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Articles written by David Adler


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  • Under a historic spotlight and demands for recusal, the Supreme Court should embrace transparency

    David Adler|Jun 17, 2024

    Rising concerns about the U.S. Supreme Court’s lack of impartiality amid increasing calls for judicial recusals, reforms and transparency, form a historical backdrop of anxiety as Americans are, once more, bracing themselves for a landmark ruling that will have a direct bearing on the future of our constitutional democracy, the Bill of Rights and the rule of law. In this case, Trump v. United States, the question is whether the president enjoys absolute immunity from criminal prosecution. The Court will render a decision that may determine, a...

  • The court's commitment to equal protection became real and urgent in Brown, 70 years ago

    David Adler|Jun 3, 2024

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

  • Justice Abe Fortas: life as a lawyer's lawyer and a Greek tragedy

    David Adler|May 13, 2024

    Abe Fortas had always wanted to be a Supreme Court justice and, for as long as he had known him, his friend and benefactor had wanted to appoint him to the nation’s High Bench. It came as no surprise to anyone when, in July 1965, President Lyndon Johnson nominated his old friend, counselor and attorney to the Supreme Court. There were no questions about Abe Fortas’ qualifications and credentials. Fortas was a lawyer’s lawyer, possessed a wealth of government experience and enjoyed the admiration of the Supreme Court, which had appointed him to...

  • The Supreme Court at work: "sword dancing," opinion assignment and writing

    David Adler|May 6, 2024

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

  • The court in conference: behind closed doors, the justices hammer out decisions

    David Adler|Apr 29, 2024

    While oral argument provides the citizenry with a fascinating glimpse of the Supreme Court Justices at work, the heavy lifting is undertaken behind the scenes, far removed from public view, beginning with the High Tribunal’s private, indeed, highly secretive weekly conferences in which decisions are made that will affect American lives and the life of the nation. The justices meet twice each week to conduct the Court’s business. This includes consideration of petitions seeking review of lower court decisions and deliberations on cases bef...

  • Oral argument in the Supreme Court: lawyers seek to persuade the justices

    David Adler|Apr 22, 2024

    Oral argument before the U.S. Supreme Court is the most important, fascinating and visible part of the justices’ public work on the High Bench. It represents a forum for lawyers to persuade the Court to embrace their perspective on a case and a canvass for a legal artist to produce a memorable masterpiece. In his argument to the Court in 1818 in the landmark case of Dartmouth College v. Woodward, which involved the state’s power to fundamentally change Dartmouth’s charter, Daniel Webster closed with words that have become immortal in the annal...

  • The Wild West: Justice Field, sex and scandal, a foiled assassination and murder

    David Adler|Apr 15, 2024

    Historically, U.S. Supreme Court justices have avoided drama. A bookish group, given to tranquility and docility, the justices mark their time in the quiet of elegant court chambers, deciding cases and writing opinions. There is, however, an exception to this institutional serenity – the Terry Affair – one that captured the attention of the country and the citizenry’s lurid interest in sex, scandal and murder. In the summer of 1889, Justice Stephen Field, an iconic 19th century conservative jurist who sat on the Supreme Court for 34 years...

  • Chief Justice Oliver Ellsworth: impeccable pedigree for a Supreme Court appointment

    David Adler|Apr 1, 2024

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

  • Government by judiciary: the Four Horsemen, in the saddle, exert influence and thwart new deal programs

    David Adler|Mar 25, 2024

    The remarkable influence of the Four Horsemen, as demonstrated by their success in thwarting on constitutional grounds President Franklin D. Roosevelt’s New Deal plans to resuscitate an economy brought to its knees by the Great Depression, reminds us of the capacity, for better or worse, of the Supreme Court to rewrite Alexander Hamilton’s modest description of the judiciary as the “least dangerous branch.” The pitched battle between the Four Horsemen – Willis Van Devanter, James McReynolds, George Sutherland and Pierce Butler – and Preside...

  • Defending the old constitutional regime: the Four Horsemen reject government as a relief society

    David Adler|Mar 18, 2024

    The adage that the Supreme Court follows the election returns certainly did not apply to the Four Horsemen – Willis Van Devanter, George Sutherland, James McReynolds and Pierce Butler. President Franklin D. Roosevelt had earned landslide victories in the 1932 and 1936 presidential elections, but that was not discernible in the behavior of the four conservative justices who were in control of the Supreme Court. As he faced the most dire economic circumstances in United States history and the grim challenge of dispensing hope to a nation c...

  • Long reach of the pardon power: the Framers, Lincoln and Biden

    David Adler|Mar 4, 2024

    The intriguing President’s Day news that President Abraham Lincoln granted a pardon 160 years ago to President Joe Biden’s great-great-grandfather revived Americans’ fascination with the purpose, concerns, scope and history of this sweeping executive power. Thanks to the good work of historian David J. Gerleman, we now know that President Lincoln pardoned Moises J. Robinette, a civilian hired as a veterinary surgeon for the Union army, who was court martialed on charges resulting from a brawl on the evening of March 21, 1864. Robinette was f...

  • The Supreme Court at the beginning: what to wear?

    David Adler|Feb 26, 2024

    The photos and images of U.S. Supreme Court justices portraying earnest men and women wrestling with momentous legal issues and controversies, the resolution of which will shape American society, politics and the constitutional landscape, fairly capture the serious side of those seated on the nation’s High Tribunal. But that’s not the justices’ only side. There is another. In the beginning, indeed, on the first day that the Supreme Court of the United States convened – February 2, 1790 – the most important issue confronting the Justices...

  • Freedom of the press: the essential foundation of democracy

    David Adler|Feb 19, 2024

    When the U.S. Supreme Court, in Richmond Newspapers v. Virginia (1980), in the words of Justice John Paul Stevens, “squarely held that the acquisition of newsworthy matter is entitled to constitutional protection,” it was protecting under the First Amendment’s free press clause the essential foundation of our democracy. The conception of the press as a pillar of strength for a free people who mean to govern themselves is as old as the republic itself. In 1765, in his acclaimed treatise, “A Dissertation on the Canon and Feudal Law,” a youthful J...

  • We the People: Landmark ruling gives press and public access to criminal trials

    David Adler|Feb 12, 2024

    The First Amendment’s free press clause, which Thomas Jefferson declared indispensable to republicanism, has long been regarded as the “people’s right to know.” Without knowledge of governmental programs, policies and practices, the people would have little ability to hold government accountable. The press, as Jefferson and the founders recognized, could provide the crucial informing function that would make self-government possible. Historically speaking, protection of the informing function is precisely why the Supreme Court has protect...

  • We the People: Justice Jackson is Nuremberg

    David Adler|Feb 5, 2024

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

  • "Blood Feud" inside the Supreme Court on question of recusal

    David Adler|Jan 29, 2024

    Every now and again, the public displays an intense interest in the question of whether Supreme Court Justices ought to recuse themselves from a particular case because it appears that they have a conflict of interest that might prevent them from delivering an impartial ruling. In 1816, Chief Justice John Marshall recused himself from participating in the landmark case, Martin v. Hunter’s Lessee, because he had a conflict of interest. The public was aware of his conflicts. He had appeared as counsel in an earlier phase of the case and had a f...

  • Justice Robert H. Jackson: groomed for the Supreme Court

    David Adler|Jan 22, 2024

    Few nominees to the U.S. Supreme Court have been as well prepared, let us say, groomed, for a seat on the nation’s High Tribunal than Robert H. Jackson, who was appointed in 1941 by President Franklin D. Roosevelt. Jackson’s remarkable career in his run up to joining the Court – brilliant New York attorney, intimate adviser to the nation’s most powerful leaders, history making stints as Solicitor General and Attorney General, legal architect of an international deal at the outset of World War II that proved critical in saving England – richl...

  • Trump claims impeachment clause grants him immunity

    David Adler|Jan 15, 2024

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

  • A law court will affirm Colorado's ruling on Trump

    David Adler|Jan 1, 2024

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

  • Mr. Smith goes to the Supreme Court to save the rule of law

    David Adler|Dec 25, 2023

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

  • Justice O'Connor, a personal reminiscence: "You mean sheroes?"

    David Adler|Dec 18, 2023

    I had the great privilege and pleasure, twice, to interview Justice Sandra Day O’Connor on stage at a conference on women and leadership that I organized and hosted. I asked about her heroes. She replied, “You mean, sheroes?” Her answer, a playful and deserving rebuke to my pitiful bias (long since corrected, by the way), reflected the life and career of a trail-blazing woman who had endured waves of gender discrimination, but somehow summoned the fortitude to persevere and triumph, ultimately carving out a judicial legacy that will comma...

  • James Iredell: not Hamilton, but well-qualified for Supreme Court

    David Adler|Dec 11, 2023

    Unlike Alexander Hamilton, a more famous Founding Father who wrote extensively about the proposed Constitution and championed its ratification – and later became a 21st century cultural icon who made it to Broadway two hundred years after his death – James Iredell had to settle for a mere appointment to the first U.S. Supreme Court. Iredell’s name, image and likeness are nowhere to be found outside of North Carolina, which he had served as a judge on the state’s superior court and as attorney general, before President George Washington named h...

  • We the People: Justice Douglas went east, but appointed to Court as a westerner

    David Adler|Dec 4, 2023

    President Franklin D. Roosevelt wanted to nominate William O. Douglas to the U.S. Supreme Court to fill the vacancy left by the retirement of Justice Louis Brandeis in 1939, but there was a problem: a geographical problem. Douglas, a resident of Connecticut since his days as a Yale Law Professor, and four current justices – Hughes, Stone, Frankfurter and Roberts – were easterners. While no formal requirement for geographical representation on the Court existed, presidents had generally followed a long, if somewhat loose, tradition that sug...

  • "Justice William O. Douglas: Horatio Alger of the Supreme Court"

    David Adler|Nov 27, 2023

    William O. Douglas, the longest-serving Supreme Court justice in American history (1939-1975) – whose outsized life on and off the bench required two autobiographical volumes, and inspired devoted followers and passionate detractors – was at the center of the Court’s most important 20th century rulings. President Franklin D. Roosevelt might have expected as much when he nominated Douglas, just 40 years old, to replace Justice Louis Brandeis, who was forced by a heart attack to leave the Judicial Palace. At the time of his appointment, Dougl...

  • Justice Van Devanter of Wyoming: a "mainstay" on the Court

    David Adler|Nov 20, 2023

    The odds were against Willis Van Devanter ever winning an appointment to the Supreme Court. Widespread talk that he suffered from “pen paralysis,” an affliction that subverted his production, made President William Howard Taft “hesitant” to nominate the Wyoming transplant to fill a vacancy on the nation’s High Court. Various factors, however, convinced President Taft to overcome his reluctance. In 1911, he named Van Devanter to the Court, where he served for 26 years. Geographic considerations persuaded Taft that he needed to add a westerner to...

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