Today in Supreme Court History: November 18, 1811

11/18/1811: Justice Gabriel Duvall takes judicial oath. Professor David P. Currie said that an "impartial examination of Duvall's performance reveals to even the uninitiated observer that he achieved an enviable standard of insignificance against which all other justices must be measured."

Justice Gabriel Duvall

 

Comments

[Dan Schiavetta]

“impartial examination of Duvall’s performance reveals to even the uninitiated observer that he achieved an enviable standard of insignificance against which all other justices must be measured.”

See Queen v. Hepburn.

[wolfefan]

I didn't know that case. Thanks for the pointer, and as always for these summaries.

[Dan Schiavetta]

You're welcome!

[ReaderY]

I think Queen v. Hepburn saves him. It’s worth noting that he didn’t actually cite any Maryland cases regarding the admissability of hearsay evidence to support his claim that the Maryland courts had so held, which we would expect as a matter of course today. So his dissent doesn’t exactly exhibit virtuoso technical competence. But I think the sentiment expressed is by itself enough to lift him out of complete insignificance.

[Dan Schiavetta]

Interestingly, Duvall himself owned slaves, but he had made his reputation by winning slaves their freedom, whenever an argument could possibly be made.

As for Maryland law, perhaps it is relevant that Maryland was the only state where Catholics were in control, and by that time the Church had (finally) come out against slavery. Even though Maryland was a slave state. Duvall was at the center of a number of tendencies pulling in opposite directions.

[JoeFromtheBronx]

Maryland had a large free black community. It is one reason why Taney (from Maryland) was concerned about the free black question in Dred Scott v. Sandford while many others would have left that alone to address the territory issue alone.

Taney did have one case where he defended an anti-slavery preacher.

[Dan Schiavetta]

Ohio v. Robinette, 519 U.S. 33 (decided November 18, 1996): search of car was truly consensual even though police officer didn’t first tell driver he was “free to go” (police asked to search, driver said yes, and drugs were found)

Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (decided November 18, 1985): habeas statute does not allow federal judge to order marshals to bring state prisoners to the courthouse as witnesses; must be by subpoena served on those having custody (suit was over state prison guard brutality)

Recznik v. City of Lorain, 393 U.S. 166 (decided November 18, 1968): apartment above cigar store was not “public establishment” and therefore warrant needed for entry (police had seen parked cars outside and people entering; they entered through back door and saw a dice game in progress and made arrests for gambling)

[SRG2]

police had seen parked cars outside and people entering; they entered through back door and saw a dice game in progress and made arrests for gambling

Simpler times...

[bernard11]

I guess they couldn't up with the grand for the Biltmore garage.

[JoeFromtheBronx]

Multiple Republican presidents had a chance to balance the Federalist-leaning Supreme Court bench.

William Johnson was an independent voice but turned out to be a nationalist. Joseph Story became Marshall’s leading acolyte.

And, there were various non-entities. Things started to change in the 1820s. The also-ran justices, including Duvall, had respectable biographies that on paper suggested they were decent picks.

As noted, Justice Duvall did have his moments, especially given Marshall’s pro-slavery rulings (see Paul Finkelman on that). See here, for instance, for a couple of cases:

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1687&context=journal_articles

As to Queen v. Hepburn, it is notable that Duvall was well familiar with Maryland law, including as Chief Justice of the Maryland General Court. So, without more, there is a reason to rely on him regarding what “the law has been for many years settled” was in that state, especially given the general principle of leniency in the name of freedom.

Anyways, he was involved with many freedom suits before becoming a justice. It would be interesting to see a study of his service as a circuit judge and see if he was notably evenhanded in slavery/free black related cases.

https://www.vabook.org/2021/05/04/challenging-slavery-in-the-courtroom-a-question-of-freedom/

[F.D. Wolf]

Queen was represented in her freedom suit by Francis Scott Key, prolific Supreme Court litigator and future author of "The Star-Spangled Banner". At trial, Key called four witnesses. His final witness, his expert witness, was noted and respected Maryland attorney Gabriel Duvall. (As you said, Duvall was involved in many freedom suits.)

One year later, Duvall would be appointed to the Supreme Court where he would write the opinion in favor of Queen in the very same case in which he had testified on her behalf as a (presumably paid) expert.

Many of the case documents are available online: https://earlywashingtondc.org/doc/oscys.case.0011.001

[Dan Schiavetta]

Yes, I was aware of that. Thanks!

[JoeFromtheBronx]

Thanks. I noticed Key’s involvement but did not see a reference to Duvall being a witness.

[SRG2]

“impartial examination of Duvall’s performance reveals to even the uninitiated observer that he achieved an enviable standard of insignificance against which all other justices must be measured.”

Josh Blackman, the Duvall of law professors?

[Lee Moore]

Insignificance is of course what any proper judge should aspire to.

“Significance” implies that the judge is establishing some lasting principle that is not apparent in the actual law, or which has not been brought to his attention by the advocates. In short – a wilful maker-up of the law. Or in technical terms – a scoundrel.

[JoeFromtheBronx]

The Supreme Court for Short Attention Spans: Compact Edition by Dan Schiavetta Jr (Author).

https://www.amazon.com/exec/obidos/ASIN/B0DH4B96ML/reasonmagazinea-20/

[Dan Schiavetta]

https://www.amazon.com/exec/obidos/ASIN/B0DH4B96ML/reasonmagazinea-20/

How does Reason Magazine creep its way into this URL when it’s cut and pasted from the Amazon site? Anyway, thanks. You didn’t know it (and I didn’t see your comment until now) but today (November 19) I decided to “come out”.