Today in Supreme Court History

Today in Supreme Court History: December 10, 1877


12/10/1877: Justice John Marshall Harlan I takes oath. (Updated: I had entered the wrong date for Harlan's Oath).

Justice John Marshall Harlan I

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  1. I would like to return to the language of the Eleventh Amendment, prohibiting lawsuits by citizens of another state. Hans should be challenged and reversed since it violates that language.

    The Eleventh Amendment itself was an attempt to defraud the out of state bondholders. Can an Amendment be void for illegality? It should be. Such a doctrine would also open the Free Exercise of religion clause for criminality. The scam is, pay us today, and you will be rewarded after your death. Best scam ever. Should a constitution suborn and immunize a scam?

    1. I think Brennan wrote something along the lines of, the 11th amendment only protects states from being sued from outside the state, and people are prevented from being sued inside the state because Chisholm was wrong. It's a common law, not a constitutional, protection.

      Therefore Congress can abrogate it for within the state, and the 14th amendment can abrogate it within the state. I think Prof. Baude said something similar (not that last part about abrogation, but similar reasoning to Brennan). That seems broadly correct to me, and would resolve most of the problems people have with it (I can't imagine a lawsuit regarding for example free exercise by someone outside the state against the state that wouldn't be covered under federal commerce clause jurisdiction).

      However, Ex Parte Young had different reasoning with a distinction between personal capacity and governmental capacity that opened a huge can of worms everyone is still dealing with. I suppose we could throw out everything and redo it, but precedent would caution otherwise.

      1. We have a new textualist on the Supreme Court, and the plain language of the Amendment. Hans should be revisited.

  2. On the Supreme Court's website, under the section "Justices 1789 to Present," Harlan is listed as taking the judicial oath on December 10th, 1877. According to the footnote at the bottom of the page, that date is taken directly from "the Minutes of the Court or from the original oath which are in the Curator's collection."

    Josh, perhaps you could share with your audience what source you are using for these dates, and why that source is to be believed, despite the official records saying otherwise.

    But seriously, posts like these really make me want to buy your book. What reason could I have to believe that it is anything but accurate....

    1. Today's Noble Prize for achievement in identifying error with respect to Today In Supreme Court History is awarded to QuantumBoxCat.

      Venue capacity issues have caused the Noble Prize Committee to relocate this year's Noble Prize recipients reception, from Capitol One Arena to FedEx Field.

    2. Nitpicking is in bad faith, and should be criminalized.

      1. Are you the same David Behar that was sued in Pennsylvania for malpractice?

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