Our Threatened Freedom

How Does the US Supreme Court Make Those Decisions

Professor: Dr. R.J. Rushdoony

Subject: Political Studies

Lesson: 89-169

Genre: Conversation

Track: 089

Dictation Name: Vol. G - Part 11 - How Does the US Supreme Court Make Those Decisions

Location/Venue: Unknown

Year: 1980’s – 1990’s

[Dr. Rushdoony] How does the US Supreme Court make those decisions? This is R.J. Rushdoony with a report on our threatened freedom.

I have often wondered how the US Supreme Court can make such strange and far reaching decisions. The Court can take a word or a phrase out of the Constitution and manufacture a whole bureaucracy full of laws. Now I have a sort of theory about the matter. John Marshall was the judge who early in the Court’s history, established the Court’s power and its far reaching interpretations. There is an interesting story about Marshall. In those days, the entire court stayed at a boarding house while their wives remained in their home states. Since the justices lived together, they discussed the cases all the time, but most seriously at their weekly consultation day in chambers. Since some people claimed the justices were drinking too much, Marshall introduced a rule. No drinking whatsoever on any consultation day, except on those occasions when it was raining. After all, in wet, damp weather, the justices had the right to keep warm. Now after a week of sobriety, a consultation day came along, and Marshall was getting thirsty. He asked Justice Joseph Story to go to the window and check on the weather situation. Was there any rain in sight? Story looked one way and then another, for some sign of rain, and then came back to the table and said, very earnestly, and I quote, “Mr. Chief Justice, I have very carefully examined this case. I have to give it as my opinion that there is not the slightest sign of rain.” Unquote. Chief Justice Marshall then delivered his legal verdict, and I quote. “Justice Story, I think that is the shallowest and most illogical opinion I have ever heard you deliver. You forget that our jurisdiction is as broad as this Republic, and by the laws of nature it must be raining someplace in our jurisdiction. Waiter, bring on the rum.” Unquote.

Well, historians won’t agree with me, but I think that kind of thinking is in the background of all too much of the Supreme Court’s thinking, and of much of our law courts. A man who wants a drink will always come up with a good reason for it, and the judge who wants to justify his prejudices will give us Marshall’s logic every time. And for this kind of thinking, we call them Justices.

Marshall’s cousin was Thomas Jefferson, and Jefferson said once that, if you made any kind of clear cut statement to Marshall, that John Marshall would take your statement, line up legal opinions around it, and prove what you wanted not to believe and he from the beginning wanted to conclude. In other words, he made your words the means of undermining you. Perhaps this is the reason that many view Marshall as a great judge. Maybe, but not a great champion of freedom.

This has been R.J. Rushdoony with a report on our threatened freedom.