Today in Supreme Court History: August 9, 1974

8/9/1974: President Richard Nixon resigns from office, President Gerald Ford takes oath of office.

Comments

[Dan Schiavetta]

United States v. FMC Corp., 84 S.Ct. 4 (decided August 9, 1963): Goldberg says he has no jurisdiction to stay a merger which allegedly violated the Clayton Act. Here, the U.S. brought suit in the District Court which denied its motion for a stay. The U.S. appealed to the Circuit Court, which held that it had no jurisdiction. At issue was the “Expediting Act”, 15 U.S.C. §29, under which final judgments in antitrust cases brought by the U.S. can only be appealed directly to the Supreme Court. This had been construed to mean that there can be no appeal (to any court) of nonfinal orders in such suits. Goldberg notes that there is a split in the circuits (the Third Circuit disagreeing with everybody else) but he goes along with the majority view. (Of course, as Circuit Justice he didn’t have the power to resolve the split; in fact it has never been resolved.) Also at issue was the “all writs” statute, 28 U.S.C. §1651(a), which codifies the common law view that an appellate court has the power to order injunctions (and any other relief) in aid of its appellate jurisdiction. Goldberg holds that the Expediting Act, being specific to this situation, was controlling.

[Dilan Esper]

I would say, given the current Court's position on jurisdiction stripping, I highly doubt it would have a problem with that statute stripping appellate jurisdiction and routing cases to SCOTUS.

[Dan Schiavetta]

They just can't wait to get their hands on some matters.

[Dan Schiavetta]

today's movie review: Tunes of Glory, 1960

Alfred Hitchcock called this "the most perfect move ever made" and I'm fascinated by it. It's on youtube now and I keep going back and seeing more illuminating little touches. It's the unusual movie about army life set in peacetime, in the snowy headquarters of a Scottish regiment. Acting Colonel Jock Sinclair (Alec Guinness), who brought his men "from Alamein to Cassino, from Dover to Berlin", runs a loose ship of whiskey drinkers; he's a bully and a party boy. In comes the new, by-the-book Colonel Basil Barrow (John Mills). Sinclair undermines Barrow in almost juvenile ways but Barrow (who has been tortured in a Japanese prison camp) has PTSD and can't handle when things go wrong. Jock screws up hugely by striking a man in uniform, a piper who he unexpectedly sees on a date with his daughter in a pub. This is a court-martial offense, and Barrow has to decide whether to send the matter up to "brigade".

Don't watch this if you hate the sound of bagpipes. They're everywhere. (What happens if you blow into one of those things -- and you're not wearing kilts??? No sound comes out?)

The setting is the immediate post-War period, with some men still limping with their war wounds. They live with their history; Sinclair, blowing his nose in front of the late-night fireplace, mutters that he can't pipe any more because of "the desert night". And Mills describes to his adjutant the torture that audiences will recognize as waterboarding -- horrifying to British audiences in 1960, but perfectly o.k. to us post-9/11 Americans, at least some of us.

Lots of great performances and one sees complicated interplay between the characters.

We have one Lieutenant Colonel, Barrow.

Four majors:
1. Sinclair
2. the former second-in-command Charlie Scott (Dennis Price), the most intriguing character, who would probably make the best Colonel, outwardly a friend of Jock's but is in favor of court-martial when he screws up; he also tries to steal Jock's lady-friend, a stage actress in town
3. the cigarette-holder chomping Macmillan (Gerald Harper): neutral and amused by it all, until Jock strikes the corporal and he knows Jock must be punished
4. the corpulent mess officer Miller (Paul Whitsun-Jones), on Jock's side; note how when Barrow is introduced to him we see Mills's disapproving glance down at his gut

Three captains:
1. the adjutant Cairns (the always great Gordon Jackson), loyal to Barrow, tries to mediate the situation
2. Simpson (Allan Cuthbertson): believes the regiment needs someone like Barrow
3. Rattray (Richard Leech): loyal to Jock to the point of impudence

Then there's the callow Lieutenant MacKinnon (Peter McEnery), the tyrannical Sergeant Major Mr. Riddick (Percy Herbert, who really was in a Japanese prison camp), and the avuncular Pipe Major (Duncan MacRae)

Finally Jock's daughter Morag (Susannah York), as headstrong as her father (it's unspoken that the mother died some time ago)

Adapted by James Kennaway (who served in a regiment) from his 1956 book which is also worth a read. Snow is all over this movie, but it's not the stuff of Christmas cards; it symbolizes bleakness, deprivation, remoteness. This world is the diametric opposite, in so many ways, of the world of yesterday's movie, 10.

These guys must have an amazing sperm count, wearing kilts in the snow with nothing underneath. On the street Jock gets taunted by some young girls with a singsong, "Kilty, kilty, cold bum (butt)!" Strange they would have the nerve. The men have a great time jumping around dancing with each other to pipe tunes . . . I suppose they've seen plenty of each others' genitals by now and the occasional flash is just daily life.

Space is given to peripheral characters, such as the scene between Herbert and Macrae which shows one of the many conflicts within the micro-society of the regiment.

"Muffin the Mule", a popular TV show referred to both in the movie and in the book, was first hosted by Mills's older sister Annette, who had died in 1955.

As one critic pointed out, Mills and Guinness are outstanding even though each is in a part better suited to the other. Supposedly they agreed to switch roles because both wanted a change of pace.

Neither man is fit for command, but that's actually a typical situation. No matter what the setting, the person in charge is usually not the one on the scene best suited to it; it's just how things shake out. Of the majors, Scott might be better, but so would Macmillan, and also Captains Cairns or Simpson.

At the end Barrow decides not to have Jock prosecuted, Jock goes back to being disrespectful, and Scott points out coldly to Barrow his mistake. "In my own humdrum life I've often flunked doing something I ought to do. Told myself later, the reason I hesitated was for humanity or loyalty or even Christianity. One would think a Colonel would be older than that . . . not very dignified!" Barrow, in tears, goes upstairs and shoots himself and in the final scene Sinclair, who is ordering a funeral march on a scale for a Field Marshal, loses his mind and has to be taken away probably to an asylum. Which would leave Scott in command!

This film has insights as to how command is exercised or mis-exercised and apparently it's been analyzed in places like the Army War College.

The film depicts a world that is strange to us, with strict yet unspoken boundaries and customs, yet it draws you in.

[SRG]

Have any of you seen the 1965 film "The Hill"?

[The Margrave of Azilia]

How does Tunes of Glory compare to Deep Throat?

[Dan Schiavetta]

That is a question I can truly say I’ve never pondered. In fact I don't think anybody has.

[The Margrave of Azilia]

Just ribbing you for your Deep Throat review earlier.

[Dan Schiavetta]

That was hard to swallow, I admit.

[Bob from Ohio]

Its pretty standard "professional soldiers are insane" agitprop.

Well acted of course.

[Frank Drackman]

Seen it. It's not quite up there with "No Time for Sergeants" (Or the bizarre "Onionhead") add "A Face in the Crowd" (with the always strong Anthony Franciosa) and you've got a great Andy Griffith triple feature.

Frank

[Dan Schiavetta]

Let me know what you think of the Scott character. I’m still trying to figure him out.

[SRG]

Likewise!

Stuffed full of British character actors, as one would expect.

[Syd Henderson]

Queen Amalthea: It's an excellent movie. Casting John Mills against type as the lieutenant colonel really works (better than Guinness as a matter of fact). I also fault the military for putting in a new commander with the old one still there.

Apparently Mills's Oscar-winning performance in "Ryan's Daughter" was also against type. I hadn't even realized he was Pip in "Great Expectations". Another great movie.