Today in Supreme Court History: October 17, 1862

10/17/1862: Justice David Davis takes oath.

Justice David Davis

Comments

[Dan Schiavetta]

McPherson v. Blacker, 146 U.S. 1 (decided October 17, 1892): rejects argument that under art. II, §1, clause 2 (Electors from states shall be appointed “in such manner as the legislature thereof may direct”) electors have to be chosen by the Legislature itself, acting as a unit; upholds Michigan statute (i.e., an Act of the Legislature) directing Electors to be elected by Congressional district; mandamus is proper vehicle to determine this dispute because election is imminent

The Silvia, 171 U.S. 462 (decided October 17, 1898): shippers of sugar damaged by leaking vessel could not recover because damage due to bad weather not unseaworthiness; the opinion contains details of proper methods in those days of battening hatches, sealing ports, etc.

United States v. Chicago, Milwaukee & St. Paul Ry. Co., 218 U.S. 233 (decided October 17, 1910): U.S. sued to get back land erroneously “patented” to railroad (actually, to disgorge proceeds from subsequent sale); U.S. could not recover for tracts which were already judicially declared swampland and so not included in the patent as defined

Irick v. New York, 143 S.Ct. 357 (decided October 17, 2022): denied cert. where defendant (accused of burglary and menacing) claimed ineffective assistance of counsel; had misbehaved, throwing himself on the floor, so that court properly ejected him from hearing and refused to let him proceed pro se (203 A.D.3d 517); order seems odd to me because this was cert. directly from New York’s mid-level appellate court, the highest court having denied defendant's leave to appeal to that court -- I didn’t know the Supreme Court could entertain cert. from a mid-level state court

[not guilty]

"order seems odd to me because this was cert. directly from New York’s mid-level appellate court, the highest court having denied defendant’s leave to appeal to that court — I didn’t know the Supreme Court could entertain cert. from a mid-level state court"

Per 28 U.S.C. § 1257(a), final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where a federal question is presented.

Where a state's court of last resort has denied review, the highest court of a State in which a decision could be had is the intermediate appellate court. Supreme Court Rule 14 governs the content of a cert petition. Rule 14(1)(g)(i) states:

If review of a state-court judgment is sought, specification of the stage in the proceedings, both in the court of first instance and in the appellate courts, when the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed on by those courts; and pertinent quotations of specific portions of the record or summary thereof, with specific reference to the places in the record where the matter appears (e.g., court opinion, ruling on exception, portion of court's charge and exception thereto, assignment of error), so as to show that the federal question was timely and properly raised and that this Court has jurisdiction to review the judgment on a writ of certiorari.

[Dan Schiavetta]

Thanks. I suppose when they say cert is discretionary they really mean it. One could petition a parking ticket fine to the Supreme Court and in theory they can agree to hear it!

[John F. Carr]

I recall seeing a case that went from a municipal court in the South, maybe Tennessee, to the Supreme Court. Maybe in the 1950s? It was a message from the Supreme Court. Obviously not every petty offense can be reviewed.

In those days a sentence from a municipal court could be “$100 fine or ten days” based on a policy than jail counted as $10 per day. Judges are supposed to consider ability to pay now before locking up a defendant for failure to pay a fine. Ten days for a petty offense, that’s allowed as long as there is no option to go free by paying an unaffordable fine.

[not guilty]

The case would have to be first presented to the highest state court that could entertain the action before seeking cert. If the state's court of last resort has declined discretionary review, certiorari to the intermediate appellate court can issue from SCOTUS.

[JoeFromtheBronx]

Powell v. Texas involved a $20 fine in a local court.

An appeal was made to the county court & Powell's fine for public drunkenness was then $50.

Not a totally trivial amount in the 1960s, granted, but somewhat unlikely the person involved had the funds to pay it.

No other state appeal being possible, it then went to the Supreme Court where he lost (4-1-4).

[F.D. Wolf]

The 1892 presidential election was the only time Michigan used the system of appointing electors by congressional districts. In 1890, the Democrats had won control of the state legislature for the first time since the Civil War and instituted the new system to boost the Democratic candidate's chances in the presidential election, though it would not ultimately affect the outcome. In the 1892 election, former President Grover Cleveland defeated incumbent President Benjamin Harrison to become the only (thus far) president to serve non-consecutive terms. Harrison won nine of Michigan's electors to Cleveland's five. Republicans also retook the state legislature in 1892 and promptly repealed the new electoral system.

[Dan Schiavetta]

Thanks!

Did McPherson reject the “independent state legislature” idea? How would that play out today?

[Brett Bellmore]

Since McPherson upheld a law enacted by the legislature, it would be rather strange if it had rejected that doctrine.

[Dan Schiavetta]

The statute directed a certain way of appointing electors. The “independent legislature theory” says that in the teeth of such a statute the legislature can, after the fact, appoint its own slate of electors.

[F.D. Wolf]

The "independent state legislature" theory, as I understand it, is that when the Constitution uses the word "legislature", it means "legislature", not "the general lawmaking process." The Supreme Court has seemed to hold that sometimes "legislature" in the Constitution means "legislature" and sometimes it doesn't.

A state legislature can certainly change its manner of appointing electors, which is exactly what happened in McPherson. State legislatures are, of course, constrained by state law in doing so, but a state's compliance with its own laws is a matter for state courts to adjudicate and presents no federal questions in my opinion.

[Brett Bellmore]

No, because legislating is HOW the legislature does things.

The independent legislature theory actually says that the courts or the executive can't decide, in the teeth of a legislative statute, a different way will be used. Not even if they've got an excuse like a pandemic.

[gormadoc]

This is JonTron now. Feel old yet?

[JoeFromtheBronx]

David Davis was Abraham Lincoln’s campaign manager at the 1860 Republican National Convention.

Davis was also a lawyer, legislator, politician, delegate to a state constitutional convention, and state circuit judge. As a justice, he wrote the opinion in Ex parte Milligan, underlining the importance of civilian justice even in wartime.

He would have been appointed to the 15-person commission (5 justices) involved in settling the 1876 presidential election dispute but was elected senator before having a chance.

Regarding McPherson, interesting argument about a current right to elect the president:

https://balkin.blogspot.com/2024/10/power-for-people-recognizing.html

The piece grants there is no right for citizens who reside in the U.S. territories & that felony disenfranchisement laws are constitutional.

The former should be deemed more appalling (“no taxation without representation”) than it is & was previously less of a thing only because there was generally no assumption we would have sizable permanent colonies.

Felony disenfranchisement is problematic for various reasons, some constitutionally based, especially specific types.

[F.D. Wolf]

The Electoral Commission created to resolve the controversial 1876 presidential election consisted of five members of the House, five members of the Senate, and five members of the Supreme Court. There were to be seven Republicans, seven Democrats, and one independent - Justice David Davis. The Democrat-controlled Illinois legislature, in a transparent attempt to sway Davis' vote on the Commision, elected him to the Senate. Its expectation was that Davis would complete his duties on the Commission before taking his seat in the Senate. But, in a backfire for the ages, Davis immediately excused himself from Commission (and the Court) and went to claim his seat in the Senate. As there were no other independents on the Court to replace him, he was replaced by Justice Joseph Bradley, a Republican.

The uncontested electoral votes were 184 for Democrat Samuel Tilden and 165 for Republican Rutherford Hayes, with 185 needed for a majority. Tilden would have to win one of the contested twenty electoral votes to win the presidency, while Hayes would have to win all twenty. Every single vote of the Commission on each contested electoral vote was 8-7 along party lines, and Hayes was declared the winner of the electoral college 185-184.

[JoeFromtheBronx]

Davis ran to be a liberal Republican in the 1872 presidential election. The nomination went to Horace Greeley, who died in late November. Davis wound up getting one of Greeley's electoral votes after he died.

Later, while he was in the Senate, it was evenly split. This became particularly notable when Garfield died.

VP Chester "two first names" Arthur became president. The Senate pro tempore would be next in line since there was no 25A back then. That role would be held by Davis, who was made pro tempore, underling his reputation for independence.