The Least Dangerous Branch? · Episode 1 of 13 · 42 min
The Supreme Court on Trial: Is It Really a Neutral Umpire?
The series opens with a physician's loss of faith in the Supreme Court after its 2000 ruling that the FDA could not regulate nicotine. That moment sets up the season's question: is the Court the neutral umpire of civics class, or a human institution shaped by politics and power? Two tests frame every era: did the Court follow the law or its politics, and who put these nine there.
Who's who
- Sandra Day O'Connor+5 more episodesJustice who wrote the 5-4 majority in Brown & Williamson
- Stephen BreyerAssociate Justice who wrote the dissent arguing the statute covered nicotine
- David KesslerFDA Commissioner whose agency asserted jurisdiction over tobacco in 1996
- John Roberts+5 more episodesChief Justice whose 2005 testimony popularized the umpire image
- Alexander Hamilton+2 more episodesAuthor of Federalist No. 78 and the 'least dangerous branch' phrase
Timeline
- 1788Hamilton's Federalist No. 78 calls the judiciary the least dangerous branch.
- 1996FDA issues a rule asserting jurisdiction over cigarettes and smokeless tobacco.
- March 21, 2000Supreme Court rules 5-4 that the FDA lacked authority to regulate tobacco.
- 2005Roberts likens judges to umpires who call balls and strikes.
- 2009Congress gives the FDA the tobacco authority the Court said it lacked.
Still debated
Whether Brown & Williamson was faithful to what Congress enacted or a policy result dressed as statutory reading is disputed. So is whether following the law can ever be cleanly separated from following politics in hard cases.
Connected episodes in other series
How Religious Schools Won Public Funding: Trinity Lutheran, Espinoza, CarsonA Wall of Separation · Episode 11Also features John Roberts, Sandra Day O'Connor
The Supremacy Clause: Why Every Nullification Theory Has Lost in Court for 200 YearsHomemade Sovereignty · Episode 7Also features Alexander Hamilton
Shein and Temu: How Chinese Apps Deleted the Retail ShelfFrom the Trading Post to Amazon · Episode 11Also features John Roberts
Born in San FranciscoGold Mountain · Episode 9Also features John Roberts