Today in Supreme Court History: September 2, 1819

9/2/1819: James Madison writes letter to Judge Spencer Roane criticizing McCulloch v. Maryland.

Comments

[Dan Schiavetta]

Hawaii Housing Authority v. Midkiff, 463 U.S. 1323 (decided September 2, 1983): Rehnquist denies stay of Circuit Court order recalling an earlier decision as to whether Hawaii Land Reform Act violated Fifth Amendment “takings clause” and enjoining housing authority from pursuing any state administrative or judicial proceedings under the Act; possible Younger abstention but notes that Circuit Court will shortly revise its decision (the Court eventually held no Fifth Amendment violation because land would be taken for “public use”, 467 U.S. 229, 1984) (Hawaii, aware of ownership of Oahu being in so few hands, bought the land at issue from a trustee of the traditional monarchy; it consisted of many little leaseholds, which it sold to the tenants at market value; this attempt at land redistribution was thwarted when Japanese investors came in, though they bought at a high markup, so the tenants ended up o.k.)

[JoeFromtheBronx]

The current Supreme Court easily could have decided McCulloch v. Maryland differently. It would not likely be unanimous.

President Madison in a veto message granted the bank’s constitutionality given general acceptance. It was a significant moment regarding the limits of a strict original understanding approach. He vetoed the second bank on other grounds.

His letter in part said he thought the opinion was too open-ended & should have been more narrow in scope. But, Marshall was stating precedents on a new field, and that was his m.o.

Madison, like Jefferson, also supported seriatim opinions, at least in major cases.

As to SCOTUS, the most recent order OTD I found (on the Order Page; there could have been other stuff hidden among the docket pages) was this one:

WEDNESDAY, SEPTEMBER 2, 2015
ORDER IN PENDING CASE

15A252 FIBROGEN, INC. V. AKEBIA THERAPEUTICS, INC.

The application for stay presented to Justice Kennedy and
by him referred to the Court is denied. The order heretofore
entered by Justice Kennedy is vacated.

It was a patent case.

[Mark Regan]

Here's a link, which Prof. Blackman should have supplied.
https://founders.archives.gov/documents/Madison/04-01-02-0455

Does any of this survive the Supreme Court's rejection in United States v. Butler of Madison's general welfare/taxation position?