The Supreme Court’s colorful history with alcohol gets a look in ‘Glass and Gavel’ | Rebroadcast

Episode Notes

Transcript

Announcer:

Before the Supreme Court justices take their seats this October, we’re toasting the court’s surprisingly spirited history from our back catalog. Here’s a lively look at the Supreme Court’s relationship with alcohol, glass, and gavel.

Lee Rawles:

Welcome to the Modern Law Library Podcast. I’m your host Lee Rawles of the A B ABA Journal, and today I’m speaking with Maveety the author of Glass and Gavel, the US Supreme Court and Alcohol. Nancy, thanks so much for joining us.

Nancy Maveety:

It’s my pleasure, Lee.

Lee Rawles:

So Nancy, could you tell our listeners a little bit about your background and how you came to write this book?

Nancy Maveety:

Sure. Well, I’m a professor of political science and my area of expertise and my area of research is judicial politics in the United States and principally the US Supreme Court and its decision making. And I’ve written more traditional scholarly type work on the court and its decisions, but I became interested in this topic for a couple of reasons. First comes out of my own personal interest in period cocktails and in the history of mixology. And I have read some interesting fun things about histories of presidential drinking. And it got me thinking that there probably is an interesting intersection between judges and alcohol and American politics more broadly and beverage alcohol. So that’s what inspired me to begin looking into this subject and I found it an incredibly rich one.

Lee Rawles:

So for my readers who are interested in glass and gavel, could we talk a little bit about the format and how you came to it? It’s broken into eras based on the chief justice, but then you have another interesting element. You picked a sort of signature cocktail or signature drink of the era as you were talking about the kind of legal wrangling that was going on around alcohol in that era. Could you talk a little bit about that and how you arrived at each ERA’S signature cocktail?

Nancy Maveety:

Sure. Well, what I’m trying to do in the book is provide both a social history of the Supreme Court and its decisions overlaid against a political history of alcohol and its role in the political culture. And of course saloons and drinking have a lot of political connections starting with the American Revolution. So my idea was to use what is a somewhat traditional approach to looking at the Supreme Court through the eras of its chief justices as a way of marking historical time, but to take each era and look at it as within the history of mixology, the history of popular cocktails. And so there I drew on my own knowledge and my own background work in that area and my objective was to find within each particular period what was a very popular drink, a very popular liquor that really represented the way alcohol was being used and enjoyed at the time. Or if I had good historical evidence, I used what was identified as that chief justice’s known favorite beverage. And so for some periods I really can’t identify that.

Lee Rawles:

Now, there’s a passage in your book that I would love to have you read for our listeners that I think is a good snapshot of this, and it’s the era you chose for the mint julip. Would you mind reading a quick passage in your book so our readers can get a feel for the language?

Nancy Maveety:

Not at all. And let me just say to set this up for the readers, this is probably representative of how I make connections between court eras and their particular cocktails. Alright, so this is chapter two and I’ll begin by saying there’s a little bit of dispute about how we pronounce this Chief Justice’s name. Some say Taney, some say Tawny. I’ll begin, I’ll use Taney and I hope readers won’t object or listeners. The Taney Court 1836 to 1864 has the distinction of seeing the first Supreme Court case involving drunk driving, specifically the liability issues surrounding the drunken operation of a stage coach in Stockton versus Bishop in 1846. The Tany era is also a long one spanning the American WestBridge expansion, the rise of party machines and popular politicking and the onset of the Civil War. Tany was a Maryland born on a tobacco plantation in Calvert County appointed by President Andrew Jackson after a distinguished legal career that included a stint as Jackson’s Attorney General Tennesseean.

Andrew Jackson has quite a reputation for hired drinking, as does the popular image of his rowdy orange punch fueled first inauguration party at the White House. Despite this, by the time Jackson ascended to the White House he was already past his carousing prime at would in fact take in 1837. The American Temperance Society pledged to abstain from hard liquor Tenney’s time and indeed tenney’s personal circumstances illustrate the coincidence of these cultural heavy drinking of spirits, mostly whiskey, alongside a temperance sentiment growing in various pockets of New England and the Midwest. Of course that the most common temperance pledge of the time was the short one that allowed the use of hard cider beer, wine, and liquors for medicinal purposes speaks volumes as to the period’s dominant attitudes as discussed in the previous chapter, domestically produced grain whiskey distilled from corn and or rye had supplanted imported liquor in the American economy and day-to-day palate.

While the certifications with which we are now familiar, bourbon, rye, sour mash, Tennessee style had yet to be fully standardized. Whiskeys were the spirit’s most available and on offer in a range of largely male social and political drinking settings. With that, some whiskey drink must belong to this era and there is no more totemic whiskey drink of the era than the mint julep which reigns supreme at theBar for a good 50 years or more. It is also a highly appropriate beverage choice that unites the taney periods seemingly incompatible Cultural trends for the Julep was considered potently tasty as well as singularly healthful.

Lee Rawles:

Well thank you so much for that. I think the thing that first comes to mind for most people when they pick up this book, when you think about, okay, the US Supreme Court constitutional law and alcohol is going to be prohibition. So naturally prohibition does take up a large portion of your book. And what I found kind of fascinating was how many of the justices that you reference dealt with personally still consuming alcohol, choosing to, I think the term was be wet while enforcing these very strict, very harsh laws. Could you talk a little bit about what the culture was like in the court at that time and how they may have rationalized or justified this to themselves?

Nancy Maveety:

Sure. Although I don’t know if I want to be justifying hypocrisy, but I think for some members of the court it was less of attention than others. But let me just use one person as an example and perhaps he is a good indicator and that would be Chief Justice William Howard Taft. Now William Howard Taft ascends to the chief justice ship after prohibition has already gone into effect almost immediately after. And of course TT also served prior to this as chief executive, he was President Taft before he was ever Chief Justice Taft. And during the point at which he was in the White House, he was certainly wet in the sense that he was no fan of the growing prohibition sentiment that was really building throughout the early 20th century. Personally speaking, Taft was not a teetotaler, but he certainly wasn’t a wild ouser either, but he really had doubts about how prohibition would be effectuated or how well it would really work.

Well, once the 18th Amendment was ratified and once the Volstead Act was passed, which enacted the regime of prohibition, TAF found himself sitting as the chief justice of the US Supreme Court and found the question before him of whether it was his obligation to enforce what was now federal law and to enforce the institutional power of the federal judiciary. And he never shrank from the obligation to enforce with vigor all that prohibition required. Even while I think he personally probably harbored some reservations about how well prohibition really was working, he himself tried to remain somewhat dry throughout most of his service, but that was more for health reasons than anything else. And I do note in my book that when he received the notification that he had been successfully confirmed as chief justice, which was something he desired his whole life and wanted much more than ever being the president when he learned this news, he was in Montreal and he celebrated with a glass of champagne.

Lee Rawles:

Well, he was in Montreal. So I assume in Canada laws were a little

Nancy Maveety:

Different. Yes, he was outside the jurisdiction of the United States. Yes.

Lee Rawles:

So while I expected to read about the prohibition in his book, there’s just a wealth of information and it’s fascinating. The thing that I really appreciated is that in glass and gavel, you pull out so many cases, which while they are about alcohol impact and affect pieces of our legal theories that have nothing to do directly with alcohol, the one that I’m thinking of that comes to mind immediately is this case that happened during the Burger era and it’s about near beer, which my mother has told me about being near beer. You couldn’t really get drunk on near beer is what she said. It had an alcohol content and things like that. But the issue that was being raised in this case, Craig v Boron was about a drinking age that was different for men versus women. Could you talk a little bit about this case? I thought this was fascinating.

Nancy Maveety:

Sure. This is a very interesting case and it has the distinction among the many alcohol cases that I talk about of being a fairly important one in the history of constitutional law. And that’s because it’s directly related to the discussion and the development of equal protection law and the issue of the unconstitutionality of discrimination based on gender or as the terminology would’ve been used at the time, discrimination based on sex. Well, the case of course, was a victory for that right’s interest, although it was an interesting case because the disadvantaged class in the case were actually young men. So this is a situation in which Oklahoma had had an age-based differential for access to purchasing, as you call it, near beer or the way the Oklahoma law phrased it, non intoxicating beer, 3.2% alcohol, beer, which I think you could get drunk on if you drank enough of it, but boy, you’d have to drink a lot of it. Women, young women were legal to purchase this beverage at age 18, but men had to wait until they were 21. And so a bar owner and an affected individual brought suit to challenge this as a violation of equal protection clause as not being justified by anything related to a serious consideration where gender was a real reason for this kind of differentiation in the law.

Lee Rawles:

And what had been the justification in the minds of the lawmakers when they passed it? Why would women be allowed to drink before men?

Nancy Maveety:

Well, a lot of it was based on gender stereotypes of the era at the time, the idea being, or the presumption being that women were more mature than men and so could be trusted because of their personal sobriety to begin drinking at 18. And also were probably not likely to be driving, they were being shepherded on their beer assignations by older boyfriends or older custodians. And those drivers, potentially those male drivers were considered to be risky to and franchise at age 18 to access alcohol. So that was just one kind of rationale that seemed to be animating this difference. And there was also somewhat dubious statistical evidence about actual drunk driving statistics, very limited correlation based on gender. And I’ve also read that the law was to some degree an artifact of Oklahoma’s a differential when it came to the state of legal majority for men versus women. Women’s had always been much younger because they were considered legal adults able to enter into a marital contract much younger than men. So there are a lot of factors that are part of the case that again, have nothing to do with alcohol per se, but it was really the alcohol issue that generated the litigation that brought the case to the US Supreme Court.

Lee Rawles:

Well, we’re going to take a quick break here from our advertisers. Welcome back to the Modern Law Library. When you were doing your research, did you have some sort of favorite factoid or maybe even cocktail recipe that you uncovered? What was your favorite little anecdote that you uncovered in researching this book?

Nancy Maveety:

Oh gosh. Wow. There’s a lot of good little factoids and anecdotes. Probably my favorites always surrounded the connection between a particular beverage or drink and a particular person. And that was usually a chief justice, although not always one of my favorites that I came across, it’s kind of Mac Cobb, but I’ll share it with you anyway and you can see what you think of it. Chief Justice Chase, who was the chief justice immediately after the Civil War and for a fairly short period was actually one of the many justices to serve who was a T teetotaler or at least who took a stance on temperance that he tried to live up to both personally and professionally. Well, at the time that Chase was the chief justice, this was the era, the rollicking era of the political saloon in the United States going into the 1870s, say late 1860s to 1870s.

And there were a lot of new cocktails being introduced and new exotic beverages being introduced into American mixology. This is actually the beginning of the era, the golden era of the beginning of American mixology. Well, one of those drinks was a drink that has been revived somewhat, but not nearly as much as some of the other classic cocktails we’re all familiar with. It’s a drink known as the Sherry Cobbler, and it was a kind of a sherry we all know is a fortified wine. It was a kind of a sugar and citrus juice informed chilled cocktail used ice. And so it was a very popular beverage with men and women drunk widely. Now Chase of course, didn’t really drink, but there were certain occasions when he let go and one was a famous lavish banquet dinner that he participated in, and he ended that meal with a cof of sherry. He wasn’t used to drinking. Now mind you, he ended that with a cof of sherry and promptly keeled over and died.

Lee Rawles:

Oh my goodness.

Nancy Maveety:

I decided that the callis manic or totemic cocktail for his period just had to be the sherry cobbler.

Lee Rawles:

I was not anticipating that ending into the story there.

Nancy Maveety:

No, isn’t that a macabre twist? So that’s one of my favorites. I don’t know if that’s what you were driving at, but I always think about that when I think of the sort of coincidences of the history of alcohol in the Supreme Court and the history of cocktails in the United States. And there are many more like that really

Lee Rawles:

To move into the modern era, both with Rehnquist and Roberts with Rehnquist. You actually titled the chapter about him. You referenced it being an era of neo temperance. Could you talk a little bit about what you see the relationship between the US Supreme Court being in say the past 30 to 40 years, maybe looking forward, the trends that you observed when you’re reporting this book?

Nancy Maveety:

The Rehnquist era, which begins roughly in the mid 1980s, begins a period that I think we see some very different attitudes beginning to be expressed in the United States about the public use of alcohol and managing the social costs of alcohol. So of course, 1980 is the date of the beginning of Mothers Against Drunk Driving as an important interest group and the beginning of a very sustained crusade against social pathologies with alcohol including drunk driving. So some historians and commentators argue that the period that roughly coincides with the Rehnquist era is an era of neo temperance in the United States. And of course the Temperance Movement in the United States is initially a movement about moderation. It’s not a movement about total abstinence, it’s a movement that suggests alcohol should be managed and enjoyed responsibly as the beer industry likes to tell us. Right. And I think you see that attitude really emerging as a dominant trope both for culture and for policy, and also I think for some of the Renquist court’s decisions, but particularly those that involve managing drunk driving or policing, drunk driving. So I think that’s a trend that has continued and does continue into our own period. And the Roberts era.

Lee Rawles:

Had you already completed this book when the Kavanaugh confirmation hearings were held, I doubt you could have anticipated that Kavanaugh’s fondness for beer would end up being mentioned in his confirmation hearing.

Nancy Maveety:

No, I sure didn’t. And yes, the book was already in production by the time of the Kavanaugh appointment, or excuse me, nomination. I decided though I had to have a cutoff point for the book, and my cutoff point ended up being the inauguration or the beginning of President Trump’s administration. And I did that partly because it made for a natural break between administrations and it was also a very watershed period in terms of the politics of the confirmation of Supreme Court justices. I did manage to include a little tidbit about the confirmation experience of Gorsuch, which actually did have a brief alcohol reference at the very, very end of his very long confirmation hearing. But nothing like the degree to which and the kind of reference to alcohol and alcohol related behaviors that were part of Brett Kavanaugh’s confirmation experience. So none of that is worked into the book. There was just no opportunity to do so. But of course, it raises interesting questions about contemporary relationships between the Supreme Court and alcohol.

Lee Rawles:

Well, we’re going to take another quick break to hear from our advertisers. Welcome back to the Modern Law Library. I’m your host, Lee Rawles. One element that you I think do a good job of stressing in the book is alcohol ordinarily is used in social settings. We drink when we get together. Obviously it can be abused. Lawyers have a higher percentage problem with substance use compared to the general population. But what did you find when you’re talking about collegiality between the Supreme Court members? Did they get together and go out drinking a lot? I think that Justices Ginsburg and Scalia famously would welcome back, listen sometimes, get together our program, share some wine perhaps. Could you talk a little bit about how it was used in the social life of the Supreme Court justices?

Nancy Maveety:

Oh, sure. I think there are lots of examples of that. I’ll start with the one you just referenced and then maybe mention one or two others. Of course, justices Scalia and Ginsburg were great friends. They had served as colleagues together on the appellate bench, and although they were ideological and jurisprudential opposites, they were very, very fond of one another and their families vacation together. But when I think of justices enjoying wine together, I think of Justice Anthony Kennedy and Ruth Bader Ginsburg and the famous incident of Kennedy bringing a very fine vintage to the Supreme of the Union dinner together. So this is an interesting custom and episode that many people don’t know about. Of course, many members of the US Supreme Court attend the State of the Union, the president’s address, which may or may not take place this time round before the Houses of Congress.

But the members of the court often dine together beforehand. And there’s this famous incident of Justice Kennedy bringing a bottle, probably more than one bottle of Opus One for the justices to enjoy. And Ruth Bader Ginsburg enjoying so much or enjoying it so much that she dozed off during Obama’s State of the Union address. And of course, she’s now made light of this and made great fun of it, but I think it’s something we can all relate to. After all, who wouldn’t want to overindulge if Opus One is served at a dinner, one is enjoying what a fine California wine. So that’s an example I think, of a social use of alcohol that the justices engage in. And I think it’s part of a collegial and professional bonding experience that’s really quite charming. The other thing that comes to mind that is definitely a nexus between social enjoyment of alcohol and the court is that there is very much the custom of a cocktail party, a welcoming cocktail party for the new clerks, the new law clerks that begin every term, their service for their respective justices.

And so this is a function that is very much ingrained in court customs, and we’re all familiar with the custom of the cocktail party. And so this is something that the justices and their respective offices use as a way to break the ice, to make for a little bit more relaxed social setting in an environment that is very pressure full. And there’s a lot of high profile and sometimes very contentious issues to discuss and resolve. But the cocktail party allows the work group that is the court to be friendly with one another in another type of setting. And of course, alcohol is often a lubricant to friendliness.

Lee Rawles:

Now, for my final question for you, I want to call on your expertise in mixology. If you were picking a cocktail for readers of Glass and Gavel to enjoy while they read it, what do you think it would be? I know as someone who does not drink alcohol, I think that my recommendation would be an Arnold Palmer. I enjoy that. That’s an iced tea with lemonade. But for those readers and listeners who enjoy an alcoholic beverage, what would you choose to recommend?

Nancy Maveety:

Oh my. That’s a tough question. That’s a very hard question. Of course, one might suggest that one could enjoy each totemic cocktail that accompanies each chapter as one read through the book, although that would be quite a few cocktails in one setting if one read the book in one setting. But aside from that, I think I might choose what’s my own personal favorite cocktail in this. I’d have to say that one of the items in this cocktail is an ingredient that both Justice Ginsburg and I appreciate, although I don’t know if she’s a terrific fan of the cocktail I’m about to mention, but I know she’s a fan of its principle ingredient, and that’s Campari the Italian Lur. So the cocktail I would suggest everyone enjoy is a Negroni. I love a good Negroni. A Negroni is a very simple cocktail. It’s just got three ingredients, gin, sweet Vermouth, and Negroni, which is an Italian Amaro.

It’s sort of an aperitif taken traditionally on ice before meals. That’s how I think I understand Justice Ginsburg enjoys hers, but the Campari element to the Negroni adds a wonderful bitterness and a wonderful herbal quality. The Negroni is just a fabulous drink, and it can also be made in kind of a low alcohol version. If one minimizes the gin and maximizes the other ingredients, which are lower proof, you’ve got a drink that won’t knock you out and a little twist of lemon to finish. I think that would be a perfect accompaniment to Glass and gavel.

Lee Rawles:

Well, Nancy, thank you so much for joining us for this episode of the A BA Journal’s Modern Law Library listeners, if you want to pick up Nancy’s book, it’s Nancy Maveety and her book is Glass and Gavel, the US Supreme Court and Alcohol. Nancy, where can people pick up your book?

Nancy Maveety:

Well, probably the easiest place is through Amazon, and it’s available in both print and digital formats for your ebook or Kindle reader.

Lee Rawles:

Well, thank you again, Nancy, for joining us for this episode of the Modern Law Library. And thank you to our listeners. If you enjoyed this episode, please do us a favor and subscribe. Rate and review on your favorite podcast listening service, whether that’s Apple Podcasts, Google Podcasts, or wherever you first heard this episode. I’ve been your host, Lee Rawles. Thanks for listening.