Editor’s note: We recently conducted an interview with Paul Finkelman, editor of Milestone Documents of the Supreme Court (publishing this month). Paul is the President William McKinley Distinguished Professor, Emeritus at Albany Law School. He is the author of more than 200 scholarly articles and the author or editor of more than fifty books. His most recent major book is Supreme Injustice: Slavery in the Nation’s Highest Court, published by Harvard University Press. The U.S. Supreme Court has cited him in six cases, as have many other federal and state courts.
1) With the new Milestone Documents of the Supreme Court, what were your overall goals in developing the list of Court cases to be covered? What kind of balance/approach were you trying to achieve that might be unique to this publication?
[PF] The Supreme Court has decided many thousands of cases—at least 40,000—in its long history. Some are relatively insignificant and easily forgotten. Others are famous and well known to the general public as well as by students, teachers, scholars, lawyers, and judges. Others were important at a moment in time, but are mostly long forgotten. My goal here is to offer students and teachers an understanding of key cases that have shaped our history and our constitutional law. Some are iconic and well known, like Marbury v. Madison (1803) or Brown v. Board of Education (1954). Others were central to a time and place but are no longer central to our world, like Hammer v. Dagenhart (1918), where the Supreme Court struck down an attempt by Congress to end child labor in most manufacturing. Others deal with the long history of discrimination against minorities and those with less power in the nation, including Native Americans, African Americans, Latinx American, Asian Americans, women (who after all faced legal discrimination in political and economic rights for most of our history), and LGBTQ Americans. But we also have cases involving discrimination against Mormons, Jehovah’s Witnesses, and Jews, as well as impoverished Americans, including those too poor to hire a lawyer to defend themselves in Court. Other cases concern great political issues of our Democracy, such as voting rights, reapportionment, and political corruption.
2) Beyond the obvious main issues (abortion rights, gun rights, LGBTQ rights), what kinds of legal issues are particularly hot or burgeoning in terms of current interest among scholars and Court watchers right now?
We are watching a Supreme Court in transition, trying to figure out its place in society. I write this in the wake of the Supreme Court deciding that Twitter or Google are not responsible for the postings of terrorists, at least under current law. This might change. I expect cases on Artificial Intelligence (AI) and internet privacy to grow, along with internet fraud and theft. Issues of presidential corruption and post-presidential activity that may have been criminal (such as purposefully taking and hiding top secret documents), prosecutions stemming from the January 6 insurrection, and other issues from the aftermath of the Trump administration may well occupy the Court in the next few years. Climate change is only beginning to reach the courts, but in this collection we have a few cases dealing with the environment. Attempts by some states to censor what schools teach to conform to political ideology will surely reach the Court soon.
3) Today’s Court seems intensely divided along strictly partisan lines. Is that assessment accurate? Is this kind of partisan division new, or has it been seen throughout the Court’s history?
The Court has always been a “political” body. Justices are nominated by presidents, who usually have a political agenda. In the past presidents have accused the Court of being partisan, and sometimes it has been. Thomas Jefferson despised Chief Justice John Marshall (who was also his cousin). Chief Justice Roger Taney did everything he could to thwart President Lincoln during the Civil War. President Roosevelt initially faced a Court that was out of step with the times and unable to understand the crisis of the Great Depression.
4) Relatedly, there is a lot of talk of Court reform, including such ideas as expansion and term limits. What are the chances that such reform takes place?
Justices have always served for life, although many scholars think the Constitution does not require that. The Constitution says “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour. . . .” The term “During good behavior” means they cannot be removed for political reasons by a president the way the president can remove a cabinet member. But Congress could set a “term of office” for a justice (say 17 or 21 years) and they would serve during “good behavior” in that term. I cannot predict the future, but this might happen. Because of the desire of presidents to “control” the Court long after they have left office, we increasingly get younger and younger Supreme Court justices, most of whom lack political experience and often have not really practiced law in ways that led them to deal with people. In the nineteenth century most justices had been in the political world and had wide experiences, as well as extensive experience representing people in court. The last justice to have held public office was Sandra Day O’Connor, who joined the Court more than four decades ago. Having set terms would mean older, more experienced justices would be on the Court for a long period of time, but not seemingly forever. Similarly, the current Court may be just too small. The first Supreme Court had only six justices. It later grew, as the nation grew, to nine and then ten, and then went back to nine. The United States’ population is about ten times larger than it was when we set the Court size at nine justices. There were also many fewer states as well. At the time we had nine “circuits,” and each member of the Court was the “justice” for one circuit. Now we have 11 circuits for the states, plus the D.C. Circuit and something called the “Federal Circuit.” Perhaps we need 11 or 13 justices to match our current circuit size.
5) What do you hope students and scholars will gain from Milestone Documents of the Supreme Court and a study of the Court as a whole?
Knowledge, understanding, and historical perspective. I know that is a short answer. But it is a true one. All Americans need to understand how our constitution works and how the Court has interpreted it. The Constitution and our legal systems affect us every day of our lives. We take many constitutional rights for granted—such as freedom of speech, press, and religion, the right to travel from state to state, the right to marry the person we love, and the right to a fair trial if we are charged with a crime. Many of these liberties and rights have been shaped by the cases discussed in this set.