Today in Supreme Court History: November 26, 1829

11/26/1829: Justice Bushrod Washington dies. He was President George Washington's nephew.

Justice Bushrod Washington

Comments

[Dan Schiavetta]

Keyes v. United States, 109 U.S. 336 (decided November 26, 1883): lieutenant’s suit for back pay dismissed because he was validly court-martialed (one of the judges, his C.O., was a main witness, but he didn’t object at that time) and because President’s appointment of his successor terminated his commission (a much smaller Army in those days!)

Nitro-Lift Technologies v. Howard, 568 U.S. 17 (decided November 26, 2012): objection to non-compete agreements involved federal law (Federal Arbitration Act) but was matter for arbitrator in first instance (Oklahoma Supreme Court had purported to rest its decision on Oklahoma law as to enforceability of such agreements)

Palmer v. BRG of Georgia, 498 U.S. 46 (decided November 26, 1990): Do bar review companies form a cartel in violation of the Sherman Act? The Court here says: Yes! At my law school they seemed to be in competition but that might be illusory. (Full disclosure: I was a BarBRI rep, but it was because I was sleeping with the previous year’s rep.) Here, former law student sued after companies agreed that one of them would not compete in that state (Georgia). The Court relied on United States v. Socony-Vacuum Oil Co., 1940, where oil companies agreed to temporary buys to keep oil prices up (that case was more famous for Douglas’s footnote 59 which said price fixing was per se illegal regardless of means to do so or existence of overt act).

[Dr. Ed 2]

"President’s appointment of his successor terminated his commission"

This was 1883, the same year that the Civil Service Act was passed to end the Spoils System. In this case, SCOTUS cited an earlier ruling (Blake v. United States) that the President could (with Senate approval) supersede and thus replace an officer notwithstanding a 1866 law that no officer could be dismissed except as sentence by court-martial [sic] or in commutation thereof.

There *still* are a finite number of officer slots allowed -- this is what was never said about GW Bush's departure from the Air Guard -- in leaving, he opened up a slot for a Vietnam Vet leaving active duty, possibly someone without a family business and who *needed* the Guard duty pay.

The two things that come to mind are (a) the extent to which the Spoils System extended into the military and more importantly (b) military law wasn't anything as professional as it is now.

Remember that the US Naval Academy was created in response to the Captain of the brig Somers having hung three sailors in 1845 (including the son of the Secretary of War) for attempted mutiny without any trial. Remember too that the US Court of Military Appeals didn't exist until it was created in 1951 by the UCMJ.

Hence I don't think it is the size of the Army as much as 150 years of due process being introduced into it. While Captain Mackenzie of the Somers was acquitted by court-martial in 1843 and continued to serve the Navy until his death in 1848, I don't think that would happen today.

[Dan Schiavetta]

I'm not sure whether to thank you for providing additional information because you spew so much b.s. that everything you say is suspect.

[Dr. Ed 2]

I probably should have just quoted this line from the decision:

"Where there is no law authorizing the court-martial, or where the statutory conditions as to the Constitution or jurisdiction of the court are not observed, there is no tribunal authorized by law to render the judgment. [emphasis added]

That has nothing to do with the size of the Army....

[Magister]

[This is well above the usual quality of Dr. Ed 2's comments, in that it quotes something accurately and which is probably relevant. I commend Dr. Ed 2 sincerely.]

That quotation seems unclear to me; the opinion immediately continues "Of that character are the authorities cited and relied on by the appellant; but they do not apply to the present case."

More relevant seems to be just before this:

That the court-martial, as a general court-martial, had cognizance of the charges made, and had jurisdiction of the person of the appellant, is not disputed. This being so, whatever irregularities or errors are alleged to have occurred in the proceedings, the sentence of dismissal must be held valid when it is questioned in this collateral way.

I think this means the court would not set aside the court-martial decision to dismiss because of errors within its proceedings (that they should not have had the commanding officer as prosecutor, witness and judge) because of this lawsuit over back pay. So the errors within its proceedings did not mean that "the statutory conditions as to the Constitution or jurisdiction" were not observed. I'd rather actual lawyers weighed in on this, though, especially my understanding of "collateral way".

[Magister]

Certainly the number of officers must be finite since the number of human beings is finite. There does seem to be a limit on active duty officers of various ranks (and presumably funding from Congress would create a bound indirectly). It does not appear that National Guard officers count against that limit.

There *still* are a finite number of officer slots allowed — this is what was never said about GW Bush’s departure from the Air Guard — in leaving, he opened up a slot for a Vietnam Vet leaving active duty, possibly someone without a family business and who *needed* the Guard duty pay.

Could anyone but Dr. Ed 2 argue that George W. Bush blowing off his National Guard commitment was for the benefit of some deserving veteran? The position would more likely have gone to somebody on the waiting list that Bush leaped past in his initial appointment.

The Spoils System probably affected military commissions little in the 19th century, since military service was not an attractive sinecure. But some Presidents appear to have sought to pack the military with their own partisans.

The US Naval Academy had been proposed much earlier; the influence of the Somers mutiny is described by the Naval Academy:

On September 13, 1842, the American Brig Somers set sail from the Brooklyn Navy Yard on one of the most significant cruises in American naval history. It was a school ship for the training of teenage naval apprentice volunteers who would hopefully be inspired to make the Navy a career.

However, discipline deteriorated on the Somers and it was determined by a court of inquiry aboard ship that Midshipman Philip Spencer and his two chief confederates, Boatswains Mate Samuel Cromwell and Seaman Elisha Small, were guilty of a "determined attempt to commit a mutiny."

The three were hanged at the yardarm and the incident cast doubt over the wisdom of sending midshipmen directly aboard ship to learn by doing. News of the Somers mutiny shocked the country.

Through the efforts of the Secretary of the Navy George Bancroft, the Naval School was established without Congressional funding, at a 10-acre Army post named Fort Severn in Annapolis, Maryland, on October 10, 1845, with a class of 50 midshipmen and seven professors. The curriculum included mathematics and navigation, gunnery and steam, chemistry, English, natural philosophy, and French.

The captain of the Somers "was not legally empowered to convene a court martial. So he charged his officers with making an investigation. They unanimously concluded that the three sailors were guilty and recommended their immediate execution, which took place at sea on December 1, 1842. Only 13 days later, Somers arrived in New York" which leads one to wonder whether they could simply have held the sailors under arrest until they could be tried. The Naval Academy also soon established a curriculum of training students aboard ship each summer. If mutiny arose on the Somers in only six weeks then one would think it still could; but perhaps a year of study before and shorter training periods were sufficient to establish sufficient discipline to avoid repeating that unfortunate event.

[Dr. Ed 2]

If you have a year of classroom instruction before your first summer cruise (which is what I think both the academy and maritime academies do) you don't have to take everyone.

You have 9 months to get rid of your troublemakers *and* have the upperclassmen to act as either junior officers or NCOs, depending on what academy-only rank you want to assign them. I've seen mention that the SecWar's son was a "known troublemaker" -- well, you find some way of not taking him on the cruise...

It also would be much harder to find the critical mass for a mutiny when 2/3 of the crew are upperclassmen. As I understand it, the purpose of the mutiny was so that they could go become pirates -- after 2 or 3 years at the academy -- even 1 year -- those folks would have been screened out.

The USAF rotates older planes to Guard units, and then discards them when newer older planes are rotated to them. GWB flew the F-102 which was obsolete when the Guard got it, and which the TX Guard was getting rid of.

Well, you gotta learn how to fly the new plane, these aren't like cars, and there apparently wasn't enough time left in his committment to justify training him to fly the new plane and then have him shortly leave -- and by not re-enlisting, he freed up his slot.

Now I'm just guessing here, but you'd think that preference for that slot would go to someone already qualified to fly the new plane -- and that would only be someone who was (or had been) active duty USAF. That's why I am saying Vietnam Vet.

I can't find a cite saying the number of slots in the Guard were limited, but if they hadn't been, what would be the controversy about him getting preference in getting into the unit? He and everybody else could have joined it were there no limit to slots.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I think there's a simpler reason, or two.

First, he was an Important Person's son. Never ever discount that.

Second, the military was downsizing after Vietnam. I was on a carrier 73-76. One port call was Karachi Pakistan, and they warned us to ignore the taxi drivers touting "Hashish, $10/pound $20/kilo" because there would be grab-your-knees bend-over strip searches. They were right, and they caught 40 sailors bringing back a kilo or more. So said scuttlebutt. Scuttlebutt also said they were given "discharges for the good of the service" whatever that means, and that they were just getting rid of the deadwood the easy way.

I suspect that figured into GWB getting off easy. Get rid of the deadwood, downsize.

All your cute little justifications don't change the fact he was a draft dodger and a deserter.

[Dan Schiavetta]

Both Al Gore (2000) and John Kerry (2004) served in Vietnam — voluntarily — and the media painted them as the slackers/liars and GWBush as the patriot.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The only one I know they got right is Clinton, and he did it legally, unlike GWB.

Funny anecdote. A place I rented had a heavy cloth bean bag cylinder meant to be laid down in front of a door to stop drafts. It was decorated with Bill Clinton's smiling face, and naturally called the draft dodger. This was before GWB was a thing. It would be interesting to know if they ever made a GWB version. I doubt it.

[Dan Schiavetta]

Ha!

[Dr. Ed 2]

Didn't Clinton promise to serve after graduation -- and instead went to Europe?

[Dan Schiavetta]

This was in his letter seeking a deferment. (Which, of course, that generation of Republicans routinely got, e.g., John Bolton, Dick Cheney, etc.) He didn’t get it. All bets were off and his number never came up.

When you get past the sex stuff (which I don’t care about) Clinton was an exceptionally truthful President.

[Dr. Ed 2]

Granted he got into the Air Guard and approved to learn how to fly the F-102 because (a) his dad had flown in WWII and (b) his dad (and grandfather) were politicians. But don't underestimate (a)...

That said, I can not let two things go unsaid.

First, during the Cold War, the Air Guard service was both honorable and dangerous. They were using obsolete aircraft that weren't all that safe -- a second generation plane with a rate of 13.69 accidents per 100,000 hours (the F-15's rate is 2.47 -- and going up to challenge Soviet bombers without knowing that the Soviets were bluffing. And the Texas Guard had to deal with planes coming out of Cuba...

Second, the F-102 was assigned to Vietnam (to protect B-52s, etc) and Bush volunteered for that duty but was not selected.

Spoilt brat, yes. Terrible President, yes. But not a draft dodger -- he was on the front lines of the Cold War.

[Dan Schiavetta]

He went AWOL. It can be proved three or four different ways.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

His dad jumped him to head of the queue for safer service than going to Vietnam. That’s draft dodging.

(ETA that no matter what he volunteered for later, his jumping the queue saved him from going to Vietnam and sent somebody else in his place. That's draft dodging.)

You brought up that by deserting, he opened up a slot for someone else. Hey, works both ways, bud! By jumping the queue, he sent someone else to Vietnam.

[David Nieporent]

I would never name my kid "Bushrod."