Category: Supreme Court


Oral Argument in West Coast Hotel v. Parrish

Here’s something that’s been bothering me. I cannot find any accounts of the oral argument in West Coast Hotel, which was the case that marked the Court’s switch on the New Deal.  Newspaper coverage of oral arguments was spotty back then.  Some cases got a lot, but most got none.  (The New York Times, for example, merely noted that the argument in West Coast Hotel happened without saying more.)  And there were no transcripts of argument the way that there are today.

I ask because I find it surprising that Justice Roberts did not tip his hand at oral argument that he would switch his view on the constitutionality of the minimum wage for women.  Or maybe he did and nobody was paying attention.  I’ll keep looking to see if some other paper did provide more detail on what happened in Court, but it’s a shame if no record exists at all.


Crazy Justice McReynolds Stories I

81px-Picture_of_James_Clark_McReynoldsSince I’m going to write about the Four Horsemen, I might as well start a series that we’ll call “Boorish Behavior by Justice McReynolds.”  I can get many posts out of that, to wit:

1.  When Justice Stone remarked that a lawyers’ argument was the dullest he had ever heard, McReynolds replied “The only duller thing I can think of is to hear you read one of your opinions.”

2.  When McReynolds was late to oral argument, Chief Justice Hughes sent a page to fetch him.  The page returned with a message “Justice McReynolds said to tell you he doesn’t work for you.”

3 .  In 1924 there was no official portrait of the Justices because McReynolds refused to sit next to Brandeis.

McReynolds was also pleasant and generous sometimes, though he didn’t make a habit of it.


What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?

The answer is Herbert Smulls, who Missouri executed late last night. The last few days of Smulls’ life were filled with a procedural mess involving an en banc Eighth Circuit judgment and a stay of execution by the Supreme Court of the United States. On January 24, by a vote of 7-3, the Eighth Circuit  issued a writ of mandamus on behalf of the Missouri Director of the Department of Corrections directed at the district court judge who the Eighth Circuit found had abused its discretion. The district court had ordered discovery so that Smulls could find out the doctor, pharmacist, and laboratory that were prescribing and supplying the drugs to be used in his execution (and thus, determine if the death penalty drug would cause excessive pain and suffering in violation of the 8th Amendment). The en banc Eighth Circuit granted the extraordinary remedy of a writ of mandamus ordering the the district court to vacate its discovery order. The majority of the Eighth Circuit held that  the district court had abused its discretion by denying Missouri’s 12(b)(6) motion to dismiss on the underlying 8th Amendment claim. Notably, the Eighth Circuit reached its conclusion without mentioning 12(b)(6) at all and it isn’t until the dissent by Judge Bye that the underlying civil claim appellate posture is revealed.

Then, on Monday, the Supreme Court issued a stay barring the execution of Smulls. Doug Berman heard, from a knowledgeable source, that the stay was issued not regarding the 8th Amendment claim, but based upon a Batson challenge (which wasn’t even before the en banc 8th Circuit as far as I can tell). If true, the stay was truly remarkable because Batson challenges (based upon racial exclusion of jurors by the prosecutor) are almost never granted, of little interest to the modern Supreme Court, and usually litigated far earlier in the appellate process. However, yesterday, the Supreme Court lifted its stay and it is unlikely that we will ever find out the details underlying the last minute Batson challenge (if there was one).

My first reaction from a procedural perspective is that there has to be a better way. It is a very strange world were 12(b)(6), mandamus, and the criminal death penalty appear in a single case. Yet, a quick Lexis search revealed 47 other opinions issued with those three legal issues. Notably, all of the recent cases involved litigation over drug cocktails for the death penalty. Significantly, none involved Batson and the Supreme Court was seemingly absent from those cases. In some part, this can be traced back to the Antiterrorism and Effective Death Penalty Act of 1996 which barred second or successive habeas petitions. As a result, defense counsel must exploit other procedures for relief once the collateral habeas appellate process has been exhausted. This case illustrates the bizarre legal gymnastics that result. I joked with my colleague that you could teach most of a federal courts class with just this case.

Reading the Eighth Circuit majority, concurring, and dissent opinions shows that the judges are essentially in the dark on how these disputes should be handled. The majority infers its abuse of discretion finding from dicta in Baze v. Rees. The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog. And yet, I can’t completely fault the majority because they have been left with so little guidance from Congress and the Supreme Court that any opinion they issue would have to invent “new” law. The Federal Rules of Civil Procedure and traditional standards of review are simply not well-designed to address death penalty appeals (particularly those on the eve of execution). Whatever one thinks of the value of the Antiterrorism and Effective Death Penalty Act, someone has to clean up this mess or death penalty litigation will likely become even more procedurally absurd.


Justice McReynolds and the War on Drugs

I’m come across a really interesting case that I wanted to share.  In Casey v. United States, 276 U.S. 413 (1928), an attorney was convicted of supplying morphine to some of his clients (in prison) under a statute that made it unlawful to purchase morphine from an unauthorized source . The statute also said that if you possessed the drugs in a package without official stamps (as Casey did) that was prima facie evidence of guilt. Justice Holmes wrote a 5-4 decision upholding the conviction and rejecting Casey’s Sixth Amendment claim.

McReynolds dissented, along with Brandeis, Butler, and Sanford.  Here is the text of McReynolds’ dissent (it’s a very powerful critique that could be used today).

I accept the views stated by Mr. Justice BUTLER. With clarity he points out the unreasonableness of the construction of the statute advocated by counsel for the United States. But I go further.

The provision under which we are told that one may be presumed unlawfully to have purchased an unstamped package of morphine within the district where he is found in possession of it conflicts with those constitutional guaranties heretofore supposed to protect all against arbitrary conviction and punishment. The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.

Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, the presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

Probably most of those accelerated to prison under the present act will be unfortunate addicts and their abettors; but even they live under the Constitution. And where will the next step take us?

When the Harrison Anti-Narcotic Law became effective, probably some drug containing opium could have been found in a million or more households within the Union. Paregoric, laudanum, Dover’s Powders, were common remedies. Did every man and woman who possessed one of these instantly become a presumptive criminal and liable to imprisonment unless he could explain to the satisfaction of a jury when and where he got the stuff? Certainly, I cannot assent to any such notion, and it seems worthwhile to say so.




Supreme Court Etiquette

Last week there was a hullabaloo about Justice Scalia’s chastisement of a lawyer for reading part of his argument. I wonder where that taboo comes from. In the British House of Commons, you get hooted at if you read a speech or a question–maybe there is a connection.

What Justice Scalia did, though, is no match for the act of turning your back to the advocate when you don’t like what he has to say. This used to be done by some of the more ornery Justices like McReynolds and Douglas. I suppose that is one way of making your vote clear. UPDATE:  Learned Hand also used to do this to lawyers.

This gives me an opportunity to tell one of my favorite “urban myths.”  Years ago Justice Byron White, who was not known for being cuddly on the bench, was one of the judges at a moot court at Yale Law School. He gave one of the students such a hard time with his questioning that the guy passed out. Supposedly, White looked at him and said, “I take it that you wish to reserve the balance of your time.”



Willis Van Devanter

90px-Justice_Willis_Van_DevanterI’m still thinking about whether it makes sense to write a collective biography of the Four Horsemen.  Thus far, I’m leaning against it.  There are two major problems.  One is that Pierce Butler was a very dull person–it’s hard to get any traction on him.  The other is that James McReynolds was interesting, but only in the way that a car wreck is.  It would just be a series of stories about what an awful man he was.

Justice Van Devanter, on the other hand, is quite fascinating.  For someone who wrote few opinions, he wrote a lot of letters.  And lively ones at that.  Moreover, he was widely respected by his colleagues.  Van Devanter was the Justice Brennan of his era–the one who was the most adept at framing arguments to get five votes.  Just as Brennan acted as Earl Warren’s lieutenant, Van Devanter served the same role for Chief Justice Taft. Maybe he deserves his own biography, though that’s hard to justify given his slender judicial output.


UCLA Law Review Vol. 61, Issue 1

Volume 61, Issue 1 (December 2013)

Against Endowment Theory: Experimental Economics and Legal Scholarship Gregory Klass & Kathryn Zeiler 2
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case Mark D. Rosen & Christopher W. Schmidt 66



“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices Sid Nadkarni 148
An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence Raj Shah 198





The Midnight Justice

94px-PVDanielI realized that I’ve never posted about the fun story of Justice Peter Daniel, who was confirmed to the Court in 1841 under strange circumstances.  (It’s was part of my Andrew Jackson research, and now it is part of my research on the Constitution and political parties).

In 1840, the Whigs won a sweeping victory (“Tippecanoe and Tyler Too”) ending twelve years of Democratic control of the White House.  They also won control of Congress for the first time.  In February 1841, Justice Philip Barbour (a Democrat named to the Court by Jackson) died.  President Martin Van Buren decided to act immediately and nominate Daniel (another Democrat) to the Court.  He was confirmed shortly before Inauguration Day.

It is hard to imagine something like this being tolerated today.  A lame-duck President (just beaten at the polls) choosing a new Justice confirmed by a lame-duck Senate (also repudiated at the polls).  Whigs in the Senate boycotted the vote and protested that Van Buren was repeating the precedent of John Adams and his “Midnight Judges.”  Since we got Chief Justice John Marshall as part of that bargain, describing the effort as illegitimate does pose problems, but anyway . . .

What did the Whigs do about Justice Daniel after Inauguration Day?  They could not impeach and convict him, but they could make his life difficult.  So they passed a circuit reorganization bill that gave Daniel circuit riding duties in Arkansas and Mississippi–as far from Washington as possible.  Given that he was from Virginia, this assignment was especially burdensome and unusual in the sense that circuit riding was normally tied to where you lived and had practiced.  Congress may have hoped that Daniel would resign as a result, but he did not.  He stayed on the Court long enough to join the majority in Dred Scott.


The Four Horsemen

84px-Jamescmcreynolds120px-Willis_Van_Devanter_-_seated94px-Senatorsutherland96px-Justice_Pierce_Butler_2One thought that keeps crossing my mind as I research Justice Sutherland is whether this should be a book about the Four Horsemen.  This sort of project would have several advantages.  First, we think of these Justices as a group.  Second, telling four stories may be better than one–there’s lots of personal detail in four stories that may be lacking otherwise.

What are the conceptual problems?  One is that Justice McReynolds was a total jackass. Having to spend 25% of your book talking about a racist anti-semite is not much fun. (Sutherland, by contrast, was a gentle person who was well liked.)  Another is that Justice Van Devanter wrote no significant opinions due to his writer’s block.  No matter how important he was behind the scenes (and he was very important), that’s hard to illuminate.  (I don’t know enough about Justice Butler to say whether he’s a good subject.)

Incidentally, Barry Cushman has a paper on SSRN talking about the law clerks of the Four Horsemen, if you’re interested.