Today in Supreme Court History: February 18, 1988

2/18/1988: Justice Anthony Kennedy takes judicial oath.

Justice Anthony Kennedy

Comments

[Dan Schiavetta]

Bibles v. Oregon Natural Desert Ass’n, 519 U.S. 355 (decided February 18, 1997): Freedom of Information Act did not entitle environmental group to obtain mailing list of Bureau of Land Management’s newsletter “so that alternative information could be sent to them”

Robinson v. Shell Oil Co., 519 U.S. 337 (decided February 18, 1997): antiretaliation provision of Civil Rights Act of 1964 applied to post-employment actions (here, negative reference given by former employer against whom plaintiff, now seeking another job, had filed a racial discrimination complaint with the EEOC)

General Motors Corp. v. Tracy, 519 U.S. 278 (decided February 18, 1997): buyer of natural gas had standing to challenge state exemption of local distributors from sales and use taxes placed on sellers (the Court then held that the exemption did not violate Dormant Commerce Clause or Equal Protection)

McMillan v. McNeill, 17 U.S. 209 (decided February 18, 1819): foreign bankruptcy not effective in this country; contract supposedly discharged there (the U.K.) still enforceable here

Packard v. Banton, 264 U.S. 140 (decided February 18, 1924): upholds against Equal Protection attack New York statute requiring drivers for hire in large cities only to obtain liability insurance; statute was relevant to public safety

[JoeFromtheBronx]

Justice Kennedy annoys a lot of people especially with his use of flowery language in certain opinions.

I think that was exaggerated especially since he isn't the only one with poetic language including involving the spirit of federalism or some such thing. He also showed some commendable ability to overlap liberal and conservative positions.

Kennedy is one of those justices who led with principle sometimes more than doctrinal niceties. There is a place for such people.

I disagreed with various of his positions though enough were right to make him a decent justice. One was his vote in the plurality in Planned Parenthood v. Casey.

On 2/18/16, an order was released regarding oral argument in WHOLE WOMAN'S HEALTH, ET AL. V. HELLERSTEDT which ultimately (with his vote) struck down 5-3 (Scalia died) a Texas law that unconstitutionally burdened abortion rights.

His replacement went another way.

[A Japanese Student]

I'm definitely worried that we never see someone like Justice Kennedy at SCOTUS again.

He was the libertarian justice. His rulings angered people across political spectrum. I do wonder if, had his name been submitted to the Senate today, he would have received 50 votes.

(Some people call Justice Gorsuch "libertarian"; he is a libertarian in theory - and only in theory.)

[A Japanese Student]

Breast Surgeon Indecent Assault Case (Second Petty Bench, decided February 18, 2022): A factual dispute is sometimes categorized as procedural error of "failure to thoroughly examine". Here, a surgeon was charged with sexually abusing a patient under anesthesia. Defendant says (and district court agrees) that she was hallucinating due to post-surgery delirium and DNA evidence is inconclusive. Court below reverses acquittal, noting that you don't get that DNA evidence unless you lick the patient's breast (while refusing to call DNA testing experts). Supreme Court vacates and remands; judgment on remand is expected next month

[F.D. Wolf]

On February 18, 1861, the Senate, by a vote of 25-26, would defeat a motion to proceed with consideration of President Buchanan's nomination of his Secretary of State Jeremiah S. Black to the Court. Buchanan had nominated Black on February 5, one month before the end of his presidency and the beginning of Abraham Lincoln's. The nomination would lapse on March 4 with the end of the 36th Congress. The Court would soon thereafter appoint Black as its official Reporter of Decisions, a position he would hold for two years.

On February 18, 1870, the Senate would confirm President Grant's nomination of William Strong to the Court. Somewhat curiously, the vote on Strong is not recorded in the Senate Journal, the only apparent instance of this occurring.

On February 18, 1893, the Senate would confirm President Harrison's nomination of Howell E. Jackson to the Court to succeed Justice Lucius Q.C. Lamar, who had died on January 23. Harrison had lost the 1892 to Grover Cleveland, whose second non-consecutive term would begin on March 4, 1893. Though the Republicans controlled the Senate, Harrison knew if he nominated a Republican, Senate Democrats would filibuster the nomination until Cleveland assumed office in a few weeks. So, Harrison, on the advice of Justice Henry B. Brown, who himself had been appointed by Harrison, nominated Judge Jackson of the Sixth Circuit, who had been appointed to that position by Cleveland.

[F.D. Wolf]

CORRECTION: The motion to proceed on the Black nomination was voted down on February 21, 1861.