Today in Supreme Court History: August 2, 1923

8/2/1923: President Calvin Coolidge's Inauguration. He would appoint Justice Harlan Fiske Stone to the Supreme Court.

President Calvin Coolidge

 

Comments

[Mr. Bumble]

Today's movie review will be "Mr. (Jack) Smith Goes to Washington to Indict a Former President".

[BravoCharlieDelta]

June 7: FBI releases documents to Congress alleging the Bidens took a $10M bribe from Burisma.

June 8: Jack Smith indicts Trump in Mar-a-Lago docs case.

July 26: Hunter Biden goes to court and rejects sweetheart plea deal after it was revealed DOJ tried to give him blanket immunity from future prosecutions.

July 27: Jack Smith adds more charges for Trump in the Mar-a-Lago case.

July 31: Hunter Biden’s former business partner testifies to Congress that Joe Biden was on over 20 calls with his son’s business partners and that Burisma execs pressured them to fire the prosecutor

August 1: Jack Smith indicts Trump again for January 6.

That’s weird.

h/t https://twitter.com/greg_price11/status/1686492127042113536

[Drewski]

Just yesterday you praised Cap for not mentioning Trump in his movie review. Hypocrite.

[Mr. Bumble]

Aren't we all?

[Krychek_2]

Nice to see Jack Smith is doing his job. For those who seem to think Hunter Biden is somehow relevant, get back to us when he sends a mob to the Capitol to try to overturn a democratic election.

[Dr. Ed 2]

Seven months of BLM Burning, Looting, & Murdering with impunity apparently doesn't count in the Banana Republic the US has become.

Biden is as bad as Putin...

[Krychek_2]

And how exactly is "seven months of BLM burning, looting and murdering" Biden's doing? If memory serves he wasn't even president at the time. George Floyd was killed in May 2020 and Biden didn't take office until the following January.

[Dr. Ed 2]

Both Biden and Putin used showtrials to toss their opponents into prison.

[Krychek_2]

I suppose it's more comforting for you to believe that than to believe that you tossed your lot in with a professional grifter who tried to steal an election by sending a mob to the Capitol.

[David Nieporent]

What show trial was there of any of Biden's opponents?

[Dr. Ed 2]

Mr. (JackARSE) Smith goes to Washington to commit sedition....

[Noscitur a sociis]

What

[Dan Schiavetta]

Levy v. Parker, 396 U.S. 1204 (decided August 2, 1969): Douglas grants bail to Levy, an army doctor, convicted of Military Code provision (“disorder and neglect to the prejudice of the discipline of the armed forces”) which the Court had just observed, without deciding, might be unconstitutionally vague (O’Callahan v. Parker) (Douglas notes that Brennan had already denied bail -- so why did Douglas have jurisdiction?); Levy had publicly urged black soldiers to refuse to fight in Vietnam; suit dragged on into 1974, with the Court finally holding that the provision was not vague and superseded Levy’s First Amendment rights, 417 U.S. 733.

Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U.S. 1301 (decided August 2, 1991): Scalia grants stay of Circuit Court’s striking down Texas statute as being preempted by ERISA; Scalia notes that requirement that ERISA-related suits be brought in federal courts might be in conflict with Eleventh Amendment; I don’t know what happened to this suit, but related suit resulted in denial of cert, 502 U.S. 981

Pacific Union Conference of Seventh-Day Adventists v. Marshall, 434 U.S. 1305 (decided August 2, 1977): Rehnquist denies stay of discovery order based on lack of jurisdiction (it’s not an appealable order); suit was by lay church employees alleging sex discrimination in pay in violation of Fair Labor Standards Act and church objected on First Amendment grounds to producing payroll records (case was settled before trial in October 1977)

[Frank Drackman]

Hmm, "Captain", I don't remember any of those movies

[Dr. Ed 2]

I don't know the UCMJ but you'd think Levy could have charged with something like subversion or even treason.

[David Nieporent]

You don't know anything about anything. That's never stopped you before, just like it didn't here.

Hint: treason is defined in the constitution, and this isn't it.

[Frank Drackman]

Gee David Never-Potent, that wasn’t kind OR gentle, do I tell patients before surgery that they won’t be “Sleeping” but in a drug induced coma??? It’s like if you told a dude who wanted “Gender Reassignment Surgery” you were gonna chop his dick and balls off, who wants to get their dick and balls chopped off? There are alot of crimes that aren’t defined in the constitution,
Idiot.

back to kinder/gentler Frank

[Magister]

Treason is a crime defined in the US Constitution: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." Not sure that subversion is a specific crime; prejudicial to good order and discipline in Article 134 of the Uniform Code of Military Justice appears to me the same thing.

[Frank Drackman]

18 U.S.C. § 2381, Dr. Levy did serve a few years in Military Prison, he's lucky he didn't have me for a cellmate (nothing sinister, you ever been in a room with 2 Jewish Doctors??)

[Magister]

I've heard "two Jews, three opinions" but I guess it would be "two Jewish doctors, five opinions" since each doctor also supplies a second opinion.

But who was your cellmate, then?

[Dilan Esper]

(Douglas notes that Brennan had already denied bail — so why did Douglas have jurisdiction?)

Under SCOTUS rules at the time, if your shadow docket application was denied by the Circuit Justice, you could try again with another justice. That's the same thing Douglas was doing in Schlesinger v. Holtzman- the plaintiffs there had already lost with Justice Marshall.

[Dan Schiavetta]

thanks!

(seemed like a strange rule)

[Dilan Esper]

It's not so strange when you consider that the practice back then was for single justices to decide shadow docket applications in chambers rather than issuing a temporary administrative stay and referring the matter to the full court (the practice now). The 2 justice rule was to remedy freelancing; the justice was supposed to be intuiting what the full court would want done and not simply applying their own judicial philosophy.

[Dan Schiavetta]

today’s movie review: A Man for All Seasons, 1966

This was the movie that this good Catholic boy picked as the first one to take a girl to. We were driven there by my father. She was Catholic too and met my parents’ approval. I was 14 and had difficulty hiding my erections (the fact that loose pants were difficult to find in those days didn’t help). In the darkened theater I both badly wanted to touch her and was terrified to try. Watching this movie would douse anyone’s sexual desire, which I suppose was fortunate.

Paul Scofield as Thomas More, great actor who won an Oscar for this (also he was the best thing in Quiz Show). Robert Shaw as the lusty Henry VIII. Nigel Davenport as the person I suppose we could most identify with, the Duke of Norfolk, who just wants his friend More to go along with Henry’s request to annul his marriage with Catherine of Aragon (“look I’m no scholar, I don’t know if the marriage was legal or not!”). Leo McKern as the amoral Thomas Cromwell.

When I was working as an intern for my father’s friend, a judge (he loved my work but couldn’t help me because I didn’t want to register as a Republican), his law secretary and I were talking about a RICO case we had. He said about RICO, “It's too much. It reminds me of what Thomas More said about overreach.” More’s famous “When the laws are flat, and the Devil comes for you, where will you hide?” is delivered here by Scofield in a raised voice, I suppose for dramatic reasons, but I think would have been more effective in an even tone.

The story of Henry and Catherine and Anne has been told many times and very well (e.g., Anne of the Thousand Days, the wonderful BBC series with Keith Michell). But things are left out or emphasized wrong. For one thing, More can hardly be held up as an exemplar of freedom of conscience. As Cardinal George put it some years ago, “We have to be careful how we use More. He was not a tolerant person. He put people to death [pre-1535 Protestants] because they would not accept the Catholic faith.”

On the same squishy pedestal is Thomas Becket (as in Becket, 1964, with Richard Burton and Peter O’Toole). Becket’s fight with Henry II was not about religious freedom but the right of the Church to discipline its sexually abusing clergy internally instead of subjecting them to secular justice. Most people today, including even most Catholic bishops, would take Henry’s side on that issue.

Another thing missing from depictions of the Henry (VIII, not II) story is what was happening in Italy. This was not a power grab by a lecherous English king. It was a failure of nerve by the Pope, Clement VII, who would not issue what in those days would have been a routine annulment because due to his failure at playing power politics he was under house arrest by the Holy Roman Emperor, who happened to be Catherine’s nephew and of course was taking her side in contesting the annulment. Henry was sincerely concerned about producing a male heir (with modern medicine those two stillborn sons would have survived) and was coming to believe that marrying his brother’s widow had resulted in a curse. Not that he wasn’t a cruel and horrible person, but he had a point there. With him marrying Anne, the Pope would have excommunicated him and possibly but England under interdict, which would be disastrous for England. His only alternative was to break away and form a separate Anglican church.

One could say that it was inevitable, that England for centuries had chafed under Papal control. But what sticks in my mind is the behavior of Catherine. As the ambassador character put it in the Keith Michell series, looking at Catherine on her deathbed: “Look what happened. The Catholic Church torn apart, Europe in turmoil, thousands of English tortured and killed, monasteries dissolved . . . And it was such a little thing! All she had to do was deny she was the legally married Queen of England when in fact she was. But she would not say it. She would not say the words.”

[Dr. Ed 2]

"the right of the Church to discipline its sexually abusing clergy internally instead of subjecting them to secular justice. Most people today, including even most Catholic bishops, would take Henry’s side on that issue."

I somehow suspect that church discipline was a little bit harsher back then -- today the church executing clergy would be considered murder...

[Dan Schiavetta]

Then as now, the Church was secretive, so it’s unknown what it did with such cases. If it was like the 20th century Church, as we know, the priests would have either been given a slap on the wrist or transferred to another parish.

Clerical criminality was a real problem then, because there were a huge number of priests and monks (around 20,000, in a population then of around 2 million, or 1 in 100 people). Henry didn’t mind the power grab but he had a legitimate concern about the safety of his subjects.

[SRG]

And meanwhile: https://en.wikipedia.org/wiki/Benefit_of_clergy

[David Nieporent]

was not about religious freedom but the right of the Church to discipline its sexually abusing clergy internally instead of subjecting them to secular justice.

I don't know why you think that this wasn't a question of religious freedom.

[Dan Schiavetta]

The Free Exercise Clause does not immunize the Church from being sued in (secular court) sexual abuse lawsuits. E.g., Roman Catholic Diocese v. Morrison, 905 So.2d 1213 (Miss. 2005).

[David Nieporent]

I didn't say that it was about the First Amendment (which, I hear, had not been written yet). It was about religious freedom, though. In much the same way that we don't let foreign countries prosecute our diplomats, regardless of their wrongdoing.

[Dan Schiavetta]

It’s not like Henry wanted to prevent priests from practicing their religion. Rape was not part of Catholic teaching or practice. (At least not between unmarried couples, but that’s another story.) What you’re talking about is not religious freedom but extraterritoriality.

[David Nieporent]

No, actually, I'm not. I'm talking about a diplomat in a foreign country committing a crime in that country, and that foreign country wanting to prosecute that diplomat under that country's domestic laws. No extraterritoriality involved. Our position is that he's ours and we get to decide what happens to him.

Analogous position that the church was taking: these priests are ours, not yours. We answer to Rome before the Crown. It wasn't about whether what the clergy did was legal or illegal, but who had 'jurisdiction' to try them.

[Magister]

That sounds more like sovereignty than religious freedom.

[J.R.]

Calvin Coolidge didn't take the oath of office until about 2:47 am on August 3, 1923. So, this post would be very appropriate tomorrow.

He was visiting his parents in the small village he grew up in; Plymouth Notch, Vermont. They had no telephone or electricity. A messenger came and informed him of Harding's death; unclear where the messenger came from but probably Ludlow, VT (a railroad town which would have had telegraphs, about 10 miles away (and hit very hard by flooding in 2023)).

He was famously sworn in by his father - a justice of the peace and notary and thus authorized to give oaths - in front of a few witnesses, and then went back to bed. But it was on August 3, not August 2. There will be a reenactment tonight at 2:47 am, on August 3, in the same room in Plymouth Notch. And another reenactment at 2:47 pm.

https://www.burlingtonfreepress.com/story/news/local/vermont/2023/07/31/calvin-coolidge-reenactment-plymouth-vermont-100-anniversary-oath-of-office-time-location-details/70471289007/

[Commenter_XY]

Thanks for posting that piece of history! Enjoyed reading it.

[Syd Henderson]

"Paul Scofield as Thomas More, great actor who won an Oscar for this (also he was the best thing in Quiz Show)." I was about to say that. He unfortunately was up against Martin Landau in "Ed Wood" for the Oscar so there wasn't a contest but I was rooting for Scofield anyway.

[Syd Henderson]

I was thinking I'd only seen Scofield in "A Man for All Seasons" and "Quiz Show," but it turns out he was King Charles VI (Charles the Mad) in Branaugh's "Henry V" and Hamlet Sr.'s ghost in Mel Gibson's "Hamlet".

Wasn't More responsible for a lot of the stories about Richard III (as a means of shoring up the Tudor's claim to the throne)?

[Dan Schiavetta]

That is quite true. More’s account, published in 1515, put him into favor with the Tudors, and on the path to power from which he ultimately fell, ironically on another issue related to Tudor legitimacy.

In 1515 there would still be living witnesses, but to do anything but trash Richard would have been physically perilous, so if there were reasons to doubt Richard’s culpability, they would not have said a word about it.

Personally I think it was Richard who ordered the princes killed. They had been “delegitimized” in that Edward IV’s marriage had been retroactively annulled, but they were still his children and therefore still a threat. Though it would be nice if the Dean of Westminster Abbey would finally consent to DNA testing of the bones found in 1674.

(Cue Richard Dreyfuss’s hilarious enforced take on Richard III in The Goodbye Girl.)

[Syd Henderson]

Come to think of it, I saw him in "King Lear" in 1971.

[SRG]

Well, as I posted recently, I saw him as Salieri in the original stage production of Amadeus.

He was also the eponymous king in Peter Brook's film "King Lear".

[Syd Henderson]

Thomas Costain in "The Last Plantagenets" tried to convince me Richard III didn't order the princes killed and instead convinced me he probably did. Though it may have been a "Won't somebody rid me of these vexatious princes" moment.

[Dan Schiavetta]

A marvelous writer, but like Farley Mowat, quick to believe the most sensational possible account. For example, it is doubtful whether Robert de Mowbray, who rebelled against William II, spent decades “crazed, in rags and filth” in a deep dungeon, his name forgotten by his jailers (this is from Costain’s “The Conquering Family”).

I go by the “rule of boring”. If there are several possible explanations, the most boring one is probably the true one.

[Syd Henderson]

Apparently Robert eventually became a monk after being in prison well into the reign of Henry I. One of his co-conspirators was castrated and blinded, so Robert actually got off light in comparison. (The later Mowbrays are not descendants, but assumed the name. I remember them from the game “Kingmaker.”)

[Dan Schiavetta]

Henry was probably fully aware that his older brother had been a terrible king (he had been "accidentally" killed with an arrow during a hunting trip with some nobles).

It's remarkable how often a strong king was succeeded by a weak or dissipate one. (William I/William II, Henry I/Stephen, Edward I/Edward II, Henry V/Henry VI).

[Commenter_XY]

Robert Bowers, the Tree of Life synagogue murderer, just sentenced to death. It certainly took long enough.

I just hope they keep him in the prison general population until he gets the needle. Might not need to waste the meds.

[Rev. Arthur L. Kirkland]

Bowers -- a coward, a violent bigot, a delusional misfit, a loser, an ignorant stain on society -- deserves to die, but I hope Bowers perishes in prison, sad and isolated.