Today in Supreme Court History: May 26, 1868

5/26/1868: Senate acquitted President Andrew Johnson and adjourned as court of impeachment. Chief Justice Chase presided over that trial. Johnson is one of four presidents that did not appoint any Supreme Court Justices. The others are William Henry Harrison, Zachary Taylor, and Jimmy Carter.

President Andrew Johnson

Comments

[Dan Schiavetta]

Montejo v. Louisiana, 556 U.S. 778 (decided May 26, 2009): statements made after defendant was appointed counsel admissible even though defendant not aware that counsel has been appointed; Miranda warnings offer sufficient protection against self-incrimination (overruling Michigan v. Jackson, 1986)

United States v. Salerno, 481 U.S. 739 (decided May 26, 1987): upholding Constitutionality of Bail Reform Act of 1984 which requires denial of bail if after a hearing the court determines that release would be a danger to the community (rejecting arguments that this would be impermissible punishment before a finding of guilt in violation of the "excessive bail" prohibition of the Eighth Amendment and that the only purpose of bail is to ensure presence at trial)

Kellogg Brown & Root Services v. United States, 575 U.S. 650 (decided May 26, 2015): qui tam ("private attorney general") action against contractors who allegedly falsely billed the government for logistical services in Iraq was time-barred; Wartime Suspension of Limitations Act applied only to criminal prosecutions, not civil actions

Camreta v. Greene, 563 U.S. 692 (decided May 26, 2011): refusing to entertain social worker's petition to review trial court finding that conducting a warrantless interview with child as to possible sexual abuse was a Fourth Amendment violation because even though the Court can sometimes entertain an appeal by a successful party (judgment had been in social worker's favor due to qualified immunity) the issue was moot; the child did not appeal her loss, had grown up and moved across the country

United States v. Classic, 313 U.S. 299 (decided May 26, 1941): Congress has power to criminalize misconduct in primary elections for Congress (thereby sustaining convictions of election commissioners who switched votes in favor of Hale Boggs) (I remember him -- this election started his long career. He disappeared in a plane crash in Alaska just before winning re-election in 1972. His daughter, Cokie Roberts, became a Beltway talking head.)

Quill Corp. v. North Dakota, 504 U.S. 298 (decided May 26, 1992): Dormant Commerce Clause prohibits a State from collecting sales or use taxes from out-of-state companies selling to its residents (overruled by South Dakota v. Wayfair, Inc., 2018)

Haywood v. Drown, 556 U.S. 729 (decided May 26, 2009): a State cannot close its courts to plenary 42 U.S.C. §1983 lawsuits (striking down New York statute requiring any lawsuit against correctional officers to be brought in the state's Court of Claims, where there is no jury trial, punitive damages, or injunctive relief)

Reagan v. Farmers' Loan and Trust Co., 154 U.S. 362 (decided May 26, 1894): federal suit against State railroad commissioners for actions undertaken in their official duties (setting rates) was not in violation of Eleventh Amendment because suit was not actually against the state (Texas) but the commissioners and the State statute could be read to allow suit in federal court

[John F. Carr]

_Camreta v. Greene_ gets officially scored as moot, but the Supreme Court vacated the part of the decision below ruling on the constitutional question so it counts as a win. The next time the social workers violated rights there would be no precedent to overcome qualified immunity.

[Dan Schiavetta]

True. Thanks!

[Dan Schiavetta]

P.S. Sorry for the formatting error as to bolding -- I didn't mean to give special prominence to the Hale Boggs case.

[David Nieporent]

United States v. Classic, 313 U.S. 299 (decided May 26, 1941): Congress has power to criminalize misconduct in primary elections for Congress (thereby sustaining convictions of election commissioners who switched votes in favor of Hale Boggs) (I remember him -- this election started his long career. He disappeared in a plane crash in Alaska just before winning re-election in 1972. His daughter, Cokie Roberts, became a Beltway talking head.)

And his son, Tommy Boggs, was one of the most prominent lobbyists in DC for decades, founding the firm Patton Boggs (which is now Squire Patton Boggs).

[Dan Schiavetta]

His son went to work in D.C. too? Wow, what a coincidence!

[Ridgeway]

I liked it better when it was Patton, Boggs and Blow

[Syd Henderson]

It took a bit of Congressional hijinx to keep him from appointing a Supreme Court Justice. It makes recent maneuvers look tame.

[Hugo S. Cunningham]

Indeed. Because Andrew Johnson was prohibited from appointing new justices, the Supreme Court shrank to seven members. Congress would authorize the next President Ulysses Grant to appoint two justices to bring the Court up to its current level of 9.

[Dan Schiavetta]

Carter -- sandwiched in between two periods of Republican dominance -- was the only President to serve a full term and not get a chance to appoint anyone to the Court. For 26 years (from the appointment of Marshall in 1967 to Ginsburg in 1993), Republican Presidents got to put in 10 Justices, so that by 1992 only one Democrat-appointed Justice (White) remained. We are still seeing the effects.

[David Nieporent]

First, I'm pretty sure it's only 9; are you counting Rehnquist twice, once as associate and once as chief? Also, it should be noted that of those nine, many of them were not particularly conservative.

[Dan Schiavetta]

Yes sorry I counted Rehnquist twice.

I think in every instance each was more conservative than the one they replaced. The only arguable exceptions were Harlan - Powell and Stewart - O’Connor.

[John F. Carr]

Regression to the mean? If you consider the court to have been especially liberal, random replacement makes it move to the right.

Also, in the modern era judges are vetted for ideological soundness more than they used to be. Before _Roe v. Wade_ you didn't have abortion as the so-called litmus test for a candidate.

[Syd Henderson]

When Eisenhower became president, all the Supreme Court Justices had been appointed by Democratic Presidents. That only lasted until October 1953, when Earl Warren succeeded Fred Vinson as Chief Justice. (It's possible one of those nine might have been a Republican.)

[Syd Henderson]

Yes, it was Harold Hitz Burton, who I know nothing else about.

[Rev. Arthur L. Kirkland]

" Also, it should be noted that of those nine, many of them were not particularly conservative. "

Republicans were not always a purified concentration of downscale, religious, bigoted, poorly educated gun fetishists. Not nearly.

[John F. Carr]

Is there any record of who Carter wanted to appoint?

[Dan Schiavetta]

That's an interesting question.

There was nobody on the Court at the time who seemed in danger of dying or wanting to retire. (Potter Stewart wanted to, but nobody knew this at the time and he wanted to wait for Republican President to appoint his successor.)

Carter did appoint a number of lower court judges and had more under consideration, and one imagines if a spot opened up it would be one of those.

[John F. Carr]

https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Jimmy_Carter

The appeals court judges whose names I recognize are Breyer, Wald, Reinhardt, and Ginsburg.