And the other point that you made in the segment on Harlan Fiske stone, which impressed me greatly was his his grappling with the idea of the enormous power now he said that the Supreme Court doesn't really have the power of the purse, power of enforcement. Nevertheless, the Supreme Court and we've seen it or feel it perhaps is even better. We feel the power of the Supreme Court, and we are seeing some of the justices like Clarence Thomas, taking gifts, and having spouses that are participating in
political highly political activities and, and protests. So how would Harlan feel about what's going on today with
these things?
MOTT: Right. So operating with self restraint is going to be super important. I do think an ethics code makes a lot of sense. It's interesting. I mean, clearly, these private jet rides with a donor to conservative causes, could raise eyebrows. If you start to create an ethics, that principle ethics. Is it okay that Justice Jackson took those Beyonce tickets? Is it okay that Ruth Bader Ginsburg 's husband argued cases that she may have known something about that you have to open up the whole thing, and the media is so polarized right now, my guess is, you know, you know, about Clarence Thomas and Clarence Thomas's jet rides are certainly of concern.
HOST: So Harlan Fiske Stone, understood the importance of limits and that concept of self restraint and right how did he really express that? Was there a case around that
MOTT: Okay, there's a 1936 case, US v. Butler, it's one of those cases this was Congress enacting something a progressive piece of legislation to try and improve the conditions of workers. And Justice Stone writes in the dissent, he says the power of courts to declare a statute unconstitutional is subject to guiding principles of decision, which ought never to be absent from judicial consciousness.
One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional use of power by the executive and legislative branches of government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self restraint for the removal of unwise laws, from the statute, books, appeal lies, not to the courts, but to the ballot and to the processes of democratic government.
So this is kind of interesting, you know, especially if you think about the Dobbs decision. So the Dobbs decision said the Supreme Court came in, took a democratic process states were basically one by one figuring out how to liberalize their abortion laws. And then in 1973, Roe v. Wade, that process was, I shouldn't say aborted. But that process was stopped. Because the courts took over. And from then on, it became courts fighting, or courts trying to determine was this past viability was this prior to viability.
So there's a way you could read this and what you say to the courts, let the democratic process work, keep letting the democratic process work, if people stopped being able to talk to each other and persuade one another, and they start getting into the mindset that the court will solve all our problems, we stop having a republic.
HOST: Well, I think that's a good note to end on, actually. And thank you for being here. Now. We're going to listen to the segments with Harlan Fisk's Stone. Thank you for being with us today Meg.
MOTT: Thanks, Lissa. I love doing this. It's so much fun.
HOST: The segments on the two judges used in this episode of the Brattleboro Words Trail Podcast were produced and edited by Sally Seymour. Research, scripts and narration are by Meg Mott. Commentary on the Judge Oakes segment was by Elizabeth Caitlin. The voice clip of Judge Oakes was from an October 23, 1979 James Madison Lecture at New York University and is used courtesy of the James L Oakes Collection at the Vermont Law School. The updating interview with Meg Mott was produced by me, Lissa Weinmann, at BCTV studios in downtown Brattleboro. Segments on Oakes and Stone were mastered by Guilford Sound. Final podcast editing and mastering was by Alec Pombriant. We’d like to give special thanks to Mara Williams for her help on the Judge Oakes segment. Thanks also to the sixth grade class at Chesterfield School who in 2021 pelted Mott with many questions about the Supreme Court and local hero Judge Stone. We look forward to seeing you again next month on the Brattleboro Words Trail Podcast - thanks for listening!