Today in Supreme Court History: May 26, 1868

5/26/1868: Senate acquitted President Andrew Johnson and adjourned as court of impeachment. Chief Justice Chase presided over that trial. Johnson is one of four presidents that did not appoint any Supreme Court Justices. The others are William Henry Harrison, Zachary Taylor, and Jimmy Carter.

President Andrew Johnson

Comments

[Dan Schiavetta]

United States v. Salerno, 481 U.S. 739 (decided May 26, 1987): upholding Constitutionality of Bail Reform Act of 1984 which requires denial of bail if after a hearing the court determines that release would be a danger to the community (traditionally the purpose of bail is only to ensure attendance at hearings and trial)

Kellogg Brown & Root Services v. United States, 575 U.S. 650 (decided May 26, 2015): qui tam (“private attorney general”) action against contractors who allegedly falsely billed the government for logistical services in Iraq was time-barred; Wartime Suspension of Limitations Act applied only to criminal prosecutions, not civil actions

Camreta v. Greene, 563 U.S. 692 (decided May 26, 2011): refusing to entertain social worker’s petition to review holding of Fourth Amendment violation when conducting a warrantless interview with child as to possible sexual abuse because even though the Court can sometimes entertain an appeal by a prevailing party (judgment had been in social worker’s favor due to qualified immunity) the case was moot; the child did not appeal her loss, had grown up and moved across the country

Montejo v. Louisiana, 556 U.S. 778 (decided May 26, 2009): statements admissible even though defendant was unaware that counsel had already been appointed for him because Miranda warnings were sufficient (overruling Michigan v. Jackson, 1986)

United States v. Classic, 313 U.S. 299 (decided May 26, 1941): Congress has power to criminalize misconduct in primary elections for Congress (thereby sustaining convictions of election commissioners who switched votes in favor of Hale Boggs). (I remember him -- this election started his long career. He disappeared in a plane crash in Alaska just before winning another re-election in 1972. His daughter, Cokie Roberts, became a Beltway talking head.)

Quill Corp. v. North Dakota, 504 U.S. 298 (decided May 26, 1992): Dormant Commerce Clause prohibits a State from collecting sales or use taxes from out-of-state companies selling to its residents (overruled by South Dakota v. Wayfair, Inc., 2018)

Commil USA v. Cisco Systems, Inc., 575 U.S. 632 (decided May 26, 2015): good-faith belief that there is no valid patent is not a defense to charge of infringement and inducing others to infringe (devices for accessing wireless networks were manufactured and sold by defendant)

United States v. Tinklenberg, 563 U.S. 647 (decided May 26, 2011): time spent on making and getting decision on Government’s pretrial motions does not count toward the 70-day deadline of the Speedy Trial Act of 1974 (18 U.S.C. §3161) even if it doesn’t actually delay trial

Haywood v. Drown, 556 U.S. 729 (decided May 26, 2009): a state cannot close its courts to plenary 42 U.S.C. §1983 lawsuits (striking down New York statute requiring any lawsuit against correctional officers to be brought in Court of Claims, where there is no jury trial, punitive damages, or injunctive relief)

Reagan v. Farmers’ Loan and Trust Co., 154 U.S. 362 (decided May 26, 1894): federal suit against state railroad commissioners for actions undertaken in their official duties (setting rates) was not in violation of Eleventh Amendment because suit was not actually against the state (Texas) but the commissioners and the state statute could be read to allow suit in federal court

[Mr. Bumble]

Quill Corp. v. North Dakota, 504 U.S. 298 (decided May 26, 1992): Dormant Commerce Clause prohibits a State from collecting sales or use taxes from out-of-state companies selling to its residents (overruled by South Dakota v. Wayfair, Inc., 2018)

So much for stare decisis.

[larryseltzer]

I hadn't realized this before but it seems that Jimmy Carter was the only US President to serve a full 4-year term without a Supreme Court appointment.

[Dan Schiavetta]

That is true. It was one of ways he was unlucky. Also, given the Republican dominance of the White House during that era, it meant that for 26 years (from 1967 to 1993) only Republicans got to nominate Supreme Court judges. (The last time a Democrat got to appoint a Chief Justice was 78 years ago, in 1946.)

[Mr. Bumble]

Unlucky was being an American diplomat in Iran during the Carter Administration.

[Magister]

Even unluckier to be US troops in Lebanon during the Reagan administration.

[Syd Henderson]

In Johnson's case, it's because the Radical Republicans decided to let the number of seats be reduced through attrition so Johnson couldn't appoint any. They promptly increased the number of seats when Grant became President, showing that court packing was alive and well in 1869.

[F.D. Wolf]

That is so, but several presidents who served multiple four-year terms did not make any Court appointments during one of them: Madison (no appointments during 2d term); Monroe (1st term); Wilson (2d term); F. Roosevelt (1st term); Clinton (2d term); G.W. Bush (1st term); Obama (2d term).

[JoeFromtheBronx]

I think of Justice John Paul Stevens as almost the honorary Carter nominee. Ford did once say that if the Stevens nomination was the only thing he did during his presidency, he would rest on his laurels.

[Mr. Bumble]

Obama (2d term).
Well he tried, but thankfully failed.

[JoeFromtheBronx]

Yes, the person the Republicans assured us was a great choice if only he had chosen him earlier, wasn't given a hearing so the people could decide. Then, the people didn't get that chance in 2020 when the justice died much closer to the election.

[F.D. Wolf]

The House had voted eleven articles of impeachment against President Johnson, but the Senate only voted on three of them before adjourning. All three votes were 35-19, one short of the two-thirds required for conviction. Had Johnson been convicted, Benjamin Wade, the president pro tem of the Senate, would have become Acting President for the last nine months of Johnson's term.

[Dan Schiavetta]

It would have been destabilizing to our system of government if Johnson had been convicted. The Tenure of Office Act was plainly unconstitutional, though it took decades before a case came along that allowed the Supreme Court to declare it such.

[F.D. Wolf]

I wouldn't say it was "plainly" unconstitutional. The Constitution speaks to the appointment of officers, but says nothing of their removal, so, if the President has an essentially unlimitable power of removal, that power is merely implied, as opposed to explicit.

Myers v. United States (1926), the case to which you presumably refer, was a 6-3 decision. Myers was a third-class postmaster, appointed to a four-year term. By statute, first-, second-, and third-class postmasters could only be removed by the President with the advice and consent of the Senate. President Wilson purported to fire Myers after only three years. Myers refused to leave his office and was ejected. Myers sued for his salary owed for his fourth year. The Court held that the President had the implied power to remove executive officers.

The majority opinion was written by Chief Justice Taft. Justices Holmes, McReynolds, and Brandeis each wrote a dissent. All four opinions in the case are well written and worth reading, discussing the history of similar statutes dating back to the Founding. (Of course, even if the dissenters were correct, there could certainly be a case for distinguishing between inferior officers (like third-class postmasters) and principal officers (like Cabinet members).

[JoeFromtheBronx]

Garfield, who had a short term, on the other hand, did successfully nominate someone. Johnson did nominate Henry Stanbery but the Congress (following the rule "only Republicans can do it") shrunk the Court which blocked his ability to fill any seats.

If a person reads the articles of impeachment, it would show that the Tenure of Office Act was not the only thing covered. That act was a large part of the impeachment articles. The radicals wanted a more open-ended impeachment based on his opposition to congressional Reconstruction. This largely failed though some remnants are apparent. One article also directly challenged his in their view unhinged and inflammatory speeches.

[The Margrave of Azilia]

"Garfield, who had a short term, on the other hand, did successfully nominate someone."

Odie?

[F.D. Wolf]

President Garfield's sole appointment to the Court, Stanley Matthews, had first been nominated by Garfield's predecessor, President Hayes, during the final six weeks of his administration, though the Senate took no action on the nomination. Garfield would re-nominate Matthews, who was confirmed by a vote of 24-23 in the Senate, the only justice to date confirmed by the margin of a single vote.

[The Margrave of Azilia]

"United States v. Salerno, 481 U.S. 739 (decided May 26, 1987): upholding Constitutionality of Bail Reform Act of 1984 which requires denial of bail if after a hearing the court determines that release would be a danger to the community (traditionally the purpose of bail is only to ensure attendance at hearings and trial)"

For those interested in the 9th Amendment and the Privileges and Immunities Clause, I would note that all but two states which were admitted after 1789 had a constitutional right to bail in noncapital cases. If there's such a thing as an unenumerated right in the U. S. Constitution, this should be one of them.

[Noscitur a sociis]

Isn’t the fact that two states didn’t recognize such a right a pretty strong counterargument?

[The Margrave of Azilia]

Consensus /= unanimity

If it were, then the very fact that Congress (since 1984) has allowed pretrial detention without bail for noncapital offenses would prove that there’s not unanimity and that the right thus doesn’t exist, and similar situations could be cited for every unenumerated right. But the text of the 9th Amendment makes clear there *are* unenumerated rights.

So your argument negates an entire amendment to the Constitution, thus it is wrong.