The too-strange-for-fiction story of how Justice Stephen Field was almost assassinated in 1889 and the important Supreme Court presidential power precedent that his bodyguard's actions precipitated.
Off topic a bit, but I thought your comment at the end of the conversation with Joyce Vance yesterday about dog killing being disqualifying for public office was priceless.
Professor Vladeck, thank you for drawing an important distinction: "trying to physically intimidate judges is inconsistent with foundational principles of judicial independence." Trying to intimidate a judge with the express or implicit threat of imposing physical or fiscal harm on the judge or a family member is an intolerable act. But people (including judges) are intimidated by much more than threats of physical or fiscal harm
Like you, I was critical of the 2024 Year End Report delivered by Chief Justice Roberts. He (inexcusably) failed draw the crucial distinction that you did draw:
He went far too far in contending that “defiance directed at judges because of their work undermine[s] our Republic” and is “wholly unacceptable.” He more carefully clarified that “illegitimate activity” that “threaten the independence of judges" (i.e., from everything except the law) is limited to “(1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.”
But careless use of the word "intimidation" can be (and will be and almost certainly has been) abused by judges to unconstitutionally punish (retaliate) against lawyers or litigants for mere verbal criticism. That, to use the words of Chief Justice Roberts, is “wholly unacceptable,” as accentuated in his own (2024) Year End Report:
“Chief Justice Taft is the only person to have served as head of the judicial and a political branch [as chief justice after having served as president]. As he put it, ‘Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellow men, and to their candid criticism.’”
“It should be no surprise that judicial rulings can provoke strong and passionate reactions. And those expressions of public sentiment—whether criticism or praise—are not threats to judicial independence.”
“In [our] democracy” with “robust First Amendment protections—criticism comes with the territory. It can be healthy. As Chief Justice Rehnquist wrote, “[a] natural consequence of life tenure should be the ability to benefit from informed criticism from legislators, the bar, academy, and the public.”
Trump/Musk want to break the Federal government, eliminate staff and subject matter expertise, and cut funding so they have a pretext for privatization. And sale/giveaway of public lands. If the Fed govt can’t provide services/maintain public lands, then bring in the private sector. We’ve heard this of course but it makes sense/explains a lot.
The SCOTUS decision here highlights one of the greatest failings of SCOTUS justices for most of SCOTUS's existence. To this day, they consistently fail to give our Constitution its due. They consistently ignore the plain meaning of the plain text. So they pronounce purported constructions of our Constitution that are not only obviously false or egregiously misleading (as in this instance), but also extremely dangerous to the primary purposes of our Constitution, i.e., to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity."
The Framers envisioned Congress acting far more like the Second Continental Congress (and Parliament) than our Congress does or has. They repeatedly explicitly emphasized that they expected our nation (and they framed our Constitution and constructed our national government) to be led by Congress, not the executive. They emphasized that the duty of judges and the president was largely to fill in the interstices, the gaps left in or by existing legislation.
As Madison emphasized in The Federalist No. 48, the Framers expected "[t]he legislative department" to be "everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex" (but they "never for a moment [ ] turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative" of an executive "magistrate"). The Framers expected "the legislative power" which "is exercised by an assembly, which is inspired, by a supposed influence over the people," to have "an intrepid confidence in its own strength." The Framers expected "[t]he legislative department" to possess "a superiority in our governments" which it "derives" from its "constitutional powers," which are "at once more extensive, and less susceptible of precise limits" than the powers of the executive and judicial branches.
The Framers and ratifiers of our Constitution (the people) vested in Congress the power and duty to "make all Laws" that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." For good reason (and often with dispositive effect), the Framers and ratifiers of our Constitution imposed on the president the duty to "take Care that the Laws be faithfully executed."
The crucial restraint imposed on Congress (that actions be both "necessary and proper") exactly mirrors the restrains imposed in the First Amendment. They both govern the conduct of all public servants in all branches of government. The president can and must take all (and only) actions that are both necessary and proper to "preserve, protect and defend" our "Constitution." That obviously and necessarily extends to the duty to "preserve, protect and defend" the employees of all three branches. That crucial constraint (necessary and proper) also limits the president's powers to purport to "preserve, protect and defend" our nation, e.g., from an imaginary Venezuelan invasion.
The Declaration of Independence repeatedly emphasized similar principles. It claimed our erstwhile king "abdicated Government here, by declaring us out of his Protection and waging War against us." It proclaimed that all American "Governments" will and must be "instituted" with only "just Powers" that are derived exclusively "from the Consent of the Governed," necessarily including such "Powers" and "in such Form, as to them shall seem most likely to effect their Safety and Happiness."
This piece was gripping from start to finish—both for its historical drama and present-day resonance.
The Neagle episode is one of those forgotten flashpoints that feels eerily timely now. A sitting Supreme Court justice slapped in public, a bodyguard forced to make a split-second life-or-death decision, and a constitutional precedent quietly shaping the executive branch’s reach for over a century—all culminating in a debate that still lingers: When does executive protection become executive overreach?
What’s so striking is how this 19th-century tale lays bare the fragility of judicial independence. It’s not just about law on paper—it’s about real-world vulnerabilities. And as you rightly point out, the federal judiciary’s reliance on the executive branch for physical security becomes an even more precarious proposition when the executive itself fuels or tolerates threats against judges.
Professor Vladeck, you chose an extremely interesting and timely SCOTUS decision to highlight. The opinions in this matter illustrate why so much that was done and said by SCOTUS justices before and after the Civil War is worse than worthless in helping us construe and interpret our Constitution.
The dissenting opinion is, by far, the better and more relevant opinion regarding the issues of today (the powers and duties of the president). The majority reached the right conclusion, but did so based on weak analysis of our Constitution.
The dissent reached the wrong conclusion, but did so after clear and compelling analysis of our Constitution (similar to my longer comment about the duty of executive branch officials to preserve, protect and defend to the extent necessary and proper). After discussing the necessary and proper parts of our Constitution, the dissent concluded "for the President to have undertaken to make any law of the United States pertinent to this matter would have been to invade the domain of power expressly committed by the Constitution exclusively to Congress." The dissent ignored the dispositive import of what they had just proved: the Constitution is the supreme law of the land. So the president plainly did not "make any law." Neagle's actions were necessary and proper to preserve, protect and defend a public servant performing his public service.
Why would the two dissenting justices pretend that the president did purport to "make" law? The dissenters were Justice Lucius Quintus Cincinnatus Lamar and Chief Justice Fuller. It probably should be enough to say simply that their support for our Constitution was so weak that they both were in the majority in Plessy v. Ferguson in 1896.
Justice Lamar (according to Wikipedia) was "a Confederate soldier," who was remarkably similar to Jefferson Davis. Each was "a member of the Democratic Party," and each previously "represented Mississippi in both houses of Congress." Each even "served," as it were, "as an official in the Confederate States of America." Yet, somehow, "[i]n 1888, the Senate confirmed Lamar's nomination to the Supreme Court, making Lamar the first Southerner appointed to the court since the Civil War."
Chief Justice Fuller also joined SCOTUS in 1888 and he also was severely compromised (regarding his duty to support our Constitution) (according to Wikipedia): "Staunch conservatism marked his tenure on the Supreme Court, exhibited by his tendency to support unfettered free enterprise and to oppose broad federal power. He wrote major opinions on the federal income tax, the Commerce Clause, and citizenship law, and he took part in important decisions about racial segregation and the liberty of contract. Those rulings often faced criticism in the decades during and after Fuller's tenure, and many were later overruled or abrogated."
One of the most relevant aspects of this case (e.g., regarding whether SCOTUS (in Trump v. US) had the power to exempt POTUS from federal statutes making his conduct criminal) was the following in dissenting opinion:
The practical importance of the distinction between the rights and liabilities of a person in his private character, and the authority and immunity of the same person in his official capacity, is clearly pointed out and illustrated in United States v. Kirby, 7 Wall. 486, in which the court says: "No officer or employe of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the forms prescribed by the Constitution and laws." And the court adds: "Indeed, it may be doubted whether it is competent for [even] Congress to exempt the employes of the United States from arrest on criminal process from the state courts, when the crimes charged against them are not merely mala prohibita, but are mala in se. But whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to Congress unless clearly manifested by its language."
Regarding the execution with a 5-4 vote ... counting noses, four voted for a stay (liberals without comment) and Gorsuch said he would vote for cert. SCOTUS did not seem to on the record at least have a final public vote on the cert request.
Off topic a bit, but I thought your comment at the end of the conversation with Joyce Vance yesterday about dog killing being disqualifying for public office was priceless.
Professor Vladeck, thank you for drawing an important distinction: "trying to physically intimidate judges is inconsistent with foundational principles of judicial independence." Trying to intimidate a judge with the express or implicit threat of imposing physical or fiscal harm on the judge or a family member is an intolerable act. But people (including judges) are intimidated by much more than threats of physical or fiscal harm
Like you, I was critical of the 2024 Year End Report delivered by Chief Justice Roberts. He (inexcusably) failed draw the crucial distinction that you did draw:
He went far too far in contending that “defiance directed at judges because of their work undermine[s] our Republic” and is “wholly unacceptable.” He more carefully clarified that “illegitimate activity” that “threaten the independence of judges" (i.e., from everything except the law) is limited to “(1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.”
But careless use of the word "intimidation" can be (and will be and almost certainly has been) abused by judges to unconstitutionally punish (retaliate) against lawyers or litigants for mere verbal criticism. That, to use the words of Chief Justice Roberts, is “wholly unacceptable,” as accentuated in his own (2024) Year End Report:
“Chief Justice Taft is the only person to have served as head of the judicial and a political branch [as chief justice after having served as president]. As he put it, ‘Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellow men, and to their candid criticism.’”
“It should be no surprise that judicial rulings can provoke strong and passionate reactions. And those expressions of public sentiment—whether criticism or praise—are not threats to judicial independence.”
“In [our] democracy” with “robust First Amendment protections—criticism comes with the territory. It can be healthy. As Chief Justice Rehnquist wrote, “[a] natural consequence of life tenure should be the ability to benefit from informed criticism from legislators, the bar, academy, and the public.”
The Founders of our nation and the Framers of our Constitution (and a respectable quantity and quality of SCOTUS justices) emphasized that sometimes in some ways public servants should be "intimidated." Doing so is not only proper, but even necessary. See, e.g., "October 26, 1774, a Date that Should Live in First Amendment History" at https://open.substack.com/pub/blackcollarcrime/p/october-26-1774-a-date-that-should?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false
I still say that In re Neagel needs to be turned into a miniseries.
Believe it or not, the US Marshals Service does not use an apostrophe in its name. English is a weird and wonderful language.
Thank you so much for the audio
Trump/Musk want to break the Federal government, eliminate staff and subject matter expertise, and cut funding so they have a pretext for privatization. And sale/giveaway of public lands. If the Fed govt can’t provide services/maintain public lands, then bring in the private sector. We’ve heard this of course but it makes sense/explains a lot.
The SCOTUS decision here highlights one of the greatest failings of SCOTUS justices for most of SCOTUS's existence. To this day, they consistently fail to give our Constitution its due. They consistently ignore the plain meaning of the plain text. So they pronounce purported constructions of our Constitution that are not only obviously false or egregiously misleading (as in this instance), but also extremely dangerous to the primary purposes of our Constitution, i.e., to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity."
The Framers envisioned Congress acting far more like the Second Continental Congress (and Parliament) than our Congress does or has. They repeatedly explicitly emphasized that they expected our nation (and they framed our Constitution and constructed our national government) to be led by Congress, not the executive. They emphasized that the duty of judges and the president was largely to fill in the interstices, the gaps left in or by existing legislation.
As Madison emphasized in The Federalist No. 48, the Framers expected "[t]he legislative department" to be "everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex" (but they "never for a moment [ ] turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative" of an executive "magistrate"). The Framers expected "the legislative power" which "is exercised by an assembly, which is inspired, by a supposed influence over the people," to have "an intrepid confidence in its own strength." The Framers expected "[t]he legislative department" to possess "a superiority in our governments" which it "derives" from its "constitutional powers," which are "at once more extensive, and less susceptible of precise limits" than the powers of the executive and judicial branches.
The Framers and ratifiers of our Constitution (the people) vested in Congress the power and duty to "make all Laws" that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." For good reason (and often with dispositive effect), the Framers and ratifiers of our Constitution imposed on the president the duty to "take Care that the Laws be faithfully executed."
The crucial restraint imposed on Congress (that actions be both "necessary and proper") exactly mirrors the restrains imposed in the First Amendment. They both govern the conduct of all public servants in all branches of government. The president can and must take all (and only) actions that are both necessary and proper to "preserve, protect and defend" our "Constitution." That obviously and necessarily extends to the duty to "preserve, protect and defend" the employees of all three branches. That crucial constraint (necessary and proper) also limits the president's powers to purport to "preserve, protect and defend" our nation, e.g., from an imaginary Venezuelan invasion.
The Declaration of Independence repeatedly emphasized similar principles. It claimed our erstwhile king "abdicated Government here, by declaring us out of his Protection and waging War against us." It proclaimed that all American "Governments" will and must be "instituted" with only "just Powers" that are derived exclusively "from the Consent of the Governed," necessarily including such "Powers" and "in such Form, as to them shall seem most likely to effect their Safety and Happiness."
This piece was gripping from start to finish—both for its historical drama and present-day resonance.
The Neagle episode is one of those forgotten flashpoints that feels eerily timely now. A sitting Supreme Court justice slapped in public, a bodyguard forced to make a split-second life-or-death decision, and a constitutional precedent quietly shaping the executive branch’s reach for over a century—all culminating in a debate that still lingers: When does executive protection become executive overreach?
What’s so striking is how this 19th-century tale lays bare the fragility of judicial independence. It’s not just about law on paper—it’s about real-world vulnerabilities. And as you rightly point out, the federal judiciary’s reliance on the executive branch for physical security becomes an even more precarious proposition when the executive itself fuels or tolerates threats against judges.
Sure wish that I had an NSL podcast to listen to right about now!
Do you have any knowledge, if after the verdict, and Fuller's dissent, was there a change in the relationship between Fields and Fuller?
Professor Vladeck, you chose an extremely interesting and timely SCOTUS decision to highlight. The opinions in this matter illustrate why so much that was done and said by SCOTUS justices before and after the Civil War is worse than worthless in helping us construe and interpret our Constitution.
The dissenting opinion is, by far, the better and more relevant opinion regarding the issues of today (the powers and duties of the president). The majority reached the right conclusion, but did so based on weak analysis of our Constitution.
The dissent reached the wrong conclusion, but did so after clear and compelling analysis of our Constitution (similar to my longer comment about the duty of executive branch officials to preserve, protect and defend to the extent necessary and proper). After discussing the necessary and proper parts of our Constitution, the dissent concluded "for the President to have undertaken to make any law of the United States pertinent to this matter would have been to invade the domain of power expressly committed by the Constitution exclusively to Congress." The dissent ignored the dispositive import of what they had just proved: the Constitution is the supreme law of the land. So the president plainly did not "make any law." Neagle's actions were necessary and proper to preserve, protect and defend a public servant performing his public service.
Why would the two dissenting justices pretend that the president did purport to "make" law? The dissenters were Justice Lucius Quintus Cincinnatus Lamar and Chief Justice Fuller. It probably should be enough to say simply that their support for our Constitution was so weak that they both were in the majority in Plessy v. Ferguson in 1896.
Justice Lamar (according to Wikipedia) was "a Confederate soldier," who was remarkably similar to Jefferson Davis. Each was "a member of the Democratic Party," and each previously "represented Mississippi in both houses of Congress." Each even "served," as it were, "as an official in the Confederate States of America." Yet, somehow, "[i]n 1888, the Senate confirmed Lamar's nomination to the Supreme Court, making Lamar the first Southerner appointed to the court since the Civil War."
Chief Justice Fuller also joined SCOTUS in 1888 and he also was severely compromised (regarding his duty to support our Constitution) (according to Wikipedia): "Staunch conservatism marked his tenure on the Supreme Court, exhibited by his tendency to support unfettered free enterprise and to oppose broad federal power. He wrote major opinions on the federal income tax, the Commerce Clause, and citizenship law, and he took part in important decisions about racial segregation and the liberty of contract. Those rulings often faced criticism in the decades during and after Fuller's tenure, and many were later overruled or abrogated."
One of the most relevant aspects of this case (e.g., regarding whether SCOTUS (in Trump v. US) had the power to exempt POTUS from federal statutes making his conduct criminal) was the following in dissenting opinion:
The practical importance of the distinction between the rights and liabilities of a person in his private character, and the authority and immunity of the same person in his official capacity, is clearly pointed out and illustrated in United States v. Kirby, 7 Wall. 486, in which the court says: "No officer or employe of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the forms prescribed by the Constitution and laws." And the court adds: "Indeed, it may be doubted whether it is competent for [even] Congress to exempt the employes of the United States from arrest on criminal process from the state courts, when the crimes charged against them are not merely mala prohibita, but are mala in se. But whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to Congress unless clearly manifested by its language."
Regarding the execution with a 5-4 vote ... counting noses, four voted for a stay (liberals without comment) and Gorsuch said he would vote for cert. SCOTUS did not seem to on the record at least have a final public vote on the cert request.