The Volokh Conspiracy
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Today in Supreme Court History: July 7, 1893
7/7/1893: Justice Samuel Blatchford dies.
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Commodity Futures Trading Comm’n (CFTC) v. Schor, 478 U.S. 833 (decided July 7, 1986): CFTC, though not an Article III court, can entertain state law counterclaims; petitioner had alleged brokerage’s breach of commodity futures rules to its detriment (“you broke the rules!”) but brokerage alleged falsification of balance on file due to rules violation (“no, you broke the rules!”)
Bowsher v. Synar, 478 U.S. 714 (decided July 7, 1986): separation of powers violated by Congressional agency official whose deficit reductions the President was bound to follow (this decision basically invalidated the Gramm-Rudman-Hollings Act, an attempt to control the Reagan-era deficit explosion) (a cartoon at the time showed an overweight Congressman walking on a log to cross a river and then the log went “poof!”)
University of Tennessee v. Elliott, 478 U.S. 788 (decided July 7, 1986): District Court evaluating racial wrongful termination claim not bound by ALJ determination of no racial intent (not a state court judgment so 28 U.S.C. §1738, requiring federal court to give “full faith and credit”, does not apply)
Bethel School District v. Fraser, 478 U.S. 675 (decided July 7, 1986): First Amendment did not protect smartass student’s telling of dirty jokes at school assembly (or “Ass – sembly” — cue Beavis & Butthead laugh huh-huh huh-huh)
Merrell Dow Pharm. v. Thompson, 478 U.S. 804 (decided July 7, 1986): violation of FDA guidelines did not create federal law issue (esp. since Congress did not provide for a private right of action) and so no federal court jurisdiction over case alleging birth defects due to misbranded drug
Arcara v. Cloud Books, Inc., 478 U.S. 697 (decided July 7, 1986): fact that premises used for soliciting prostitution also sold (adult) books did not create First Amendment issue when premises (signed as a bookstore) was closed by local police
Sam Fox Publishing Co. v. United States, 364 U.S. 801 (decided July 7, 1960): can’t intervene as of right (FRCP 24) to change a consent decree to which one is not bound (music publisher objected to so-ordered agreement between other publishers and ASCAP, an association of songwriters)
O’Brien v. Brown, 409 U.S. 1 (decided July 7, 1972): during 1972 Democratic Convention, staying Court of Appeals judgment that Credentials Committee should not have unseated delegates (suit had been brought in District Court just four days before!) (re: that convention, see Hunter S. Thompson’s fascinating account in “Fear and Loathing on the Campaign Trail” of Humphrey’s attempt to game the rules so as to deny the nomination to McGovern, and how this was prevented by McGovern’s forces deliberately losing a vote on a point of order) (I remember Walter Cronkite on TV declaring that McGovern’s nomination was now in danger, then the cut to McGovern headquarters and the correspondent saying, “I don’t mean to disagree with you Walter — but why are all these kids cheering?”) (Humphrey’s clueless aides were also jubilant, but Humphrey soberly said, “No, they pulled that deliberately”)
One of the things McGovern had going for him at that convention was that his aides knew the rules backward and forward, since he had a big say in writing them. Didn’t help them after the nomination. My first time voting for a ticket of doom.
The Credentials Committee had a lot of activity during that convention. Some of it actually went against McGovern, who tried to unseat “old Democrat” (i.e., racist) delegates from a southern state who had been validly selected; in O’Brien v. Brown he wanted a winner-take-all award of delegates from California and was defeated on that also.
Thompson’s book is fascinating. In those days conventions were newsworthy in the “horse race” sense. (I still remember Frank W. King, reporting from Ohio, passing and passing, to loud boos in the convention hall, until McGovern went over the top with the necessary 1450 delegates.)
Nowadays, everything is settled by the time the delegates show up to party. But there is substance going on too. Thompson mentions the various “working groups”, education sessions, at that convention. It might have been a doomed candidacy, but there was a great deal of intelligent discussion between well-informed, high achieving people (most of them young and destined to have important careers). The mainstream media, which either is unable or unwilling to deal with substance, now tunes the conventions out. Fortunately with C-Span we can get gavel-to-gavel coverage. Watching these would give curious and well-meaning Americans a sense of party identity, and give them more of an incentive to work in politics, which would be good.
BTW, I still have my crumbling, 32-page “McGovern Encyclopedia” which discusses dozens of issues. It was widely derided as a radical document (and “unwise” — a good candidate never lets himself get pinned down like that!). Much of it is now the law.
Blatchford was the first individual to serve at all three levels of the federal judiciary, as a district court judge, a circuit court judge, and a Supreme Court justice. I believe that only Charles Evans Whittaker and Sonia Sotomayor are the only two others.
Notably, whereas Blatchford (Johnson, Hayes, and Arthur) and Sotomayor (G.H.W. Bush, Clinton, and Obama) were each appointed to their various judgeships by three different Presidents, Whittaker was appointed to all three positions by President Eisenhower.
I’ve appeared before Sotomayor in both District Court and Second Circuit. (I’ll never get to the Supreme Court of course!)
That is pretty neat.
Thanks!
Both cases involved insurance policies. In the District Court it was a diversity case and she hated dealing with it (most federal judges don’t like mucking around in state law). In the Second Circuit my adversary had somehow grafted a federal issue onto his claim. Sitting in the middle of the high three-judge bench, she beamed justice and benevolence.