Today in Supreme Court History: April 29, 1745

4/29/1745: Chief Justice Oliver Ellsworth was born.

Chief Justice Oliver Ellsworth

Comments

[Dan Schiavetta]

Niz-Chavez v. Garland, 593 U.S. --- (decided April 29, 2021): "notice to appear" served on people subject to deportation (and which stops the time accrued in this country) must contain all the information the person needs on a single form, not on various forms sent at various times (this is another example of Gorsuch's clear and informal writing style)

Thacker v. Tennessee Valley Authority, 587 U.S. --- (decided April 29, 2019): The TVA, owned by the federal government, by statute can sue and be sued, but retains some governmental immunity. Here the Court, construing the TVA statute, holds that the usual immunity for liability under the Federal Tort Claims Act for "discretionary functions" (decisions by officials, as opposed to negligence in how those decisions are carried out) does not apply to the TVA, and suit for damages due to failure to warn of a downed power line could proceed. (Sounds like negligence to me anyway!)

Williams-Yulee v. Florida Bar, 575 U.S. 433 (decided April 29, 2015): upholding against First Amendment attack state rule prohibiting candidates for judicial office from personally soliciting funds for their campaign; integrity of the judiciary is a "compelling state interest"; 5 - 4 decision (I suppose this would also prohibit Patreon, crowdfunding, bedroom webcams, etc.)

McBurney v. Young, 569 U.S. 221 (decided April 29, 2013): Virginia allows only its own citizens to request records under its Freedom of Information Act. This does not violate the Dormant Commerce Clause or the Privileges and Immunities Clause. (One plaintiff, from Rhode Island, was trying to find out why a court had waited so long to issue a decision on child support he was retroactively owed; another, from California, was trying to get real estate tax records for a client.)

Kansas v. Ventris, 556 U.S. 586 (decided April 29, 2009): confession obtained in violation of Miranda (statement to jailhouse informant) can be used to impeach if defendant decides to testify (this is why I never went into criminal law: it's great to free the innocent, but you make your money there by freeing the guilty)

Roell v. Withrow, 538 U.S. 580 (decided April 29, 2003): magistrate had authority to issue findings in §1983 case against prison doctors; though no explicit consent had been given, plaintiff had acquiesced in magistrate managing case and acting as judge at trial (my practice in federal court is to always consent; you don't want to piss off the judge by forcing him to manage and then try your case, particularly if it's a state law diversity case -- which is too mundane for those philosophers, who want to deal only with Great Constitutional Issues)

McLaughlin v. United States, 476 U.S. 16 (decided April 29, 1986): unloaded handgun is "dangerous weapon" under federal bank robbery statute

EEOC v. Federal Labor Relations Authority, 476 U.S. 19 (decided April 29, 1986): Here we have one federal agency suing another, the EEOC seeking review of a FLRA ruling requiring the EEOC to accede to its union's request for restrictions on contracting out work. The Court holds that the EEOC can't raise arguments not made before the FLRA. Which is the plain language of 5 U.S.C. §7123(c).

Procunier v. Martinez, 416 U.S. 396 (decided April 29, 1974): striking down California prison rules allowing censorship of mail without procedural safeguards and prohibiting legal interviews with law students and paralegals (overruled as to mail censorship by Thornburgh v. Abbott, 1989)

Ball v. James, 451 U.S. 355 (decided April 29, 1981): one-person, one-vote principle not violated by restricting voting for directors of agricultural improvement district to landowners and weighting votes by acreage owned

[Mr. Bumble]

Yale Law School plays hide the portrait with Justice Thomas portrait funded by Harlan Crow.
https://freebeacon.com/campus/yale-law-school-accepted-a-donation-for-clarence-thomass-portrait-five-years-later-the-painting-is-nowhere-to-be-seen/

[F.D. Wolf]

Ellsworth was the nation's third Chief Justice, succeeding John Rutledge, who had been given a recess appointment by President Washington, but whose formal nomination had been rejected by the Senate. Alexander Hamilton declined the position. Thomas Jefferson would have been a logical choice, but the Hamiltonians who had Washington's ear would not hear of it. They could not, however, stop him from offering the position to his old friend Patrick Henry, but he too declined.

Finally, without consulting him, Washington nominated Associate Justice William Cushing. Cushing was not a particularly good jurist, but had a talent, peculiar for a judge, of managing to keep his head down, not take stands, and not offend anyone. This was exemplified by his being the only royal judge in Massachusetts to retain his position after the independence of the United States. Cushing was confirmed by the Senate on January 27, 1796, receiving his commission that same day. He returned it on February 5, stating that he preferred to remain in his position of Associate Justice. This is a matter of small controversy, as some claim Cushing did indeed become Chief Justice, effectively resigned nine days later, and would have had to be re-appointed and re-confirmed to his prior position. Regardless, Cushing continued his service as an associate justice.

Finally, Washington nominated Ellsworth, who was confirmed 21-1 by the Senate. Ellsworth had been elected from Connecticut as an inaugural member of the U.S. Senate and quickly became its de facto leader. (President John Adams would later blame the absence of Ellsworth for his problems with the Senate.) In 1799, President Adams sent Ellsworth to France to lead the negotiations to end the "Quasi-War" naval conflict with France that was threatening to break into a full-fledged war between the countries. While in France, though managing to secure an agreement with Napoleon, Ellsworth became extremely ill, forcing him to tender his resignation from the Court.

[The Margrave of Azilia]

When was the last the time the President offered someone a position on the Supreme Court and the person said, "no thanks"?

[Dan Schiavetta]

The Court didn't do much in those days. Their first two terms, they didn't hear a single argument. The first C.J., John Jay, quit because he was bored and had better things to do with his time.

[F.D. Wolf]

As captcrisis note, the early Supreme Court was not regarded as a particularly powerful or prestigious body. Six men (not counting Associate Justice Cushing's nomination for Chief Justice) have been nominated to the Court and confirmed by the Senate, yet declined to serve, the last being Roscoe Conkling, nominated by President Chester Arthur in 1882.

The cloistered life of a Supreme Court justice is not the dream of everybody. Abe Fortas initially declined a nomination because it would represent a steep decline in his income, though he, of course, eventually relented. The last individual I am aware of to decline a nomination was prominent attorney Samuel J, Elder, who was offered the position by President Taft. It is rumored that President Kennedy offered the position to Rep. Wilbur Mills, who served in the House from 1939 to 1977 and as Chairman of the Ways and Means Committee from 1958 to 1974; he is also credited as the architect of Medicare and Medicaid.

I imagine there may have been a few additional informal offers and declinations over the years.

[Dan Schiavetta]

Conkling, a powerful political boss, declined because it was obvious that Arthur, his erstwhile protegee, wanted him on the Court to get rid of him.

[The Margrave of Azilia]

Let’s also guess at another factor – the Court’s former circuit-riding duties. The roads (except the railways when they came) were often bad and a real pain to travel on constantly. The life was the opposite of “cloistered” and many of the most important cases were heard while “riding circuit.”

Think of Marshall’s rulings in the Burr trial, Bushrod Washington’s enumeration of privileges and immunities, Taney’s ruling in the Merryman case…all while circuit-riding.

There’s a case to be made that Justices today are lazy and don’t get out enough.

[The Margrave of Azilia]

Why is Ward Hunt famous today (to the extent he’s famous at all)? Because he presided at Susan B. Anthony’s trial.

And Justice Grier's fame is a combination of his Dred Scott antics and his presiding at the Hanway trial.

[not guilty]

President Nixon initially offered Senator Howard Baker the nomination that went to William Rehnquist. https://apnews.com/article/b2dac4fa857b58e4df36c617bf3472ab

[F.D. Wolf]

Interesting. Thank you.

[Syd Henderson]

William Howard Taft was offered a position by Theodore Roosevelt and declined since he wanted to stay as governor of the Philippines and later Secretary of War. Also, his wife was pressuring him to become President. When Harding asked him if he would accept a court appointment, Taft said he would only accept the Chief Justice position (partly because he had appointed several of.the Justices).

There probably are later examples. Taft is the one I remember.

[Dan Schiavetta]

Ironically, Taft was probably happier as C.J. than in any other of his (many) jobs.

[The Margrave of Azilia]

"I love judges, and I love courts. They are my ideals, that typify on earth what we shall meet hereafter in heaven under a just God."

/cited in Jonathan Lurie, William Howard Taft: The Travails of a Progressive Conservative (New York: Cambridge University Press, 2012), p. 17

[Alpheus W Drinkwater]

Every time I see the name Oliver Ellsworth's name in print, Elvis Costello's "Oliver's Army" starts playing in my head. "Oliver Ellsworth's here today..."

[Dan Schiavetta]

They probably thought that as to the other two branches it was a lost cause.