GLORY DAYS / 1964-1967: Introduction to Columbia Law School
This week I decided to meander a bit further afield – to my Glory Days at Columbia Law School. I loved law school. I was at Columbia Law School during the era of the Beatles when 1964 seemed forever. In fact their years in the spotlight and my law school days overlapped. I missed the Mark Rudd sit in at Columbia by one year and I graduated in 1967, the year before the Beatles split up in 1968. Graduation day was the same day that the ’67 Israeli war erupted. My law school days featured famous professors such as Telford Taylor, the chief prosecutor at Nuremberg, William Cary the Head of the SEC during the JFK years, Jack Weinstein who just retired at the age of 98 from his Federal Judgeship in New York, Louis Henkin the most prominent International law attorney in the world, and I was fortunate to be Professor Henkin’s research assistant for two years. Twenty-seven years later, Professor Henkin persuaded my son David to attend Columbia Law School.
RFK Comes to Town
My years of Columbia also featured two speeches by Bobby Kennedy, including his successful campaign for the US Senate from New York. In fact, two years earlier in 1962, three friends and I drove down to Washington, D.C. for my first trip to the Capitol. The very next morning, without plans, we drove over to the Lincoln Memorial where Bobby Kennedy was finishing a speech and I snapped a few photos. As he was walking unescorted down the steps of the memorial, he granted my request for a photo. Sadly that picture was lost, but three others from that moment in time survived and are included here with this article. You can see me being shooed away from the front of his limousine as he drove away after the speech.
The Socratic Method
Law School was simply fantastic. My classmates included later Watergate Prosecutors Jill Wine Banks and Richard Benveniste, and California Governor to be Gray Davis. College had been all about memorization. I can still tell you that the French Revolution started in 1789, the last Battle of the War of 1812 ended in 1814 at New Orleans, and that Franklin Roosevelt was elected for four terms. Law School was different and we were given source materials to read, mainly judicial opinions, and had to figure out the law for ourselves, sometimes with the help of the professors and sometimes not. A typical classroom exchange would be as Professor Reese bellowed: “Mr. Oshinsky, is the defendant liable for his conduct? If I answered, “No.” The professor would then say, “Oh, Miss Wine, do you agree with Mr. Oshinsky?” “Yes, professor,” she says. “Mr. Leinsdorf, what do you say?” Answer, “I believe in compensation.” Professor: “Mr. Leinsdorf believes in compensation.” “Mr. Tenzer, what do you believe?” Do you believe in compensation? Are you still a Goldwater fan?” “Oh, Mr. Tenzer, do you believe in anything?” This is the Socratic method. It may explain why Socrates took the poison.
The Great Blackout of 1965
My second year at Columbia, 1965, also featured the Great Blackout. On November 9, 1965, I was reading in the Columbia Law Library when the lights started to flicker. All of a sudden – darkness. How did we react? We all started to laugh. Everything was dark, everywhere. We then walked to a restaurant with a power generator (either Tom’s on Broadway, think Seinfeld, or the Hungarian on Amsterdam). After dinner we then strolled about to our dorms. My wedding day with Sandy was still eleven months in the future.
Marbury vs. Madison
But in all the years since those Glory Days – one case remained etched in my memory from my days at Columbia Law School. That case, from 1803, Marbury vs. Madison, stands out as the prime exemplar of creative judicial activism that is solely lacking today.
John Marshall had taken on the then unenviable task of being Chief Justice of the United States simply because John Jay did not think it was an important enough or a busy enough position. John Marshall was a Virginian, a Politician and a Soldier who had been with George Washington at Valley Forge, while his third and unloved cousin, Thomas Jefferson, was roaming the hills of Virginia on the run from the British and later in his tour as U.S. Ambassador to France. In today’s parlance, Marshall would be called a Conservative, then a Federalist, along with John Adams, Alexander Hamilton, and George Washington. On the other hand, Thomas Jefferson, James Madison, and James Monroe were called Democratic Republicans, or Democrats today. Adams had defeated Jefferson in 1796 by three electoral votes for the presidency. Jefferson ran again in 1800 and Jefferson defeated Adams and blocked Aaron Burr with Hamilton’s support. And while leaving office, Adams decided to appoint dozens of new federal judges, including Marbury, whose commissions had to be presented to them by the Secretary of State who happened to be Jefferson’s sidekick, James Madison. Although no actual record exists, Madison probably told Marbury to jump into the Potomac when Mr. Marbury requested Secretary Madison to provide him with his commission. To nobody’s surprise, after Madison refused, Marbury sued for a Court order to Madison to obtain his commission. Congress previously has passed a statute giving the Supreme Court “original jurisdiction” to mandamus (order) officials like Madison to perform non-discretionary ministerial duties like turning over judicial commissions. Original jurisdiction means that the case went directly to the Supreme Court of the United States and not first to the lower courts. Marshall was faced with a dilemma. On the one hand his sympathies were with Adams and Marbury. On the other hand, if he ordered Madison to deliver the commission and Madison refused, then Marshall would be powerless to enforce his order. So in a spark of genius, Marshall decided first that Madison had acted unlawfully by not turning over the commission, but second that Congress had overstepped its bounds by giving the Supreme Court original jurisdiction over cases that were not authorized by the U.S. Constitution to go directly to the Supreme Court. The U.S. Constitution grant of original jurisdiction to the Supreme Court is very narrow.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
So, Marshall accomplished practical and historical objectives. First, he avoided an immediate Constitutional crisis by not issuing an order that could not be enforced. And second, in the most dramatic development in American legal history, he established the rule of Judicial Review: that the Supreme Court had the power, in fact the ultimate power, to determine the laws of our country and override Congressional statutes that violated the U.S. Constitution.
Although taught with reverence in law school, the power of Judicial Review established by Marshall can be abused for political objectives by our modern Supreme Court. See Gore v. Bush, 531 U.S. 98 (2000).
Glory Days – they’ll pass you by… in the wink of a young girl’s eye – Glory Days