Today in Supreme Court History: December 31, 1884

12/31/1884: Justice Stanley Forman Reed's birthday.

Justice Stanley Forman Reed

 

Comments

[Dan Schiavetta]

National League of Cities v. Brennan, 419 U.S. 1321 (decided December 31, 1974): The last two days of 1974 were busy. On December 30 a three-judge panel heard arguments made by several cities and states that Fair Labor Standards Act amendments setting wage/hour standards for state and municipal employees (set to take effect on January 1) violated the Tenth Amendment. On December 31 the panel rejected those arguments. Later that day, “after the close of business”, Burger was presented with a motion by plaintiffs for an interim stay pending cert. (Also around that hour Douglas, vacationing in the Bahamas with his newest and youngest wife, suffered a debilitating stroke.) Burger granted the stay; after months of partial awareness Douglas resigned on November 12, 1975; and the Court ended up siding with the cities and states, 429 U.S. 833, 1976. (My Con Law professor called that holding the “temporary resurrection of the Tenth Amendment”, temporary because it was overruled nine years later by Garcia v. San Antonio, 469 U.S. 528 (1985) (holding that the FLSA indeed applies to state and municipal employees).)

[SMP0328]

National League of Cities v. Usery (1976) was hopelessly vague with its tradition-based standard for which powers were to be reserved to the States. Also, the Court's heart never seemed up to the task (no federal laws were struck down based on NLC following the decision). Finally, Blackmun flipped in Garcia.

Seven years later, the Court carved a narrow but important exception into Garcia with the anti-commandeering doctrine (New York v. United States (1992)). That doctrine has proven much more stable.

Right now, Tenth Amendment jurisprudence is located comfortably between National League of Cities and Garcia.

[Dan Schiavetta]

Thanks!

Hope your new year is happy & healthy!

[SMP0328]

Same for you and your family.

[JoeFromtheBronx]

The spirit of the “resurrection of the Tenth Amendment” was sarcastically reference by Justice Stevens once as a matter of "penumbras and emanations," which I respect more than others when they are rightly applied. I find that somewhat dubious in this context when there is an enumerated power involved.

Chief Justice's Year-End Reports on the Federal Judiciary will drop later today. As one summary notes:

In 1970, then-Chief Justice Burger gave the inaugural Year-End Report on the Federal Judiciary as an address to the American Bar Association. Each year since, the Chief Justice has released a Year-End Report.

Steve Vladeck has more:

https://www.stevevladeck.com/p/8-the-chief-justices-year-end-report

[Dan Schiavetta]

Thanks!

Hope your new year is happy & healthy!

[JoeFromtheBronx]

Thanks. You (collective you) as well.

Interesting times.

[F.D. Wolf]

Do federal wage and labor practice statutes apply to employees of state and local governments?

In 1968, the Supreme Court said “yes”. Maryland v. Wirtz, 392 U.S. 183 (1968). Who, of all justices, would dissent? None other than noted states’ rights champion Bill Douglas (joined by Stewart), who wrote, “what is done here is… such a serious invasion of state sovereignty protected by the Tenth Amendment that it is, in my view, not consistent with our constitutional federalism.” Id. at 201 (Douglas, J., dissenting).

All of six years later, the Court reversed itself in a 5-4 decision. National League of Cities v. Usery, 419 U.S. 1321 (1974).

And eleven years after that, the Court reversed itself yet again in another 5-4 decision. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). The only membership change on the Court in the interim had been the replacement of Potter Stewart with Sandra Day O’Connor, but the different result was due to Harry Blackmun changing his mind. (The progression of Blackmun from relatively reliable conservative vote to reliable staunch liberal by the late 1970s is, I believe, well attested). On initial hearing, the vote was 5-4 to uphold National League of Cities. Chief Justice Burger was in the practice of assigning opinions to the least persuaded justice in order to produce the narrowest opinion and assigned the opinion to Blackmun. Blackmun soon thereafter informed the Court that he was changing his vote. The case was scheduled for reargument, and the new result was 5-4 in favor of the federal government.

[Dan Schiavetta]

Thanks!

Hope your new year is happy & healthy!

[F.D. Wolf]

Thank you. I likewise hope you have a happy and healthy New Year as well.

And a happy and healthy New Year to all you Conspirators as well.

[JoeFromtheBronx]

Blackmun's switch in Garcia v. San Antonio Metropolitan Transit Authority was foreshadowed by the original case.

He wrote a concurring opinion that he was "not untroubled by certain possible implications of the Court's opinion" and understood the majority opinion to be a "balancing approach."

Blackmun later decided the balancing wasn't worth the candle.

[F.D. Wolf]

Which also provides another example of how Warren Burger was a terrible Chief Justice. Why assign him the opinion? (We were just recently discussing a similar episode in the Muhammad Ali case).

I was recently commenting on the Dobbs leak as a reflection of Chief Justice Roberts' weakness, and I believe it was you who brought up the leaks in The Brethren, and my thoughts were, exactly, that doesn't happen if you're running a tight ship, if you have the respect of your colleagues. (After Justice Potter Stewart's death, Bob Woodward acknowledged he had been his chief source for The Brethren, though I imagine his colleagues, who were none too happy, knew it almost immediately. Stewart left the Court less than two years after its publication.)

Before joining the Court, Burger was a judge on the D.C. Circuit. When President Nixon nominated him to be Chief Justice, the New York Times printed a quote from an anonymous D.C. Circuit judge about Burger:

He is a very emotional guy, who somehow tends to make you take the opposite position on issues. To suggest that he can bring the Court together - as hopefully a Chief Justice should - is simply a dream.

[Dan Schiavetta]

But you have to admit, nobody since Charles Evans Hughes looked so "judicial".

[F.D. Wolf]

Burger had a great voice, very sonorous.

[Dan Schiavetta]

According to an article in Playboy magazine -- mind you, by that time I was reading it with two hands -- he used pomade to make his uncertain gray hair look a brilliant white.

By several accounts, he decided an issue based on whether he would get the glory by assigning himself the majority opinion.

[SMP0328]

Which also provides another example of how Warren Burger was a terrible Chief Justice. Why assign him the opinion?

From the Garcia syllabus:

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined, post, p. 469 U. S. 557. REHNQUIST, J., filed a dissenting opinion, post, p. 469 U. S. 579. O'CONNOR, J., filed a dissenting opinion, in which POWELL and REHNQUIST, JJ., joined, post, p. 469 U. S. 580.

Burger dissented, so the majority opinion was assigned to Blackmun by the most senior justice in the majority (Brennan).
So, Burger may have been a poor Chief Justice but you can't blame him for Blackmun being assigned to write the Garcia majority opinion.

[F.D. Wolf]

The initial vote in Garcia was 5-4 to affirm National League of Cities and hold the FLSA did not apply to the states. That majority was Burger, Blackmun, Powell, Rehnquist, and O'Connor. Burger assigned the opinion to Blackmun. Blackmun ended up changing his mind and his vote and would write the opinion for the new 5-4 majority consisting of himself, Brennan, White, Marshall, and Stevens.

That information, of course, does not appear in the United States Reports, but we know it from Blackmun's papers. David Scott Louk, Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court, 125 Yale L.J. 682, 718-22 (2016). https://www.yalelawjournal.org/pdf/d.682.Louk.728_eepwsbxc.pdf

[SMP0328]

Thanks for the link. It seems Blackmun was all over the place on this issue. He changed his mind twice during Garcia: from fully upholding National League of Cities to rendering it nothing more than a nondiscrimination principle to completely overruling National League of Cities.

[F.D. Wolf]

Which is exactly why a competent Chief, one attuned to what's going on with his colleagues, would have realized instantly that Blackmun would literally be the last person to task with writing the opinion. He's vacillating, he's unsure, he frankly doesn't know what he thinks on the subject. So, you assign it to someone else, and Blackmun doesn't have to think too much about it, and he'll probably just sign on in the end. Give him some other opinion to occupy his time and mind.

[JoeFromtheBronx]

Yes. You can see that it was reargued, which is something of a red flag, even if they don't expressly explain why.

It makes sense to assign the case to Blackmun. A typical strategy is to give the opinion to the weakest link, the person you need for a majority. The others are more likely to follow either way.

The best bet to retain the majority either way was to satisfy Blackmun and be it Burger or Brennan, a logical way to do that is to assign him the opinion.

Blackmun was always somewhat iffy and his switch here is not something I'd blame on Burger, who was surely a weak chief justice in various ways.

As to Roberts, the ship appears to have been fairly tight until the Trump years (especially once it was 6-3). Before then, multiple books were written that provided some behind-the-scenes stuff, if not as blatant as The Brethren. Nothing horrible.

(There were some leaks there in the Rehnquist years too.)

The leak of Dobbs, the leaks to multiple reporters (including to the Wall St Journal, which provided chatter during the Dobbs deliberation too), etc., was so shocking because for over a decade, that just didn't happen in the Roberts Court. That is partially on Roberts though if he relied on other justices, I can understand it. Other Chief Justices benefited from certain justices helping out and so on.

[F.D. Wolf]

See my response above to SMP0328 for my thoughts on why Blackmun was the worst possible choice to task with the opinion.

To cut Roberts a little slack, Rehnquist was advantaged in that, between 1994 when Breyer joined the Court and Rehnquist's death in 2005, there were no membership changes on the Court. This was the second-longest period of constant membership in the Court's history. (The longest was from 1811 to 1823. On average, there has been a new justice about every 2.1 years).

Justices are only human after all, and when you've had the same boss and the same co-workers for 11 years, you're probably a pretty tight-knit group in a comfortable routine. And then all of a sudden, you've got a new boss (plus a new co-worker), who's going to do things his way. This will naturally cause some problems. But, that's when it's up to the new boss to pull things together, and, in my opinion, which I think is shared by many, Roberts has failed in that task.

Bonus historical trivia. Longest-tenured Chief Justices:

John Marshall: 34 years, 152 days
Roger Taney: 28 years, 198 days
Melville Fuller: 21 years, 269 days
John Roberts: 19 years, 90 days (as of today)
William Rehnquist: 18 years, 342 days
Warren Burger: 17 years, 95 days

[Commenter_XY]

VC Conspirators....stay safe tonight.

I want to thank all the VC Conspirators who have greatly contributed to my legal education and knowledge. The things we learn here are important.

Happy New Year! I hope your 2025 is healthy, happy and prosperous.

[Dan Schiavetta]

I've learned a great deal too. Happy new year!

[Syd Henderson]

I guess we're done with this series.

[Syd Henderson]

Unfortunately Josh has ramped up his verbal diarrhea.