Today in Supreme Court History: August 1, 1942

8/1/1942: Military commissions conclude for eight nazi saboteurs. The Supreme Court upheld the constitutionality of these trials in Ex Parte Quirin.

The Stone Court (1942)

Comments

[Dan Schiavetta]

American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 87 S.Ct. 1 (decided August 1, 1966): Harlan stays state court judgment, affirmed by New York’s highest court, due to argument that contract at issue violated antitrust laws, even though no showing of prejudice from having to pay the judgment and irrelevant that petitioner had not sought cert even though “substantial federal question” (in fact cert was later denied, 385 U.S. 931, 1966, and stay automatically terminated) (at issue was whether agreement to sponsor network news program involved “tying” prohibited by Sherman Act)

Holtzman v. Schlesinger, 414 U.S. 1304 (decided August 1, 1973): Marshall denies stay, which has the effect of allowing continued military operations in Cambodia; suit had been brought by Congresswoman Elizabeth Holtzman on basis of Congressional prohibition of such operations; Marshall’s opinion instructively reviews standards for granting a stay and how they might apply to this “sui generis” situation; he decides that the question should be decided by the full Court.
Note: three days later another application was made, to Douglas, who stayed Cambodia operations; later that day Marshall un-did the stay again, with all the other Justices agreeing with him except Douglas; the Second Circuit heard the direct appeal and dismissed suit on August 8 on grounds that issue was political and therefore non-justiciable; cert denied in April 1974

[Dilan Esper]

Douglas was never more lawless or arrogant than he was when he was mucking around in Schlesinger v. Holtzman, and that's saying something because Douglas was often lawless and arrogant.

[Martinned2]

Makes you wonder why they even bothered. Why not summarily execute them on the spot?

[JoeFromtheBronx]

Two of them were not executed.

It provides some due process & could also involve helpful testimony.

[Bob from Ohio]

"Why not summarily execute them on the spot?"

No good reason. Just misguided sentiment.

[apedad]

It's not misguided sentiment.

It's 21st century sentiment - as opposed to the 16th century sentiment you wish we still lived under.

[Frank Drackman]

and 6 were executed in the DC Electric Chair 6 days later, ahh for the good old days. (wouldn't the Gas Chamber have been more appropriate?)

Frank

[JoeFromtheBronx]

The Supreme Court at the time referenced in the Vietnam case was fully in recess during the summer, which is not the current practice.

Marshall did a phone poll of the justices, which Douglas strongly argued was not a proper approach.

As an aside, given the discussion of the SCOTUS reform proposals, I recommend the section of the Presidential Commission on the Supreme Court Final Report that talked about term limits. It includes a discussion of the possibility of doing it statutorily.

https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf

[SMP0328]

As an aside, given the discussion of the SCOTUS reform proposals, I recommend the section of the Presidential Commission on the Supreme Court Final Report that talked about term limits. It includes a discussion of the possibility of doing it statutorily.

The Constitution says federal judges serve during "good Behaviour" and that has always been interpreted to mean lifetime appointment, subject to resignation and removal. If lifetime appointment for federal judges is to be ended, it must be via Constitutional amendment.

[Rev. Arthur L. Kirkland]

" has always been interpreted to mean lifetime appointment "

Look who's trying to climb back on the Stare Decisis Express!

[SMP0328]

What are you talking about? Please intelligently respond to what I said, instead of providing only sarcasm.

[Rev. Arthur L. Kirkland]

"Always been interpreted that way" is a stare decisis argument (relying on precedent in decision-making).

Stare decisis is conspicuously out of favor in some circles.

[JoeFromtheBronx]

What “always” is true can change.

For instance, it has “always” been understood (generally speaking) that impeachment is the only way to permanently remove judges for bad behavior. Far from clear that is compelled by the text.

Anyway, the report discusses possible ways it can be done w/o an amendment. The proposals did not just arise a few years ago.

Some scholars have suggested them. “Always” means “some subset of people with the exceptions deemed irrelevant somehow.”

I personally think, writ large, an amendment is likely necessary. But the discussion makes me not totally sure.

[SMP0328]

What “always” is true can change.

Sure, but the issue is how. I think it would have to be an amendment.

I personally think, writ large, an amendment is likely necessary. But the discussion makes me not totally sure.

While it's possible SCOTUS would uphold such a statute, I think it is highly unlikely. The Court usually looks to American history to determine a Constitutional provision's meaning (e.g., NLRB v. Noel Canning, 573 U.S. 513 (2014) and Chiafalo v. Washington, 591 U.S. ___ (2020)). Historically, Article III has been understood to provide that a federal judge remains in office until he dies, resigns, or is removed.

I'm not opposed to changing this Constitutional rule, but any change to Article III would have to come through Article V (see 11th Amendment).

[JoeFromtheBronx]

I am inclined to believe that an amendment will be required too but what was assumed to be true has changed.

What SCOTUS will do, when their very existence is involved, remains to be seen. Congress can also in theory strip them of appellate jurisdiction to decide the matter.

The report explains different possible approaches. Just citing good behavior and offices does not end the conversation. The proposals also cite history. History can be used in different ways.

[Dan Schiavetta]

Good “behaviour”. Not good “behavior”. Hmmm. Maybe someone can make something out of that

[Mike45]

Now terrorists can kill almost 4000 people in the continental US and work out a plea deal to avoid the death penalty.

The world of terrorists is laughing at us.

[Kleppe]

The Biden administration knows they're too inept to secure a death sentence for the mastermind of the 9/11 attacks in front of an American jury. Glad for their self-awareness, even at this late hour.

[Rev. Arthur L. Kirkland]

You would have preferred an acquittal precipitated by tainted evidence precipitated by the Federalist Society Torture Squad?

Why didn't Trump do anything about this in four years? (It wasn't just the golfing and insurrection planning.)

[Martinned2]

Who knew that torturing people might have consequences?

[JoeFromtheBronx]

Most countries take the death penalty off the table. They still manage to fight terrorism.

The government’s handling of the process over the last 20 years is open to a lot of criticism. It is appreciated that at some point some final settlement is reached.

Some terrorist is not likely thinking “Well, I’ll only get life imprisonment in a federal supermax prison or GITMO, ha ha.”

[SMP0328]

Some terrorist is not likely thinking “Well, I’ll only get life imprisonment in a federal supermax prison or GITMO, ha ha.”

They probably hate it more than getting the death penalty. They want to be martyred for Allah. Instead, they continue to live in failure while rotting in a federal prison.

[Noscitur a sociis]

How odd that he was willing to agree to the harsher sentence to avoid a more lenient one!

[Bob from Ohio]

"How odd that he was willing to agree to the harsher sentence to avoid a more lenient one!"

The whole "life in prison is worse than execution" position is always proven false by the lengths people go to avoid the execution.

[JoeFromtheBronx]

It's not "always" proven false -- there are "volunteers" who decide to end their appeals. They are indeed only a smaller subset.

There also have been people who committed suicide since they could no longer handle prison.

My stance is that it is not likely to influence people who are otherwise willing to commit crimes that lead to the death penalty much at all.

[Dan Schiavetta]

"He looked like an aging, frightened Jesus, whose sentence of crucifixion had been commuted to life imprisonment."

Name that quote!

[JoeFromtheBronx]

God Bless You, Mr. Rosewater by Kurt Vonnegut, Jr.

[Dan Schiavetta]

Ding! Ding! Ding! You win a new car!!

[Dan Schiavetta]

I think that is Vonnegut's only optimistic work.