Today in Supreme Court History

Today in Supreme Court History: May 7, 1873

|The Volokh Conspiracy |

5/7/1873: Chief Justice Salmon P. Chase died. One month earlier, he dissented in the Slaughter-House Cases, and was the lone dissenter in Bradwell v. Illinois.

 

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  1. It would be a lot less morbid if these posts were the date the justice was swore in, rather than the date the justice died.

  2. ” he dissented in the Slaughter-House Cases, and was the lone dissenter in Bradwell v. Illinois.”

    Is the implication that he was correct in dissenting? Or merely that those were the last major cases he was involved in?

    Because he was wrong in both instances.

    1. The Slaughterhouse decision was a terrible repudiation of everything that both sides had debated in Congress and in public for months and years.

      1. “Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? All this and more must follow if the proposition of the plaintiffs in error be sound…. [T]he effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character….We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”

      2. The Slaughterhouse decision was the right decision but for all the wrong reasons. This was a public health issue, the butchers were dumping blood, guts, and everything else into the river UPSTREAM of the water inlet pipes — with Cholera and other stuff resulting as a consequence.

        1. Yeah, if they’d simply focused on *that,* and not on a disquisition about Privileges and Immunities being limited and restricted, I’m not sure the decision would even have been anthologized in all but the most specialized textbooks.

          1. The ultimate irony is that the state revoked the monopoly 11 years later…

        2. Well heck, ya got me there. I am so used to the sorry repudiation of P & I that I forget about the actual case. Yes, the actual decision about the slaughter houses was fine; dragging P & I in was wrong.

  3. Let’s get truly morbid — assuming that Ruth Bader Ginsburg dies, and an infection on top of ongoing chemo isn’t a good combination for anyone, let alone someone her age — what are the odds on Amy Coney Barrett being confirmed this year?

    I’ll tell you one thing — it’d put an end to all of this Wuhan Virus hysteria overnight. The left would suddenly re-discover the right to assemble — and would, in protest. The media would suddenly discover that there were things more worthy of their attention. Etc…

    Judge Barrett strikes me as a serious person whom I’d like to see on SCOTUS, but she’d also be a cure for the national plague.

    1. As I’ve mentioned here before, this is highly unlikely. Remember, one of the main stated reasons for denying a hearing to Merrick Garland, which McConnell explicitly stated on the floor of the Senate, is that the American people deserved a voice in the selection of the next Supreme Court Justice. Most Republican Senators expressed the same thought. That notion is impossible to walk back now, and even if McConnell lacks shame, there are likely not enough members of his caucus who are going to be comfortable answering the question: “Why did the American people deserve a voice in 2016 but not in 2020?” There is no amount of faulty historical analogies or procedural points that a Senator could use in defense of such a move that would not also be an admission that they don’t care whether the voters have a voice this time around.

      If you actually manage to find a Senator who will go on the record as saying: “I actually don’t think that the American people should have a voice in this decision even though I did say they should four years ago,” that would be absolutely remarkable.

      1. Mitch would have final confirmation vote on January 20 before noon with Justice Thomas present to swear her in if that is what it will take.

        1. Well that depends on if he keeps the Senate. If he doesn’t, he has until January 3rd. Assuming he does keep it but Trump loses bigly, how many Senators lack enough shame to actually go through with that? And would any self-respecting Judge actually accept an appointment under those conditions?

          1. The latter is an issue, but after watching Trump get Impeached for total bullshyte and Flynn framed by the FBI (and that’s essentially come out now), I would neither expect nor ask Mich to be any more civil than the Dems have been.

            You can’t expect the other side to observe the Marquess of Queensberry Rules while you don’t.

            1. This isn’t about being civil towards Dems. It’s about being civil towards Americans. He said their voice mattered. He can’t turn around and say it actually doesn’t anymore.

              1. Sure he can — Americans voted for a Republican Senate in both 2014 and 2018, QED….

                1. Lol. No. What about all the states that didn’t elect a Senator that year? They’re Americans too. He never said that he’s doing this because the voters in 2014 wanted him too. He said that the American people deserved a voice in picking the next Justice. They can’t walk it back.

                  1. Like “if you like your doctor, you can keep your doctor?
                    Or that your health insurance will cost *less*?

                    They can walk it back….

                    1. Doubt it. Huge difference between a promise gone wrong and saying American voters don’t actually matter.

          2. “how many Senators lack enough shame ”

            All of them.

            Shame and politicans are pretty exclusive terms.

      2. Potentially punishing the whole country with a Democratic Supreme Court justice seems a petty way to get back at Republicans for their parliamentary maneuvers in 2016.

        1. I don’t think Americans consider would consider not having to read even more self-indulgent concurrences as a punishment.

          1. They don’t have to read them.

            McConnall and most of the Senate Republicans are hacks and perhaps crooks. One thing they can give the country to compensate for their hackitude is Supreme Court justices who won’t invent new constitutional rights while abolishing rights which are already supposed to be there.

            To invoke the right of the people to a voice in how they’re governed is great, but how will it bolster that right to foist a living-constitutionalist on the country courtesy of a Democratic President?

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