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Articles written by David Adler


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  • 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...

  • 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...

  • 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...

  • 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...

  • 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...

  • 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...

  • "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...

  • 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...

  • 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...

  • 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...

  • 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...

  • 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...

  • 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...

  • 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...

  • "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,...

  • 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 we...

  • We the People: Hughes returns and preserves the court amidst a great storm

    David Adler|Nov 13, 2023

    When President Herbert Hoover in 1930 nominated Charles Evans Hughes to be Chief Justice of the Supreme Court, an unprecedented second tour of duty on the nation’s High Tribunal, he didn’t find it necessary to offer much in the way of justification because, he said, “it was the obvious appointment.” Hughes’s forceful, forbidding Jovian aura commanded attention and respect. Justice Robert H. Jackson, a historic figure in American law and comfortable in the company of great men, once said of Hughes: “He looked like God and talked...

  • We the People: Charles Evans Hughes appointed twice to the Supreme Court

    David Adler|Nov 6, 2023

    Charles Evans Hughes, one of the great names in America’s judicial history, remains the only person twice appointed to the U.S. Supreme Court. His remarkable resume – lawyer, governor, Secretary of State, presidential candidate, associate justice, chief justice, judge on the Permanent Court of International Justice – reflected a record of contributions to American government and law rivaled by few in our nation’s history. In 1910, President William Howard Taft nominated Hughes to the Supreme Court. In a letter to Hughes, Taft indicated...

  • Taft: The court should preserve framers' governmental structure

    David Adler|Oct 30, 2023

    The U.S. Supreme Court is a law court, of course, but it is primarily a political institution that guides the destiny of the nation. Its rulings mark the boundaries of power between the branches of the federal government and those between the federal and state governments, as well as determining the scope of liberties enjoyed by the citizenry. William Howard Taft, the lone American to serve as both president and chief justice, was acutely aware of the impact of the Court on the life of the nation, and the influence of individual justices on...

  • We the People

    David Adler|Oct 23, 2023

    William Howard Taft, the only man to serve as President of the United States and Chief Justice of the Supreme Court, once observed that the Court was his idea of what Heaven must be like. This prompted Justice Felix Frankfurter to declare that “he had a very different notion of heaven than any I know anything about.” Taft reached “Heaven” in 1920 when President Warren G. Harding appointed him to be Chief Justice of the Supreme Court. Harding asked Taft whether he “would accept a position on the Supreme Court.” Taft said he would acc...

  • We the people: October 16. 2023

    David Adler|Oct 16, 2023

    “Brandeis: free speech critical to preservation of Democracy” In response to previous columns about the appointment, importance and influence of Justice Louis Brandeis, an enthusiastic reader has asked a most welcome question about the jurist’s contributions to the Supreme Court’s development of the law governing freedom of speech. In Whitney v. California (1927), Justice Brandeis penned what most scholars agree was one of the most eloquent and powerful defenses of freedom of expression in Anglo-American legal history. His opinion...

  • We the People: "Brandeis: A great justice and the right to be let alone"

    David Adler|Oct 9, 2023

    Louis Brandeis, known by the nation at the time of his appointment to the U.S. Supreme Court as “The People’s Lawyer,” and years later affectionately nicknamed “Old Isaiah” by President Franklin D. Roosevelt, was one of the greatest jurists and most innovative legal minds in our country’s history. Fearful of the concentration of power and committed to the principle that the Supreme Court has the authority and duty to protect American’s civil liberties, Brandeis forged new paths in the area of freedom of speech and the right to pri...

  • We the People:Justice Louis D. Brandeis: "The People's Attorney"

    David Adler|Oct 2, 2023

    By the time President Woodrow Wilson nominated him for a seat on the U.S. Supreme Court in 1916, Louis Brandeis, the nation’s first Jewish justice, had forged a reputation as a brilliant, innovative and influential attorney. He was an advocate to be feared. Judges at all levels acknowledged how much they learned from him. The Supreme Court embraced his novel legal arguments and approach to the law – “the Brandeis Brief” – which ushered in an era of “sociological jurisprudence” and enjoys enduring influence. On top of this, he was...

  • We the People: Justice Holmes influences business of judging

    David Adler|Sep 25, 2023

    The emergence of Justice Oliver Wendell Holmes as a dominant influence in the work of the Supreme Court began in 1905, just three years after his appointment to the High Bench, in a dissenting opinion in Lochner v. New York that many scholars hail as the most famous dissent ever written. The majority opinion in Lochner has been widely rebuked for the past century as an exercise in judicial activism, a notorious example of the imposition by judges of their own preferences and biases, in this case, the heavy-handed infliction of a laissez-faire...

  • We the People - Justice Holmes: a legend before joining the Supreme Court

    David Adler|Sep 18, 2023

    Justice Oliver Wendell Holmes, Jr. once said, “If American law were to be represented by a single figure, skeptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.” It has been justly observed that if American law were to be represented by a second figure, it would be Holmes himself, since he was more influential in shaping the agenda for the 20th century Supreme Court than any other legal figure. Dubbed the “Yankee from Olympus,” Holmes, who hailed from a prominent Boston...

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