Today in Supreme Court History: August 9, 1974

8/9/1974: President Richard Nixon resigns from office, President Gerald Ford takes oath of office.

Comments

[Dan Schiavetta]

United States v. FMC Corp., 84 S.Ct. 4 (decided August 9, 1963): Goldberg says he has no jurisdiction to stay a merger which allegedly violated the Clayton Act. Here, the U.S. brought suit in the District Court which denied its motion for a stay. The U.S. appealed to the Circuit Court, which held that it had no jurisdiction. At issue was the “Expediting Act”, 15 U.S.C. §29, under which final judgments in antitrust cases brought by the U.S. can only be appealed directly to the Supreme Court. This had been construed to mean that there can be no appeal (to any court) of nonfinal orders in such suits. Goldberg notes that there is a split in the circuits (the Third Circuit disagreeing with the others) but he goes along with the majority view. (Of course, as Circuit Justice he didn’t have the power to resolve the split; in fact it has never been resolved.) Also at issue was the “all writs” statute, 28 U.S.C. §1651(a), which codifies the common law view that an appellate court has the power to order injunctions (and any other relief) in aid of its appellate jurisdiction. Goldberg holds that the Expediting Act, being specific to this situation, was controlling.

[F.D. Wolf]

I believe that the Court did definitively resolve that issue in Tidewater Oil Co. v. United States, 409 U.S. 151 (1972), holding, as Goldberg had, that the circuit courts had no jurisdiction to consider interlocutory appeals under the Expediting Act. To reproduce the syllabus:

"The Expediting Act, providing that, in a civil antitrust action brought by the United States in a federal district court, an appeal from that court’s final judgment will lie only to this Court, lodged exclusive appellate jurisdiction over such actions in this Court, and thus bars the courts of appeals from asserting jurisdiction over interlocutory orders covered by 28 U.S.C. § 1292(b), as well as over other interlocutory orders specified in § 1292(a). The legislative history of those provisions contains no indication of a congressional intent to impair the original exclusivity of this Court’s jurisdiction under the Expediting Act."

This was a 6-3 decision, with Justice Marshall writing the majority opinion. Justice Stewart, joined by Justices Douglas and Rehnquist (an uncommon combination), dissented. (Douglas also wrote a separate dissent).

[Dan Schiavetta]

Thanks!

[John F. Carr]

The law was rewritten in 1974. In general, appeals are taken as for any other case. If the judge certifies a final judgment for direct review the Supreme Court may hear the appeal or remand the case to the Court of Appeals. This smells like certiorari before judgment.

Legislative history comment: "1974-Pub. L. 93–528 substituted provisions for appeals to the court of appeals from civil actions in district courts where equitable relief is sought, review by the Supreme Court of judgments of courts of appeals, and for direct appeals to the Supreme Court of cases involving general public importance, for provisions that appeals from final judgments of district courts lie to the Supreme Court only."

[Dan Schiavetta]

thanks again

[JoeFromtheBronx]

Heather Cox Richardson provides some context to the Nixon resignation including the activities of the “plumbers”:

https://heathercoxrichardson.substack.com/p/august-8-2024?utm_source=%2Finbox&utm_medium=reader2

There are a few 1790s cases cited as occurring on this date. Moodie v. Ship Phoebe Anne (1796) is somewhat interesting.

The case involves a British ship captured by French privateers. Disputes involving the European unpleasantness were a significant part of the early Supreme Court docket.

They also had public policy implications, especially since it was a major matter of debate among the two major parties and involved actions that repeatedly took place in American waters.

The British Consul challenged the legitimacy of the capture partially making a policy argument.

Chief Justice Ellsworth spoke for the Court in a brief opinion. Ellsworth started a practice of speaking for the Court though ending separate opinions by each justice only stuck during the Marshall Court.

He noted “Suggestions of policy and conveniency cannot be considered in the judicial determination of a question of right: the Treaty with France, whatever that is, must have its effect.”

The seizure was upheld.

https://supreme.justia.com/cases/federal/us/3/319/

https://www.courtlistener.com/opinion/2098227/moodie-v-ship-phoebe-anne/

[Corve5]

https://edition.cnn.com/2024/08/09/tech/elon-musk-garm-advertisers-lawsuit/index.html

This is hilarious. I don't like it from a principled point of view, but if liberals can use the court system as a weapon, then payback is fun.

[F.D. Wolf]

After Vice President Spiro Agnew resigned in 1973, President Nixon, per the 25th Amendment, nominated Gerald Ford to replace him. When Ford, upon Nixon's resignation in 1974, became President, he nominated Nelson Rockefeller to become vice president, again, per the 25th Amendment. When Ford ran for President in 1976, he replaced Rockefeller, who conservative Republicans viewed as too liberal, with Bob Dole, a decision Ford would later say he regretted.

Rockefeller would die in 1979. So, entering the realm of an alternative history in which a Ford-Rockefeller ticket won the 1976 presidential election, we would most likely have had a situation in which three consecutive vice presidents were appointed per the terms of the 25th Amendment.

[SMP0328]

The 25th Amendment, together with the idiocy of Agnew and Nixon, allowed for Gerald Ford to be the only person to have been Vice President and President without ever being elected to either office. Ford and Speaker Carl Albert were personally grateful for that amendment's adoption.

[John F. Carr]

In Massachusetts it is possible to run out of gubernatorial successors. There is no process to replace a lieutenant governor.

[Dan Schiavetta]

Some years ago New Jersey, due to resignations, deaths, legislature changing parties, etc., had six acting Governors in the space of two weeks. The Speaker of the Senate, who was temporarily it on the date of the State of the State address, selfishly and gracelessly gave the address himself instead of postponing it for a week so that the eventual "permanent" Governor could give it.

[Krayt]

Yes, but…that’s always been a show piece at the federal level. At the state level? Stacking clowns on top of clowns. The presumptive gravitas is a conjuration, like Academy Awards, created for the express purpose of focusing attention on the movie industry to earn more money.

[David Nieporent]

Some years ago New Jersey, due to resignations, deaths, legislature changing parties, etc., had six acting Governors in the space of two weeks.

It was only 4, but it was in the space of 8 days:

https://www.nytimes.com/2002/01/07/nyregion/new-jersey-to-have-4-chief-executives-over-8-jumbled-days.html

The main result was that we added the office of Lieutenant Governor so that it would be unlikely we'd have vacancies like that.

[Dan Schiavetta]

Thanks

I didn’t think it was that long ago!

[JoeFromtheBronx]

Yes, no deaths.

Gov. Whitman resigned to be part of the Bush Administration, so it went to the president of the Senate. DiFrancesco became acting governor when that happened.

That office ends before the start of the new term of governor. DiFrancesco's term ended. So, the new president of the Senate should have simply filled in for the short interim period.

The problem was that the new Senate was evenly divided. So, the Republican and Democratic leaders split the short interim term as governor.

[Frank Drackman]

When my time comes to leave this moral coral, I’d like to go out like Nelson Rockefeller did

Frank

[CJColucci]

Several years ago, I found myself on a train seated next to the medical examiner who conducted the autopsy of Nelson Rockefeller. Let's just say that when people referred to the Empire State Plaza in Albany as "Rockefeller's Last Erection" they were premature.

[Brett Bellmore]

The joke is, Bob Dole was no prize, either, from a conservative standpoint.

[David Nieporent]

The thing is, I doubt Edmund Burke would be a pure enough conservative for Brett.

[JoeFromtheBronx]

Lest we forget, the 25th anniversary was honored by that excellent dramatic film, Dick, though some say it was more of a satire.

https://www.youtube.com/watch?v=5_0BO7ONQlY

[Dan Schiavetta]

Lots of fun! Thanks!

[Frank Drackman]

Totally inaccurate movie “Checkers”was in Doggy heaven by the time Milhouse made it to the Oval Orifice, the Dog who didn’t like him was “King Timahoe” Gordon Liddy worked in the EOB, not the White House, and “Dancing Queen” wasn’t released until 1976 . Worth watching for Kirsten Dunst and the final Rollerskating scene

Frank

[Corve5]

https://www.cnn.com/2024/08/09/us/maine-gun-sales-waiting-period/index.html

“These new laws will certainly save lives, both here in Maine and throughout the nation,” said Nacole Palmer, executive director of the Maine Gun Safety Coalition.

This is what the gun controllers always say, that it'll save lives, and when it doesn't, they don't apologize. So new proposal. If you call for new gun laws to reduce crime, and it doesn't, you serve jail time.

Any takers?

[not guilty]

Guns don't kill people.

Gunshot wounds kill people.

[Ilya Snowman]

https://www.youtube.com/watch?v=tuvkGKzd9Lw

Depends on how well you hit.

[Corve5]

https://www.ca4.uscourts.gov/opinions/211255.P.pdf

Basically, this “opinion” can be read as “Yeah, we were slapped down by SCOTUS in Bruen, and now we hereby twist our same poor anti-Constitution logic to supposedly fit within Bruen’s framework.”

Except for Wilkinson who is a geriatric piece of shit appointed by Reagan, all judges in the majority were appointed by Clinton, Obama or Biden. They don't care about the rules. They care about outcomes.

They belong in concentration camps

[Ilya Snowman]

The have no real deterrents. They fear no real (legal) consequences.

Change that.