Today in Supreme Court History: September 14, 1901

9/14/1901: President Theodore Roosevelt is inaugurated. He appointed three members to the Supreme Court: Justices Oliver Wendell Holmes, Rufus Day, and William Henry Moody.

President Roosevelt's Appointees to the Supreme Court

Comments

[Dan Schiavetta]

Yeshiva University v. YU Pride Alliance, 143 S.Ct. 1 (decided September 14, 2022): Court denies stay sought by Jewish university of New York state court order requiring it to give equal treatment to LGBTQ student club because stay can first be sought in state court; vigorous dissent by Alito, joined by Thomas, Gorsuch and Barrett: “Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely ‘no’.” (The lower court had also denied the university’s motion for summary judgment; this was affirmed on appeal, 211 A.D.3d 562, Dec. 15, 2022; as of this writing discovery is continuing in the trial court.)

McCarthy v. Briscoe, 429 U.S. 1316 (decided September 14, 1976): under 28 U.S.C. §1253, one can directly appeal to the Supreme Court from a three-judge District Court decision, but only if the decision was on Constitutional grounds; Powell denies motion to stay order because it was based on equitable doctrine of laches (this was Eugene McCarthy’s attempt to get on the ballot in Texas as a third party candidate; the Court later allowed him on, 429 U.S. 1317) (I voted for him that year, though I shouldn’t have)

Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 542 U.S. 1305 (decided September 14, 2004): Rehnquist refuses to stay operation of the McCain-Feingold Act, which barred corporations from using general funds for “electioneering”, allegedly in violation of First Amendment Freedom of Speech; the Court had already held McCain-Feingold “facially Constitutional”, the three-judge District Court had already denied the injunction, and “All Writs Act” allowing the Court to issue any order in aid of its appellate jurisdiction is only to be used in “exigent” circumstances (the Court later changed its mind about McCain-Feingold and ruled it unconstitutional in Citizens United, 2010)

[SMP0328]

(the Court later changed its mind about McCain-Feingold and ruled it unconstitutional in Citizens United, 2010)

The Citizens United Court struck down a provision of McCain-Feingold, not the entire act.

[F.D. Wolf]

As one can tell from the photos, this era was the height of popularity for the mustache, at least in part due to Roosevelt’s own popularity. Roosevelt served as governor of New York from 1899 to 1900 (back when the term of office was two years). He was very popular with the public, due largely to his exploits with the Roughriders in the Spanish-American War, but particularly unpopular with Republican party bosses, who viewed him as a loose cannon. New York Sen. Thomas “Boss” Platt, in particular, wanted him gone. So, thought the party bosses, where can we put this lunatic where he can cause the least damage, yet still take advantage of his personal popularity? Fate intervened when President William McKinley’s Vice President Garret Hobart died in office in November 1899. “Let’s give him that do-nothing job. He can’t do any damage there.” Then, of course, fate intervened again in the form of an assassin’s bullet.

But, back to mustaches. Per Findlaw, nine Supreme Cout justices have sported a mustache (sans full beard), and Theodore Roosevelt appointed three of them. In fact, my extensive research (which consisted of going to the “Presidency of Theodore Roosevelt” Wikipedia page and hovering over the names of his Cabinet members) indicates that the 23 men who served as Cabinet secretaries in his administration break down as follows: clean-shaven (1), full beard (4), and mustache (18). (This does not include Roosevelt’s VP Charles Fairbanks, who wore a beard.)

For the record, the nine justices who wore a mustache were Melville Fuller, William Howard Taft, William R. Day, Horace Harmon Lurton, William Henry Moody, Oliver Wendell Holmes Jr., Rufus Wheeler Peckham, Thurgood Marshall, and Clarence Thomas. Best mustache? IMHO: Holmes, with Fuller a close second.

[Frank Drackman]

Dammit, you beat me to it. Well done.

[Mr. Bumble]

You forgot Kagan and Sotomayor.

[The Margrave of Azilia]

Day's molestache is a fail.

[Mr. Bumble]

Looks like Lee Van Cleef.

[The Margrave of Azilia]

Van Cleef looks good, but, in contrast, Day’s facial features combined with the moustache makes him look more like a defendant than a judge.

But then again, “man looks at the outward appearance, but the LORD looks at the heart.” 1 Samuel 16:7 (NKJV)

[Frank Drackman]

Man, was Lee the most evil bad guy ever???, “Angel Eyes” in “The Good, The Bad, and the Ugly” (insert sound effect here) That scene where he kills the guy who paid him to kill the guy he just killed, because the guy he just killed paid him to pay the guy who paid him to kill him (what?) still gives me chills…
https://www.youtube.com/watch?v=Y0WsrI73KE4

Frank

[Dr. Ed 2]

In the original states the Governor served 2-year terms -- New Hampshire still does. In most (all?) cases, there was essentially a bi-annual legislature that met the spring after the election, and then had a *brief* session the following spring for emergency legislation that couldn't keep until after the next election.

It is my belief that this is why you don't see impeachment or recall provisions for the Governors of the original states -- the rationale being that an unpopular Governor & legislature would simply be cleaned out in a year so why bother?

It's in the states that initially had 4 year terms (and the US) where you see these provisions.

[Magister]

New Hampshire has provisions for impeachment in its constitution. They have never impeached a governor, but most states haven't.

[Syd Henderson]

Oklahoma, on the other hand impeached and convicted two governors and came within one vote of impeaching a third.

[Frank Drackman]

Forget it Jake, it's Oklahoma

[Magister]

I've heard it's OK, unlike Dr. Ed 2's comment. Maybe Oklahoma could play off Georgia's nickname and call themselves "the Impeach State".

[Dr. Ed 2]

If Massachusetts could have, it likely would have impeached Dukakis in 1989. People were p*ssed....

[Magister]

People being pissed is not a traditional basis for impeachment, but they could have presented their grievances as maladministration by Dukakis. But Dukakis had less than two years remaining as governor and had announced that he would not run again, so this would seem to contradict your previous claim that impeachment was not sought when the term in office would end in less than two years.

[Noscitur a sociis]

It’s barely worth the trouble of mentioning since everyone assumed it anyway, but for the record Dr. Ed is wrong as usual: the Massachusetts constitution of 1780 provided for one year gubernatorial terms and gave the state House of Representatives impeachment power, which was followed by a trial in the state senate. It also called for the legislature to meet at least once a year.

[Nameless But Highly Opinionated]

Teddy the Great

[Dr. Ed 2]

Who split the party and gave us Wilson.

[Nameless But Highly Opinionated]

Well, all those people shouldn't have voted for Taft.

[Syd Henderson]

Taft had the better mustache,

(And better than Oliver Wendell Holmes.)

[Syd Henderson]

Incidentally, reading “the Bully Pulpit,” I liked Taft a lot more than Roosevelt, and really wished he’d actually let Roosevelt appoint him to the Supreme Court. His wife wanted him to be President (partly because she wanted to be First Lady, which she was outstanding at despite the stroke), and he was pretty good, but much better as Chief Justice.

That said, the book is much less interesting when TR is off stage, though I think I would have voted Taft in 1912 because I like lost causes, and, frankly, TR was way too radical..

[Syd Henderson]

By the way, Taft was easily our heaviest President, but was he our heaviest Chief Justice? Taft put on a lot of weight when he was president (he hated the job and was unhappy) but looks more svelte when he was Chief Justice (when he was happy). Was he heavier than the enormous Edward Douglass White.

[Magister]

"Denied" would be an awkward name for a justice. "Forsayle" would be a really bad name.