Author: Gerard Magliocca

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Recent Articles of Note

Now that I’ve finished drafting my latest paper, I’m going through the stack of articles that I’ve wanted to read for some time.  I want to make two summer reading suggestions.

The first is Justin Driver’s article on “Supremacies and the Southern Manifesto.”  This is is the first comprehensive look at the Manifesto (made by Southern members of Congress in response to Brown) and contains lots of eye-opening observations about both the segregationist perspective and the response.  It’s well worth your time.

The other is Erin Delaney’s paper on “Judiciary Rising:  Constitutional Change in the United Kingdom.”  The British Constitution is a special interest of mine, and her article does a great job analyzing the changes that have occurred since Tony Blair become Prime Minister in 1997, including a new Supreme Court and regional parliaments.

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Wooden Statutory Interpretation

Critics of the D.C. Circuit’s panel decision in Halbig v. Burwell are condemning the decision for its wooden interpretation of the Affordable Care Act.  This got me to wondering how and when that phrase entered the lexicon.

The first reference I can find in the United States comes from the Indiana Supreme Court in 1906.  State v. Lowry stated that courts should “avoid a wooden interpretation of the words and become able to apprehend the spirit of the statute.”  Perhaps there was some earlier British usage (the phrase certainly sounds British), but I don’t know.

This raises a related point that has always puzzled me.  Lawyers of a certain age like to say when giving credit to someone that they took “the laboring oar” on a case or a project.  I had never heard anyway say this until I went into practice, and I haven’t heard it since I left practice.  Where does that one come from?

 

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Ending Supreme Court Life Tenure

There are many critics of the Constitution’s guarantee of life tenure for federal judges and especially for the Justices.  They point out that most nations with an independent judiciary give their judges long but defined terms.  So do most of our states.  The current system, by contrast, allows the Justices to time their retirements in a political way, subject only to the unwritten rule that they not retire in a presidential election year.  Moreover, life tenure gives both parties a strong incentive to nominate young judges who will be on the Court forever.

How can this be changed?  Short of a constitutional amendment (which will not happen), the only realistic answer is that a norm would have to emerge among the Justices that they should retire after a certain term.  (There is a complex proposal for a statute that would impose term limits on the Justices while preserving their life tenure as judges, but that isn’t going anywhere either.)  After all, George Washington could have won a third term in 1796, but he chose not to and thereby established a powerful custom for a two-term limit.

Why would the Justices adopt such a practice?  I can think of one reason.  The next time different parties control the Senate and the White House, getting a Justice confirmed is going to be really challenging.  Imagine in that situation that a nominee sits before the Senate Judiciary Committee and says “I pledge to the American People that I will retire in ten years.”  That might allow the nominee to be confirmed, and it would be most difficult for that Justice to repudiate that pledge ten years later.   Once that precedent is established, the next nominee would find it hard not to make a similar pledge.

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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.

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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!

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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?

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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.

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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.

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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.)