Today in Supreme Court History: September 13, 1810

9/13/1810: Justice William Cushing died.

Justice William Cushing

Comments

[Dan Schiavetta]

M.I.C. Ltd. v. Bedford Township, 463 U.S. 1341 (decided September 13, 1983): Brennan stays injunction against showing two allegedly obscene movies; theater operator, sued for nuisance, had moved at every level of the Michigan court system to get an expedited hearing and all motions had been denied; “prior restraint” exception to First Amendment requires “strict procedural safeguards . . . including immediate appellate review” and such was not provided here (the theater was called “West Point Auto Theatre”, a drive-in, an appropriate name if you think of the term “autoeroticism”)

[Frank Drackman]

Loved him in those Hammer Horror movies

[Magister]

Repeating from last year a movie-related topic of conversation that has several parallels to the topic of this post: actor Peter Cushing. Among the parallels:

Same last name as Justice Cushing.

Lived 91 years, all but one of which included September 13th; Justice Cushing lived somewhat fewer years, all but one of which included September 13th.

Made a little more than 20 films for Hammer Film Productions in a little less than 20 years, while Justice Cushing wrote a little less than 20 opinions in a little more than 20 years on the Supreme Court.

Appeared in the lead role of the first theatrical movie of the longest running science fiction franchise, and again in a later movie; Justice Cushing appeared in the start of the longest running federal court along with subsequent appearances (but declined the lead role).

Wore hairpieces while acting in some later movies; Justice Cushing wore a wig while judging.

[Dan Schiavetta]

Good actor. I particularly liked "The Revenge of Frankenstein" (1958). Favorite quotes:

"Having grown accustomed to working alone, I now prefer it." Dr. Frankenstein (echoing my own sentiments as a lawyer)

"There's a very sound mind inside that . . . unfortunate body." -- Dr. Kleve to the pretty Nurse Margaret, explaining the deformed assistant Karl

[Frank Drackman]

Finally something we can agree on, that Frankenstein movie was Scary as (redacted) and "The Horror of Dracula" ?? best version of Dracula ever, way better than that "I Vant To Bite Your Neck" of Bella Lugosi,

[F.D. Wolf]

After Chief Justice John Jay resigned in 1795, President Washington appointed John Rutledge to succeed him, via a recess appointment. When the Senate returned from its recess, it rejected the Rutledge nomination. Washington then nominated Associate Justice William Cushing to succeed Rutledge as Chief Justice. Cushing was confirmed by the Senate and received his commission, but returned it six days later, choosing to continue to serve as an associate justice.

No other associate justice would be nominated to the chief justiceship until 1910, when President Taft elevated Justice Edward Douglass White to Chief Justice. At the time, everyone seemed to have forgotten about the Cushing nomination, and Taft received some criticism for the "unprecedented" promotion. In 1921, when the Supreme Court Bar Association memorialized the late Chief Justice White, Lawrence Maxwell, who had served as Solicitor General under President Cleveland (who had first appointed White to the Court), remarked:

Chief Justice White was the first Associate Justice to be raised to the Chief Justiceship. It had almost come to be regarded as a rule of the Constitution that an Associate Justice was not eligible for the Chief Justiceship. The objections urged were that no Justice should be beholden to the President or look to him for hope of reward, and the embarrassment that might arise if one Justice were promoted over his brethren should be avoided. President Taft doubtless considered these objections and set a new precedent.

It might be noted that there were extenuating circumstances attending Taft. Between October 1909 and July 1910, Justice Peckham, Justice Brewer, and Chief Justice Fuller all died. In November 1910, Justice Moody, the Court's youngest member, was forced to resign due to crippling arthritis. (Additionally, Justice Harlan would die in October 1911). Given all that rapid turnover, there was probably some wisdom in promoting an experienced hand from within.

[Hugo S. Cunningham]

It would make more sense for a new Chief Justice to be elected (or re--elected) at the beginning of each term by the incumbent nine from among themselves. But that is not what the Constitution says.

[Dan Schiavetta]

I don't think there's anything in the Constitution that forbids that process. It only says that there is to be "one Supreme Court". Elsewhere it mentions that the Chief Justice presides over Presidential impeachments, but it doesn't say how the Court selects who that would be.

[JoeFromtheBronx]

Art. II says courts of law can be given the power to select inferior officers. I would think the Chief Justice is not an inferior officer.

OTOH, I don’t think the role of chief justice necessarily has to be held by the same person for their full term on the bench. I think it would make sense to have the chief justice rotate. Perhaps, every 7-10 years. The president would still nominate them.

On principle, I am not sure about the justices electing the chief justice option. I wonder how many courts do that here and abroad.

[Dan Schiavetta]

It might work. To be CJ you don’t have to be the brightest or the most productive, but you do have to be the most persuasive and the best at listening skills. And also possessed of a relatively small ego.

O’Connor would have made a good CJ; Scalia, a lousy one.

[Magister]

As I noted less than a week ago, John Rutledge was too old when appointed to be a Chief Justice named John, and, despite almost no precedent, the Senate understood the need for that important tradition.

[Alpheus W Drinkwater]

Is it known why Justice Cushing declined the post, while remaining as an associate Justice? His wikipedia write-up doesn't say, and since that is the repository of all known human knowledge, perhaps we don't know the reason.

[JoeFromtheBronx]

Seriatim: The Supreme Court Before John Marshall by Scott Douglas Gerber (Editor) is one book that looks at the pre-Marshall Court. It is an interesting collection of essays about various justices. Cushing served for 20 years.

Since Peter Cushing came up. Cushing had a scene in the spoof (from the makers of Airplane!) Top Secret. It took place in a bookstore, which was played backward, making it sound like they were speaking in Swedish. Omar Sharif also took part in the film's silliness as an oh very proper secret agent.

https://www.youtube.com/watch?v=uuYTVl0iOkk

OTD in 2011 the Supreme Court turned a stay of execution request by Steven Michael Woods Jr. He was executed by Texas later in the day. Multiple people are due to be executed this month.

[Alpheus W Drinkwater]

Another good source is volume 1 of Charles Warren's 'The Supreme Court in United States History.' According to Warren, Washington's first choice was actually Alexander Hamilton, who had just resigned from the cabinet and declined the nomination to Washington before he even had the chance to make it. He wanted to concentrate on his practice and NY politics.