Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P3 doc

college, he enlisted in the Army Air Corps, serving from 1940 to 1945. Saxbe was called to serve again during the Korean conflict in the 1950s; he was discharged from the reserve with the rank of colonel in 1963. Immediately after WORLD WAR II,Saxbe returned to Ohio with the intention of furthering his education. He gave serious thought to pursuing a career in the ministry of the Episcopal Church, but his long-standing interest in political and COMMUNITY SERVICE prevailed. Saxbe entered law school at Ohio State University in 1945 and, simultaneously, launched a campaign to serve in the Ohio House of Representatives. He was elected and served four terms from 1947 to 1954. Saxbe completed his law degree at the end of his second term. He served as House majority leader in 1951 and 1952, and as speaker of the House in 1953 and 1954. Saxbe left the Ohio Legisla ture at the conclusion of his fourth term. He returned to Mechanicsburg, where he raised cattle on the family farm. He also partnered with two longtime friends to establish the Columbus, Ohio, law firm of Saxbe, Boyd, and Prine. He practiced law for two years before re-entering the political arena in 1956. In 1957 he ran as the Republican candidate for state attorney general. Over the next decade, he served four terms in that state office. As attorney general, Saxbe proved to be a tough and capable crime fighter. He believed that CAPITAL PUNISHMENT was a strong deterrent and that stiff prison sentences should be imposed for gun-related crimes. Although conservative in his views on crime and money, Saxbe described himself as “liberal on the rights of people.” In 1968 Saxbe took his unique mix of fiscal conservatism and social responsibility to the electorate. He ran as the Republican candidate for aU.S.Senateseat, and he won a close election over liberal Democrat John J. Gilligan. His stand against the Pentagon’sdeploy- ment of antiballistic missiles during the VIETNAM WAR surprised many of those who thought his campaign promises were mere rhetoric. Gilligan wasquotedassaying,“If Ihad known he was going to be like this, I would have voted for him myself.” Saxbe’s voting record on most major issues showed that he moved gradually to the right during his four years in the U.S. Senate. Saxbe was quickly disenchanted with life as a senator. He felt that many of his senate colleagues were sadly out of touch with the electorate. He alienated most of Washington when he said, “The first six months I kept wondering how I got [here]. After that, I started wondering how all of them did.” In addition to his disdain for the insulated lives of Washington politicians, Saxbe was frustrated with the pace of legislation on Capitol Hill. To address the problem, he joined forces with Senator Alan M. Cranston to develop a two-track system of moving legislation through the Senate. The system allowed less controver- sial bills to pass throu gh the legislative process quickly, while more volatile measures were held for debate and discussion. When other efforts to improve the process stalled, Saxbe removed himself from the Senate entirely, by taking part in travel junkets. Saxbe’s pleas for aid to East Bengal and for discontinuation of aid to Pakistan were direct results of his findings while on a trip; he considered these actions to be among his greatest achievements in the Senate. Saxbe’s frustration with Washington was not limited to the Senate. For example, Saxbe had defied protocol by challenging Nixon’s Vietnam policy during a social gathering at the White House for freshman senators. In re- sponse, the president’s staff kept Saxbe out of the Oval Office and away from Nixon for almost two years after that disastrous first meeting with the chief executive. Saxbe’s growing contempt for the White House staff reached a new height in 1971, when he referred to Nixon aides H. R. Haldeman and John D. Ehrlichman as “acoupleofNazis” and again in 1972 when he commented on Nixon’s professed innocence in the WATERGATE scandals, saying that the chief executive sounded “like the fellow whoplayed the piano in a brothel for twenty years, and insisted that he didn’tknowwhatwas going on upstairs.” (The W atergate scandals began with a break-in at the Democratic National Committee headquarters—located in the Water- gate Office Towers—and eventually toppled the Nixon administration.) In September 1973 Saxbe announced that he would not seek reelection to the Senate. Just a month later, Nixon asked him to accept an appointment as attorney general of the United States to replace ELLIOT RICHARDSON. Richardson, Nixon’sthirdattorney general, had resigned rather than obey an EXECUTIVE ORDER to fire Watergate PROSECUTOR ARCHIBALD COX. Saxbe was reluctant to accept the nomination, but he knew that the administration wanted to avoid a long I FEEL VERY STRONGLY THAT THE JUSTICE DEPARTMENT IS THE VERY HEART AND SOUL OF OUR COUNTRY , BECAUSE GOVERNMENT WITHOUT LAW IS TYRANNY . —WILLIAM B. SAXBE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 8 SAXBE, WILLIAM BART confirmation battle and that his past criticism of the president would make him a credible candi- date with both Nixon supporters and detractors. After a two-hour discussion with Nixon, in which the president denied any knowledge or involvement in the Watergate scandals, Saxbe accepted the nomination. He took office in January 1974. His goal was to restore the Department of Justice’s credibility with the U.S. public and to keep the public informed of the department’s activities. Saxbe initiated weekly news conferences at the beginning of his term but curtailed them quickly when he found that his offhand comments generated more interest than did his substantive efforts. Among Saxbe’s more printable gaffes were his reference to PATTY HEARST as a common criminal and his observa- tion that Jewish intellectuals of the 1950s were enamored with the Communist party. As attorney general, Saxbe supported legis- lation limiting access to criminal records of arrested and convicted persons, and he contin- ued to favor capital punishment and tough sentences for gun-related crimes. He conducted an investigation into the FBI’s counterintelli- gence program—Cointelpro—and condemned the program for its harassment of left-wing groups, black leaders, and campus radicals. He also worked on two of the biggest antitrust cases in history, against IBM and AT&T. After Nixon’s resignation, Saxbe continued to serve as attorney general in the Ford administra- tion. He resigned in December 1974 to accept an appointment as U.S. ambassador to India. For the next 20 years Saxbe practiced law in Florida, Ohio, and Washington, D.C., and he remained active in REPUBLICAN PARTY politics. In March 1994 he announced that he would join the Columbus, Ohio, law firm of Chester, Hoffman, Willcox, and Saxbe, where his son was a partner. Saxbe is often called upon to speak about the turmoil of the Watergate years and his experi- ence in the final days of the Nixon administra- tion. On the eve of Nixon’s funeral in April 1994, Saxbe acknowledged that he had never made an attempt to see Nixon again after his resignation because the former president had lied to him about his involvement in the Watergate scandals. Saxbe published an autobiography in 2000 while continuing to practice law at Chester, Willcox & Saxbe, where he specialized in general business law and strategic counsel. In 2002 the auditorium of Ohio State University’s Moritz College of Law was named the William B. Saxbe Law Auditorium in recognition of his history of public service and his generous donations to the school. FURTHER READINGS Barrett, John Q. 1998. “All or Nothing, or Maybe Cooperation: Attorney General Power, Conduct, and Judgment in Relation to the Work of an Independent Counsel.” Mercer Law Review 49 (winter). Powell, H. Jefferson. 1999. The Constitution and the Attorneys General. Durham, N.C: Carolina Academy Press. Saxbe, William B., with Peter D. Franklin. 2000. I’ve Seen the Elephant. Kent, Ohio: Kent State Univ. Press. SCAB A pejorative term used colloquially in reference to a nonunion worker who takes the place of a union employee on strike or who works for wages and other conditions that are inferior to those guaranteed to a union member by virtue of the union contract; also known as a strikebreaker. CROSS REFERENCE Labor Union. v SCALIA, ANTONIN In 1986 Antonin Scalia was appoin t ed to the U.S. Supreme Court by President RONALD REAGAN , becoming the first American of Italian descent to serve as an associate justice. Known for his conservative judicial philosophy and narrow reading of the Constitution, Scalia has repeatedly urged his colleagues on the Court to overturn ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the decision recognizing a woman’s right to terminate her pregnancy under certain circumstances. Scalia was born March 11, 1936, in Trenton, New Jersey. Before he began grade school, Scalia and his family moved to Elmhurst, New York, where he spent much of his boyhood. Scalia is the only child of Eugene Scalia, an Italian immigrant who taught romance languages at Brooklyn College for 30 years, and Catherine Scalia, a first-generation Italian-American who taught elementary school. In 1953 Antonin Scalia graduated first in his class at St. Francis Xavier High School, a Jesuit military academy in Manhattan. Four years later Scalia was valedictorian at George- town University, receiving a bachelor’s degree in history. In the spring of 1960 Scalia graduated magna cum laude from Harvard Law School GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCALIA, ANTONIN 9 where he served as an editor for the Harvard Law Review. Known to his friends as Nino, Scalia was known to many of his classmates as an eager and able debater. Upon graduation from law school, Scalia accepted a position as an associate attorney with a large law firm in Cleveland, Ohio, where he practiced law until 1967. He resigned to teach at the University of Virginia School of Law. In 1971 Scalia joined the Nixon Administration to serve as general counsel for the Office of Telecommunications Policy. Under President GERALD R. FORD Scalia served as assistant attorney general for the JUSTICE DEPARTMENT, where he drafted a key presidential order establishing new restrictions on the information-gathering activ- ities of the CENTRAL INTELLIGENCE AGENCY and FEDERAL BUREAU OF INVESTIGATION. In 1977 Scalia left public office to become a visiting scholar at the American Enterprise Institute, a conservative think tank in Washing- ton, D.C. During this same year, Scalia al so returned to academia, accepting a position as law professor at the University of Chicago, where he developed a reputation as an expert in ADMINISTRATIVE LAW. In 1982 President Reagan appointed Scalia to the U.S. Court of Appeals for the District of Columbia, which many lawyers consider to be the second most power- ful court in the country. When Chief Justice WARREN BURGER retired in 1986, President Reagan elevated sitting justice WILLIAM REHNQUIST to the chair of chief justice and nominated Scalia to fill the vacancy of associate justice. Confirmed by a vote of 98–0in the Senate, Scalia became the first Roman Catholic to be appointed to the U.S. Supreme Court since WILLIAM J. BRENNAN JR. in 1957. Scalia’s tenure on the high court has been marked by a JURISPRUDENCE of ORIGINAL INTENT. Proponents of original intent, also called origin- alists, believe that the Constitution must be interpreted in light of the way it was understood Antonin Scalia. MOLLIE ISAACS, COLLECTION OF THE SUPREME COURT OF THE UNITED STATES Antonin Scalia 1936– ❖ 1936 Born, Trenton, N.J. 1939–45 World War II ▼▼ ▼▼ 1950 1930 1975 2000 ◆ ◆ ◆ 1950–53 Korean War 1961–73 Vietnam War ◆ ◆ ◆ ◆ ◆ ◆ ◆◆ ◆ ◆ ◆ ◆ ◆ 1957 Graduated from Georgetown Univ. 1960 Served as editor of law review, graduated from Harvard Law School 1967–71 Taught law at UVA law school 1971–72 Served as general counsel for the Office of Telecommunications Policy 1972 Became chair of the Administrative Conference of the United States 1977 Joined the University of Chicago Law School faculty 1982 Appointed to the U.S. Court of Appeals for the District of Columbia 1974 Appointed assistant U.S. attorney general 1992 Dissented in part in Planned Parenthood v. Casey 1986 Appointed associate justice of the U.S. Supreme Court 1988 Wrote majority opinion in Coy v. Iowa 1994 Distinguished Jurist in Residence, Touro Law Center 2000 Voted with majority in Bush v. Gore 1996 Dissented in U.S. v. Virginia 1997 Wrote majority opinion in Printz v. U.S. ◆◆ 2004 The Opinions of Justice Antonin Scalia published 2002 Delivered widely debated speech on the death penalty and religious authority for democracy at the University of Chicago 2003 Received Citadel of Free Speech Award from City Club; declared in speech that government has power to curtail rights during wartime 2008 Wrote majority opinion in District of Columbia v. Heller 2000 Presidential election result uncertain due to disputed Fla. vote count; recount halted by U.S. Supreme Court with 5–4 vote in Bush v. Gore GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 10 SCALIA, ANTONIN at the time it was framed and ratified. According to Scalia, originalism has two virtues: preserving the SEPARATION OF POWERS in a democratic society, and curbing judicial discretion. The Constitution delegates specific enumer- ated powers to the three branches of the federal government. The Legislative Branch is given the power to make law under Article I; the EXECUTIVE BRANCH is given the power to enforce the law under Article II; and the Judicial Branch is given the power to interpret and apply the law under Article III. Originalists believe that democracy is enhanced when the lawmaking power is exercised by the federal legislature because, unlike federal judges who are appointed by the president and given life tenure on the bench, members of Congress are held accountable to the electorate at the ballot box. This separation of powers is blurred, Scalia argues, when unelected federal judges decide cases in accordance with their own personal preferences, which may be contrary to those expressed by the framers and ratifiers. In such instances, Scalia asserts, federal judges usurp the legislative function by making new law that effectively replaces the popular understanding of the Constitution at its time of adoption. The only way to curb this type of judicial discretion and to preserve the separation of powers, Scalia concludes, is by requiring federal judges to interpret and apply the Constitution in light of its original meaning. This meaning can be illuminated, Scalia says, by paying careful atten- tion to the express language of the Constitution and the debates surrounding the framing and RATIFICATION of particular provisions. Scalia’s interpretation and application of the EIGHTH AMENDMENT best exemplifies his judicial philosophy. The Eighth Amendment prohibits CRUEL AND UNUSUAL PUNISHMENT. Courts that evaluate a claim under the Cruel and Unusual Punishments Clause, Scalia argues, must deter- mine whether a particular punishment was allowed in 1791 when the Eighth Amendment was framed and ratified. Moreover, he argues that courts must not take into account notions of the evolving standards of human decency. For example, Scalia contends that CAPITAL PUNISHMENT was clearly contemplated by the framers and ratifiers of the federal Constitution. The FIFTH AMENDMENT explicitly references capi- tal crimes, Scalia observes, and capital punish- ment was prevalent in the United States when the Constitution was adopted. Whether states presently support or oppose capital punishment plays only a negligible role in Scalia’s analysis. Scalia’s interpretation of the DUE PROCESS CLAUSE of the Fifth and Fourteenth Amendments provides another example of his judicial philos- ophy. According to Scalia, the Due Process Clause was originally understood to offer only procedural protection, such as the right to a FAIR HEARING before an impartial judge and an unbiased jury. Nowhere in the text of the Constitution, Scalia notes, is there any hint that the Due Process Clause offers substantive protection. It is not surprising then that Scalia has dissented from U.S. Supreme Court deci- sions that have relied on the Due Process Clause in protecting the substantive right of women to terminate their pregnancies under certain circumstances (Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 [1992]). Likewise, Scalia disagreed with the Court’s decision that a state law grant- ing VISITATION RIGHTS to grandparents was uncon- stitutional because it infringed upon the funda- mental rights of parents to raise their children (Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). No such right, Scalia has commented, can be found in the express language of any constitutional provision. Scalia has surprised some observers by his literal reading of the SIXTH AMENDMENT, which guarantees the right of criminal defendants to be “confronted with witnesses against them.” In Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), Scalia wrote that the Sixth Amendment requires a face-to-face confronta- tion and that such an opportunity had been denied when a large screen had been placed between a DEFENDANT charged with CHILD MOLESTATION and the child who was accusing him. The Sixth Amendment, Scalia concluded, intended for courts to preserve the adversarial nature of the criminal justice system by protecting the rights guaranteed by the Con- frontation Clause over governmental objections that face-to-face CROSS-EXAMINATION may be emotionally traumatic for some victims. Scalia drew the ire of advocates for GAY AND LESBIAN RIGHTS with his DISSENT in ROMER V. EVANS, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996). The Court invalidated a CONSTITUTIONAL AMENDMENT by the state of Colorado that prohibited anti-discrimination laws intended to protect gays, lesbians, and bisexuals. Accord- ing to the majority in the decision, the state JUDGES IN A REAL SENSE ‘MAKE’ LAW. [T]HEY MAKE IT AS JUDGES MAKE IT , WHICH IS TO SAY AS THOUGH THEY WERE ‘FINDING’ IT— DISCERNING WHAT THE LAW IS , RATHER THAN DECREEING WHAT IT IS TODAY CHANGED TO , OR WHAT IT WILL TOMORROW BE . —ANTONIN SCALIA GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCALIA, ANTONIN 11 constitutional amendment violated the FOUR- TEENTH AMENDMENT of the U.S. Constitution. Scalia disagreed, writing a scathing dissent. According to Scalia, the majority opinion “places the prestige of this institution behind the proposition that opposition to homosexual- ity is as reprehensible as racial or religious bias.” Whether Scalia is writing about the Sixth Amendment, the Eighth Amendment, or any other Constitutional provision, some regard his judicial opinions as among the most well written in the history of the U.S. Supreme Court. The clarity, precision, and incisiveness with which he writes is frequently praised. However, some of Scalia’s opinions take on an acerbic quality. Often relegated to the role of dissenting justice, Scalia is not above hurling invectives at his colleagues on the Court, sometimes criticizing their opinions as silly and preposterous. In 2004 Scalia would not RECUSE himself from a case involving former Vice President Richard Cheney, with whom he has dined and hunted. Cheney was contesting a federal court mandate to release internal files of an energy task force he had overseen for the Bush administration. Also that year, tapes of Scalia’s speech at a Mississippi high school, which two journalists recorded, were erased at the insistence of a U.S. deputy marshal; journalism groups were outraged. Controversy also surrounded Scalia two years later, when the Boston Herald reported that he made an obscene hand gesture at the Cathedral of the Holy Cross in that city. Scalia said the newspaper misinterpreted the gesture. Scalia has continued to speak stridently about the judiciary. He said in 2004 that the top court spends too much time on morally tinged cases that elected legislatures should decide. And late in 2006, he urged higher pay for federal judges. “If you become a federal judge in the Southern District of New York [Manhattan], you can’t raise a family on what the salary is,” Scalia said while addressing the Northern Virginia Technology Council. In June 2008 Scalia, writing the majority opinion in a 5-4 Supreme Court ruling that struck down a Washington, D.C. gun ban, said, “It is not the role of this court to pronounce the SECOND AMENDMENT extinct.” Scalia married the former Maureen McCarthy in 1960. They have nine children. Scalia has written numerous articles on a variety of issues and is the author of A Matter of Interpretation: Federal Courts and the Law (1997). In 2008, Scalia’s book, Making Your Case: The Art of Persuading Judges (with Bryan A. Garner, editor in chief of Black’s Law Dictionary) was published. FURTHER READINGS Frantz, Douglas. 1986. “Scalia Embodies President’s Hope for Court’s Future.” Chicago Tribune (August 3). Hasson, Judy. 1986. “Scalia Got Early Chance to Show His Legal Talents.” Seattle Times (August 5). Scalia, Antonin, and Paul I. Weizer. 2004. The Opinions of Justice Antonin Scalia: The Caustic Conservative. New York: P. Lang. Scalia, Antonin. 1997. A Matter of Interpretation: Federal Courts and the Law. Princeton, N.J.: Princeton Univ. Press. ———. 1989. “Originalism: The Lesser Evil.” University of Cincinnati Law Review 57. SCHECHTER POULTRY CORP. V. UNITED STATES A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935), is one of the most famous cases from the Great Depression era. The case tested the legality of certain methods used by Congress and President FRANKLIN D. ROOSEVELT to combat the devastating economic effects of the Depression. After the U.S. Supreme Court declared the methods unconsti- tutional, Roosevelt publicly scolded the Court and later used the decision as one justification for a controversial plan to stock the Court with justices more receptive of Roosevelt’s programs. At the heart of the Schechter case was legislation passed by Congress in 1933. The NA- TIONAL INDUSTRIAL RECOVERY ACT (NIRA) (48 Stat. 195) was passed in response to the unemploy- ment and poverty that swept the nation in the early 1930s and provided for the establishment of local codes for fair competition in industry. The codes were written by private trade and industrial groups. If the president approved the codes, they became law. Businesses were required to display a Blue Eagle insignia from the NATIONAL RECOVERY ADMINISTRATION to signify their compliance with the codes. Typical local codes set minimum wages and maximum hours for workers and gave workers the right to organize into unions and engage in COLLECTIVE BARGAINING with management. Codes also pre- scribed fair trade practices, and many codes set minimum prices for the sale of goods. The Schechter Poultry Corporation, owned and operated by Joseph, Martin, Alex, and Aaron GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 12 SCHECHTER POULTRY CORP. V. UNITED STATES Schechter, was in the business ofselling chickens at wholesale. The corporation purchased some of the poultry from outside the state of New York. It bought the poultry at markets and railroad terminals in New York City and sold the poultry to retailersin the city and surrounding environs.In April 1934 President Roosevelt approved the code of fair competition for the live poultry industry of the New YorkCity metropolitan area (Live Poultry Code). In July 1934 the Schechters were arrested and indicted on 60 counts of violating the Live Poultry Code. The INDICTMENT included charges that Schechter Poultry had failed to observe the MINIMUM WAGE and maximum hour provisions applicable to workers and that it had violated a provision of the Live Poultry Code prohibiting the sale of unfit chickens. The case became popularly known as the Sick Chicken case. The Schechters pleaded not guilty to the charges. At trial, the Schechters were convicted on 18 count s of violating the Live Poultry Code and two counts of conspiring to violate the Live Poultry Code. An appeals court affirmed their convictions, but the U.S. Supreme Court agreed to hear their appeal. The Schechters presented several arguments challenging the Live Poultry Code. According to the Schechters, the code system of the NIRA was an unconstitutional ABDICATION of the legislative power vested in Congress by Article I, Section 1, of the U.S. Constitution. The Schechters argued further that their intra- state wholesale business was not subject to congressional authority under the COMMERCE CLAUSE of Article I, Section 8, Clause 3, of the Constitution and that the procedures for enforcing the NIRA codes violated the DUE PROCESS CLAUSE of the FIFTH AMENDMENT. In support of the Live Poultry Code, the federal government argued that the code was necessary for the good of the nation. According to the government, the Live Poultry Code ensured the free flow of chickens in interstate commerce. This arrangement kept chicken prices low and helped ease, however slightly, the financial burden on the general public. The government also argued that it was within the power of Congress to enact the NIRA regulatory scheme that gave rise to the Live Poultry Code because codes such as the Live Poultry Code applied only to businesses engaged in interstate commerce. The Court unanimously disagreed with the federal government. Under the commerce clause, Congress had the power to regulate commerce between the states, not intrastate commerce. The power to enact legislation on intrastate commerce was reserved to the states under the TENTH AMENDMENT to the Constitution. According tothe Court, the businessconducted by the Schechters was decidedly intrastate. Their business was licensed in New York, they bought their poultry in New York, and they sold it to retailers in New York. Because it was intended to reach intrastate businesses such as Schechter Poultry, the Live Poultry Code regulated intrastate commerce, and it was, therefore, an unconstitu- tional exercise of congressional power. The Court reversed the Schechters’ convictions and declared the Live Poultry Code unconstitutional. The Schechter decision was decided around the same time as other, similar Supreme Court decisions striking down federal attempts to address the economic crises of the Depression. However, the Schechter decision was a particu- larly troublesome setback for the Roosevelt administration. The NIRA was the centerpiece of Roosevelt’s plan to stabilize the national economy (the NEW DEAL), and the government’s loss in the Sick Chicken case marked the end of the NIRA and its fair trade codes. Less than one week after the Schechter decision was an- nounced, Roosevelt publicly condemned the Court. Roosevelt declared that the Court’s “horse-and-buggy definition of interstate com- merce” was an obstacle to national health. Roosevelt’s remarks were controversial be- cause they appeared to cross the line that separated the powers of the EXECUTIVE BRANCH from those of the judicial branch.They sparkeda national debate on the definition of interstate commerce, the role of the U.S. Supreme Court, and the limits of federal power. Several citizens and federal legisla- tors began to propose laws and constitutional amendments in an effort to change the makeup of the Supreme Court. At first, Roosevelt refused to back any of the plans, preferring instead to wait and see ifthe Court would reconsider its stand and reverse the Schechter holding. After the Supreme Court delivered another series of opinions in 1936 that nullified New Deal legislation, Roosevelt began to push for legislation that would modify the makeup of the Court. In 1937, the Supreme Court began to issue decisions upholding New Deal legislation. In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937), the Court held that the National Labor Relations Act did GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCHECHTER POULTRY CORP. V. UNITED STATES 13 not violate the commerce clause, finding that Congress has the power to regulate intrastate activities that “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions.” After Jones & Laughlin Steel Corp., the Court seldom visited the FEDERALISM issu es raised in Schechter. However, the Court reviewed Schech- ter in United States v. Gomez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), concluding that Congress could not enact a law prohibiting guns in school zones because Congress had failed to make a connection between interstate commerce and the concerns regarding guns near schools. FURTHER READINGS Burns, James M. 1990. Crosswinds of Freedom: American Experience. New York: Knopf. Cohen, William, and Jonathan D. Varat. 2001. Constitu- tional Law: Cases and Materials. 8th ed. New York: Foundation Press. Louchheim, Katie, ed. 1983. The Making of the New Deal: The Insiders Speak. Cambridge, MA: Harvard Univ. Press. Pearse, Steven. 2010. “Accounting for the Lack of Account- ability: The Great Depression Meets the Great Reces- sion.” Hastings Constitutional Law Quarterly. Winter. Schlesinger, Arthur M., Jr. 2003. The Age of Roosevelt: The Coming of the New Deal. Boston: Houghton Mifflin. CROSS REFERENCES Commerce Clause; Federalism. SCHENCK V. UNITED STATES Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), is a seminal case in CONSTITUTIONAL LAW, representing the first time that the U.S. Supreme Court heard a FIRST AMENDMENT challenge to a federal law on free speech grounds. In upholding the constitutional- ity of the ESPIONAGE ACT OF 1917 (40 Stat. 217), the Supreme Court articulated the CLEAR AND PRESENT DANGER doctrine, a test that still influences the manner in which state and federal courts decide free speech issues. This doctrine pioneered new territory by drawing a line that separates protected speech, such as the public criticism of government and its policies, from unprotected speech, such as the advocacy of illegal action. On December 20, 1917, Charles Schenck was convicted in federal district court for violating the Espionage Act, which prohibited individuals from obstructing military recruiting, hindering enlist- ment, or promoting insubordination among the armed forces of the United States. Schenck, who was the general secretary of the Socialist party in the United States, had been indicted for mailing antidraft leaflets to more than fifteen thousand men in Philadelphia. The leaflets equated the draft with SLAVERY, characterized conscriptsas criminals, and urged opposition to American involvement in WORLD WAR I. Schenck appealed his conviction to the Supreme Court, which agreed to hear the case. Attorneys for Schenck challenged the constitu- tionality of the Espionage Act on First Amend- ment grounds. FREEDOM OF SPEECH, Schenck’s attorneys argued, guarantees the liberty of all Americans to voice their opinions about even the most sensitive political issues, as long as their speech does not incite immediate illegal action. Attorneys for the federal government argued that freedom of speech does not include the freedom to undermine the SELECTIVE SERVICE SYSTEM by casting aspersions upon the draft. In a 9–0 decision, the Supreme Court affirmed Schenck’s conviction. Justice OLIVER WENDELL HOLMES JR . delivered the opinion. Holmes observed that the constitutionality of all speech depends on the circumstances in which it is spoken. No reasonable interpretation of the First Amendment, Holmes said, protects utterances that have the effect of force. For example, Holmes opined that the Freedom of Speech Clause would not protect a man who falsely shouts fire in a crowded theater. “The question in every case,” Holmes wrote, “is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Holmes conceded that during peacetime Schenck’s vituperative leaflets might have received constitutional protection. However, Holmes said, during times of war no American has the right to speak or publish with the intent of obstructing the CONSCRIPTION process when such speech has a tendency to incite others to this unlawful purpose. The Supreme Court’s decision in Schenck established two fundamental principles of constitutional law. First, Schenck established that the First Amendment is not absolute. Under certain circumstances, the rights pro- tected by the Freedom of Speech Clause must give way to important countervailing interests. Preserving the integrity of the military draft during wartime and protecting theater patrons from the perils of pandemonium are two GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 14 SCHENCK V. UNITED STATES examples of countervailing interests that will override First Amendment rights. Second, Schenck established the standard by which subversive and seditious political speech would be measured under the First Amendment for the next fifty years. Before thegovernment may punish someone who has published scurrilous political material, the Court in Schenck said, it must demonstrate that the material was published with the intent or tendency to precipitate illegal activity and that it created a clear and present danger that such activity would result. Schenck did not settle every aspect of free speech JURISPRUDENCE. It left unresolved a number of crucial questions and created ambiguities that could only be clarified through the judicial decision-making process. It was unclear after Schenck, for example, how imme- diate or probable a particular danger must be before it becomes clear and present. If Schenck permitted the government to regulate speech that has an unlawful tendency, some observers feared, Congress could ban speech that carried with it any harmful tendency without regard to the intent of the speaker or the likely effect of the speech on the audience. In 1969 the Supreme Court articulated the modern clear-and-present-danger doctrine in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430, stating that the government may not forbid or punish subver- sive speech except where it advocates or directs imminent lawless action and is likely to incite or produce such action. Under Brandenburg, courts must consider the intention of the speaker or writer, as well as her ability to persuade and arouse others when evaluating the danger presented by particular speech. Courts must also consider t he suscep- tibility of an audience to a particular form of expression, including the likelihood that cer- tain members of the audience will be aroused to illegal action. Despite the reformulation o f the clear-and-present-danger test, Schenck retains con stitutional vitality in cases concern- ing the Freedom of Speech Clause, having been cited in more than 100 state and federal judicial opinions since the 1980s. FURTHER READINGS Alonso, Karen. 1999. Schenck v. United States: Restrictions on Free Speech. Springfield, N.J.: Enslow Publishers. Dow, David R., and R. Scott Shieldes. 1998. “Rethinking the Clear and Present Danger Test.” Indiana Law Journal 73 (fall). Rabban, David. 1983. “The Emergence of Modern First Amendment Doctrine.” University of Chicago Law Review 50 (fall). Russo, Charles J. 2007. “Supreme Court Update: The Free Speech Rights of Students in the United States Post Morse v. Frederick.” Education and the Law 19 (September). CROSS REFERENCES Communism; Dennis v. United States; Smith Act. v SCHLAFLY, PHYLLIS STEWART The demise of the EQUAL RIGHTS AMENDMENT (ERA) on June 30, 1982, can be attributed in large part to Phyllis Stewart Schlafly. During the 1970s Schlafly was the United States’ most visible opponent of the ERA, a proposed CONSTITUTIONAL AMENDMENT that she predicted would undermine the traditional fam ily and actually diminish the rights of U.S. women. The ERA stated, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” After passing Congress, the amendment was sent to the 50 states on March 22, 1972, for RATIFICATION. To become law, the amendment needed to be passed by 38 states within seven years. By 1973, 30 states had already ratified the ERA. However, as momentum for Schlafly’santi-ERAcampaign grew, the ratification process slowed. Only four states approved the ERA in 1974 and 1975, and it became unlikely that pro-ERA forces could persuade four more states to ratify it. In 1977 Indiana became the last state to ratify the amendment. Despite a congressional reprieve in July 1978 that extended the ratification deadline to June 30, 1982, the ERA failed. The 1919 Schenck case marked the first time the Court heard a First Amendment challenge to a federal law on free speech grounds. The Court was comprised of the following justices: (standing, l-r) Brandeis, Pitney, McReynolds, Clarke, (seated, l-r) Day, McKenna, White, Holmes Van Devanter. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SCHLAFLY, PHYLLIS STEWART 15 Schlaflywas born August 15, 1924, in St. Louis, to Odile Dodge Stewart and John Bruce Stewart. She excelled academically at her parochial school, Academy of the Sacred Heart. After graduating as class valedictorian in 1941, she enrolled at Maryville College of the Sacred Heart. As a junior, she transferred to Washington University, in St. Louis, where she graduated Phi Beta Kappa in 1944. After receiving ascholarship, Schlaflyearned amaster’s degreein political science from Radcliffe College in 1945. In 1978, she returned to Washington University and earned a law degree. For about a year after receiving her master’s degree, Schlafly worked in Washington, D.C., as a researcher for several members of Congress. Returning to St. Louis in 1946, she became an aide and campaign worker for a Republican representative, and then worked as a librarian and researcher for a bank. In 1949 she married Fred Schlafly, also a lawyer. After moving to Alton, Illinois, Schlafly and her husband became involved in anti- Communist activities. Schlafly was a researcher for Senator JOSEPH R. MCCARTHY during the 1950s and helped to found the Cardinal Mindszenty Foundation, an organization op- posed to COMMUNISM. Schlafly supported Republican BARRY M. GOLDWATER’s presidential campaign in 1964. Her first book, A Choice Not an Echo, was written in 1964 specifically for the Goldwater campaign. Also in 1964 Schlafly published The Gravediggers, a book accusing key figures in the administration of President LYNDON B. JOHNSON of deliberately undermining U.S. military strength and leaving the country vulnerable to Communist aggression. Schlafly is the author of several other books on political topics. While raising six children, Schlafly kept her hand in community activities and Republican politics. Her interest in PUBLIC POLICY and government affairs prompted her to run for Congress three times : once in 1952 as the GOP candidate from the 24th District of Illinois; once in 1960 as a write-in candidate; and once in 1970 as the endorsed candidate of Chicago insurance mogul W. Clement Stone. All three campaigns were unsuccessful. Schlafly had more luck in her successful 1964 bid to be elected the first vice president of the National FEDERATION of Republican Women. Her victory came at a time when Goldwater Republicans dominated the party. Usually, the first vice president of the federation Phyllis Schlafly. AP IMAGES Phyllis Stewart Schlafly 1924– ▼▼ ▼▼ 1925 2000 1975 1950 ◆ ❖ 1961–73 Vietnam War ◆ ◆ ◆ 1950–53 Korean War 1939–45 World War II 1924 Born, St. Louis, Mo. ◆ ◆ ◆ ◆ ◆ 1945 Earned M.A. from Radcliffe College 1953–54 Senator McCarthy’s anti- Communist rhetoric and investigations reached their peak 1958 Helped found the Cardinal Mindszenty Foundation 1982 ERA defeated after failure to win ratification by required 38 states 1978 Earned J.D. from Washington University 1972 Equal Rights Amendment passed by Congress, sent to states; wrote first article in the Report criticizing the ERA 1964 A Choice Not an Echo and The Gravediggers published; elected first vice president of the National Federation of Republican Women 1967 Formed The Eagles are Flying; began publishing The Phyllis Schlafly Report 2002 Campaigned against U.S. adoption of the U.N.’s Convention on the Elimination of All Forms of Discrimination against Women 2003 Feminist Fantasies published ◆ 2004 The Supremacists published VIRTUOUS WOMEN ARE SELDOM ACCOSTED BY UNWELCOME SEXUAL PROPOSITIONS OBSCENE TALK OR PROFANE LANGUAGE . —PHYLLIS SCHLAFLY GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 16 SCHLAFLY, PHYLLIS STEWART automatically advanced to president, but in 1967 Schlafly was opposed by a more moderate candidate who ultimately defeated her. In the wake of her loss, Schlafly formed a separatist group called The Eagles Are Flying. Bolstered by a core of conservative supporters, she began publishing The Phyllis Schlafly Report, amonthly newsletter assessing current political issues and candidates, which was still in operation as of September 2009. In a 1972 issue of the Report, Schlafly wrote the first of many articles criticizing the ERA. As her personal opposition to the amendment grew, Schlafly formed Stop ERA and the Eagle Forum, organizations supported by conservative U.S. citizens, fundamentalist reli- gious groups, and factions of the John Birch Society. Schlafly argued that ratification of the ERA would lead to compulsory military service for all mothers, unisex toilets in public places, auto- matic 50 percent financial responsibility for all wives, and homosexual marriages. In 1992 Schlafly’s oldest son John Schlafly disclosed his homosexuality in an interview with the San Francisco Examiner. He stated that he supported his mother’s conservative political views, but also that gays and lesbians have family values. Schlafly’s passion for politics has always been strong. Active in every Republican National Convention since 1952, Schlafly served as an elected delegate to eight conventions—1956, 1964, 1968, 1984, 1988, 1992, 1996, and 2004— and as an elected alternate delegate to four others, in 1960, 1980, 2000, and 2008. Since the defeat of the ERA, Schlafly has remained active in the Eagle Forum and with other conservative causes, including the anti- abortion movement. She has made more than 50 appearances before congressional and state legislative committees, where she has testified on such issues as national defense, foreign policy, and family concerns. Her three-minute radio commentaries, which she began in 1983, are played five days per week on 500 stations, and her radio talk show “Eagle Forum Live,” providing discussion on education since 1989, is played every Saturday on 75 stations, as well as on the Eagle Forum’s website. Schlafly also continues her work as an author, public speaker, and commentator. When Schlafly is critical of a person or policy, she is quick to make it public. She did not consider President GEORGE W. BUSH to be a true conservative, and she continues to express her disdain for the UNITED NATIONS. When the U.N. celebrated its 50th anniversary in 1995, Schlafly referred to the event as “a cause for mourning, not celebration. It is a monument to foolish hopes, embarrassing compromises, betrayal of our servicemen, and a steady stream of insults to our nation. It is a Trojan Horse that carries the enemy into our midst and lures Americans to ride under alien insignia to fight and die in faraway lands.” Journalist and noted feminist GLORIA STEINEM, among others, have noted the irony in Schlafly ’s role as an advocate for the full-time mother and wife, while being herself a lawyer, editor of a monthly newsletter, regular speaker at anti- liberal rallies, and political activist. Schlafly continues to fight any possible version of an Equal Rights Amendment. FURTHER READINGS Caroll, Peter N. 1985. Famous in America: The Passion to Succeed: Jane Fonda, George Wallace, Phyllis Schlafly, John Glenn. New York: Dutton. Eagle Forum Website. Available online at http://www. eagleforum.org (accessed September 16, 2009). Felsenthal, Carol. 1981. Sweetheart of the Silent Majority. New York: Doubleday. Schlafly, Phyllis. 2003. Feminist Fantasies. Dallas: Spence. Schlafly, Phyllis. 2004. The Supremacists: The Tyranny of Judges and How to Stop It. Dallas: Spence. CROSS REFERENCES Republican Party; Women’sRights. v SCHLESINGER, RUDOLF BERTHOLD Legal scholar, author, and professo r, Rudolf B. Schlesinger achieved fame for his ground- breaking work in the study of international legal systems. Schlesinger was known as the dean of comparative law, a discipline that examines the differences and similarities among the legal systems of nations. His arrival in the field during the early 1950s helped to give it both greater legitimacy and popularity in legal academia. Comparative Law: Cases- Texts- Materials (1950), written while Schlesinger taught at Cornell University, became a staple of law school curricula and entered its fifth edition in the late 1990s. He also wrote important studies of CIVIL PROCEDURE and international business transactions and directed a ten-year international research project on contracts. Born in Munich, Germany, in 1909, Rudolf Berthold Schlesinger fled nazism before WORLD GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCHLESINGER, RUDOLF BERTHOLD 17 . since 195 2, Schlafly served as an elected delegate to eight conventions— 195 6, 196 4, 196 8, 198 4, 198 8, 199 2, 199 6, and 2004— and as an elected alternate delegate to four others, in 196 0, 198 0, 2000,. spring of 196 0 Scalia graduated magna cum laude from Harvard Law School GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SCALIA, ANTONIN 9 where he served as an editor for the Harvard Law Review president of the federation Phyllis Schlafly. AP IMAGES Phyllis Stewart Schlafly 192 4– ▼▼ ▼▼ 192 5 2000 197 5 195 0 ◆ ❖ 196 1–73 Vietnam War ◆ ◆ ◆ 195 0–53 Korean War 193 9–45 World War II 192 4 Born, St.