[RADIOLAB INTRO]

JAD ABUMRAD: Do be do be do be do. Do be do be do be do be do. Oh, Suzie's on. Suzie. Suzie, Suzie, Suzie, Suzie, Suzie, Suzie, Suzie.

SUZIE LECHENBERG: Jaddy.

JAD: Hey!

SUZIE: It's so hot under this blanket, Jad.

JAD: I'm sorry.

SUZIE: Okay, start again.

JAD: All right, since you're under a blanket, we'll be fast. So you are Suzie Lechtenberg, and what is your role?

SUZIE: I am the executive producer of Radiolab.

JAD: Yes.

SUZIE: And a few years ago, actually four years ago, 2016, we created another little spin-off show.

[MORE PERFECT INTRO]

SUZIE: Called More Perfect, and it was about the Supreme Court.

JAD: Yes. And the question that we get—and it's a very flattering question, but uncomfortable one, we get it all the time, is what happened to More Perfect? Is it coming back? Suzie, what do you know? What can you tell us?

SUZIE: I wish I had a satisfying answer to this, but the answer for now is I don't know. Never say never. But we have so much to do at Radiolab that maybe?

JAD: Yeah. Quite possibly, but not at the moment. But with there being so much attention on the court, with RBG passing—may she rest in peace in Valhalla—and with all the attention around Amy Coney Barrett's nomination and confirmation process on the horizon, and with all the conversation about court packing and whether to pack or not, it did call to mind an episode we created for More Perfect—2016, four years ago, as you said—that really addressed one of the big questions that sort of lurks behind all of these recent events.

SUZIE: Yeah. Which is how much power should they have? How much power should nine unelected officials who have lifetime appointments have?

JAD: And how did they get that power? And why nine? Why nine?

SUZIE: And this is kind of the origin story of how the Supreme Court got to be, I guess you could say, so supreme.

JAD: So let's just roll it.

JAD: Hey I'm Jad Abumrad. This is More Perfect, a mini-series about the Supreme Court. To begin—and by the way I will explain the title of this podcast at the end—we live in a democracy with three branches in it: you've got the Executive branch, the Legislative branch and the Judicial branch. Now that third branch, the judicial, the courts, consists of about a hundred-ish federal courts. And on top of those courts is the court, this temple of nine—now eight—unelected lifetime appointees who seem to have this tremendous power.

[ARCHIVE CLIP: Almost tyrannical power.]

JAD: They are wickedly important. and we're reminded of this ...

[NEWS CLIP: Scalia's death throws a huge unknown factor into this campaign.]

JAD: ... every time we turn on the TV.

[NEWS CLIP: We are one justice away from losing our fundamental rights in this country.]

JAD: Because here we are in this election, and the phrase that you hear a lot ...

[NEWS CLIP: One of the most important things in that election, I think.]

[ARCHIVE CLIP, Bill Clinton: This might be the most important thing to those of you who are young I'll say today.]

JAD: ... is that one of the most important things the next president's gonna do ...

[NEWS CLIP: This next president may very well appoint ...]

[NEWS CLIP: Between one and three ...]

[NEWS CLIP: ... four Supreme Court justices.]

JAD: Now never mind that most Americans have no idea who the justices are, two thirds can't even name a single justice.

[ARCHIVE CLIP: I can't even name the one that just died.]

[ARCHIVE CLIP: I honestly couldn't tell you any of their names.]

[ARCHIVE CLIP: No, I can't even tell you any ...]

[ARCHIVE CLIP: I don't either. [laughs]]

[ARCHIVE CLIP: The only name of a judge I know is Judge Judy.]

JAD: Doesn't matter. We all know that whoever they are, they're incredibly powerful people. That they can—boom!—instantly strike down a law that took years to pass.

[ARCHIVE CLIP, Barack Obama: The Supreme Court reversed a century of law that I believe will open the floodgates.]

JAD: They can undo executive orders. They can even change, like, these long-held definitions, like what makes a person, what makes a marriage? They can even decide an election.

[ARCHIVE CLIP: Justice Scalia?]

[ARCHIVE CLIP, Antonin Scalia: My usual response is get over it.]

[ARCHIVE CLIP: Get over the possible corrupting of the American presidential system?]

[ARCHIVE CLIP, Antonin Scalia: [laughs]]

JAD: Now with all the background chatter in the election, it's sort of interesting to think about the fact that when it comes to the court and their power, it didn't have to be this way. It didn't have to be this way!

KELSEY PADGETT: And it wasn't for a long time!

JAD: And it wasn't for a long time.

KELSEY: Yeah.

JAD: Reporter Kelsey Padgett will take it from here

KELSEY: I mean, if you go back in time, say, like, early 1800s, the court had so little power. In fact they were ...

LINDA MONK: Meeting in the basement of Congress.

KELSEY: That's Linda Monk, constitutional scholar.

LINDA MONK: One newspaper refers to it later as a dark, dank potato hole.

JAD: Potato hole! [laughs] Like it was damp or something?

KELSEY: I mean, DC at this time was like a swamp.

JAD: Uh-huh.

KELSEY: So I imagine there were spiders in there, and they said there weren't very many windows.

LINDA MONK: Well ...

KELSEY: Maybe it wasn't that bad, but still ...

LINDA MONK: We think of three separate branches. It's kind of hard to think of yourself as a separate branch when you're meeting in the basement of Congress.

KELSEY: Not only that ...

AKHIL REED AMAR: When Congress actually sets up the first Supreme Court, they created originally a Supreme Court of six justices.

KELSEY: That's Yale law professor, Akhil Reed Amar.

AKHIL REED AMAR: An even number. How odd! Today we're freaked out, "Oh, the court could be divided four-four, what's gonna happen? Oh my God!"

[NEWS CLIP: It could be a four-four split.]

[NEWS CLIP: The Supreme Court is not designed to function with an even number of justices.]

AKHIL REED AMAR: You know, we're in a crisis.

[NEWS CLIP: So should cable news be creating their constitutional crisis graphics?]

AKHIL REED AMAR: But originally the first Congress, they created six members because they're not imagining the court as deciding everything.

KELSEY: In other words, like, you know, if the court is split, who cares? Because at the time they weren't deciding big cases. They weren't deciding, like, affirmative action, Roe v. Wade, nothing like that. They were handling, like, these little tiny rinky-dink cases. And most of their time was spent literally riding in carriages from town to town.

AKHIL REED AMAR: Trying cases around the country, and that's a big hassle. They don't even get to sleep in their own beds.

JAD: Wait, why are they riding around?

KELSEY: Well, so they actually each had a separate geographical zone that they're in charge of. And that's actually still true today. But unlike today, where people come to the Supreme Court, back then ...

ELIE MYSTAL: People weren't coming to them. Why would I do that? [laughs]

KELSEY: That's Elie. Elie Mystal, our legal editor.

ELIE MYSTAL: Why would I go seek out these guys someplace else to hear my local issue in South Carolina? If they have something to say about it, they can come to South Carolina, sit on my farm and talk to me. Gotta think about the country in 1800, in 1804. This is a states' rights, states-centric country.

KELSEY: All of which is to say, that being a Supreme Court Justice, at that time ...

ARI SAVITZKY: It's not a great gig.

KELSEY: It's rough. Consequently, the people who chose to do this, well they're kind of misfits.

ARI SAVITZKY: Yeah, totally! And who are, like, really smart, but like a motley crew that isn't organized.

KELSEY: That's Ari Savitzky. He's a lawyer, constitutional history enthusiast. He says at the time on the court, you had this one guy nicknamed Old Bacon Face.

ARI SAVITZKY: Who is like a maniac. He's like the kind of like the Charlie Sheen wild thing in Major League type character.

KELSEY: Very hot tempered, had a foul mouth.

ARI SAVITZKY: There's another one who, you know, is, like, four foot five and really silent. The Supreme Court was like a pretty ragtag bunch.

ELIE MYSTAL: All of this happens—and I think it's important for people to understand, all of this happens in part because the Constitution is embarrassingly silent on what the Supreme Court is, what it should do, how it should be constituted. Article 3 says—Article 3 of our United States Constitution says, "There shall be a Supreme Court." Thanks, guys.

KELSEY: [laughs]

KELSEY: It's true. I mean, it's kind of weird. Like, if you read the Constitution ...

AKHIL REED AMAR: Boy, it spends a lot of time talking about the House of Representatives, how are you gonna count slaves? And it's gonna be by population, there has to be a census every 10 years because the House is important.

KELSEY: But when it comes to the Supreme Court, all you get is, like, a couple of sentences.

AKHIL REED AMAR: Almost nothing at all.

KELSEY: And, you know, that's kind of the puzzle of this. Like, how did they get so powerful? I mean, they started out as these, like, nobodies in a basement, and now they're these all-powerful, you know, priests of the Constitution.

[ARCHIVE CLIP: The Supreme Court of the United States. Nine men.]

KELSEY: And women.

[ARCHIVE CLIP: High in government, who sit in judgment on many of the great questions before our nation.]

KELSEY: So how did that happen? Especially when there's, like, arguably nothing in the Constitution that says that that should happen.

JAD: All right, so how did it happen?

KELSEY: Well, you could trace so much of this back to one move by one man.

ARI SAVITZKY: John Marshall!

AKHIL REED AMAR: John Marshall.

LINDA MONK: John Marshall.

AKHIL REED AMAR: The new Chief Justice.

KELSEY: He arrives to the court in 1801.

ARI SAVITZKY: Marshall, like, calls his first meeting of the court. [gavel banging] And one person shows up.

JAD: [laughs] What do you mean? The other ...

ARI SAVITZKY: Apparently they got something better to do. Like, they just don't show up.

KELSEY: Actually, it was three, but still ...

JAD: Wait, before we go too deep, can you just, like—what did he look like?

ELIE MYSTAL: Oh, they all look the same to me.

KELSEY: [laughs]

KELSEY: He didn't mean that.

ELIE MYSTAL: He was tall. He was gaunt.

KELSEY: He had a square jaw.

ELIE MYSTAL: Very jowly.

KELSEY: Piercing eyes.

ELIE MYSTAL: Marshall was a smart cookie.

KELSEY: And he would need to be, because he ends up getting in this very famous fight with his very famous second cousin, that would change the course of the American history, like, forever.

JAD: Who is his very famous second cousin?

KELSEY: Well, just a little old man named Thomas Jefferson.

JAD: Oh! TJ!

LINDA MONK: Now John Marshall and Thomas Jefferson really, really, really don't like each other. Whew! I mean, on a personal level. You think Hamilton and Jefferson is something on Broadway? Actually, it was Marshall and Jefferson who really despised each other. And yet they both come from Virginia, they both come from the back country.

JAD: Why all the hate?

KELSEY: Well, I mean part of it was this, like, family beef. At one point, John Marshall's wife's mother rejected Thomas Jefferson romantically.

JAD: What?

KELSEY: Yeah.

JAD: Wait. His wife's mother? So his ...

KELSEY: Yeah. His mother-in-law.

JAD: Said no to the great Thomas Jefferson?

KELSEY: I know!

JAD: But that doesn't seem like enough of a reason

KELSEY: Well I mean, okay, so the main reason, the non-gossipy reason, the non-fun reason is because they were in opposite political parties.

ELIE MYSTAL: I think an important thing to understand about Marshall is that he's a party man.

JAD: He's a party man.

ELIE MYSTAL: He's a party man.

JAD: Like, he likes to party?

ELIE MYSTAL: [laughs] He's committed to his team. And his team is—are the Federalists.

KELSEY: The Federalists, they love big government.

ARI SAVITZKY: Let's have a national bank, let's rev up national power.

KELSEY: The Republicans, Thomas Jefferson's people, they like small, tiny government. Let the states have the power.

ARI SAVITZKY: You know, we're maybe even in favor of the view that states can veto a federal law if they don't like it.

KELSEY: So these two guys, these two cousins, both national figures, totally different philosophies. And even before Marshall hits the court, they're going at it.

ARI SAVITZKY: They beef and they beef and they beef.

AKHIL REED AMAR: It's actually a slugfest.

KELSEY: To paraphrase. "Marshall, you're dishonest." "Jefferson, you're a hack." "Marshall, you and your friends are poisoning America."

AKHIL REED AMAR: It's like—it's a food fight.

ARI SAVITZKY: It's very difficult to stop the tendency to view the people that you disagree with as evil. [laughs]

[ARCHIVE CLIP, Donald Trump: We need somebody that can take our jobs back because we're going to hell!]

ARI SAVITZKY: It's really hard. We do that today all the time, right? They—even as much or not more than today, they thought that the other side was trying to destroy the America that they just created. Anyway, throughout the 1790s, the Federalists are in power. The Federalists hold all the branches of government.

KELSEY: John Adams is President. Mostly loved by his own party. Hated by Thomas Jefferson's party.

ARI SAVITZKY: They literally call him, like, "His rotundity."

KELSEY: [laughs]

JAD: [laughs]

ARI SAVITZKY: Very offensive!

KELSEY: So Adams is in power. And ultimately, our guy, John Marshall ...

ARI SAVITZKY: Marshal is Secretary of State, one of the highest officials in the Adams administration.

KELSEY: You know ...

ELIE MYSTAL: A party man.

KELSEY: And for a while, things are going well for his party. But then in 1800, Thomas Jefferson and the Republicans sweep in and crush, absolutely crush the Federalists.

JAD: Like landslide crush?

KELSEY: Yeah. Fleetwood Mac style.

ARI SAVITZKY: The Republicans ran the table in 1800. They're gonna take over the House, they're gonna take over the Presidency.

KELSEY: So John Adams is like, "Crap, what do I do?"

ARI SAVITZKY: We need to save the Republic!

AKHIL REED AMAR: The Federalists have basically been swept out.

KELSEY: But in his dire moment, he has this idea. He's thinking, like, "Oh, I've lost the House, I've lost the White House. Oh, the Supreme Court, the Supreme Court! Normally, nobody cares about the Supreme Court but, like, in this moment he's thinking, "Oh my gosh, this is my last hope."

AKHIL REED AMAR: And in fact ...

KELSEY: As luck would have it, a vacancy pops up.

AKHIL REED AMAR: A vacant Chief Justice position. So just as Justice Scalia has recently died and there's a vacancy, well, the sitting Chief Justice, Oliver Ellsworth, steps down, and Adams picks his Secretary of State John Marshall to be the new Chief Justice.

KELSEY: Ta-dah!

LINDA MONK: That's how we got John Marshall.

AKHIL REED AMAR: And John Adams does one other thing.

KELSEY: In the waning seconds of his presidency ...

AKHIL REED AMAR: Adams and these repudiated Federalists jam through a whole bunch of Federal judgeships.

ARI SAVITZKY: They create scores of new judges.

KELSEY: And they throw Federalists into almost all of those positions.

ARI SAVITZKY: Like 40 appointments.

JAD: He just throws in 40 judges at the last minute?

ARI SAVITZKY: Congress creates 40 judges at the last minute, and then he appoints 40 judges at the last minute.

JAD: Wow! If I were Jefferson I would be pissed!

ARI SAVITZKY: Jefferson is pissed.

KELSEY: Which we'll get to in a second. But in the meantime, Adams has just a few days left in his presidency, so he's, like, frantically trying to get these judges in.

ARI SAVITZKY: Nominate these people. Confirm them. Once you confirm someone, you have to give them your commission. You can't just go around claiming you're a judge or claiming you're a whatever, you have to have a commission. Like a piece of paper with the formal seal and the signature of the President.

AKHIL REED AMAR: And ...

KELSEY: As the story goes ...

AKHIL REED AMAR: ... as the clock is striking midnight on John Adams' last day ...

KELSEY: Adams and his team, they're in his office and they're trying to get these papers out the door. They're frantically signing them and stamping them.

JAD: I just imagine, like, young boys sprinting through the dead of night, waving these papers over their head.

ARI SAVITZKY: Your commission! Your commission! In fact I think the totally apocryphal story is that Jefferson's attorney general, like, busts in the door at midnight and he's like, "Put down your pen!"

JAD: [laughs]

ARI SAVITZKY: "Don't do it!" But apparently some of the commissions don't get delivered. They just are left sitting on the desk because ...

JAD: Was it like an oversight or something? Or clerical error?

ARI SAVITZKY: It's not even like a clerical—they just ran out of time.

JAD: Wow!

KELSEY: But they thought, like, if a couple are left on the desk it's no big deal.

ARI SAVITZKY: Because, like, it's a signed commission from the President. It's, like, still a binding document. The fact that it wasn't formally delivered? You still get your appointment.

KELSEY: So this sets up, like, this kind of terrible situation for Jefferson. He shows up the next day to take power ...

AKHIL REED AMAR: And the judiciary is filled with ghosts of presidential appointees past.

ARI SAVITZKY: Just a bastion of partisan judges.

AKHIL REED AMAR: So ...

KELSEY: As you can imagine ...

AKHIL REED AMAR: Jefferson and his friends think that this is not fair.

ELIE MYSTAL: Jefferson sees Marshall and all the other judges that Adams appointed as Adams's spies on his administration.

KELSEY: So Jefferson, he decides to immediately retaliate because, you know, he won the presidency, he won by a lot. And he's like, "You're shoving all these judges down my throat? And on top of that, the guy you've named to be the head of the judges, the head of the Supreme Court is my evil second cousin? What is this?"

ARI SAVITZKY: So Jefferson is running the country, and working with a Republican congress to, among other things, cancel the Supreme Court term for 1802.

JAD: [laughs] They just canceled the whole term?

ARI SAVITZKY: They just canceled it. They were like ...

JAD: What did they say? Like, "Go home?"

ARI SAVITZKY: Yeah, they were like, "There's no more Supreme Court. Sorry."

KELSEY: Imagine if that happened today, when Obama's plan for immigration gets smacked down, imagine him, like, instead of him having that peaceful press conference where he, like, shows his disappointment, imagine instead if he was like, "Supreme Court?"

ARI SAVITZKY: Go to your room.

[ARCHIVE CLIP, Barack Obama: No good punks. That's right.]

KELSEY: Anyhow, Marshall is sent away for over a year. There's no full Supreme Court meetings. And when he comes back, it's pretty clear to him that the Supreme Court, it's on life support, that the Republicans could pull the plug at any minute.

AKHIL REED AMAR: Marshall knows already that there are rumblings that one of his colleagues, a man named Chase ...

KELSEY: Old Bacon Face. You know? That guy.

AKHIL REED AMAR: ... should be impeached.

KELSEY: So when he sees this ...

ARI SAVITZKY: Motley crew.

LINDA MONK: In a dark, dank potato hole ...

KELSEY: He's like, "I gotta do something. We're fighting for our life here."

ARI SAVITZKY: I was thinking about this on the way over, and it kind of reminds me of you know those, like, summer camp movies where there's, like, a baseball team and they're, like, super ragtag and can't get it together. And then, like, at the end they have to, like, play the really good team with, like, the nice professional uniforms? That's kind of like the judges on the Supreme Court. And Marshall is kind of like the counselor or the camper, you know, the new kid on the block who comes to the team and is like, "We can do this, guys! We can do it!"

KELSEY: Cue '80s movie training montage. He knows that if the US is even gonna have a court system with a Supreme Court, he's gotta beef this team up.

ELIE MYSTAL: One of the first things that Marshall does is just professionalize the judiciary.

ARI SAVITZKY: Like, so for example, he starts this tradition of wearing black robes.

ELIE MYSTAL: That made them look the part.

[ARCHIVE CLIP: The judges appeared in their robes of justice.]

KELSEY: He figured that the black robes would make them look less like partisan hacks and more like they're floating above the fray. Beyond politics. Next, he moves all the justices into this one dorm.

LINDA MONK: The same rooming house.

KELSEY: No wives, no family, all business.

LINDA MONK: He's trying to create that more perfect union in the judiciary area.

KELSEY: And just to grease the wheels a little bit ...

LINDA MONK: Have some madeira, my dear!

KELSEY: Is that some wine?

LINDA MONK: Yes, it's a fortified wine. Justice Marshall would order it in great quantities. That, many scholars think, was part of John Marshall's secret.

KELSEY: Okay, so he's professionalizing the team, he's getting them together, and then they get put to the test in 1803. It's a cousin on cousin smackdown.

JAD: That's coming up when we continue. This is More Perfect.

[LISTENER: Hi, this is Naylah from Hamburg, Germany. Radiolab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org.]

[JAD: Science reporting on Radiolab is supported by Science Sandbox, a Simons Foundation initiative dedicated to engaging everyone with the process of science.]

JAD: Hey, I'm Jad Abumrad. Back to our story from Kelsey Pagett. And we arrive at the pivotal moment, the cousin-on-cousin smackdown that would change America.

KELSEY: Okay, so remember how Ari told us that some of those commissions didn't get delivered?

JAD: Yeah.

ARI SAVITZKY: I think five.

KELSEY: And that they were just, like, sitting on a desk somewhere?

JAD: Mm-hmm.

KELSEY: And how they thought it wasn't a big deal?

ARI SAVITZKY: Because it's still a binding document.

KELSEY: Well, when Jefferson comes to power, apparently he finds those papers and is like, "Oh, look at this!"

JAD: [laughs]

KELSEY: "You didn't deliver these commissions. Guess you can't get those positions. Sorry.

ARI SAVITZKY: And one of the people that lost out because their commission didn't get delivered was one Mr. William Marbury.

KELSEY: He was a businessman. 39 years of age.

ARI SAVITZKY: He got appointed to be justice of the peace. It's a pretty low-ranking position.

KELSEY: So he's sitting there, he's waiting for his commission to show up. And, like, of course it never does. And it—finally, it dawns on him, like, "Oh, the Jefferson administration has it. I'm gonna go get it."

ARI SAVITZKY: He files a lawsuit. So—and what he does actually ends up being very important, but he files a lawsuit directly in the Supreme Court.

JAD: Wait, you can do that? You can just go right to the Supreme Court, like first?

KELSEY: Well, at this time Congress had just passed a law that said, like, in certain very strange circumstances, you can just go directly to the Supreme Court.

ARI SAVITZKY: He goes directly to the Supreme Court and he says, "I have a right. I have a legal right."

AKHIL REED AMAR: "I want you, the Supreme Court, to order ..."

LINDA MONK: "Thomas Jefferson, give me that darned piece of paper that says I'm really a judge."

KELSEY: The case gets named Marbury v. Madison, because James Madison is Jefferson's secretary of state, who he's actually suing, but ...

LINDA MONK: He's essentially suing the President.

KELSEY: Forcing Marshall and the court to have this confrontation with Jefferson. So now it's the showdown. It's between Marshall's ragtag team and Jefferson.

ARI SAVITZKY: So basically what happens is the court has a trial.

KELSEY: Marbury and his lawyers, they get up there and they're like, "What happened to the papers?"

ARI SAVITZKY: "Where is the commission? Did you have them? What'd you do with them?"

KELSEY: Jefferson's people get up there and say, "I don't know what you're talking about."

ARI SAVITZKY: "I won't answer the question of what happened to them." They stonewall.

KELSEY: To which Marbury's lawyers are like, "Seriously?"

ARI SAVITZKY: These are all, like, important, official documents signed by the President. Like, no one knows what happened to them? Like, it's kind of like ...

KELSEY: They go back and forth.

ARI SAVITZKY: Back and forth.

KELSEY: Things get very tense.

ARI SAVITZKY: And, you know, I mean, to their credit, like, no one gets punched out.

KELSEY: Eventually, they stop arguing about whether or not the papers exist, and they're like, "This is the more important question: Does the Jefferson administration have to honor those papers? Do they have to give the commission to Marbury?"

ARI SAVITZKY: Are they required? Is there a legal requirement that they give it to him?

KELSEY: And in Marshall's head it's a resounding ...

ARI SAVITZKY: Hell yeah, he should have gotten that commission.

KELSEY: Because the law is the law. And if you decide you're not gonna follow the law just because you don't like the guy who made the law or you don't think it's fair, that's anarchy.

ELIE MYSTAL: I mean, that's—we talk a lot in this country, we pat ourselves on the back in this country about our peaceful transfer of power.

KELSEY: Elie Mystal again.

ELIE MYSTAL: About how we seamlessly can go from one party to the other party without bloodshed in the streets and whatever. Yeah, good for us. But how did we actually get to that point? And this is a key reason why we've gotten to that point, because the decisions of the past administration still hold value even when that administration is kicked out of office, kind of overthrown by popular vote, their decisions still have sway, still have legal force. Jefferson was quite obviously negating that.

KELSEY: So Marshall wants to say to Jefferson, "You know, suck it up, cousin. Give this guy his papers."

ARI SAVITZKY: You're an official. Do your job.

KELSEY: But he thinks twice.

AKHIL REED AMAR: He understands how weak his court is.

KELSEY: According to Akhil Amar, Marshall's afraid that if he orders Jefferson to give over those papers, Jefferson is gonna straight up ...

AKHIL REED AMAR: Laugh in his face and say, "You and what army? I'm not gonna do it."

ARI SAVITZKY: Literally, they just got back from a congressionally mandated you can't come to work time.

ELIE MYSTAL: Jefferson knows full well that he has no intention of granting that commission. He will never give that commission. Jefferson knows this. Marshall knows this. Marshall knows that if he tells Jefferson to give him the commission, Jefferson is going to ignore him, and then the power of the Supreme Court basically evaporates.

KELSEY: Because, Elie says, like, if you think about it ...

ELIE MYSTAL: If the executive branch is going to say kind of right at the jump that if you make a decision that I don't like, I'm just going to ignore that, then every executive branch going on from Jefferson throughout the rest of our history, is going to just ignore the Supreme Court when the Supreme Court does something that the executive doesn't like.

KELSEY: So basically, Marshall's kinda stuck. If he rules for Jefferson, he's selling out the law and he's gonna make the court look weak. If he rules against Jefferson, Jefferson's gonna ignore the court and they're gonna look weak. Either way ...

ELIE MYSTAL: Jefferson wins.

KELSEY: And either way, the Supreme Court maybe disappears forever.

ELIE MYSTAL: Marshall needed to find a way to get through this.

ARI SAVITZKY: He needed to find some way to kick the case.

AKHIL REED AMAR: To be clear, John Marshall is running away from a fight with Thomas Jefferson. He says all sorts of things, but he knows that Thomas Jefferson, you know, straight up has more power. And so he's retreating.

JAD: Wow! So suddenly it feels like an apocalyptical moment.

KELSEY: Yeah.

JAD: What does he do?

KELSEY: Well, so the thing that he does, it's like the most jedi master-ish thing ever. He writes this hundred-something page decision. And in the beginning ...

ELIE MYSTAL: If you actually read the decision, it's a lot of pages of telling Jefferson how he's wrong. How he can't do what he did. How he's, you know, ruining America. Right? There's a lot of that in the Marshall decision.

KELSEY: But then when he gets to the matter at hand, he does this little shift. So he says "Okay, hold up."

ARI SAVITZKY: Yes.

KELSEY: Marbury is right.

ARI SAVITZKY: He should've gotten that commission.

KELSEY: And ...

ARI SAVITZKY: Yes ...

KELSEY: … Mr. Jefferson should no be doing this.

ARI SAVITZKY: But ...

KELSEY: We, the Supreme Court ...

ARI SAVITZKY: We don't have jurisdiction to hear this case. A court needs to have the power to hear a case. And if a court doesn't have the power to hear a case, even if you're completely right, even if your position is right, you can't get relief.

JAD: Wait, why would he say that they don't have jurisdiction? What's their ...

KELSEY: This is like where he uses the force. You know, earlier I had mentioned that Marbury brought this case under a law Congress had passed that said Marbury could come straight to the Supreme Court, like, for this kind of situation. Well, John Marshall, he goes back to his Constitution. He's reading around and he's like, "Uhhh." Trying to figure out, like, what he can do here. And he finds this little sentence.

ARI SAVITZKY: Yeah. So it's Article 3, Section 2.

KELSEY: In the Constitution that says, like, basically you're not supposed to go to the Supreme Court first. You're supposed to go to a different court and then the Supreme Court. It's an appeals court.

JAD: Wonky!

KELSEY: [laughs] Exactly. But he basically tells Marbury, the plaintiff ...

ARI SAVITZKY: You came in, and you came to the Supreme Court first. And you did that because Congress passed a law that said that you could come to the Supreme Court first. But the Constitution says that you can't come to the Supreme Court first.

KELSEY: So I can't help you.

ARI SAVITZKY: Nope.

KELSEY: It's not your fault, Mr. Marbury.

ARI SAVITZKY: But that law was unconstitutional

AKHIL REED AMAR: And we're not gonna follow that unconstitutional directive.

KELSEY: So you see what he did there?

JAD: I—maybe I see? I don't know if I see.

KELSEY: [laughs] Well, okay. So it's—you know that part in Star Wars?

[ARCHIVE CLIP, Star Wars: Your father was a weak old man.]

KELSEY: The first one where Obi Wan Kenobi is fighting with Darth Vader, and he says ...

[ARCHIVE CLIP, Star Wars: If you strike me down, I shall become more powerful than you can possibly imagine.]

KELSEY: This is like that but real. Marshall is agreeing to lose. He's, like, found this way to lose, to, like, let Darth Vader strike him down. And that's actually gonna make him more powerful. He's basically saying to his cousin, "Okay, you don't have to give Marbury his commission. And the reason you don't have to give Marbury his commission is because that law doesn't work, because we the court, we get to decide when something agrees with or doesn't agree with the Constitution. So, like, congrats, you win, cousin."

AKHIL REED AMAR: Oh, and by the way, we the court have the power to declare things unconstitutional.

KELSEY: That was the sort of Jedi master move.

ARI SAVITZKY: That's the move.

KELSEY: Instead of jumping off the cliff or laying down, he jukes to the right and he establishes a new rule of the game. Inside this one highly technical, highly political drama between these two cousins, John Marshall sneaks in an atomic bomb, this incredible power. And in Marshall's decision he wrote ...

AKHIL REED AMAR: "It's emphatically the duty and province of the judicial department to say what the law is."

ARI SAVITZKY: To say what the law is.

LINDA MONK: To say what the law is.

KELSEY: And with those words, he made the court what it is today.

[NEWS CLIP: The US Supreme Court ruled Monday a law allowing Americans born in Jerusalem to list Israel as their place of birth is unconstitutional.]

[NEWS CLIP: Is unconstitutional.]

[NEWS CLIP: Unconstitutional.]

[NEWS CLIP: Unconstitutional.]

[NEWS CLIP: Unconstitutional.]

[NEWS CLIP: Unconstitutional.]

JAD: And no one had ever done that before?

KELSEY: Well, I mean, like, people had talked about it and there was lots of theories about it in some smaller courts and smaller decisions, but this is the first time that the Supreme Court does it. And he does it in the face of the President.

[ARCHIVE CLIP: The Roe against Wade.]

[ARCHIVE CLIP: Ernesto A. Miranda petitioner versus Arizona.]

[ARCHIVE CLIP: Nixon against the United States.]

KELSEY: And that set us on this path.

[ARCHIVE CLIP: New York Times company petitioner versus L.B. Sullivan.]

AKHIL REED AMAR: Today, the court is so much more powerful. It's grown into the 800-pound gorilla. When it says jump, other branches tend to say "How high?"

[ARCHIVE CLIP: We'll hear argument now in number 00949, George W. Bush and Richard Cheney ...]

KELSEY: And we just take it for granted.

AKHIL REED AMAR: Three words: "Bush v. Gore." They decided a presidential election and no one blinked.

JAD: Let me just jump in for one second.

KELSEY: Yeah. Yeah, yeah.

JAD: Now you could—we have to say this before we close. You could reasonably argue that Marbury versus Madison was not the big moment when the court got its power, because it really depends on what you mean when you say "power." Like, as we were talking with our legal editor Elie Mystal and constitutional scholar Linda Monk, they both said, like, look at what happens after this case. Just 30 years down the road-ish, John Marshall is still the chief justice. He gets into a dust up with Andrew Jackson.

ELIE MYSTAL: And this is Jackson we're talking about, so generally it was, "I would like to do horrible things to Native Americans," and the court was like, "You probably shouldn't do horrible things to Native Americans." And Jackson was like, "Shut up!"

JAD: [laughs]

ELIE MYSTAL: "I don't remember asking you a goddamn thing."

JAD: So essentially you had a situation where Marshall makes a ruling saying we have to respect Native American sovereignty.

ELIE MYSTAL: And Andrew Jackson famously said ...

LINDA MONK: Or supposedly said. We don't know if that's true.

ELIE MYSTAL: Look, I think it's more fun to believe that Jackson did say that. It works better in the musical.

LINDA MONK: Okay. [laughs]

ELIE MYSTAL: "The court has made its ruling, now let them enforce it."

LINDA MONK: John Marshall has made his decision now let him enforce it.

JAD: And obviously he couldn't. So to make a long, sad story short, you get the Trail of Tears. Thousands of Native Americans were marched off their lands.

LINDA MONK: There's evidence that they were purposefully moved during the winter so that more people would die along the way.

JAD: So while the court maybe had constitutional authority, it didn't have actual power. Until ...

[NEWS CLIP: We just got a report here on this end that the students are in.]

JAD: Fast forward to the 1950s, court orders schools to desegregate. They don't, and the President sends in the troops.

ELIE MYSTAL: Take Eisenhower.

[ARCHIVE CLIP, Dwight Eisenhower: Executive order, directing the use of troops under ...]

ELIE MYSTAL: Putting boots on the ground. Take Kennedy.

[ARCHIVE CLIP, John F. Kennedy: Presence of Alabama National Guardsmen ...]

ELIE MYSTAL: Putting boots on the ground. Takes force. It still so often comes down to an executive willing to put boots on the ground in order to enforce their laws.

JAD: That's when the power becomes real. Although maybe not.

ELIE MYSTAL'S MOM: Elie, I don't know a time before I went to college, and even shortly after I was in college where things were not separate.

JAD: At one point as we were working on this story, Elie talked to his mom. And she told him that when she was growing up in the mid '60s—and this is years after desegregation, more than a decade past Brown v. Board, you would still never know it happened.

ELIE MYSTAL'S MOM: No one would know it in Clarkesville, Mississippi at that time. There was a public library, but I was not allowed to go to that library. My father, who was Chinese, could go into the library. So many times I'd sit in the car while dad went into the library to get a book that I wanted.

ELIE MYSTAL: And this is after the passage of the Civil Rights Act, even.

ELIE MYSTAL'S MOM: Yes. I'm saying high school. I graduated in '67.

JAD: 67. Wow!

ELIE MYSTAL: Just yesterday as we were recording this, a court had to issue—a current court had to issue another ruling ordering a town in Mississippi to desegregate its schools.

JAD: Yeah. Yeah.

ELIE MYSTAL: That didn't have five years ago. That happened yesterday, man. Yesterday. The courts can make these laws, but if the people aren't willing to go along with it, then what do these laws mean?

LINDA MONK: I think ultimately I agree with Learned Hand.

JAD: He was a judge in New York in the early 1900s.

LINDA MONK: That we place our hopes too much upon laws and courts and constitutions. That these are false hopes. Liberty lies in the hearts of men and women, and when it dies, there are no law, no court, no constitution can save it.

JAD: In the end, for better or worse, we the people still have the power. Okay, so we made that podcast in 2016, almost four years ago exactly. Very different line-up on the court at that time—Scalia hadn't died yet. RBG was still alive. Kennedy hadn't retired yet. As we mentioned at the top, most Americans couldn't even name a single of these justices. We also found when we went out a lot of people had no idea how many justices there are.

[ARCHIVE CLIP: I do not know how many Supreme Court justices there are.]

[ARCHIVE CLIP: I'm not sure.]

[ARCHIVE CLIP: Either 12 or a couple hundred.]

[ARCHIVE CLIP: One.]

[ARCHIVE CLIP: There are seven Supreme Court justices.]

[ARCHIVE CLIP: Twenty-four maybe?]

[ARCHIVE CLIP: Twelve?]

[ARCHIVE CLIP: Nine?]

JAD: Nine, yes. Well, now eight. And so the whole idea, Suzie, was that we should know these people.

SUZIE: Yeah, we think you should know their names.

JAD: Totally! And so the title of the podcast was a mnemonic device to help you remember the names of the justices who are on the court at that time. And who were they, just to remind us?

SUZIE: Okay. You want me to do this?

JAD: Yeah.

SUZIE: It was Kagan, Kennedy, Thomas, Ginsberg, Briar, Roberts, Alito, Sotomayor and potentially Merrick Garland, if he were to make it on the court.

JAD: Kagan, Kennedy, Thomas, Ginsberg, Briar, Roberts, Alito, Sotomayor, maybe Garland. So first letter, last name: K-K-T-G-B-R-A-S maybe G. What if you turned that into a song to help you remember? That was the thought four years ago.

[MUSIC CLIP: Kittens kick the giggly blue robot all summer. Maybe? Goddamn! Kittens kick the giggly blue robot all summer. Maybe? Goddamn! Kittens kick the giggly blue robot all summer. Maybe? Goddamn! Kittens kick the giggly blue robot all summer. Maybe? Goddamn! Kittens kick the giggly blue robot all summer. Maybe? Goddamn!]

JAD: All right, so that was the song, which you can find it on our website, Radiolab.org. And so here, I don't know, Suzie. Like, I feel like we should turn this over to the peeps.

SUZIE: Yeah, I think there's a lot of potential here.

JAD: And it needs to be updated, because the court has changed and is gonna change some more. So now that that song that we just played is outdated, maybe we should just see what people come up with. Can you—can you give us a new song with a new mnemonic, new vibe, new genre maybe?

SUZIE: Yeah. Hit us up.

JAD: Hit us up, right? Classic rock, like, smooth jazz.

SUZIE: Prog rock.

JAD: So that's the task: help us update this mnemonic for 2020 and 2021. Send us submissions to Radiolab[at]wnyc.org. Radiolab[at]wnyc.org. Please send us some things. We'll update it, the one that, like, we think is the awesomest. We will just—we'll throw it back at you and let everybody hear it. Okay, I'm Jad Abumrad. You want to say your name, too?

SUZIE: [laughs] I'm Suzie Lechtenberg.

JAD: Thank you for listening. Bye! Seriously. More Perfect is producer by me, Jad Abumrad, with Suzie Lechtenberg, Tobin Low, Kelsey Padgett and Sean Rameswaram. With Soren Wheeler, Elie Mystal, David Herman, Alex Overington, Karen Duffin, Catherine Wells, Barry Finkel, Andy Mills, Dylan Keefe and Eva Dasher. Special thanks to Judith Resnick, Paul Boger, Liam Tole, Jessica Miller, Annie McEwen, Matthew "Matt" Kielty, Alethea John, Mead Bernard, Nadia Sirota and John Hanrahan. Supreme Court audio is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell.

JAD: More Perfect is funded in part by the William and Flora Hewlitt Foundation, the Charles Evans Hughes Memorial Foundation and the Joyce Foundation.

 

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