Today in Supreme Court History: January 11, 1830

1/11/1830: Justice John McLean takes oath.

Justice John McLean

 

Comments

[Frank Drackman]

John McLean was a Slave driving Man!
Another of these Hippo-crits who was against Slavery, for everyone else, hey, somebody has to tote him to the French Laundry for Dinner.
OK, it was only 1 Slave, it's like Child Molesting, there aren't any Mulligans.
Glad to see the LA Mayor's back from Africa, and contributing to the effort to battle the Wildfires,
by firing the Fire Chief, I'd throw her IN the fire (Metaphorically of course)

Frank

[Dr. Ed 2]

Frank, California is no more able to put out these fires than Maine was in 1947, and for the same reasons. https://newenglandhistoricalsociety.com/maine-fires-1947-year-state-burned/

It's going to burn to the sea...

[Martinned2]

I wonder what role there would be for oaths if you took a step back and tried to decide what to do with them if you could re-invent the system anew. After all, unless you're a Quaker oaths have no particular meaning anymore, unlike in the 18th century. It's just (potentially) part of a nice ceremony.

When I started as a Dutch civil servant last year they made us swear an oath. They even sent me a letter this week informing me that the words of the oath had been changed, and that I wouldn't have to re-swear it. But when I joined the UK civil service I just turned up for work on day 1, just like in the private sector. In the UK not even government ministers swear oaths, I think. They just go to the King to receive the seals of office, but that may well happen some time after they've already started work.

I don't know. For ordinary civil servants the oath seems a bit excessive. But it's not bad to remind public servants of the trust that the public has placed in them. But whether an oath is the best way to do that?

[Mr. Bumble]

Maybe think of an oath as a simplified employment contract?
Or, maybe a terms of service agreement.

[Martinned2]

You might, except that anyone who swears an oath also has all of those things, either in statute or in an actual contract. (In my case I have both - a couple of statutes that contain rules for the civil service generally and for my specific job, and a contract that sets out things like my salary.)

[Martinned2]

I just realised that there's a translated version of the (annotated) Dutch civil service oath online. Of course there is...

https://www.grenzeloossamenwerken.nl/binaries/grenzeloossamenwerken/documenten/brochures/2024/12/17/informatiepakket-ambtseed/1b.+Rijksbrede+uitleg+nieuwe+ambtseed+inclusief+integrale+tekst+ENG+191124.pdf

The oath itself, as amended as of 1 January:

I swear/affirm that I obtained this position fairly. That means:
• I have taken up this position voluntarily. I have not been bribed, nor have I bribed anyone, either with gifts or promises.
• I provided truthful information and did not conceal anything that might be relevant to this position.

I swear/promise to be faithful to the King and the Constitution and to serve the Netherlands as befits a good civil servant. That means:
• I will work in the general interest of our society and perform my duties to the best of my ability.
• I will perform my duties ethically and treat everyone fairly, equally and with respect.
• I will handle information with care. I will help to foster open government, and I know that I must keep confidential information secret.
• I will conduct myself in accordance with our statutes and the law, and the rules of conduct that apply to me.

[So help me God Almighty!][This I declare and affirm.]

(They somehow managed to dumb it down even more than in the version I took. Not my fault.)

[Mr. Bumble]

Given the nature and in many cases the power of public service I still think an oath is a good thing. Of course it would be better if those swearing the oath were actually held accountable when they violated it.

[Martinned2]

You can do that regardless. If you want to hold people legally accountable, it isn't necessary for them to first stand up and say some kind of magic formula.

The point is of course that oaths are a substitute for holding people legally accountable. If they work, they foster a shared understanding and appreciation of the norms that govern the public service. If they don't do that, there's no point to them.

[Frank Drackman]

Pretty cool King, moonlights with KLM

[ducksalad]

You mean you don't expect eternal damnation if you violate your oath? You don't expect to be dishonored and no longer considered a gentleman, unfit to fight a duel or marry into any respectable family?

For shame. But to answer your last question, the other traditional reminders involved tar and feathers, or in severe cases, a lamppost. However we now do even harsher stuff like congressional hearings.

[SRG2]

Oaths in the UK parliament: https://www.parliament.uk/about/how/elections-and-voting/swearingin/

[David Nieporent]

But when I joined the UK civil service I just turned up for work on day 1, just like in the private sector. In the UK not even government ministers swear oaths, I think. They just go to the King to receive the seals of office, but that may well happen some time after they've already started work.

Yeah, but the King can behead his servants who break the law. (Right?)

[David Nieporent]

After all, unless you're a Quaker oaths have no particular meaning anymore, unlike in the 18th century. It's just (potentially) part of a nice ceremony.

You think Quakers are the only religious group who take oaths seriously?

[JoeFromtheBronx]

Quakers are personally against oath-taking but even in that sense, they aren't the only ones with that view.

People who are not Quakers, for instance, can take literally Jesus' command in the gospel of Matthew:

"Again you heard that it was said to those of ancient times: ‘You must not swear without performing, but you must pay your vows to Jehovah.’ However, I say to you: Do not swear at all, neither by heaven, for it is God’s throne; nor by earth, for it is the footstool of his feet; nor by Jerusalem, for it is the city of the great King.  Do not swear by your head, since you cannot turn one hair white or black.   Just let your word ‘Yes’ mean yes, your ‘No,’ no, for what goes beyond these is from the wicked one.

The Constitution allowing "oath or affirmation" is not just for Quakers.

[David Nieporent]

Generally speaking, observant Jews will also affirm rather than swear an oath.

[Krayt]

I always thought "or affirm" was for people who took "shall not take the Lord's name in vain" seriously. (Or were the rare admitted atheist, or more general "spiritual" person). Swearing is a prayer to God that he throw you into Hell for lying, and fright at that prospect is supposed to bind you to tell the truth. But that also seemed inproper as you are now calling on God to do something, or gaming the system, or something else inherently sinful in and of itself.

[jdgalt1]

We could always take the bad ones out and give them public spankings.

[Dan Schiavetta]

Dunn v. United States, 284 U.S. 390 (decided January 11, 1932): notable as the last opinion by Holmes, which he read from the bench (in a weak voice) the day before he resigned at age 90: sustaining conviction for nuisance for keeping liquor (this was during Prohibition) even though it was logically inconsistent with acquittals on the same evidence for selling and unlawful possession

Ransom v. FIA Card Services, N.A., 562 U.S. 61 (decided January 11, 2011): Chapter 13 (non-liquidation) debtor can’t claim “car ownership costs” because did not make loan or lease payments (he owned it free and clear and could claim only “operating costs”)

Brown v. Sanders, 546 U.S. 212 (decided January 11, 2006): affirming death penalty where jury found four “special circumstances” of aggravation, only one of which would have mandated execution, even though two of them were held by appeals court to be impermissibly redundant or vague

Ratzlaf v. United States, 510 U.S. 135 (decided January 11, 1994): defendant transferring $ in amounts less than $10,000 was not aware that bank was required to report transactions of that size or larger and therefore did not violate antistructuring statute, 31 U.S.C. §5234(3); Congress later removed the willfulness requirement, 6 F.4th 380 n.5

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (decided January 11, 1984): Those of us of a certain age remember Karen Silkwood, who was repeatedly contaminated with plutonium while working at a nuclear power plant and died in a mysterious car crash while on the way to meet a journalist. Her father as administrator of her estate sued the plant operator and won punitive damages under Oklahoma law. Here, the Court holds that the punitive award was not preempted by the liability limiting provisions of the Atomic Energy Act of 1954 or the Price-Anderson Act of 1957.

[JoeFromtheBronx]

Meryl Streep portrayed Karen Silkwood in the film Silkwood.

It has an all-star cast, including Kurt Russell, Cher, Craig T. Nielson (of Poltergeist fame), Ron Silver (now deceased, unlike Alan Dershowitz, who he later portrayed), and many more.

[Dan Schiavetta]

I was involved in the anti-nuke movement, circa 1979. Yes, a lot of us were morons. But there were real problems, beginning with the suspicious fact that utilities refused to get anywhere near nuclear power until they were immunized from liability in 1957 with the Price-Anderson Act.

Nuclear power is in some ways "cleaner" than coal, wood, oil, but I still oppose it. We do not have the moral right to impose upon hundreds of future generations the responsibility for containing waste that will remain dangerously radioactive for thousands of years.

[Frank Drackman]

What do you think powers Amurica's Submarines, Aircraft Carriers, and Cruisers (they call me "The Cruiser")??? Coal???? And with Roosha, India and China not giving a shit about hundreds of future generations, what the US does doesn't matter.

[Mr. Bumble]

Because both you and I are muted by Capt. Dan the muting man, he won't see this (unless he cheats and actually peeks once in a while).
I'm pretty sure he is also opposed to the things you mentioned. Much better to live in a world of make believe where windmills and solar panels power his viewing of old porno movies.

[Dr. Ed 2]

We can re-use the waste, we can even make new bombs out of it.

[A Japanese Student]

One of the things I planned (in advance) was a selection of Japan's Supreme Court cases, mostly constitutional. I recommend everyone to learn foreign and comparative law - it's a good experience.

Internet OTC Drug Sale Case (Second Petty Bench, decided January 11, 2013): Ministerial Order prohibiting most OTC drugs from being sold online exceeded statutory authority under 2006 Pharmaceuticals Act amendment; online sale was legal before the amendment, the amendment did not on its face mandate in-person sale, and legislative history pointed against such wide-ranging ban (statute was later amended to require in-person sale of some drugs - see upcoming March 18 entry)

[Martinned2]

Yes, most countries have more carefully drafted statutory delegations most of the time. The main exception that I can think of is the UK, where the line between the government and the parliament is so blurred that the government's convenience is often the main determining factor.

[A Japanese Student]

Some additional notes:
- Supreme Court of Japan hears most cases in one of three "petty benches", each having five Justices. Some constitutional cases and cases seeking to overturn precedents must be heard en banc ("Grand Bench", 15 Justices).
- Japanese Constitution protects occupational liberty under Article 22, and has once (and only once) struck down a statute on that ground (which, coincidentally, was an amendment to the Pharmaceuticals Act).

[Mr. Bumble]

Interesting (even if over my head).
Welcome aboard.

[Dan Schiavetta]

It is my understanding that the Japanese Constitution is an American creation, more or less dictated by General MacArthur. Is that still true?

[A Japanese Student]

Pretty much, in fact it is the oldest unamended Constitution.

That said, there were some amendments made by Japanese legislators during the adoption process - two of which ended up being the most influential: one codifying the "right to maintain the minimum standards of wholesome and cultured living" (that practically ended up being just fancy words), and one abolishing sovereign immunity so that the Government would be liable for torts. It was around the same time that Congress passed the FTCA.

[Dan Schiavetta]

Thanks! Very illuminating.

[JoeFromtheBronx]

The petty/en banc practice sounds like what is done with the U.S. Court of Appeals. They usually try cases with three judges but en banc is necessary to overturn circuit precedent.

I note the Japanese Constitution states:

Article 76. The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law.

Another interesting provision:

Article 78. Judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent to perform official duties. No disciplinary action against judges shall be administered by any executive organ or agency.

[A Japanese Student]

Petty benches differ from CoA panels in that membership is fixed during a Justice's tenure. It's not a random composition.

Judges are appointed for renewable 10-year term by the Cabinet, and the Supreme Court decides the court assignment. After a few years they get reassigned to different courts, and this continues until the term isn't renewed or the judge faces mandatory retirement. Some lawyers allege that the Supreme Court is sending progressive judges to family courts in rural regions.

[JoeFromtheBronx]

Thanks.

[Dr. Ed 2]

Why rural regions? And a judge who is familiar with, say, corporate law may not be the best for family law.

The US State of Maine does something similar -- judges appointed for a 7 year term and are usually re-appointed to the same court but have to be re-confirmed by the legislature. Judge John Benoit is an example of one that wasn't.

[JoeFromtheBronx]

Yes. Learning about how other nations handle things is quite informative. The U.S. system uses judicial review. It is far from the only nation that does. But, how it does so, including via federal judges with basically life tenure ("good behavior" is the test), is quite different in various respects than how other nations do it.

[Dan Schiavetta]

Japanese Student:

Looking forward to your postings. Thanks!

[SRG2]

Thanks! I look forward to more of these!

[JoeFromtheBronx]

Justice John McLean was a Jacksonian appointee who turned out not to be the typical Democratic-appointed judge of the era.

He developed a somewhat anti-slavery jurisprudence and dissented in Dred Scott. He continued to dream of becoming president even at that late date.

I think oaths (or affirmations) have their place. They still are useful as a matter of human interactions.

An oath is not a "substitute" for responsibility. It is a symbol and reaffirmation of one. People who take oaths -- such as married people -- have other legal checks on their actions.

An oath is a symbolic act that is a public statement that recognizes our responsibilities. They are not magic incantations though might have a bit of magic to them. Don't have to be to be useful.

[Dan Schiavetta]

There's also the fact perjury can be a useful prosecution, though it is very rarely brought. Also suborning perjury.

[JoeFromtheBronx]

I also see that Justice Butler dissented in Dunn v. U.S., writing a notably long opinion given his habit of shorter ones. Butler, who we talked about recently, also often avoided dissenting.

The case involves something that regularly arises in jury trials. As Holmes noted (before saying "with that, I'm done"):

That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.

Juries sometimes are logically inconsistent. It in effect is factored into the process.

[Dan Schiavetta]

Compromise verdicts are o.k., but "quotient" verdicts are not. I've long been confused by that.

[SRG2]

A compromise verdict has a narrower range of outcomes. A quotient verdict does not.

Suppose someone is charged with two counts of felony assault. The range of compromise outcomes may be. convicted of one but not the other, which may be inconsistent with the facts, or convicted of the lesser included charges of misdemeanour assault (I believe that not all states permit "lesser included" verdicts, though). FWIW in the inconsistent outcome case, I think some judges would sentence as if the verdict were consistent, as I think they're - wrongly, IMO - allowed to do.

A quotient verdict may have median damages of $50,000 but owing to a couple of outliers, a mean damages of $500,000. It's almost the opposite of compromise.

[bernard11]

Are you talking about the mean and median of the jurors' opinions, or something else?

Do jurors submit individual amounts, or is this just how they might arrive at a compromise?