Supreme Court

Published: The Unconstitutionality of Justice Black


My latest article was just published in the Texas Law Review, and it is called "The Unconstitutionality of Justice Black." I originally gave it the accurate but completely uninteresting title "Ex Parte Levitt," the name of the too-widely-forgotten case that inspired the article.

The article is about the constitutional controversy over the appointment of Justice Black. The day that Black was sworn in to the Supreme Court in 1937, an apparent crank tried to orally argue that Black was an unconstitutional usurper. The Court dismissed the case on procedural grounds.

But it turns out that the crank was correct, and might not really have been a crank. Justice Black was unconstitutionally appointed, and while the suit might have had some procedural problems, they weren't exactly the problems that the Court thought they were.

The piece also discusses the aftermath of the litigation. As you may know, Justice Black sat on the bench for many decades. But during all that time, the Court never actually ruled on the lawfulness of Justice Black's appointment. Instead, after a while everybody just took it for granted anyway.

As I've blogged before here, I'm generally a fan of Justice Black's work, so I feel a little sheepish about publishing the piece. But I've become convinced that his appointment was unconstitutional. You can read the whole thing (only 30 pages) if you want to see why.

[Cross-posted from my new other blog—Summary, Judgment]

NEXT: Has the President been impeached? The Supreme Court may have to decide

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  1. I’ve not gotten through the full paper yet, but it’s no surprise to me that FDR really didn’t care about the constitutionality of his action, and after making some pat assurances that it was all okay, and did what he wanted to do anyway.

    1. The Supreme Court backed him up. Not sure when the court packing fiasco happened, but it was probably related.

      1. It was after the “switch in time to save 9”.

    2. Still raging at the guy who saved us from socialism.

      What unconstitutional actions did FDR take?

      1. What is it about socialism that we need to be saved from?

        1. Do you think I’m a socialist? I’m a liberal. And if you cant see the difference you are a silly partisan.

          The workers reaction to the Great Depression? There was real chance of a socialist revolution till FDR took the pressure off.

          Don’t like revolutions. Don’t like generally putting the means of production into the hands of the workers because it never stays their long.

          1. I will acknowledge that I permitted myself some snark after hearing so many people in FDR’s party go from “how dare you call us socialists?” to “what’s wrong with socialism?”

            I was wondering if there were any New Deal/ADA/Hubert Humphrey type liberals left. Will they still be able to save us from socialism?

            1. I’d argue the problem is the rights shifting definition of socialism to from time to time include Medicare, social security, health insurance, regulations generally, taxes, or whatever they need at their partisan moment.

              Check out the Freedoms speech. Not much has changed in the Dems since then.

            2. No, they won’t be able to save us from socialism because thanks to gerrymandered House seats, the electoral college, and the two senator per state rule, it is impossible for them to acquire any real political power.

              Someone needs to remind our GOP overlords that those who make peaceful change impossible often make violent change inevitable.

  2. This has a tangential connection with a point I was worrying about on another thread – the nomination and confirmation of an Appeals Court judge before a vacancy has arisen.

    The fuss with Black was about appointment, not nomination or confirmation, so it does look like there’s no problem with the President nominating and the Senate confirming judges for non existent vacancies.

  3. It seems to me that the 1937 act didn’t create a new office for either Justice, but rather bifurcated all Supreme Court seats into an active and standby office.

    So when Black took his seat, he took the 1789 seat, and when he retired he took the standby portion of that office.

    Likewise the preceding Justice didn’t gain a new office, he merely dropped his claim on the active one while retaining his standby one.

    Now that itself might have required re-confirmation by the Senate the first time, to carry over the existing Justices into their new additional offices, even though Black was originally seated into a bifurcated office (active in the court, or standby in retirement). But if all it takes is a Senate vote then isn’t the Senate passing a bill that does the same thing also sufficient?

    1. The Act to provide for retirement of Justices of the Supreme Court of 1937 set no limit on the number of Justices who might be retired from active duty at any given moment. There was a pairing aspect to the court packing bill Roosevelt was promoting around the same time, might you have been thinking of that?

    2. Initially, the lower federal courts were supplied with judges by sending the SC Justices circuit-riding. So appointment and confirmation as a Justice was also appointment and confirmation to the lower courts. Retirement did not require re-confirmation of that included role.

      It did require paying two salaries instead of one, but Senate confirmation has always been about fitness for the powers of the office, not the money for it. The House has the primary responsibility for the budget, and it follows the usual legislative process, not the confirmation process.

  4. #BlackLivesMatter
    No Black is Unconstitutional!

  5. If he sat on the court for decades, and his colleagues accepted him as legitimate, his appointment was constitutional.

    This sort of thing is the elevation of form over substance at an absurd level.

    1. If he took power in the equivalent of a coup, we may have to recognize him de facto while avoiding such coups in the future.

      “Go, and sin no more.”

      1. The law isn’t a religion, and there’s no sin here.

        Law isn’t a brooding omnipresence in the sky, as one of our greatest Supreme Court justices said. It’s formed by custom and precedent and common law iteration.

        So if you have a situation where the Court, which had the power to speak up if they felt Black was not properly seated on the Court, didn’t speak up, that means, by any real definition of the law, his appointment was legal.

        1. Holmes was an *eloquent* judge, in that he could state his position concisely and memorably without the judicial bureaucratese that’s so popular now.

          Sometimes he turned his eloquence to good purposes, sometimes bad.

          So when he employed witty sayings in order to put the mark of his atheistic legal positivism in the law, I’d put that in the “bad” category.

          Of course it’s wrong (or sinful or whatever) to put up with a coup d’etat, but what’s done cannot be undone. But it should serve as a warning not a precedent.

          Congresscritters have so many perks that we could at least hold the line at creating new or more-lucrative jobs and appointing sitting Congresspersons to those jobs in violation of the Constitution.

          1. Was it a display of Holmes’ wit or something far less benign and not at all amusing when he declared, “Three generations of imbeciles is enough.” in that fraud upon the court that was Buck v. Bell?

        2. The court probably had institutional reasons not to speak up that had nothing to do with the merits.

        3. This is just silly. Illegal or unconstitutional things happen all the time without anyone “speaking up.”

          1. It isn’t whether “anyone” speaks up. It’s whether the people who actually had the power to rule him off spoke up.

            1. And . . . . that also happens all the time, but even much more so.

  6. I find the argument that Levitt has standing as a member of the Supreme Court bar to be very weak. Sure, a case or controversy could arise in which Levite’s professional standing could depend on Justice Black’s vote. But then again, it might not. Why not wait and see if it does? How can the mere possibility that a person might someday have a future case or controversy – even if the likelihood of its happening someday is somewhat greater than that of a typical citizen – translate into Article III standing today?

    The cases speak of “imminent” danger as an alternative. Can it really be said that a bar officer who might someday be disciplined for some future infraction and whose discipline might someday depend on the vote of a particular justice is really in imminent danger of concrete harm from that justice?

    The danger here seems about as speculative as it gets. If doesn’t seem much less speculative than a general citizen whose claim to standing is that one of Justice Black’s future votes on an unknown future judicial case might someday injure him.

    1. Read the original article – he accounts for your concern.

      ALWAYS follow the link.

      1. I read it before I wrote my previous comment.

        He merely argues that the Levitt decision was wrong because a member of the Supreme Court bar is differently situated from an ordinary citizen, and has a more direct interest in what the Supreme Court does than an ordinary citizen. The argument, as I understand it, that a Supreme Court bar member has a closer nexus to the issue than an ordinary citizen, so the reasoning of the Levitt decision shouldn’t really apply.

        While that may be true, it doesn’t mean Levitt had standing. The fact remains that Levitt wasn’t injured by Black’s appointment In any concrete personal way.

        Standing doesn’t yet work like interstate commerce. While something merely need have a nexus to interstate commerce for federal courts to have jurisdiction, you have to have an actual injury-in-fact to have standing, not just a nexus to an injury.

        1. In other words, negating the Levitt decision doesn’t give Levitt standing. Professor Baude’s error was to confuse necessity and sufficiency. While having a greater interest then a member of the general public is a necessary condition for standing, it is not a sufficient condition. That’s the issue.

          Confusing necessity and sufficiency is a very common mistake lawyers make. When a court opinion says “plaintiff did not meet condition X, therefore his case fails,” that doesn’t mean a plaintiff who meets condition X automatically succeeds. There might be a condition Y that the court didn’t even bother to discuss because X seemed obvious and was a short and simple way to dispose of the case.

          This situation is particularly likely in a very short opinion disposing of a case very simply, which Levitt clearly was.

  7. This reminds me of the indisputable fact that the 14th amendment was never ratified by the States in accordance with the Constitution.

  8. It is a very nice article, but the argument falls down, I think, on Article 1, Section 6, Clause 2. I have no problem with the Emoluments Clause. The intent of the Constitution is that legislators may not increase the pay of offices in order then to occupy them. The pay of Justices was not increased while Black was a Senator – the conditions under which it was payable was merely extended.

    Article 1(6)(2) does not prevent the appointment of a legislator to an office, but the creation of an office. There is no constitutional limit to the number of Supreme Court justices; and by passing the 1938 Act Congress Authorized the appointment of as many justices as was necessary to allow 9 associate justices actually to sit. Black’s appointment to the office of justice was hence consistent with Article 1(6)(2).

    1. Sorry for the fat-fingered errors – I mean the 1937 Act…

      1. I think Baude has shown, or may have shown, that Roosevelt did pack the court after all, and none of us noticed, except the two lawyers who objected. The history books may need to be re-written.

        This is relevant to more current discussions of court-packing, or threat of same, as a way congress can put pressure on the current conservative majoity on the court.

  9. In Justice Black’s long career, there must have been many 5-4 decisions reversing the court below where Justice Black was in the majority. The losing party in any one of these decisions would have had clear standing to challenge Black’s appointment, because without Black’s vote the vote would become a 4-4 tie and the outcome would be to let the decision below stand without setting a precedent.

    Why didn’t anyone with clear standing, in all the subsequent years, raise these challenges?

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