Author: Gerard Magliocca


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.


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.)


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.


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.


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?


Thoughts on Noel Canning

I was pleased with the Court’s decision last week, though that just means that it came out the way that I would have decided it.  Here are a couple of observations going forward:

1.  All Noel Canning does is clarify the bargaining terms between the parties.  The Senate can now block all recess appointments by holding pro forma sessions.  A motion to hold that sort of session, though, can be filibustered.  Moreover, any Senator can turn a pro forma session into a real one by just showing up and insisting on being recognized by the chair.  Thus, a normal majority in the Senate cannot block recess appointments without cutting deals with the other party and with the President.

2.  The House can prevent the Senate from taking a recess by objecting.  This will only happen, though, if Congress is divided in its party loyalties.  While this is true now, that alignment is pretty rare.  It did not happen at all between 1933-1980, for example, though it did happen from 1981-1986 & 2001-2002 before recurring in 2011.  Still, that’s 12 years out of the last eighty or so.

3.  Somebody should write that Article about the President’s adjournment power in cases where the two Houses cannot agree on a recess.  Since the President has never exercised this authority, originalism reigns supreme!

We’ll see what Hobby Lobby has to offer in the morning.


Judge Posner and Anti-Abortion Protestors

Based on Judge Posner’s recent piece on, I think that the next time he is on a panel in a case involving a free speech claim by anti-abortion protestors their counsel should file a motion seeking his recusal.  Consider this passage discussing yesterday’s Supreme Court decision on buffer zones around abortion clinics:

Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

I submit that this calls into question whether Judge Posner could fairly adjudicate the First Amendment rights of these “nuts” who make a “negligible contribution.”



The Non-Delegation Doctrine

Today the Court granted certiorari in a case (U.S. Department of Transportation v. Association of American Railroads) that presents the question of whether a federal statute that delegates regulatory authority to Amtrak is constitutional.  The issue is whether Congress can so delegate to a private party (assuming that Amtrak is one), and the decision striking down the National Industrial Recovery Act on similar grounds in Schechter Poultry promises to get a lot of attention in the briefs.

I hope, though, that the parties will focus on the precedent of the Second Bank of the United States.  One of Andrew Jackson’s arguments against the constitutionality of the Bank was that it involved an unconstitutional delegation to a private entity (and the Bank, of course, was much more powerful than Amtrak).  Indeed, this was the best argument against the Bank (totally ignored by M’Culloch, by the way)) and the only one that stands up today.  To the extent that we think that the Bank was unconstitutional (a conclusion that is by no means obvious), the principle behind that must be that some delegations of regulatory power to a private entity are invalid.  My book on Jacksonian Democracy gets into the weeds on some of these issues, for those who are interested.

UPDATE:  I now see that I was somewhat unclear.  Clearly you can argue that because M’Culloch upheld the constitutionality of the Bank, then that means that a delegation to a private party can be valid.  My point is that those who are against the Amtrak delegation must deal with the Bank issue (perhaps by appealing to the court of history as rejecting the delegation to the Bank).


Alice Corp. v. CLS Bank

The cries and lamentations you hear are coming from patent attorneys and the Federal Circuit as they try to figure out what to with the Supreme Court’s latest pronouncement on the definition of an “abstract idea” in patent law.  Today the Court ruled unanimously that the patent claim at issue was too abstract to be patented, but the opinion offers little help on figuring out when that is the case.  Take a look at page 10:

In any event, we need not labor to delimit the precise contours of the “abstract ideas” category in this case.  It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here.  Both are squarely within the realm of “abstract ideas” as we have used that term.

While it is true that the Court did not need to do more to decide this case, they did need to  “labor” to clarify the law, which is the actual problem.  “Totality-of-the-circumstances” is not a great test for this area, and sadly there are now only three votes to say that business method patents are ineligible (down from four in Bilski).  Expect a lot more litigation on software patents, more divided opinions from the Federal Circuit, and another grant of certiorari in four or five years.


A Recent Supreme Court Tradition

Potter_Stewart_(1915_-_1985)In my draft article, I talk about the anti-partisan customs followed by the Justices.  One that I’ve posted about before is the practice that justices do not retire in a presidential election year.  This is a recent development, as they did retire in those years until Earl Warren’s ill-fated attempt to do so in 1968.

This led me to wonder when people started saying (or thinking) that Justices should not retire in a quadrennial year.  The answer is that this custom began with Potter Stewart.  Justice Stewart retired in 1981, and in an interview with Linda Greenhouse that summer he said he had thought of quitting in 1980 but decided that to do so would hurt the Court.  As far as I can tell, this was the first time that a Justice decided that this was a necessary norm and said so publicly.  Nobody was thinking about retiring in 1972 or 1976, so the absence of action in those years does not tell us much.  Since then, the Justices have followed Stewart’s example and rejected Warren’s.

One other thing–the convention of “no retirement in an election year” effectively precludes a Justice from being nominated for president or vice-president (as Charles Evans Hughes was and William O. Douglas wanted to be).  Nobody would tolerate a sitting Justice campaigning on the national–he or she would have to resign.  But then that would create an election year vacancy.