Today in Supreme Court History: November 16, 1939

11/16/1939: Justice Pierce Butler dies.

Justice Pierce Butler

Comments

[Dan Schiavetta]

Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (decided November 16, 1908): defendant’s assertion of defenses based on federal law does not create federal court jurisdiction (I remember this one from law school; a couple guaranteed lifetime passage on a railroad in consideration of settling a personal injury case sued 35 years later when their tickets were no longer being honored)

Hardy v. Harbin, 154 U.S. 598 (decided November 16, 1874): Was John Hardy the same as Thomas (or Tomás) Hardy (an assumed name) to whom the Mexican government had granted land in 1836 as a reward for his war service? At issue was a claim to the land (which by then was in Texas) by John’s grandchildren. The opinion sifts through “3000 folios of testimony” as to sightings of John or Thomas at various times and places, physical descriptions, statements as to owning land, whether a signature was validly recognized, etc. This could be made into a TV series (like “The Fugitive”), or at least a board game. The frontier encounters and the piecing together of a mystery remind me of the Hillmon case. Anyway the Court examines the facts found by the trial court and affirms its finding that it was not the same man.

Bell v. First National Bank of Chicago, 115 U.S. 373 (decided November 16, 1885): by custom and practice three days’ grace is allowed for payment of “foreign bill of exchange” (i.e., can’t sue on it until days of grace are over)

[JoeFromtheBronx]

Someone discussed A Supreme Court Justice Is Appointed by David J. Danelski.

The discussion of his background and the path to nomination and confirmation was interesting. The academic/analysis chapters are best left to specialists. IMHO.

Justice Butler made it a habit to write narrow opinions and limited his dissents. He dissented without an opinion in Buck v. Bell

He also dissented in Olmstead v. U.S., the eavesdropping case, beginning this way:

“I sincerely regret that I cannot support the opinion and judgments of the Court in these cases.”

His restraint is suggested in this comment too:

“I do not participate in the controversy that has arisen here as to whether the evidence was inadmissible because the mode of obtaining it was unethical and a misdemeanor under state law. I prefer to say nothing concerning those questions, because they are not within the jurisdiction taken by the order.”

Butler reaffirmed a concern for privacy in a legislative hearing case entitled Sinclair v. United States, confirming the “purpose of the courts well to uphold the right of privacy.”

[JoeFromtheBronx]

If someone overdoses on Hallmark Christmas movies, I came upon Violent Night on cable. Think Die Hard with Santa in the John McClane role.

[Mr. Bumble]

Saturdays are the loneliest day of the week on VC comments.

[Mr. Bumble]

anyone care or dare to venture a guess as to whether Trump will get anymore SC nominees?

[ducksalad]

Average length of service on court: 16 years
Number of justices: 9
Long term average interval between deaths/retirements: 16/9 year
Long term average deaths/retirements per 4 years: 2.25
Answer: Probably at least one, even shot at two, long shot at three.

[Syd Henderson]

Possibly replacing Clarence Thomas, who's been there a really long time. Sotomayor has diabetes but she's had it throughout her tenure and I don't expect her to retire or die. Don't know of any others who might retire and as far as I know, they're all in good health.

[ducksalad]

“Time and chance happen to them all”

Approximate calculation:
Average age of current justices: 64 years
Death probability per year at age 64: 0.019 male, 0.012 female
Small probabilities roughly add so: 5x0.019 + 4x0.012
Chance of a *death* on the court in 1 year: 0.14
Chance of a *death* in 4 years: 1-(1-0.14)^4 = 0.46

[bernard11]

I don't think you can work with the average age here, but need to look at the individuals.

Also, Sotomayor's diabetes notwithstanding, I think it's safe to assume that the Justices are healthier, in general, than the overall population of people their age, and likely get excellent health care on top of that.

So the 46% estimate seems high to me.

[JoeFromtheBronx]

Alito wants a conservative to replace him. His 20th anniversary year is approaching. He's in his 70s. Likely retirement before 2029

[Mr. Bumble]

As long as Republicans retain a Senate majority.

[David Nieporent]

Sotomayor has diabetes but she’s had it throughout her tenure and I don’t expect her to retire or die.

I think it's safe to assume that with Trump as president, they'll have to carry her out of there; there's zero chance of retirement.

[Frank Drackman]

I sure hope so, just for the entertainment value when he names RFK Jr as a goof

[Frank Drackman]

116 Surpremes in 235 years of the Court, at this rate it’ll be 513 more years before you could possibly have a Surpreme who died every day of the year (no, I haven’t cross referenced to see if any have already died on the same day)

[bernard11]

True, but Josh also reports on birthdays and appointment days. At 116 x 3 you’re getting pretty close to 365 already, especially if you allow for a few substantive dates – major decisions and whatnot.

At some point he’s going to have to prioritize. Does a birthday outweigh appointment day? A day of death?

Tough decisions. Don’t want to downplay any Justice whose descendants might be offended.

[TwelveInchPianist]

"I haven’t cross referenced to see if any have already died on the same day."

116 Justices? They almost certainly have.

[Syd Henderson]

It's a version of the birthday paradox. You only need 23 justices before the probability that two of them died on the same day of the year is more than fifty percent. So after all this time, it's pretty certain. Although if you choose a particular date and check, it will be far lower, especially since there a couple hundred days of the year when no justice died.

[TwelveInchPianist]

Yup.

[Syd Henderson]

By the way, since we’ve had 45 presidents (counting Cleveland once) I’m a little surprised only two presidents share a birthday: Warren G. Harding and James K. Polk.

Of course, Jefferson, John Adams, and Monroe all died on July 4, but that’s not entirely coincidence. If I’m not mistaken Monroe’s doctors, at least, were trying to keep him alive till the Fourth, and Adams’ and Jefferson’s may have too. I think this because James Madison died on June 30, but his doctor offered to try to keep him alive till July 4.

[Dan Schiavetta]

Jefferson and Adams knew they were dying but they wanted to make it to the 4th (and the 50th anniversary).

Madison told his doctors that he wasn’t worthy to be in the same club so he voluntarily kicked off before that date.

[bernard11]

Moved

[Mark Regan]

Butler was not the nastiest of the Four Horsemen -- no one could ever have surpassed McReynolds -- but he was close. He was also a vicious persecutor of Minnesota academics.

[The Margrave of Azilia]

As I understand it, Butler was “triggered” by faculty opponents of World War One. To gauge the depth of his response, imagine a modern college administrator learning that a professor came into class one day with a MAGA hat and a “Choose Life” T-shirt and announced that there are exactly two sexes.

[JoeFromtheBronx]

Multiple justices died on the same day of the year.

Edward Sanford and William Taft died on the same day.

https://en.wikipedia.org/wiki/List_of_burial_places_of_justices_of_the_Supreme_Court_of_the_United_States

[Syd Henderson]

March 8, 1930 was a sad day for the Supreme Court. They were on the Court together from 1923 through 1930.