Author: Gerard Magliocca

One of the emerging themes in my research on Bushrod Washington is that the Marshall Court should be understood as a team rather than as the extension of one genius. Proving that thesis is difficult, because we know relatively little about how the Court reached its decisions in that era. In some instances, though, written evidence exists that makes the point. Here is an example that is not new, but gets less attention than it should.

When Congress repealed the Judiciary Act of 1801, serious constitutional questions were raised about the manner in which that repeal occurred. Specifically, the Article III judges confirmed in the waning days of the Adams Administration were now no longer judges and no longer got paid. This struck many as unlawful given that Article III judges were supposed to have life tenure.

John Marshall responded by floating the idea to his colleagues that they should refuse to resume circuit riding (as mandated by the repeal of the Act) and, in essence, go on strike in protest. To do otherwise would be to concede that Congress had acted lawfully. A strike by the Justices would have been a provocative and (in the political climate of the day) probably a foolhardy gesture that might have led to direct attacks on the Supreme Court itself.

Some of the Justices supported a strike (most notably Samuel Chase) but the first to say no was (you guessed it) Bushrod Washington. He explained in a letter to Marshall (that the Chief Justice talked about in a letter on his own) that he felt the constitutionality of circuit riding was settled by its use prior to 1801 and planned to resume circuit duty. Though Marshall continued to press the idea, he ultimately dropped the plan after Justice Paterson indicated that he sided with Washington.

What does this episode tell us? First, John Marshall was not infallible. Second, the Court did not follow Marshall as if he were the Pied Piper. Now one could argue that in this instance Marshall could not exercise his personal charm to persuade his colleagues, which may have made a difference.

Before I return to substantive blogging, I just have a quick thought. I think it’s rather charming that Justice Ginsburg is happy to allow merchandise bearing her likeness or name to be sold without any restrictions. This harkens back to another age when public figures did not vigorously enforce their right of publicity (to the extent that they even had one). For those who take a strong view of the need for a right of publicity on utilitarian grounds, her decision not to enforce hers is a counterpoint. (It’ll be interesting to see, someday, whether her heirs will be so charitable).

Can be found here.

Given the commentary about Judge Kavanaugh’s testimony last week, I thought I might compare that performance to Justice Hugo L. Black’s 1937 radio address answering the charge that he had once been a member of the Ku Klux Klan. Justice Black, unlike Judge Kavanaugh, had already been confirmed by the Senate when the national press revealed that he had once been in the KKK. There were calls for Black to resign or be impeached, so he took to the radio to respond.

In his speech, Black stated: “During my recent absence on a short vacation abroad, a planned and concerted campaign was begun which fans the flames of prejudice and is calculated to create racial and religious hatred.” This was nonsense, but note that every Justice or would-be Justice who gets into trouble (such as Justice Black, Justice Thomas during his hearings, or Judge Kavanaugh) tends to reach for conspiratorial language.

Justice Black then summarized his Klan participation this way: “The insinuations of racial and religious intolerance made against me are based on the fact that I joined the Ku Klux Klan about fifteen years ago. I did join the Klan. I later resigned. I never rejoined. What appeared then, or appears now, on the records the organization, I do not know. I never have considered and I do not now consider the unsolicited card given to me shortly after my nomination to the Senate as a membership of any kind in the Ku Klux Klan. I never used it. I did not keep it. Before becoming a Senator I dropped the Klan. I have had nothing whatever to do with it.” This was not candid  given Justice Black’s Klan membership and the role that the group played in his election to the Senate in 1926. Granted, Justice Black was not testifying under oath about these issues, but it’s hard to say that he told the truth. In private, he thought this this nothing more than an effort by FDR’s enemies to destroy his reputation.

And yet Black became one of the greatest Justices in the history of the Court. Food for thought.

Whether Judge Kavanaugh is confirmed or not, I think it’s fair to say that he’ll be getting a lot more recusal motions based on his Senate testimony responding to the allegations against him. This raises a question, which is whether the Supreme Court should formulate clearer standards for recusals. As of now, there are none. Each Justice gets to decide for himself or herself when to recuse, and when they do they do not explain why.

To some extent, this lack of transparency makes sense. If people know that a Justice will recuse in a particular circumstance, then they can try to game the system. Nonetheless, I think when a Justice declines to recuse when a motion is brought, an explanation should be required. (Justice Scalia, for instance, did so when challenged in case involving Vice President Cheney because they went duck hunting together.) No doubt Judge Kavanaugh would prefer to reject recusal motions based on his testimony without comment, but I hope the Court develops a contrary norm.

With the Court’s new Term underway, here’s a question that I’ve wondered about for a long time. Supreme Court opinions are prefaced by a syllabus (not prepared by the Justice writing the opinion) summarizing the decision qualified by the statement that the syllabus is not authority. Does anyone bother reading these anymore?  I don’t. I just read the opinions. Or I look at commentary on the opinions. Or the Westlaw notes. Perhaps, though, practitioners find these summaries useful. If not, though, the Court is probably wasting resources and delaying opinion releases unnecessarily by sill doing them.

My draft paper on Corfield discusses Justice Washington’s original notes without explaining why he kept these notes. When I do a revision, I will rectify that by showing that he kept the notes so that an official report could be written later. In those days, there was no official reporting system for circuit cases. Washington’s correspondence indicates that he shared his notes with different individuals to create these reports (and not all of his colleagues did the same).

In those letters, Washington was careful to say that his jury charges or opinions should be published verbatim (whether they were correct or not on the law) but the arguments of counsel should be edited to look better. A kind of professional courtesy, I suppose.

I thought I would do some counter programming given the hearing today and talk about electric scooters. Suddenly they have sprung up in cities across America, including mine. This is a great publicity coup for their manufacturer, a startup called Bird. There have, though, already been some fatal accidents involving these devices, which could be attributed to car drivers being unfamiliar with them, inexperienced riders of the scooters, or the lack of any proper regulation.

The question of whether to allow (or how to regulate) these scooters is an interesting one that almost every state or city must consider. Here’s my question though. Does Bird face significant liability for, in essence, springing this as a surprise on people, which in turn can be said to have caused accidents? Was that negligence?

Here is the draft of my new paper.

First, he waited until the last day of the Term to announce his retirement. This shortened the timeframe for deliberating on a Supreme Court nomination and for vetting a nominee.

Second, he retired effective July 31, 2018. Thus, we now again face the prospect of a shorthanded Supreme Court, maybe for two years or more.

Alas.