Today in Supreme Court History: October 25, 1795

10/25/1795: Justice John Blair resigns from the Supreme Court.

Justice John Blair

Comments

[Dan Schiavetta]

Myers v. United States, 272 U.S. 52 (decided October 25, 1926): President can remove officers appointed with consent of Senate (here, a postmaster) without Senate approval, even though Constitution is silent on the issue; striking down 1876 statute and (finally) striking down the Tenure of Office Act under which Andrew Johnson had been impeached

Gegiow v. Uhl, 239 U.S. 3 (decided October 25, 1915): alien cannot be excluded on grounds that “overstocked labor market” in Portland (Ore.) would likely result in him becoming a public charge; grounds must be nation-based, not locality-based

Vicksburg & M.R. Co. v. Putnam, 118 U.S. 545 (decided October 25, 1886): in Federal Employer Liability Act action, judge should have instructed jury that they are not bound by actuarial tables showing life expectancy, but can use their own judgment

[Commenter_XY]

Is Myers v US still good law? The limits of that removal authority would be very interesting, and might well be explored next year depending on election results.

[Dan Schiavetta]

Myers removal authority doesn’t apply to officers of “independent” agencies (created by Congress to perform quasi-legislative and -judicial functions), Humphrey’s Executor v. U.S., 1935, but only if the agency has a multi-member board balanced along partisan lines, Seila Law v. Consumer Financial Protection Board, 2020 (CFPB consisting of only one director, who can be removed only for cause, violated separation of powers).

But you are correct — if Trump is elected and follows through on his promise to fire anybody in the executive branch who displeases him, it will at some point run afoul of the Humphrey’s Executor rule, and there will be a court challenge.

[SMP0328]

Since Seila Law, I've been sure the Court will take a case where it will consider overruling Humphrey’s Executor. If Trump is reelected, I'm certain he will get such a case before the Court.

[Dan Schiavetta]

I’m surprised no one challenged Trump’s firing of James Comey. The point of setting 10-year terms for FBI Directors (which Congress did in 1976) was to insulate them from partisan pressure but that’s exactly the reason Trump fired him. Trump is on tape the very next day telling a Russian delegate that "the pressure is off".

[JoeFromtheBronx]

That might have been “the point” but the actual law — as compared to others — does not put limits on removal.

https://takecareblog.com/blog/it-was-legal-for-the-president-to-fire-comey-that-s-the-problem

(The removal can be shown to violate some other law such as obstruction of justice. And, people did suggest that here. Of course, Trump v. U.S. -- a quite apt case title -- causes additional issues.)

[Noscitur a sociis]

When the 10 year term limit was enacted in 1976, I’m pretty confident that Congress’s priority wasn’t making the FBI director more insulated from elected officials.

[Dan Schiavetta]

It was not only a 10 year limit but a 10 year restriction. 10 years was deliberately chosen so as to cut cross and be independent of Presidential election cycles. If Trump could obstruct justice by sacking Comey, Clinton could have easily sacked the troublesome Louis Freeh.

[Noscitur a sociis]

Again, I think the suggestion that in the 70s, Congress was concerned that it was too easy to get rid of the FBI director is a little hard to take seriously.

[Dan Schiavetta]

They had just seen Nixon play L. Patrick Gray like a cheap violin and didn’t want that kind of thing to happen again.

[not guilty]

"I’m surprised no one challenged Trump’s firing of James Comey. The point of setting 10-year terms for FBI Directors (which Congress did in 1976) was to insulate them from partisan pressure but that’s exactly the reason Trump fired him."

I suspect that Comey just did not want to continue working with Trump in office, and no one else would have had standing to sue.

I have long found Trump's firing Comey to be ironic, in that Trump may not have been elected except for Comey's October 2016 shenanigans regarding Anthony Weiner's computer.

[Dan Schiavetta]

In Myers, Myers was the plaintiff. So I suppose you’re right about only Comey having standing.

Comey also contributed to Trump’s victory with his unusual (and unprofessional) excoriation of Hillary Clinton while announcing he wasn’t going to recommend charges against her as to the email server — and then just weeks before the election, announcing he was reopening the investigation. He (like a lot of people) assumed Hillary would be elected with a Republican Senate, which meant even more endless Hillary investigations, and he didn’t want the FBI to be accused of overlooking her “corruption”.

[The Margrave of Azilia]

She was clean as a baby's bottom!

[Dan Schiavetta]

Actually she was unusually clean — considering how intensely she was investigated for almost 30 years without even an indictment.

[The Margrave of Azilia]

J. Edgar Hoover relied on de jure and de facto tenure protections to make himself one of the most infamous Deep Staters in U. S. history.

[JoeFromtheBronx]

The first justices often are forgotten except maybe John Jay (and later Samuel Chase, who pops up in the musical 1776) but they generally had impressive backgrounds. Here is a bio of Blair:

https://www.oyez.org/justices/john_blair

As noted:

"During his time on the Virginia Court of Appeals, Blair set the precedent that courts can deem legislative acts unconstitutional in the case The Commonwealth of Virginia v. Caton et al. (1782)."

Marbury v. Madison didn't come out from nowhere akin to Athena out of the head of Zeus.

Blair left the Court early for health reasons. He was almost 58 when appointed and all that circuit riding didn't help.

[Bob from Ohio]

" (and later Samuel Chase, who pops up in the musical 1776) "

Don't you mean James Wilson?

[JoeFromtheBronx]

Both were in 1776.

Chase was a Maryland delegate who goes with Franklin and Adams to a military camp & is impressed at the soldiers shooting at ducks.

Chase was the only justice impeached & that is often where people hear about him. Rehnquist wrote about it in Grand Inquests.

[JoeFromtheBronx]

Myers was 6-3, which should be a warning about be too assured about striking down legislation of this sort.

The dissenters were Holmes, Brandeis, and McReynolds.

Brandeis in part noted that Andrew Johnson himself granted removal of certain "inferior" officers was different than the battle over the Cabinet member that led to his impeachment.

[The Margrave of Azilia]

I just thought - are there any *other* Holmes-Brandeis dissents which haven't been turned into majorities at a later point?

[CJColucci]

That has to be the worst-quality portrait of a Supreme Court Justice I've ever seen. I wonder who painted it?

[JoeFromtheBronx]

Ruth Koppang.

[Dan Schiavetta]

(shudder) What if he really did look like that??

[bernard11]

Edvard Munch

[SRG2]

Off topic, but still "on this day": https://www.youtube.com/watch?v=P9fa3HFR02E

[Dan Schiavetta]

Another example of French overconfidence and stupidity in war. Some of their heavily armored knights (largely noblemen who were full of themselves) fell off their horses and choked in the mud, unable to rise. For those able to fight, they were barely able to wield their weapons and had to be held up by their pages. They were easy pickings for the lightly burdened English bowmen.

An interesting relationship in the play was between Henry and Mountjoy. In the scene where Mountjoy reports to the French king, Shakespeare should have had him give a warning that the English were far better prepared than they thought.

[Bob from Ohio]

"overconfidence and stupidity in war"

They won the war.

[SRG2]

He should have said, "stupidity in battle" 🙂

[Dan Schiavetta]

Only after another 40 years.

There was no way England was going to take over France, but the war lasted over 100 years (hence the name) due to French incompetence at Crecy, Poitiers, Agincourt.

[bernard11]

Some incompetence, especially at Agincourt, more the English use of the longbow.

Of course you could say that it was incompetence in not having that weapon, or appreciating its power. Still, you can't create an army of good archers, especially with the longbow, not an easy weapon to master, in a few weeks, or even months. Archery practice and contests were very popular in England. That surely helped.

[markm23]

It was incompetence in charging into a trap, when they could have either taken a day and rode around to attack from the rear, or waited a few days for the English to run out of food or water. At Crecy, the French had the excuse that they did not know what the longbow could do and so did not recognize the trap. I don't think even the English expected to win. The French knights were too good, nobody expected to beat them without hugely outnumbering them.

After Crecy, that excuse was gone. In fact, Froissart's account of at least one of the later battles was that they saw the trap, and the king ordered a charge anyway.

[markm23]

There is one possible explanation: the French commanders were nearly 100% different in each battle. Even though Poitiers was only about 10 years after Crecy, a prince had succeeded to the French crown, and perhaps he replaced the entire circle of royal advisers. Then Agincourt was over a generation later; a newly raised knight at Poitiers would be dead or an ancient graybeard at Agincourt.

Didn’t the French hand down stories about how their most disastrous defeats had been inflicted by peasants with bent sticks? Maybe it was too embarrassing.

[bernard11]

Worse than that.

The English were, iirc, set up in a sort of V-formation, with archers on the sides and pikemen at the narrow end. Despite the mud the French knights charged into the V, and were either shot by the archers or had their horses stumble and fall in the mud. After some of that the pikemen rushed in and made short work of the knights, who were encumbered by the mud and their armor, and in no position to put up much of a fight.

[bernard11]

Excellent, but I like Branagh’s version better, especially near the end of the speech. Plus, Olivier leaves out a line or two.