Today in Supreme Court History: August 19, 1937

8/19/1937: Justice Hugo Black takes the oath.

Justice Hugo Black

 

Comments

[Dan Schiavetta]

Corpus Christi School District v. Cisneros, 404 U.S. 1211 (decided August 19, 1971): Black reinstates stay dissolved by Fifth Circuit of desegregation order granted by different trial court judge than the one who issued the order saying he would grant no stays; “it is apparent that this case is in an undesirable state of confusion and presents questions not heretofore passed on by the full Court, but which should be” (the Fifth Circuit later modified the order and cert was denied, 413 U.S. 922, 1973) (Black himself was in an undesirable state of confusion; at age 85 his mind had been failing and he resigned a few weeks later; I recommend this comprehensive historical review available online, Garrow, “Mental Decrepitude on the United States Supreme Court”, 67 U. Chi. Law Rev. 995 (2000); see the discussion of Black at pp. 1050 - 51)

Rose v. Raffensberger, 143 S.Ct. 58 (decided August 19, 2022): Black voters won in suit claiming at-large voting for Georgia Public Service Commission violated Voting Rights Act and obtained permanent injunction against at-large voting. The Eleventh Circuit granted stay pending appeal. Here Thomas vacates the stay because the Circuit Court applied the wrong analysis (changing voting method would not be possible before November 2022 elections) instead of traditional analysis (likelihood of success on the merits). Thomas refers back to the Eleventh Circuit for reconsideration. (Georgia did not seek stay again, but postponed elections to 2023 until appellate course has run; Circuit Court heard argument on direct appeal in December 2022, but stayed decision pending the Court’s decision in a Congressional apportionment case, Allen v. Milligan, 143 S.Ct. 1487, which was decided on June 8, 2023 under an analysis that favors the black voters here; no decision on appeal yet.)

[Martinned2]

I will just leave this here:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time

[Dan Schiavetta]

Ex parte Levitt, 302 U.S. 633 (decided October 11, 1937): someone sued to invalidate Hugo Black’s appointment to the Court on the basis that he was already a Senator (in violation of art. I, 6, clause 2) (I don’t know why anyone would argue this; he resigned as Senator the day he was confirmed); dismissed for lack of standing (does this mean nobody can contest a S.Ct. appointment?) (the opinion is “Per Curiam” and no note about Black recusing himself)

[John F. Carr]

See also Schlesinger v. Reservists Committee to Stop the War.

[apedad]

I would have pointed more to this statement, "civil Office under the Authority of the United States," and argued a Supreme Court Justice is not a civil office.

[Martinned2]

Because it is a military office? I would have thought that it is a quintessentially civil office.

[Noscitur a sociis]

What is it, then?

[not guilty]

For a more detailed treatment of standing under the Emoluments Clause, see McClure v. Carter, 513 F. Supp. 265 (D. Idaho 1981), aff'd sub nom. McClure v. Reagan, 454 U.S. 1025 (1981). A three judge District Court held a U. S. Senator's challenge to the appointment of former Rep. Abner Mikva to the D.C. Circuit Court of Appeals to be non-justiciable for lack of Article III standing.

[Magister]

Certainly Black resigned as Senator to become a Justice, but the compensation (at least) was increased (a pension) during the time he was elected to be a Senator. But I think the lack of standing is correct; the Senate as a whole (or a majority of it) would have standing, but they already had the chance to deny his confirmation, and the solution for everyone else would not be judicial but to elect Senators and Representatives who would remove Black.

https://texaslawreview.org/the-unconstitutionality-of-justice-black/

[F.D. Wolf]

The issue in Levitt was not whether Black was still a Senator (obviously, he wasn't), but whether the emoluments for Supreme Court justices had been increased during the term to which he had been elected (1933-1939). This had been discussed in the Senate during his confirmation process and in the media, so it was not as if Levitt was raising some obscure constitutional point that had not previously occurred to anyone.

In 1937, Congress had expanded the retirement options for Supreme Court justices, whereby a justice at the age of 70 could retire at full salary. Previously, a justice at 70 could resign at full salary, but not retire. The distinction is meaningful because federal judges who have resigned may theoretically have their pensions reduced (or even eliminated) by Congress, but those who have retired may not have their pensions reduced, per the Constitutional provision that their “[c]ompensation . . . shall not be diminished during their Continuance in Office.” Booth v. United States, 291 U.S. 339 (1934).

[F.D. Wolf]

The issue seems unlikely to arise in the foreseeable future, as the last member of Congress appointed directly to the Supreme Court was Sen. Harold Hitz Burton, appointed to the Court by President Truman in 1945. (The last justice with any previous service in Congress was Sherman Minton, who was a member of the House from 1935-1941 and appointed to the Court by Truman in 1949).

[F.D. Wolf]

One way to put the legal issue might be to imagine the Congress creates a position with a pension of "$100,000 per year". Later, Congress modifies the position to include a pension of "$100,000 per year, guaranteed to never be decreased".

Have the emoluments of the position been "increased"?

[JoeFromtheBronx]

Federal judges take two oaths — a judicial oath & a constitutional oath. Justice Black gave Earl Warren the constitutional oath (recess appointment; Jackson later gave him a combined oath, which is sometimes done).

https://www.supremecourt.gov/about/oath/oathsofthechiefjustices.aspx

“Black himself was in an undesirable state of confusion”

Ha. The Supreme Court also released an Order List today.

William “Former Commissioner of the Presidential Commission on the Supreme Court” Baude the Ex parte Levitt:

https://texaslawreview.org/the-unconstitutionality-of-justice-black/

Albert Levitt was a lawyer and troublemaker (his obituary called him a “crusading professor”) Josh Blackman mentor?