Today in Supreme Court History: September 11, 1958

9/11/1958: Cooper v. Aaron is argued.

Comments

[Dan Schiavetta]

Smith v. United States, 423 U.S. 1303 (decided September 11, 1975): Douglas, in a wheelchair, stays order requiring federal grand jury records to be handed over to state prosecutor; the full Court later vacated the stay with Douglas dissenting, 423 U.S. 810 (Oct. 6, 1975) (this was the public appearance which showed the world that Douglas was never going to recover from the stroke he had suffered on the last day of 1974; he stared into the air blankly, declared that there would be a lunch break at 12:30 when it was already 1:00, and after oral argument was over, everyone waited uncomfortably while he sat in silence for ten minutes, before finally thanking the lawyers “for a spirited argument”) (he resisted resignation not just because he was stubborn and ornery but because Gerald Ford, who as a Congressman had led an attempt to impeach him, would pick his successor; he finally resigned on November 12) (the written opinion was unnecessary; though dated the same day as the hearing it was not handed out to the full Court until it met for the new Term on September 30, is unnecessarily detailed and seemed intended to prove he was still in full possession of his faculties; upon reconsideration the full Court vacated the stay)

[F.D. Wolf]

In April 1970, Gerald Ford, as House Minority Leader, brought five accusations against Justice William O. Douglas which he thought warranted investigation and possibly impeachment.

The first was his failure to recuse himself in a case in which he had received money from one of the parties, namely, Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir.1969), cert. denied, 396 US 1049 (1970). Sen. Barry Goldwater had won a defamation case against Fact magazine. The Second Circuit upheld the verdict, and the Supreme Court denied certiorari. Justice Black, joined by Justice Douglas, dissented from the denial, writing that anyone should be able to say anything about a public figure, and that he would have accepted the case and summarily reversed it. Douglas had previously been paid for an article in the same magazine.

Now, I think Douglas clearly should have recused himself, but it hardly seems an impeachable offense. (This is the context for Ford's infamous quote that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”)

The second charge was the most serious. It had to do with certain financial arrangements of Douglas' that were very similar to those that had recently forced the resignation of Justice Abe Fortas. In fact, Fortas would later say he "resigned to protect Douglas". Douglas himself realized they were problematic and terminated them shortly after Fortas' resignation. Specifically, Douglas, over the previous ten years, had been paid $96,000 (about 1/4 of what his judicial salary had paid over the same period) in his role as the sole director of the Parvin Foundation. Albert Parvin was a very shady character who openly consorted with underworld figures and was heavily involved in the Las Vegas casino industry, which, at the time, was virtually synonymous with the mob.

The third charge was Douglas' various associations with sundry "radical" leftists, and the fourth concerned contents of Douglas' latest book Points of Rebellion, which, according to Ford, “fanned the fires of unrest, rebellion, and revolution.” (Alas, no one, at the time, thought to scream "SECTION THREE!")

[Dan Schiavetta]

Thanks!

[Magister]

Five accusations, but only four charges listed?

As far as I can see, Ford's complaints against Douglas (excluding disapproval of his stay of the Rosenberg executions and his defense of the "filthy film" I Am Curious Yellow [another possible future movie review, captcrisis]) were:
1. failure to recuse in the defamation case by Goldwater against Ginzburg after receiving money for an article on folk singing (which was published in an issue whose table of contents included two articles "so vulgarly playing on double meaning" that Ford would not repeat them aloud.
2. published "a fuzzy harangue evidently intended to give historic legitimacy to the militant hippie-yippie movement".

to put his name to such an inflammatory volume as "Points of Rebellion" -- at a critical time in our history when peace and order is what we need -- is less than judicial good behaviour.

3. republication in Evergreen ("Perhaps the name has some secret erotic significance, because otherwise it may be the only clean word in this publication") of an excerpt of that book; Ford suggests that Douglas intends to shock and outrage to lead critics into the trap of appearing to be "the modern Adolf Hitlers, the book burners, the defoliators of the tree of liberty". Douglas claimed no knowledge of the excerpt and "said that the book's publisher, Random House, had sole and exclusive rights over post‐publication of excerpts." (reported in a New York Times article), his only comment on the accusations.
4. a lot of stuff about Albert Parvin and the Parvin Foundation and their association with gangsters and gambling interests: that Douglas may have drafted its articles of incorporation ("a high misdemeanor"), present in Las Vegas and the Dominican Republic at various times, advised Parvin on avoiding issues with the IRS, but mostly that he was paid $12000 per year to be President of its board.
5. after resigning from the board of the Parvin Foundation (at the time Abe Fortas resigned), Douglas moved on to being paid by the "leftish "Center for the Study of Democratic Institutions"", previously associated with the Parvin Foundation:

In 1965 the Santa Barbara Center, which is tax~exempt and ostensibly serves as a scholarly retreat, sponsored and financed the National Conference for New Politics which was, in effect, the birth of the New Left as a political movement. Two years later, in August 1967, the Center was the site of a very significant conference of militant student leaders. Here plans were laid for the violent campus disruptions of the past few years, and the students were exhorted by at least one member of the Center's staff to sabotage American society, block defense work by universities, immobilize computerized record systems and discredit the R.O.T.C.

I wonder if, in fifty years, today's conspiracy theories will sound as silly as some of Ford's speech does. I suppose we'll never be free of questionable payments to Supreme Court Justices, despite strengthened ethics laws.

[Nameless But Highly Opinionated]

Ford's quote is the equivalent of Hughes regarding the law being whatever courts say it is. While each of those sayings is associated with a kernel of truth, neither man was correct.

[not guilty]

In 1998 the House Republicans showed that Gerald Ford's comment was accurate. According to the New York Times:

In the fall of 1998, Erskine Bowles, the White House chief of staff, traveled to Capitol Hill to meet with the speaker of the House. Mr. Bowles enjoyed a better relationship with Speaker Newt Gingrich than anyone in the Clinton White House, partly based on a shared Southern heritage and commitment to fiscal conservatism. At the end of the meeting, Mr. Bowles put a very direct question to Mr. Gingrich: Why were the Republicans intent on impeaching Bill Clinton? The speaker replied, “Because we can.”

https://www.nytimes.com/2019/04/22/opinion/theres-a-bigger-prize-than-impeachment.html

[Dan Schiavetta]

today's movie review: In the Bedroom, 2001

We start this movie thinking it's about a young man (Nick Stahl) falling in love with a slightly older woman (Marisa Tomei) but the focus shifts mid-movie to the man's parents, old folks near retirement age. Which could have been a welcome relief. Films too often slight the older characters, even though they're the ones with more backstory and with them a playwright has more to work with. The great Jack Lemmon once said that when he was young, he couldn't wait to get older, because parts written for older characters were more interesting. Here, excellent acting by Tom Wilkinson and Sissy Spacek as the older couple. This could have been a sensitive exploration as to how different people react to a tragedy and how they may drift apart as a result (another example of this is Sam Neill and Meryl Streep in A Cry in the Dark). And it could have been a gripping story as to how someone deals with a frustrating situation -- here, seeing the guy who murdered their son (William Mapother) on casual encounters around town, knowing they can't do anything about it.

Something like that happened to me some years ago, not involving murder fortunately, but a guy who did a horrible thing that only he and I knew about. I couldn't tell anyone, because it would hurt a girl I cared about, and he knew that. I had to interact with him as a fellow counselor in a mental health agency, and I kept hoping he would do another horrible thing that would show others his true colors, but that never happened, and worse, everyone else seemed to think the world of him, and I had to pretend to agree. I can't give more details because I've blotted them out. That was long ago and far away, fortunately. Also fortunate that he decided to stop stalking me. Though he can easily find me and start in again, if he chose.

Anyway back to the movie . . this could have been good plotting with a satisfying conclusion, albeit open-ended (we're left with the assumption that their own murder of the Mapother character will eventually be found out, and they're o.k. with that).

The problem is, the plot hinges on a false premise early in the movie which ruins everything after it. Mapother stomps in and shoots Stahl, but he's free on bail because (according to the parents' attorney) they can't prove murder, only accidental manslaughter during an altercation. Why not? Because Tomei didn't actually see the shooting. She heard it. She ran into the room to see Stahl shot in the head, Mapother calmly walking away from the corpse and then sitting down, gun still in his hand. Before that, she heard Mapother stomping in and yelling at Stahl. But the viewer is made to think that it's a rule of law, that you need an eyewitness to prove murder. Even a lot of non-lawyers would be scratching their heads at this. And I'm also scratching my head at the fact that the critics didn't seem to be scratching their heads.

There are movies like My Cousin Vinnie where the plot is based on how the legal process really works. And then there are films like The Verdict, where in a malpractice lawsuit the opposition improbably bribes witnesses, where the hero irresponsibly refuses a large settlement offer and unethically doesn't even tell his client about it, and where he improbably wins a trial while hung-over and unprepared. Why does this happen in Hollywood, which is crawling with lawyers? That these films are commercially successful does not excuse the situation; making the movie more realistic would not ruin it. They bring lawyers in to vet scripts for things like defamation of real people and plagiarism, and those folks aren't allowed to comment on substance, I get that. But most of the "creative" talent there grew up affluent and probably know lawyers personally whose brains they can pick. Why don't they? Are they too proud to? I've previously noted other films that ran into criticism which should have been anticipated and headed off by harmless fixes that were obvious but evidently never occurred to any of these creative folks. With a few tweaks as to the murder scene the sinkhole that swallows up In the Bedroom could have been fixed too.

[The Margrave of Azilia]

Sounds like a downer...I'm still interested in your take on the Wizard of Oz.

[F.D. Wolf]

I'd be interested in your take on a movie I suspect is very much up your alley, Last Tango in Paris (1973). (I don't check this site every day, so if you have already, I apologize.) I thought it was an excellent, powerful film. Some critics described it as "pornography masquerading as art", and I honestly get that perspective, but, nevertheless, find it an exceptional film.

[Dan Schiavetta]

I was too young to see it when it came out, and afterwards I wasn’t attracted by the idea of a paunchy middle aged guy taking advantage of a hot teenager. This impression was of course based on what I read at the time. Based on what you say, there was a lot more to it. You’re a good writer — can you review it?

[F.D. Wolf]

We'll see. I definitely think I'd need to re-watch it, as it has been some time. I might be wrong, but I suspect you would really like it. Pauline Kael's review of it is pretty famous:

https://www.criterion.com/current/posts/834-last-tango-in-paris

[SRG2]

A friend of mine was an evolutionary biologist who used to provide advisory services to SF writers on how to make their aliens and alien ecologies more convincing. He was occasionally approached by Hollywood producers to help them make their aliens more realistic, i.e., less humanoid and every time they would look at his suggestions and then "decide not to go in that direction" - they really weren't interested in greater realism if it went against their ideas for their films. Thus legal matters too, I think. I can suspend disbelief for pacing purposes - e.g., time it takes to get tests done, file motions, conduct trials, etc. but simply getting the law itself flatly wrong is insulting.

I forget the film but someone goes up to a cop and confesses to a murder whereupon he's arrested - but later on the confession is thrown out because he hadn't been Mirandised. I watched it with a cousin who was a superior court judge in Seattle and we both looked at each other saying, WTF?

[Krayt]

In season 2 of Dexter, I think, Dexter releases a fake manifesto of the serial killer they are pursuing.

He sends it to all the news, to throw the police aka his buds, off the scent.

Later, the police have an injunction against them publishing it, and they are sitting at a table with the news, negotiating.

Like is this Europe or something?

They tried to couch it in terms of the news being responsible by delaying a few days while the police scoured it for potential tips, which misleading ones were planted by Dexter, who offered veritas by including details only the real killer knew.

But yeesh.

[David Nieporent]

Why don’t they?

Because they don’t care. The number of audience members who are actually going to be bothered by technical inaccuracies (whether legal, scientific, or otherwise) enough to avoid the movie is too small to matter.

To be clear, I am a pedant and these things grate on me too. Sometimes it's obvious why they made an inaccurate choice — it was critical to the plot proceeding how it did — and that's annoying enough. But the worst is when it doesn't matter, and they still get it wrong.

[not guilty]

wrong comment thread here

[The Margrave of Azilia]

The Brown decision wasn’t the law because the Supreme Court said it was the law; it was the law because it was the right interpretation of the Constitution.

If the effusions of the Supreme Court were automatically law, then separate but equal would have been law for over half a century. Pure positivism.

[Enrique]

FYI: I wrote about Cooper v. Aaron and the "laws of constitutional necessity" here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3317895#:~:text=For%20this%20symposium%20issue%20of,protect%2C%20and%20defend%20the%20Constitution.

[Dan Schiavetta]

Ford did say later that it was a mistake.