Today in Supreme Court History: July 16, 2019

7/16/2019: Justice John Paul Stevens died.

Justice John Paul Stevens

Comments

[Dan Schiavetta]

Travia v. Lomenzo, 86 S.Ct. 7 (decided July 16, 1965): In this order by Harlan refusing a stay of a District Court decision, we see 1) that a federal trial court order, even when up for appeal, is “final and binding” on a state’s highest court; 2) how pissed off he was by the Supreme Court’s earlier decision in this case, which he dissented from; 3) how he is bound by the Court’s earlier decision regarding a similar application (381 U.S. 431); and 4) how if the Court had explained its reasoning “in a sensitive and not heavy-handed manner” the state court would have felt free to defer to the District Court. Here, the question was whether state senate and assembly elections could be held in the midst of litigation as to whether a recent reapportionment violated Equal Protection. The District Court ordered the litigation to go forward; the state court had ordered it stayed. The matter was settled the next year, in time for the 1966 elections, when the New York court approved reapportionment recommendations of a judicial commission (Orans v. Rockefeller, 1966).

[Armchair]

With all the discussion over the attempted assassination on Trump and the VP pick of JD Vance, there's been relatively little discussion on Judge Cannon throwing out the Trump prosecution because Jack Smith was illegally appointed, and had no authority to bring charges.

After review, the case here is actually pretty compelling that Cannon got it right.

There are checks and balances in the US Constitution and frame of government. Included within those checks and balances is who exactly can prosecute and bring criminal charges. There's a reason that US Attorneys (USAs) need to be appointed and confirmed by the Senate. The ADAs serve under the USAs.

As a special counsel, Jack Smith's powers equal or exceed those of a USA. Yet he was never confirmed by the Senate. Nor was his position even established by law.

Arguably if the position of Special Counsel was entirely Constitutionally Proper, the AG could simply appoint 50 or 100 "Special Counsels" and do away entirely with needing USAs. Then that pesky "confirmation process" could neatly be avoided. That of course, would break the whole separation of powers issue. Which brings us back to point 1.

[NvEric]

Of course she got it right on this important point. To do otherwise, like the other one involving Smith in DC, that judge there is following an illegal/unconstitutional path.

[Commenter_XY]

The figurative head explosions arising from Judge Cannon's decision need to stop, and then the vituperation will begin. Not to worry.

[Jerry B.]

Read the comments on that decision in the Washington Post. Plenty of vituperation. Thousands.

[Bob from Ohio]

"figurative head explosions arising from Judge Cannon’s decision"

Wait until she takes the Wise Latina's spot.

[John F. Carr]

She needs to wait in the head-exploding line behind Roy Moore and James Ho, both of whom have appellate court experience.

[Rev. Arthur L. Kirkland]

Getting the bigoted, worthless shit kick out of you by your betters in the culture war has made some of you clingers cranky and delusional.

[Dan Schiavetta]

The argument accepted by Cannon had been made only half-seriously; it had been consistently rejected in other special prosecutor cases.

[apedad]

And is being appealed by the Justice Department - and Cannon will be likely overruled (again).

"The Justice Department would presumably go to the 11th Circuit Court of Appeals, which overturned an earlier Cannon decision on the classified documents probe.

In December 2022 — months before Trump was indicted — a three-judge panel there found that Cannon was wrong to interfere with the ongoing criminal investigation by appointing a special master to review material seized from Mar-a-Lago during a judicially-authorized FBI search."

[SRG2]

it had been consistently rejected in other special prosecutor cases.

But there is the Trump exception of course. And I can imagine the 11th overturning Cannon's ruling, it then being appealed to the Supreme Court - who will put it on the calendar for 2025...

[SRG2]

BTW according to Trump v US, Biden could now do what he wants to Cannon, arguing that she is not carrying out the law properly and so removing her is a core constitutional activity under the heading "taking care that the laws be faithfully executed".

[Dan Schiavetta]

Under Trump v. U.S, actions between the President and non-Executive Branch personnel (such as Trump trying to coerce Pence, as President of the Senate, into rejecting the Electoral College count) are “presumptively immune” from criminal prosecution. So the burden would be on Cannon to show that the removal was unlawful. She might have a good argument there, because federal judges by law can be removed only via impeachment.

That’s not so say that Trump v. U.S. was not, um, groundbreaking. The President’s actions within the Executive Branch (such as Trump threatening to fire the Acting A.G. if he didn’t order states to investigate voter “fraud”) are “absolutely immune”. This means that Ford didn’t have to pardon Nixon — Nixon had absolute immunity because all his Watergate conduct involved Executive Branch officials (Haldeman, Ehrlichman, etc.)

[JoeFromtheBronx]

Federal judges have been -- unlike sitting presidents while in office -- prosecuted while they were on the bench.

A conviction usually, but not always, led to them resigning from the bench. Not sure if a federal judge can preside from a prison cell.

Also, in the lower courts, a judge might be removed from active service for a limited amount of time. Such as that elderly judge in the news recently.

The assumption is that federal judges can only be removed by impeachment. The "good behavior" clause implies maybe not.

https://www.yalelawjournal.org/pdf/438_q54sjnwz.pdf

(also, Hamilton in the Federalist Papers assumed if a judge was found insane, they would be presumptively unfit for the bench)

[Dan Schiavetta]

Judge Claiborne was convicted and sent to prison in 1984 but wasn't impeached and removed until 1986 (I commented on that case here on March 12).

[not guilty]

Judge Harry Claiborne and Judge Walter Nixon were each tried and convicted while remaining on the federal bench. Each remained in office until impeached and convicted by the Senate.

Then-Judge Alcee Hastings was tried and acquitted while in office. He was nevertheless removed from office thereafter by impeachment. He later served in the House of Representatives.

[David Nieporent]

Hastings sued, both for the reason that Walter Nixon sued — that the senate procedures were improper — and on a Trumpian-style double-jeopardy argument that acquittal meant he couldn’t be impeached. The second argument was summarily rejected, but he won at the District Court on the first argument, until SCOTUS ruled against Walter Nixon.

[SMP0328]

I didn't know a President could unilaterally remove a federal judge from office. I always thought such removal would have to go through the impeachment process.

[Bob from Ohio]

They can't. And Trump v. US doesn't change that. It just the childish tantrum the libs are throwing over the decision.

[Bob from Ohio]

"Supreme Court – who will put it on the calendar for 2025…"

It will still be on the 11th Circuit's calendar then, right? Its a routine criminal appeal, no compelling legal [as compared to political] reason to rush it.

How quickly is a criminal dismissal appeal normally set for oral argument?

[SRG2]

The decision is certainly consistent with everything else Cannon has done in this case - and is of course inherently dishonest as she could have so ruled when she was initially appointed or at least, much earlier in the process. This comes over as part of her successful attempt to delay the trial.

[Noscitur a sociis]

Arguably if the position of Special Counsel was entirely Constitutionally Proper, the AG could simply appoint 50 or 100 “Special Counsels” and do away entirely with needing USAs. Then that pesky “confirmation process” could neatly be avoided. That of course, would break the whole separation of powers issue.

I am much more sympathetic to Cannon's conclusion than most people here, but this is not a very compelling argument.

First, the attorney general can already direct U.S. Attorneys exactly what to do, and can fire them if they don't do it. Once there is a vacancy (including one created by the attorney general firing someone), the powers of the office can be exercised by an acting U.S. Attorney (who will typically be an employee) or by a U.S. Attorney appointed by the attorney general directly. The attorney general can also personally take over any case that would ordinarily be assigned to a U.S. Attorney's Office and have a different DOJ attorney handle it. So it's already more than possible for an attorney general who is so inclined to staff all federal prosecutions without senate-confirmed officers, and this interpretation doesn't make that harder in any meaningful way.

[Dan Schiavetta]

This is technically true, but custom and practice (as well as canons of professional responsibility) have always played a role. It has long been considered abuse of power to use the Dept. of Justice for partisan ends, which is why special counsels have been appointed, to keep the DOJ neutral. Nixon’s firing of Cox caused the AG and the Acting AG to resign. Clinton would have loved to fire Ken Starr but by then the tradition was established.

You might remember Bush’s A.G. getting in trouble for passing along to USAttys the White House's request to investigate Bush’s political enemies. And Jeff Sessions recusing himself from the Russia probe.

This tradition was destroyed by Trump, in his handling of Sessions, Comey, and others.

[Armchair]

"First, the attorney general can already direct U.S. Attorneys exactly what to do, and can fire them if they don’t do it. Once there is a vacancy..."

Sounds like a great scheme. It's been tried. Doesn't actually work. There's that 120 limit on interim appointments put back into place.

https://en.wikipedia.org/wiki/Dismissal_of_U.S._attorneys_controversy

[NvEric]

Craig v. Boren (1976) involved a sex-based classification that treated men worse than it did women. Oklahoma law prohibited the sale of “nonintoxicating” 3.2 percent beer ....

So, what about the "intoxicating" stuff ?

[Rev. Arthur L. Kirkland]

I believe the half-educated hillbillies of West Virginia still may statutorily classify beer that is less than 12 percent alcohol as “nonintoxicating.” (A mainstream American lager approximates 5 percent; a Double Arrogant Bastard approximates 10 percent.)

Not that it much matters. A West Virginia Nonintoxicating Beer Commissioner once told me, within five minutes of shaking hands in his office, that he neither knew nor gave half a shit about what the statutes required or prohibited. He then told me that my firm could expect from the governor, however, in exchange for a “courtesy,” . . . ah, never mind.

West Virginia — the state, the government, the people, the culture — is every bit as shitty as you imagine it could be.

[JoeFromtheBronx]

Justice Harlan concurred under sufferance in WMCA, Inc. v. Lomenzo:

I would have accelerated the appeal, and, but for the action of this Court in denying the stay which was sought, I would have granted the further application for such a stay that was made to me during the summer. Travia v. Lomenzo, No. 191, Memorandum of MR. JUSTICE HARLAN, July 16, 1965, 86 S. Ct. 7.

I now acquiesce in the affirmance, as I can see no satisfactory way to heal, at this juncture, the wounds to federal-state relations caused by the District Court's order without inflicting even greater ones.

The upshot of what is done today is, then, to suspend New York's 150-member constitutional provision for the one-year duration of the 1966 Legislature, a result to which I subscribe only under the compulsion of what has gone before in this Court.

==

More of John Paul Stevens's official papers were released recently, providing additional insights behind the scenes. Looking up something, it looks like there are still some not released yet, involving the Roberts Court.

[Dan Schiavetta]

Thanks!

Though I usually disagree with where Harlan came down on the issues, everything I've read from him is impressive, intelligent, thoughtful.

[apedad]

O/T

Is there a database to check petitions for a writ of certiorari at the Supreme Court?

Do all petitions get a yes/no answer?

[JoeFromtheBronx]

This is helpful:

https://www.supremecourt.gov/docket/docket.aspx

I believe all petitions are addressed. Among the lists of petitions denied, you can find some pretty absurd claims, sometimes handwritten.

[apedad]

Thanks!