Site Meter

Author: Gerard Magliocca

0

American Founding Son

Amazon has temporarily run out of copies.  (No wonder they lost money last quarter.)  I’m sure, though, that those of you still interested in buying one can find them for sale elsewhere.

7

Absurd Statutes

I have a question for folks who focus on statutory interpretation.  One of the canons for a court is that unambiguous text will not be applied if it would lead to an absurd result.  Are there any cases that actually refuse to apply clear text because of absurdity?  It strikes me that if a court actually thought the result would be absurd, then they would just find a way to say that the language is ambiguous.

UPDATE:  Thanks for sending examples!

3

Etiquette at the State of the Union

I’m curious if anyone knows the answer to the following question.  By tradition the Justices who attend presidential speeches to a Joint Session of Congress do not applaud (or, at least, rarely do) as a sign of judicial neutrality.  When did this custom get started?  Who was the Justice who first decided that this was the appropriate practice?

Here’s a related point.  Justice John Marshall Harlan (the younger) took the position that Justices should not vote in elections as a sign of judicial neutrality.  This norm, though, never caught on (at least as far as I know).  Why?

4

The Dilemma of Thomas Marshall

120px-Thomas_R._Marshall_in_his_Senate_office_croppedA theme that I’m thinking about exploring in a future work is the unsuccessful resolution of constitutional crises.  We focus on the people who raise their game at these times (the Framers, Abraham Lincoln, etc.), but perhaps we would learn more by studying folks like James Buchanan.  What was he thinking in 1860 when he did not stop secession?

The best example of this genre is Vice President Thomas Marshall, who was Woodrow Wilson’s #2 when Wilson had his stroke in 1919.  I have a soft spot for Marshall, as he was a Hoosier and is buried near where I used to live.  But he has a poor reputation, since he did not take charge when Wilson became disabled and thus allowed the country to drift at what turned out to be a crucial time (establishing a new international order after WWI).

My initial examination suggests that this account is not correct.  Marshall did lay out a path for taking over the presidency in private conversations with congressional leaders and some Cabinet members.  He said he would do so if there was some declaration by Wilson’s wife and doctor that he was disabled, and/or a joint resolution of Congress saying that the presidency was vacant.  (The “and/or” is important but unclear to me so far.)  Neither came (more on that later) and thus he felt he could not act.

In fairness, Marshall was in a tough spot.  First, Wilson’s wife and doctor did their best to conceal the truth about his health.  Second, Wilson didn’t like Marshall, thus he was less inclined to turn over power than he might have been.  Third, Marshall was concerned about setting a precedent whereby the VP and some Cabinet members could simply oust the President on health grounds.  In the absence of any law or clear guidance, his answer was actually a sensible one.  He wanted some clear (if unorthodox) institutional authority from Congress in the absence of a presidential resignation (temporary or not).  It’s worth adding that there is an allegation that opponents of the League of Nations in the Senate blocked a joint resolution because they thought their chances of defeating the Treaty of Versailles were better with a disabled Wilson in office, though I’m not sure if that is true.

0

Whatever Happened to Harriet Miers?

Miers_Harriet_newpgWith Justice Alito writing the last two opinions of the Term, I was overwhelmed by a sense of curiosity about what happened to Harriet Miers–President Bush’s first pick for Justice Alito’s seat.  Turns out that after she left the Administration she went back to her old law firm–here is her firm bio.  It’s interesting that the profile does not list “Nominated to be an Associate Justice of the Supreme Court” as one of her accomplishments (after all, how many other people can say that?)

In my draft article (almost done!), I note that Justice Fortas’s ethical problems made it much harder for presidents to appoint a close advisor to the Court without getting hit with the charge of cronyism.  The Miers nomination reinforced that understanding, though she had other issues.

0

Abe Fortas and the Chief Justiceship

120px-Abe_fortas_hand_in_airI’ve posted previously about how the attempted retirement of Chief Justice Warren in 1968 and the failed nomination of Justice Fortas as his replacement caused a significant change in how people think about what the appropriate relationship is between the Justices and politics.  After Fortas went to the Court in 1965, he helped draft the President’s 1966 State of the Union Address, sat in on White House meetings about Vietnam, and gave his input on a host of other topics that we would now consider completely improper.

My favorite anecdote is that when Warren announced his retirement, LBJ called Clark Clifford and Fortas to the White House to discuss who his successor should be.  In other words, Fortas was in the meeting to decide that Fortas should be nominated!  (Needless to say, Fortas was for picking Fortas.)

3

President Pro Tempore

As a follow-up to a prior post, I want to point out a constitutional oddity.  Article I states that the House of Representatives “shall choose their Speaker and other Officers” and that the Senate “shall choose their other officers, and also a President pro tempore.”  For much of our history, the Speaker of the House has been a strong political figure.  The President pro tempore of the Senate, by contrast, has never been important in the Senate.  Why did the office remain impotent, I wonder?

The Twenty Fifth Amendment also makes the President pro tempore (along with the Speaker) the officers who must receive communications regarding presidential disability. Now it is easy to see why you wouldn’t want the Vice-President to a responsible person (conflict-of-interest), but why not the Majority Leader?  By the 1960s, which is when the XXV Amendment was ratified, it was perfectly clear that the Majority Leader was the true leader of the Senate.  Worse still, the Majority Leader is still not in the line of presidential succession–the President Pro Tempore is.  It’s a weird setup.

0

President Fred Vinson

93px-Fred_m_vinsonFred Vinson is one of the more obscure Chief Justices and is widely seen as a mediocre member of the Court.  He was appointed by President Truman in 1946 (the last Chief Justice from the Democratic Party) and served until he died in 1953.  As Carlton Larson pointed out in this terrific piece a few years ago, Vinson would be viewed very differently if he had written Brown, which he almost surely would have he had not died when he did.  Vinson penned the opinions in Shelley v. Kramer, Swett v. Painter, and McLaurin v. Oklahoma striking down racial segregation, and there is no reason to think that he could not have in Brown (though whether it would have been unanimous is another question).

What I didn’t know until recently is that Truman really wanted Vinson (a former Congressman and Treasury Secretary) to succeed him as President.  He tried to talk Vinson into running in 1952, and with Truman’s backing Vinson would have been a formidable candidate for the Democratic nomination.  Vinson declined, though, partly for health reasons and partly because he felt that a Chief Justice should not reenter politics.

6

Quorum vs. Unanimous Consent

Here’s an obscure question that I’m wondering about.  The Constitution requires each House of Congress to have a majority for a quorum.  Now picture the following scene:

Senator X stands up in an empty chamber immediately after the Senate is gaveled into session.  She says to the Chair “I request unanimous consent that” something be done.  The Chair responds, “Without objection, so ordered.”  Action taken.

In that circumstance, isn’t the quorum rule being ignored?  Only two senators are there.  Is a quorum presumed unless someone objects and asks for a quorum call?  If so, that’s stretching the Constitution pretty far.  I suppose each chamber gets to decide what counts toward a quorum, as the House famously decided under Speaker “Czar” Reed that present members who refused to answer a quorum call should be counted, but should that extend to absent members?  Put another way, is the quorum rule an affirmative defense that some Senator must raise lest it be waived?

UPDATE:  A sharp-eyed reader points out that Tom Goldstein talked about this on Friday and said that a quorum is presumed.  (Thanks for telling me.)  The next question, then, is why is that constitutional?