Freedom of the Press: The Essential Foundation of Democracy

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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 John Adams wrote: “Liberty cannot be preserved without a general knowledge among the people, who have a right . . . and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.”

Adams’s insistence that the “preservation of liberty” rests on the “general knowledge of the people,” represented the earliest version of our historic understanding of Freedom of the Press as the public’s right to know. What is it that “we the people have a right to know?” Adams answered: “that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.”

Adams anticipated James Madison’s eloquent defense of freedom of the press which, in combination with freedom of speech, provided the essential protection for a republican system of government. The press, he believed, must have “the right of freely examining public characters and measures.” It is only through close study and reporting on the means and measures of governmental policies, programs and actions, Madison explained, that the “sovereign people” can be sufficiently informed. Without information supplied by the press, the people, lacking knowledge, would be limited in their ability to scrutinize, critique and criticize governmental programs and actions. Without such knowledge, self-government would be but a pretense.

Critically, this historical understanding of the foundational role that freedom of the press plays in safeguarding the republic transcends political, partisan and ideological lines. Justice George Sutherland, surely one of the most conservative members of the Supreme Court, echoed the words of Adams and Madison. In a 1936 case, Justice Sutherland wrote, “The people are entitled to full information in respect of the doings or misdoings of their government; informed public opinion is the most potent of all restraints upon misgovernment.”

The informing function of the press, what may be described as the checking value of the “Fourth Estate,” is indispensable to the maintenance of the republic. It has played a critical role, for example, in exposing governmental deceit in wartime—Vietnam and Iraq— and governmental efforts to suppress the truth, as seen in the Pentagon Papers Case (1971) and the Watergate Tapes Case (1974).

It is precisely because “we the people” cannot attend the seat of government—state or national— to listen to debates on the great issues of our time or attend important trials that carry great significance for our democracy and the future of the nation, that we depend upon a free and independent press to provide accurate coverage of newsworthy events. We are reminded of Madison’s fervent belief that the press must be free to “canvass the merits and measures of public men.”

The press is an indispensable representative of the people, a fourth estate. It is for this reason, as Justice Potter Stewart noted in the Pentagon Papers Case, that the press plays a vital checking role in national security matters, particularly because expansive claims of presidential power face little challenge from a quiescent Congress and a deferential judiciary. So, he wrote, “the only effective restraint upon executive policy and power . . .may lie in an enlightened citizenry—in an informed and critical public opinion. For this reason, it is perhaps here that a press that is alert, aware and free most vitally serves the purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.”

Freedom of the Press, Justice Hugo Black rightly said, was created for the governed, not the government. If an enlightened citizenry is integral to democracy, as a long line of American statesman, from Adams and Madison to Stewart and Black, have so declared, then the press must be not only free and unfettered but dedicated, energetic and aggressive in informing the American people. Madison, who was prone to romantic musings about the press, nevertheless captured its historic importance when he wrote in 1799: “To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.”

Landmark Ruling Gives Press and Public Access to Criminal Trials

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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 protected the right of the press to publish what it knows, without restraint or penalty. What had always been missing in American constitutional law, however, was the declaration of the constitutional right of the press to gather newsworthy information. The Court had never squarely addressed the question of whether the First Amendment grants the press a right of access to the news.

That changed abruptly when the Court, in 1980, in a landmark case, Richmond Newspapers v. Virginia, recognized for the first time, in circumstances that seemed to pit the Sixth Amendment against the First Amendment, that the press enjoys a constitutional right to access important information.

The Court’s decision in Richmond Newspapers, which Justice John Paul Stevens characterized as a “watershed case,” followed a bizarre path, amidst dramatic circumstances, that marked a quick and confusing change in the Court’s jurisprudence.

Our story begins with the Court’s ruling in the 1979 case of Gannett Co. v. DePasquale. There, the trial court, over press objections, closed the courtroom to the press and the public during a pretrial hearing on a defense motion to suppress evidence in a sensational murder case. The judge acted, he explained, to prevent prejudice to a future jury, and emphasized that both the defense and prosecution agreed to the closing.

Justice Potter Stewart wrote the Court’s 5-4 opinion, which focused on the Sixth Amendment’s guarantee to an accused of a “public trial.” Justice Stewart held that the Sixth Amendment right applied only to the accused. “Members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials.” Justice Harry Blackmun wrote a dissenting opinion, joined by three others, in which he argued that a pretrial suppression hearing may provide the public with its only opportunity to assess police behavior. In Seneca County, N.Y, where the hearing was held, no criminal cases proceeded to trial that year. Among the Justices, only Lewis Powell, who concurred, mentioned the First Amendment. He said that if it applied at all, the interests of the press would have to be balanced against the interest in protecting the jury.

The Court’s ruling in Gannett was met with an outcry against secret judicial proceedings. Judges around the country chose to close criminal trials. Chief Justice Burger, in a rare moment of public comment, told reporters that those judges had misunderstood the ruling, that it applied to “pretrial proceedings only.”

The Supreme Court was likely embarrassed. A year and a day after the Gannett decision, the Court, in Richmond Newspapers, had before it a propitious opportunity to correct itself. In Richmond, another sensational murder trial, defense counsel moved to close the courtroom. The prosecutor agreed and the judge granted the motion. The newspapers objected and appealed to the Supreme Court.

The Supreme Court, having just recently decided Gannett, was loath to reopen the Sixth Amendment issue. If it wished to overturn the judge’s ruling to close the courtroom, its only ground appeared to be the First Amendment. The problem in relying on that Amendment, however, lay in the fact that while the Court had rendered rulings to protect the right of the press to publish what it knows, it had never held that that the Amendment granted the press access to news. History was about to be made.

In Richmond Newspapers, the Court, in a 7-1 opinion, held that the closing of the courtroom had violated the First Amendment. Chief Justice Burger wrote a plurality opinion which sought to avoid the conclusion that the press might access everything including, perhaps, the Supreme Court’s conferences. Burger emphasized the Anglo-American tradition of open trials and joined that with the First Amendment principle of “freedom of communication on matters relating to the functioning of government.” Free speech, he said, “carries with it some freedom to listen.” At bottom, the First Amendment prohibited the closing of “courtroom doors which had long been open to the public at the time that amendment was adopted.”

In a concurring opinion, Justice Stevens drew the broader jurisprudential lesson of the ruling. For the first time, he emphasized, “the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment.”

In a case that was portrayed at the outset as pitting Sixth Amendment values against First Amendment values, there was joy in realizing that the guarantee of a “public trial” is, in fact, facilitated by press access to courtroom proceedings. As Justice Hugo Black wrote in the seminal case of Bridges v. California (1941), “free speech and fair trial are two of the most cherished policies of our civilization, and it would be a trying task to choose between them.” Fortunately, we don’t very often have to try.

Justice Jackson at Nuremberg: A Historic but Controversial Role

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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 Justice Harlan Fiske Stone was exasperated. Stone loathed extra-judicial assignments. He had declined President Truman’s recent invitation to lead a committee on traffic safety and believed Jackson’s participation at Nuremberg unworthy of a Supreme Court Justice because he viewed the trials as a “high-grade lynching party.”

The work of the Court was deeply affected by Jackson’s absence, which lasted for the entire 1945 Term. Important cases, unresolved by four-to-four votes, had to be carried over to the Court’s next Term. Justice Hugo Black, already at odds with Justice Jackson, was irate. His own workload increased as he wrote more majority opinions than his colleagues. Justice Horace Burton, appointed to the Court on October 1, 1945, complained in the spring of 1946 that there had not been a group picture of the Justices because “Justice Jackson has always been absent.”

For his part, Justice Jackson suggested remedies for the problems that his absence had caused. He offered to resign from the Supreme Court, but President Truman told him “No,” that Jackson should remain on the nation’s High Tribunal. At that point, Jackson told Chief Justice Stone that he would return to the Court to participate in some cases, but the Chief rejected the offer of a part-time Justice.

In his memoir, “The Supreme Court,” Chief Justice William Rehnquist, who clerked for Justice Jackson in 1952, recalled the controversy surrounding Jackson’s role at Nuremberg. Rehnquist observed that there was a feeling within the Court that “Jackson should not have left his duties at the Court for a full year unless he resigned the office; and also a sentiment that a sitting judge was not ideally cast in the role of a prosecutor.” For those reasons, Rehnquist concluded, he was, as Jackson’s clerk, “loathe” to raise the subject with the Justice. As it happened, however, an unconstrained graduate school friend of Rehnquist’s, upon meeting Justice Jackson, proceeded to ask about his experiences at Nuremberg. Jackson, according to Rehnquist, “proceeded with a very reasoned, often eloquent, defense of those prosecutions.”

President Harry Truman’s appointment of Justice Jackson in May of 1945 to serve as chief prosecutor for the United States at the Nuremberg trials represented a high point for both men in the historic effort, indeed, a defining moment in international justice, to apply the rule of law to those who rampaged throughout Europe and inflicted unprecedented misery and suffering on tens of millions of people.

Not everyone agreed that a trial of the Nazi monsters was warranted. England’s Prime Minister, Winston Churchill, for example, thought it sufficient to simply execute Nazi leaders and imprison others without trial. An alternative to that approach, one promoted by President Franklin D. Roosevelt at the Yalta Conference in February of 1945, was the novel application of the rule of law to hold Hitler and his Nazis accountable for their grotesque acts to show the world, and future leaders, that violation of International Law, including crimes against peace, crimes against humanity and aggressive war, among other heinous crimes, would come at a high price. The trials were meant as punishment, to be sure, but they also aimed to be a deterrent.

President Truman, long an admirer of Jackson, especially since his tenure as Attorney General, saw in the Justice, the only American ever to have held the posts of Solicitor General, Attorney General and Supreme Court Justice, a man of presidential timber. Truman believed that the demands of Nuremberg would shine a light on Jackson at his best—intelligent, articulate and decisive. Truman believed Jackson was the most qualified person to assemble the prosecutorial team, draft the historic indictment against the Nazis, lead the prosecution, cross-examine the Nazis and, above all, voice the hopes and goals of a shaken, but victorious civilized world, that a successful trial could deter the grave crimes that were committed in the name of racial purity and world domination.

Under Jackson’s leadership, the Allies convicted the leading Nazis who represented each dimension of the Third Reich. Beyond the convictions, Jackson’s team presented Nazi documents and other irrefutable evidence that, for the first time, publicly demonstrated the history of Hitler’s Germany and the Holocaust. Throughout his life, Jackson spoke and wrote frequently about his experiences at Nuremberg and considered it the most important work of his life.

Indeed, it was. In his capacity as chief prosecutor, Justice Jackson served the demands of history and truth.

“Blood Feud” Inside the Supreme Court on Question of Recusal

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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 financial interest in the property that was at issue. The decision, the Justices agreed, was Marshall’s alone, and he acted appropriately.

The Court’s historical understanding—and practice—of deferring the matter of recusal to individual Justices has stood the test of time. Only an individual Justice can decide, as a matter of conscience, after full appraisal of the relevant facts and factors, mindful of public perception on the crucial question of judicial impartiality, whether he or she should withdraw from the case.

But there was at least one moment in the Court’s history when a “blood feud” erupted between two Justices—Robert Jackson and Hugo Black—on the question of whether Black should recuse himself because of a potential conflict of interest. The acerbic argument spilled over to the rest of the Court, igniting among the strong and talented Justices partisan factions that, in the words of former Chief Justice William Rehnquist, left “a mark on future relationships.” The feud became the subject of newspaper commentary and Washington gossip.

In 1944 and 1945, two cases came before the Court involving the Fair Labor Standards Act on contracts between mine workers and their employers. The workers were represented in each case by Crompton Harris who, for a brief time, some 20 years before, had been Black’s law partner. The mine workers were successful in both cases, enjoying decisions that exceeded the collective bargaining agreements in the context of overtime benefits. Black voted with the majority. Jackson dissented on grounds that the decisions were overly broad and politically inspired.

The Jewel Ridge Corporation, the defeated party in the second case on a 5-4 vote, asserted its right under the Court’s rules, to petition the Justices for a rehearing, and claimed that Justice Black should have disqualified himself based on his connection to Harris. The Court rarely grants these petitions, and their denial is a matter of form. Chief Justice Harlan Fiske Stone might simply have drafted the usual order of denial but instead decided to draft a short opinion stating that the question of a Justice’s recusal is never open for consideration by the entire Court.

None of the Justices wanted to grant the petition for a rehearing. Stone’s draft, however, set the stage for the Justices’ robust discussion in conference about recusal, against a backdrop of antagonisms that were revealed a year later—May 15, 1946—by a Washington newspaper columnist, Doris Fleeson, whose sources were inside the Court. Ms. Fleeson had referred to the rising tensions between Black and Jackson as a “blood feud,” principally because Black had viewed Jackson’s suggestion that he disqualify himself in the Jewel Ridge case as “an open and gratuitous insult, a slur upon his personal and judicial honor.”

Justice Jackson, serving as Chief Prosecutor at the Nuremberg Trials, received word of Fleeson’s column and immediately perceived that her sources were members of the Court eager to discredit his candidacy to succeed Stone as Chief Justice, a post that he coveted and felt entitled to based on promises from President Roosevelt. Roosevelt was deceased and President Harry Truman was under no moral obligation to honor any promises made by his predecessor.

Jackson prepared a public statement describing in detail his role in the Jewell Ridge recusal controversy. On June 10, 1946, four days after Truman appointed Fred Vinson to become Chief Justice, Jackson described Fleeson’s account as detrimental to the Court’s reputation for “nonpartisan and unbiased” decisions, declared insinuations of personal vendettas among the Justices were “utterly false” and insisted that his differences with Black involved questions not of “honor” but of “judgment as to sound judicial policy” in matters of disqualification.

Jackson explained that the discussion in conference surrounded the question of whether the Court should summarily dismiss the petition for a rehearing or cite its lack of power, as an institution, to pass on disqualification issues. Jackson acknowledged that he had in conference argued that the Court should discuss the recusal question, which triggered an angry response from Black, who stated that any such opinion “would amount to a declaration of war.” For their part, Jackson and Felix Frankfurter said they were unwilling to give “blind and unqualified approval” to Black’s participation in Jewell Ridge.

While the Court issued a formal rejection of the petition for rehearing, the conference discussion reveals that in any future discussion about recusal, some Justices may feel free to weigh in as a matter of protecting the integrity of the judiciary while others may retreat from declaring their views as a means of avoiding the storm that engulfed the Court in the Jewell Ridge controversy.

The guiding question should be: what best serves the Court’s reputation?

Justice Robert H. Jackson: Groomed for the Supreme Court

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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—richly deserved the fulsome praise he received from American legends. Justice Louis Brandeis, remarking on Solicitor General Jackson’s dazzling performance before the Court, said he “should be Solicitor General for life.”

Jackson’s meteoric rise in the legal world began in Frewsburg, New York, where he graduated from high school in 1909. He apprenticed to two local lawyers and in 1911, he enrolled as a senior in the Albany Law School, which gave him credit for his experience in the law firms. He completed all the requirements for his degree, but the school could not confer it because he had not reached the age of 21. Known throughout his career for beautiful writing skills, observers attribute his literary flair to the fact that he spent just one, rather than three, years in law school.

Jackson was a dominating force in the courtroom and the western New York bar. One opponent called him “wickedly brilliant.” His clientele was diverse: a streetcar company, banks, striking labor union members, and occasional defendants accused of murder. His practice reflected his philosophical commitment to individualism and his temperament. He had embraced Emerson’s emphasis on self-reliance and self-help, which he believed the basis of character and success. He did not want to be compromised. Accordingly, none of his clients contributed more than five percent of his income. He sought financial independence which, he believed, was an essential asset for public service because it would relieve him from the fear and pressure of losing an office.

The year 1911, the same year that he enrolled in law school, was a turning point in Jackson’s life. An active Democrat, he took a trip to Albany, New York, and while there met Franklin D. Roosevelt, then a freshman state senator in the legislature. They developed a close friendship that deepened over the years. Roosevelt brought Jackson into the New Deal and provided him with a range of governmental opportunities and experiences, including important roles in what was then the Treasury Department’s Bureau of Revenue (now the IRS) and the tax division of the Justice Department. FDR recognized Jackson’s broad talents and soon he was tasked with speaking against the Supreme Court, corporations, and other opponents of the New Deal.

Jackson testified before the Senate on FDR’s difficulties with the Supreme Court, which had held a dozen New Deal programs unconstitutional and seemed to bear a personal animus toward Roosevelt shortly before FDR announced the Court-packing plan. Jackson became a well-known public figure and was viewed as an FDR favorite. Jackson joined the president’s poker games and cruises to the Bahamas and fit neatly into insider discussions about Washington and national politics. Jackson’s relationship with Roosevelt might well have been the only one in which he practiced deference.

Indeed, Roosevelt was grooming Jackson as his successor in the White House in 1940. The first step was to become New York’s Governor in 1938, but the powerful politicians who controlled Albany balked at a Jackson candidacy. As an alternative, FDR appointed Jackson to the post of Solicitor General, where he earned high praise from the Justices.

In 1940, Roosevelt appointed Jackson to be Attorney General. In this position, Jackson spent much of his time working on war-related issues. Jackson provided critical legal and political advice to FDR, who was searching for a way to meet Winston’s Churchill’s urgent pleas for help in the face of Germany’s relentless attacks on England’s navy. Churchill needed ships. Jackson located an old statute that could be utilized to forge a “Destroyers for Bases Agreement,” one authorizing FDR to trade 50 aging destroyers in exchange for 99-year leases on eight British bases in the Western Hemisphere. The trade was hailed as a win-win. FDR was praised for strengthening the continental defenses while keeping the United States out of the war which, at the time, was a demand of the non-interventionist Congress.

Jackson’s stock was steadily rising, and he was well-positioned to run for the presidency. But Jackson, concerned about the immediate future of America and the likelihood that the nation would be drawn into war, thought it better for FDR to seek an unprecedented third term, which he won in an electoral landslide.

In 1941, Roosevelt nominated Jackson to the Supreme Court. He easily won confirmation in the Senate. Jackson’s career on the Court, until his death in 1954, was marked by landmark opinions, interruption to serve as Chief Prosecutor at the Nuremberg Trials, as well as confrontations with Justice Hugo Black, which led to the most famous feud between two Justices in the history of the Court. Interestingly, it began with an argument about when Justices should disqualify themselves from hearing a case. We turn next week to those matters.

Trump Claims Impeachment Clause Grants Him Immunity

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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 January 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 nation from presidential abuse of power and threats to republican principles and values.

The Impeachment Clause (Article I, Section 3, Clause 7) states: “Judgment in Cases of Impeachment shall not extend further than to removal . . . and disqualification to hold and enjoy any Office . . .but the Party convicted shall nevertheless be liable . . . to Indictment . . . and Punishment, according to Law.”

Trump contends, first, that “no president, current or former may be criminally prosecuted for his official acts unless he is first impeached and convicted by the Senate.”

Trump’s second argument asserts, “Nor may a president face criminal prosecution based on conduct for which he was acquitted by the U.S. Senate.”

Trump’s first argument, that impeachment must precede indictment lacks historical support, distorts textual language and ignores the Framers’ decision to sever the impeachment process from the criminal justice system. The language— “shall nevertheless be liable”—aims to preserve criminal liability rather than to qualify it. There is no basis in the records of the Constitutional Convention to attribute to the Framers any intention to insulate civil officers from criminal liability through election or appointment to office. A civil officer may be both impeached and criminally punished without any consideration of the Impeachment Clause. Like all other citizens, they are subject to the law.

There is no evidence from Convention debates to suggest that the president is clothed with immunity. Indeed, the immunity granted to members of Congress (Article I, Section 6)—privilege from arrest during their attendance in congress, except in cases of treason, felony and breach of the peace—was intentionally withheld from the president. Charles Pinckney of South Carolina, a robust participant in the Convention, told the Senate in 1800 that “No privilege of this kind was intended for your Executive.” James Iredell, a member of the first Supreme Court, told the North Carolina Ratifying Convention that the president is “triable.” James Wilson, second in importance only to James Madison as an architect of the Constitution, stated, “not a single privilege is annexed” to the president’s character. He emphasized: “The most powerful magistrates should be amenable to the law. . . No one should be secure while he violates the constitution and the laws.”

It follows from the fact that the president is criminally liable that a former president is as well. There certainly is no provision in the Constitution that addresses a special exemption from trial for an ex-president. Trump’s assertion that impeachment must precede indictment falls flat, for it would reduce the clause to mere verbiage.

A focus on the language is important because the Framers were meticulous draftsman. They did not insert in the Impeachment Clause the words such as “after” or “afterward,” to convey a sequential process. To transform a nonsequential provision into a prescribed process, as Trump’s lawyers do, is to create the very presidential immunity that was withheld from the president when the Framers directly confronted the question.

The sole purpose of the Article I, Section 3 indictment provision, as Justice Joseph Story observed nearly 200 years ago, is “to preclude the argument that the doctrine of double jeopardy saves the offender from the second trial.” The Framers recognized that very danger in English practice, which fused criminal punishment and removal in one proceeding, and so they sought to prevent an inference that impeachment prevents a subsequent indictment. In place of the combined English removal and criminal proceedings, the Framers divorced the two, with consequences that Wilson addressed.

“Impeachments,” Wilson said, are outside the “sphere of ordinary,” that is, criminal jurisprudence. “They are founded on different principles, governed by different maxims, and directed to different objects.” He added, “for this reason, the trial and punishment of an offense on impeachment, is no bar to a trial of the same offense at common law.”

This crystal-clear historical purpose, severing the political process of impeachment from the values and principles of the criminal justice system, however, has not stopped Trump, in his second argument, from invoking the double-jeopardy defense.

Let us understand the revolutionary consequences of Trump’s second argument, that a president “may not face prosecution based on conduct for which he was acquitted by the U.S. Senate.” First, this assertion means that the Senate would replace the criminal justice system—prosecutors, grand juries and indictments—in deciding whether a president should face prosecution. Senate refusal to convict a president in an impeachment trial would bar prosecution, perhaps for the most extreme partisan reasons. Second, impeachment by the House, followed by acquittal in the Senate, would confer upon the president permanent immunity from criminal prosecution, however clear his guilt. The president would stand above the law and the rule of law would be rendered irrelevant.

Section 3 and Constitutional Democracy

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Critics of the Colorado Supreme Court’s ruling that former President Donald Trump, under the express terms of Section 3 of the 14th Amendment, is ineligible to appear on the ballot as a Republican presidential candidate, assert that the Disqualification Clause is undemocratic and, therefore, it should not be invoked to deprive voters of the right to decide who their next president will be.

If the American people want to vote for a candidate for the Office of the Presidency, it is argued, they should not be denied that choice. Some have warned that use of the Disqualification Clause will have disastrous consequences for democracy. Others have argued that courts should not define the boundaries of democracy.

The Colorado ruling, based on “clear and convincing evidence” that Trump engaged in insurrection on January 6, 2021, does, in fact, limit voters’ choices, but that is true of other constitutional provisions that disqualify various citizens from holding the Office of the Presidency.

The Framers of the Constitution believed that eligibility requirements for the presidency, which seem to trench on the right of voters to choose their leaders, are sometimes necessary to protect our constitutional democracy, Article II—the executive article—provides that the president must be 35 years old, a natural born citizen and must have lived in the United States for at least 14 years. These electoral checks and constitutional guardrails limit voters’ choices. The age and residency requirements reflect the Framers’ concerns about maturity and knowledge of the nation—its politics, problems and issues. The natural-born citizen requirement sought protection from a foreign leader who might impose authority at odds with constitutional principles and republican values. These eligibility requirements met with little opposition since Americans viewed them as serving the higher goals of our constitutional order.

The Impeachment Clause—Article II, Section 4—reflects yet another constitutional limitation on voters’ rights to choose their president. The Framers’ implementation of an impeachment power to remove a president from office for a variety of offenses against the United States, including treason, bribery and high crimes and misdemeanors, may well counter the wishes of many voters, but was, in the estimation of the Framers, necessary to preserve the constitutional order. The impeachment power includes, moreover, the power of the Senate, if it were to remove a sitting president, to prevent the disgraced officer from ever holding another office under the authority of the United States. That power was intended to prevent the return to power of someone who had engaged in various attacks on our constitutional order including, violation of the oath of office, usurpation of power, violation of the laws of the United States and certainly insurrection and rebellion.

The concerns that motivated the Framers’ creation of the Impeachment Clause and disqualification from holding future office inspired the 39th Congress to draft Section 3 of the 14th Amendment—the Disqualification Clause—which was ratified in 1868. This provision, enforced by the Colorado Supreme Court against Donald Trump, bars the return to power of someone who once took the oath of office and then engaged in, or aided and abetted, insurrection or rebellion against the United States. Like the Framers of the Constitution, the Republicans who controlled the 39th Congress, believed electoral checks were sometimes necessary to preserve constitutional democracy.

The 22nd Amendment, ratified in 1951, likewise imposed electoral guardrails on the presidency. Motivated by President Franklin D. Roosevelt’s election to a fourth term in 1944, Republicans in Congress mobilized support to push through a constitutional amendment to limit the president to two terms. Growing concerns about executive aggrandizement of power linked to longevity in office were sufficiently strong to persuade the American people to once again limit their own voting options when it involved the presidency.

Opponents of the 22nd Amendment argued that it violated their voting rights, as do current opponents of the invocation of the Disqualification Clause of the 14th Amendment, but the overriding sense that a nation has a right to protect itself by restricting access to office prevailed among the American electorate.

Some provisions of the original Constitution, including protection for slavery and denial to women of the right to vote, for example, were clearly undemocratic but, over time, were amended out of the Constitution, as the American people came to recognize the cruelty and arbitrariness of those provisions that reflected anachronistic values of another age.  

But other provisions that seem undemocratic—Article II criteria for presidential eligibility, the Impeachment Clause, the Disqualification Clause of the 14th Amendment and the 22nd Amendment—because they impose limits on the choices of voters, have retained their vitality and relevance in an age marked by grave constitutional challenges. These voter-limiting provisions serve the greater interest of the nation: the necessity of preserving our constitutional democracy.

A Law Court Will Affirm Colorado’s Ruling on Trump

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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 been a venerated institution precisely because the citizenry believed that the Justices served, as Alexander Hamilton anticipated in Federalist No. 78, as a “mouthpiece” for the Constitution, rather than as legislators who would impose their personal and political preferences.  Hamilton and his fellow framers of the Constitution wanted a law court, not a political court.

It was in the Hamiltonian-Marshallian spirit that the Colorado Supreme Court, acting as a law court, ruled that Donald Trump engaged in insurrection on January 6, 2021, and, therefore, is ineligible for certification on the ballot since he is disqualified under Section 3 of the 14th Amendment from running for the presidency.

The Colorado Supreme Court agreed with the fact-finding conclusion of the state trial court, following a five-day trial, that Trump, based on overwhelming evidence, had engaged in insurrection, which triggered Section 3.  That provision bars from “any office, civil or military, under the United States,” anyone who takes an oath “as an officer of the United States . . . to support the Constitution of the United States [who] shall have engaged in insurrection or rebellion . . ..”  

Denver District Judge Sarah B. Wallace had held that Trump “acted with specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification.”  Judge Wallace, however, inexplicably said that Section 3 did not encompass presidents.  The state supreme court overturned that ruling by holding, correctly, that the American Presidency is, indeed, an “office” and that the president is a “civil officer,” bound by the Constitution. The U.S. Supreme Court has, since the dawn of the republic, referred to the president as an officer. In the Aaron Burr Treason Trial in 1807, for example, Chief Justice Marshall, held that the president is an officer, amenable to the judicial process and required to comply with subpoenas.  In 1988, in Morrison v. Olson, Chief Justice Rehnquist wrote for the Court, upholding the special counsel statute, and said the president is a “principal” or “superior” officer.

Trump called the Colorado ruling “fatally flawed” and it is expected that he will shortly appeal to the US Supreme Court.  The decision, however, is not flawed, but rather a “masterful” opinion, in the words of retired appellate judge, Edward Luttig, one of the nation’s most respected conservative jurists. Indeed, the opinion was beautifully crafted in a manner that fits the expectations of the Supreme Court Justices who style themselves textualists and originalists. The Colorado opinion is firmly grounded in the textual language and the structure of Section 3 of the 14th Amendment, precisely the exalted approach to constitutional interpretation advocated by Justices Alito, Thomas, Gorsuch, Kavanaugh and Barrett.  In a word, it is Mother’s Milk for that quintet.

As such, if the Justices remain true to their philosophy of constitutional construction and the Court acts as a law court, then the result should be affirmation of the Colorado State Supreme Court decision.  Traditionally, appellate courts do not disturb the findings of fact established by the trial court, unless there is demonstrable error. In this instance, it would be very difficult to find error since all eight of the Colorado judges—the trial court judge and the seven Supreme Court Justices, including the three dissenters—agreed that Trump had engaged in insurrection. The Court might engage in a de novo review, that is a fresh review of the facts, if it looks for an exit ramp in the event it does not want to uphold the Colorado Supreme Court, but that is rare, and critic’s knives would be out if the Court were to abandon the traditional approach of deference to the trier of fact.

There would remain the question of application of the law, in this instance, Section 3 of the 14th Amendment. The language of that provision is crystal clear, which reflects the aims of the 39th Congress that wrote it to protect Americans from the possibility that an officer who had engaged in insurrection might regain power. Application of the law by the Supreme Court does not contemplate at all the lack of a conviction of Trump by a court of law, since there is nothing in the text or the legislative history pertaining to a requirement of a conviction before someone can be banned from the ballot. That’s because Congress, in writing Section 3, anticipated the potential return to office of men who had not been convicted or would not be prosecuted, but had engaged in insurrection. Protection of the republic was of paramount importance.

If the Supreme Court acts as a law court, in the spirit of Alexander Hamilton and John Marshall, it should affirm the Colorado Supreme Court’s ruling

Mr. Smith Goes to the Supreme Court to Save the Rule of Law

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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 scheduled trial date –March 4, 2024—which his legal team is trying to delay. It also serves the vital interests of the rule of law, American democracy and the public’s right to a speedy trial.

Federal District Court Judge Tanya S. Chutkan’s rejected Trump’s assertion of “absolute immunity” from criminal prosecution. She rightly held that “presidents are not kings” and that in the United States, “no man is above the law.” As expected, Trump appealed the ruling to the U.S. Court of Appeals for the District of Columbia Circuit.

Trump’s appeal to the circuit court carries with it a pause in the pre-trial proceedings, including the process of securing jurors in what will be a historic trial. No American president has been tried on criminal charges. The delay in the proceedings serves the strategic interests of the former president who, obviously, does not want to stand trial. If Trump can delay trial until the late summer months, he may be able to postpone it until after the election since Judge Chutkan would face the difficult question of whether to try Trump in the heat of the campaign, requiring him to be in court for the duration of the trial rather than on the stump. That dilemma is exacerbated by the need, and the right, of the American people to know before they go to the polls, whether Trump committed a crime against the United States.

Even worse, if Trump were to win the election, he could order the justice department to drop the prosecution, meaning we might never know the full scope of evidence amassed by Smith and the ultimate truth about the allegations against Trump. The “verdict,” as it were, would be left to scholars—less satisfactory than the judgement rendered by a jury of Trump’s peers.

The United States of America v. Donald Trump is a case of first impression, that is, the first time that the High Tribunal is asked to address the question of a whether a former president enjoys absolute immunity from prosecution for crimes that he committed while in office. If the Court agrees to hear the case, and decides that Trump does not, in fact, enjoy immunity from criminal prosecution, then the trial may proceed. If the Court decides, on the other hand, that the president is immune from criminal prosecution, then the case is dismissed. It is possible that the Court will decide that the case and the issues at the center of it should be fully ventilated by the circuit court, leaving the Supreme Court in the position of ruling after the normal appellate process has played out. All of that would take time, of course, likely too much time.

The Supreme Court should agree to hear this case. It should grant “certiorari before judgment.” Rule 11 of the Court’s practice emphasizes that this will be granted in cases of “imperative public importance.” This is such a case. Indeed, if the question of whether the president is above the law does not present a question of “imperative public importance,” then no case meets this stringent requirement.

The Court rarely grants certiorari before judgment. Historically, the two great cases in which the Court has granted the writ were those involving sweeping assertions of presidential power, though neither presented an issue of such soaring importance as a former president claiming he is above the law. In Youngstown Sheet & Tube Co. v. Sawyer (1952), better known as the Steel Seizure Case, the Supreme Court rejected President Harry Truman’s claim of an emergency presidential power to seize the steel mills to keep them open and operating in the face of a nationwide steel strike at a time when the production of steel was vital to America’s role in the Korean War and success of the Marshall Plan in rebuilding Europe after the devastation of World War II. The Court held that no statute and no constitutional provision conferred authority upon the president to seize private property.

More recently, in 1974 in United States v. Nixon—the Watergate Tapes Case—the Court granted certiorari before judgment when President Richard Nixon asserted the power of “absolute executive privilege” to withhold taped conversations in the Oval Office in a criminal case involving Watergate defendants. The Court, in a unanimous 8-0 opinion (Justice William Rehnquist recused himself) authored by Chief Justice Warren Burger, a Nixon appointee, rejected Nixon’s unprecedented assertion of power, finding no support in the architecture of the Constitution.

USA v. Trump represents the most profoundly important issue of our time, indeed, of any time in American history. The Court should decide if the president is immune from criminal prosecution and whether any man—or woman–is above the law

Justice O’Connor, A Personal Reminiscence

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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 command respect for years to come.

Justice O’Connor, who died on December 1, 2024, was the first woman appointed to the Supreme Court. On July 7, 1981, President Ronald Reagan nominated O’Connor to the Court, which fulfilled his campaign promise to appoint a woman to the High Bench. Justice O’Connor served on the Court from September 25, 1981 to July 1, 2006, when she retired to care for ailing husband, John, who suffered from dementia.

In our two, one-hour interviews—2013 and 2014—Justice O’Connor was refreshingly candid, humorous, witty, and playful. She acknowledged, perhaps for the first time publicly, that the Court had probably been mistaken in ruling on the case of Bush v. Gore, which settled the long, contentious presidential election of 2000, and by a 5-4 majority, seated George W. Bush in the White House. The Court’s ruling halted the recount of the popular vote in Florida, which had been authorized by the state Supreme Court. The recount may not have enabled Vice-President Al Gore to overcome Bush’s 537 vote advantage, but we will never know. If Gore had won Florida, he would have captured the presidency.

For reasons of modesty and discretion, Justice O’Connor was not willing to accept the scholarly acclaim that she wielded the controlling “swing vote” and, therefore, the High Bench should be known as “The O’Connor Court.” Madam Justice could count votes, of course, and she had deep experience in such matters, dating back to her days as Senate Majority Leader in Arizona, but she shunned claims of leadership on the Court, which was led by Chief Justice William Rehnquist.

O’Connor and Rehnquist had enjoyed a long friendship, stretching back to their days at the Stanford Law School. They dated, briefly, but she married another classmate, John O’Connor. Rehnquist graduated at the top of their class; O’Connor was second. Upon graduation, Rehnquist received numerous job offers, befitting a top student at a top law school. O’Connor, on the other hand, didn’t receive a single offer because, as she explained it, law firms were not hiring women in 1952. In a year’s time, she took a position at a law firm but wasn’t paid for her work which meant, I suggested, grimly, that it was more a hobby than a job.

Justice O’Connor was proud of her record on the Court, and justly so. She was a pragmatist who cared deeply about the impact of the rulings on the citizenry. We discussed several of her many noteworthy opinions. In 1992, she authored the Court’s opinion in Planned Parenthood v. Casey, which upheld the essence of Roe v. Wade, and introduced the “undue burden” test, which governed state regulation of the right to abortion. She spoke about the importance of separation of church and state, affirmative action and enforcing limitations on presidential power.

In our final time together, at the end of the conference in 2014, we repaired to a benefactor’s beautiful home, located on a wooded lot, which, late that afternoon, attracted a small herd of elk. We sat in the den, enjoying a fire, fine wine and a delicious and generous platter of fruit and cheese. This time together and a wide-ranging conversation with an iconic Supreme Court Justice was heady brew, indeed, for a professor of constitutional law. We touched on the work of the Court, how it had changed since her arrival, various decisions, and approaches to interpreting the Constitution.

Well into our conversation, I told Madam Justice that I was planning to write two or three law review articles about her work on the Court and influence on American law. She flattered me greatly when she stated: “No, you will write them with me.” I was nearly speechless, but in trying to maintain some equilibrium, managed to utter, “that’s wonderful, I’ll call your clerk to discuss it.” She replied, “no, you’ll call me.” It wasn’t long after that conversation that Justice O’Connor’s health began to deteriorate. Dementia would claim her. Sadly, for me, we never had the chance to co-author law review articles.

The afternoon faded into the early evening. The elk had left the grounds. The fire had been replenished. There remained plenty of wine and the platter of fruit and cheese was inviting, but who had room to eat more of it? Justice O’Connor, in a voice that you’ve all encountered, in circumstances that you’ve all experienced, said to me, “take that away.” I chuckled but didn’t move. A few seconds later, the first woman appointed to the Supreme Court looked at me and, in a tone that left no doubt that her words represented a command from on high, declared, “I said, take it away!” I did, of course, and immediately. Wouldn’t you have?

James Iredell: Not Hamilton, But Well Qualified for Supreme Court

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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 him to the Court. Unlike Hamilton, he has no presence on any official currency. And, unlike Hamilton, whose adult behavior inspired his friend, Martha Washington, to nickname him, “Tomcat,” Iredell is not known to have stimulated any pet names.

What Iredell did have going for him during the founding period, however, was a richly deserved reputation as one of the most penetrating constitutional theorists of his generation, a first-rate attorney whose arguments educated the nation’s citizenry and a cogent advocate for judicial review, nearly two decades before Chief Justice John Marshall invoked it for the first time, in 1803, in Marbury v. Madison. And, for the record, some of Hamilton’s most famous writings, including those on judicial review, were anticipated by Iredell. In sum, Iredell possessed eminent qualifications for a seat on the High Bench.

Iredell, born in England, sailed to American at the age of 17, to be King George III’s Comptroller of Customs in Edenton, North Carolina. It was more than ironic that Iredell, while serving the king, became an advocate for the American Revolution and, indeed, one of the leading essayists in the cause of rallying the colonists to join the movement for independence. In 1775, he penned an essay, “Principles of an American Whig,” which foreshadowed the arguments and themes set forth by Thomas Jefferson in the Declaration of Independence. For example, Iredell asserted that the people have the right to pursue happiness, to which end government is created. When government violates its mandates, the people have a right to revolt.

Iredell was the floor leader of the North Carolina Ratification Convention, and fought, in vain, to persuade state delegates to approve the proposed Constitution. Delegates rejected the Constitution until the Bill of Rights was added, when it ratified it. President Washington took note of Iredell’s masterful writings on behalf of the Constitution and rewarded him with a nomination to the Supreme Court.

Iredell’s advocacy for the Constitution was built atop numerous essays that educated the public about its aims and purposes. One of his writings anticipated Hamilton’s historic essay, Federalist No. 78, which explained and championed the Constitutional Convention’s decision to vest in the federal judiciary the awesome power of judicial review, that is, the authority and responsibility to declare statutes unconstitutional. Hamilton’s arguments were embraced by Chief Justice Marshall in his opinion for the Court in Marbury v. Madison: “It is emphatically the province and duty of the judiciary to say what the law is.”

Iredell’s closely knit argument that the judiciary has a duty to uphold the Constitution rather than a statute in conflict with it, poured the foundation for Federalist 78 and the Marbury opinion. “The Constitution, therefore, being a fundamental law . . .the judicial power, in the exercise of their authority, must take notice of it . . . either . . . the fundamental unrepealable law must be obeyed, by the rejection of an act unwarranted by and inconsistent with it, or you must obey an act founded on authority not given by the people.” The judiciary, like the legislative and executive branches, he wrote, has no authority to disobey the Constitution and therefore is obligated to declare unconstitutional a law in conflict with the Constitution.

Iredell addressed with considerable wisdom and insight historically important constitutional themes and powers that resonate in our time. He was concerned about the usurpation of power and checks and balances, which he believed critical to the maintenance of the Constitution, and preserving fundamental choices made by the people in their writing and ratification of the Constitution.

Those choices, including the creation of the treaty power, required strict observance. For example, he wrote that the president, who shares the treaty-making power with the Senate, as provided in Article II of the Constitution, could be impeached if he withheld from the Senate important information relevant to its discussions and debates about the merits of the proposed treaty.

Impeachment, for Iredell, was an effective means of limiting presidential abuse of power. He emphasized in North Carolina that the Framers’ rejection of the royal prerogative power, grounded on their disdain for the English legal principle that the “king could do no wrong,” reflected their conclusion that, in fact, the king “could do wrong.” The president, unlike the king, would be “triable.” Having rejected the principle of executive immunity, the president, like all other citizens, would be subject to the law and amenable to the judicial process.

Justice Iredell, like his colleagues on the Court, performed the duty of riding circuit, an arduous task given difficult traveling conditions. The work took its toll on Iredell and contributed to his early death at the age of 48, after serving on the Court from 1790-1799.

Justice Douglas Went East, But Appointed to Court as a Westerner

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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 suggested geographical balance in the Court’s membership. The nomination of Douglas to the Court seemed untenable and would generate political headaches for the Roosevelt Administration.

Pressure was building for the appointment of someone West of the Mississippi. President Roosevelt was being pushed to nominate Senator Lewis Schwellenbach, but opposition from the other Senator from the state of Washington undercut that effort. At that juncture, fellow New Dealers Jerome Frank and Thomas Corcoran reminded Roosevelt of Douglas’ deep roots in Washington and suggested that his nomination to the Court might be framed through the prism of Western geography. The geographical factor proved persuasive to Roosevelt, who needed only a slender reed on which to rest Douglas’ nomination. Roosevelt had long been hoping for the chance to place Douglas on the Court. The two had developed a kinship grounded on political ideology, aspirations for America, personal and political ambition, poker and, in an important way, a shared history of dealing with polio.

As Douglas’ chances of joining the Court were rising, some questioned his loyalty to the New Deal. In response, Douglas delivered a fiery speech in which he condemned the financial community and, drawing upon the reforms that he had engineered as Chairman of the Securities and Exchange Commission as well as his promotion of changes in the nation’s laws governing bankruptcy and debtor-creditor relations, confirmed his reformist character and his commitment to the New Deal. The speech proved to be a resounding success. A week later, Roosevelt nominated Douglas to the High Court and, on April 4, 1939, he was confirmed by the Senate on a 62-4 vote.

The Court that Justice Douglas joined was philosophically supportive of the New Deal and its emphasis on labor laws and government regulation of business. Douglas earned his reputation, at least initially, for his opinions that sustained regulations of the business community. Some of his opinions remain largely undisturbed, particularly those that established standards reviewing agency ratemaking and those that held a combination to fix prices was illegal per se, that is, without further inquiry into their reasonableness.

Many Americans will recall Justice Douglas’s contributions to the defense and expansion of civil rights, including freedom of speech, freedom of the press and the right to privacy. His most famous civil liberties opinion was Griswold v. Connecticut (1965), in which he identified a constitutional right to privacy, which emanated from the “penumbras” of rights enshrined in the First, Third, Fourth, Fifth and Ninth Amendments. His theory reflected an intellectual indebtedness to Justice William Brennan, but Douglas was the Justice remembered for the theory, and he was roundly criticized by many scholars at the time for the introduction of a “right” that seemed to emerge from the shadows and lacked substance. In time, however, many of his critics came to embrace the right to privacy and shared his expectation that it is central to freedom in a democracy.

Some citizens will recall the efforts in April 1970 of House Minority Leader Gerald Ford, at the behest of President Richard Nixon, to bring articles of impeachment against Justice Douglas, just the second time in U.S. history that a Supreme Court Justice was the subject of impeachment. The first involved Justice Samuel Chase in 1804. Chase was impeached by the House of Representatives but acquitted in the Senate trial.

President Nixon orchestrated the impeachment attacks against Douglas in retaliation for the Senate’s defeat of two of his Supreme Court nominees: Harold Carswell and Clement Haynsworth. Nixon had characterized Douglas as “the darling of the liberals” and sought his removal from the bench. Minority Leader Ford brought the articles of impeachment, citing Douglas’ activities off the bench which involved, essentially, a $300 payment for a magazine article that he wrote and an excerpt of his book, Points of Rebellion, published in another magazine. As it developed, Douglas’ publisher approved publication of the excerpt without Douglas’ knowledge.

A subcommittee of the of the House Judiciary Committee was charged with the task of investigating Douglas’ activities. After eight months, the committee announced it had no evidence that Douglas had committed an impeachable offense. The Nixon-Ford attempt to remove Justice Douglas from the Court had proved futile.

Justice Douglas served on the Court longer than any other justice in American history. On December 31, 1974, Douglas suffered a debilitating stroke. He was partially paralyzed and never recovered his full capacities. He was absent from the Court for the rest of the Supreme Court Term. He tried to return the following fall but didn’t have much strength. On November 12, 1975, he submitted his resignation letter to President Gerald Ford.