Tag Archives: SCOTUS

Jackson List: Lawful, Political, Deplorable Senatorial Behavior (1954)

This post, edited a little bit and enhanced with footnotes and photographs of John M. Harlan and the Supreme Court in 1955, now is on the Jackson List archive site in PDF file form.

Jackson List: Judge Gorsuch’s Admiration for Justice Jackson’s Writing … and Justice White, Dubitante

 

This post, edited a little bit and enhanced with a couple of citation footnotes and a *great* 1946 photograph of Byron White as a U.S. Supreme Court law clerk, now is on the Jackson List archive site in PDF file form.

Jackson List: Inaugurations and Change (1949 & 1953)

On the morning of January 20, 1949, Justice Robert H. Jackson and his wife Irene drove in to Washington from their Hickory Hill home in McLean, Virginia.

At the Supreme Court building, they met their friends Floyd Odlum and Jacqueline Cochran (a businessman and a famous aviatrix and businesswoman, respectively), who were visiting from California.  Later, they crossed First Street, Northeast, to the U.S. Capitol.  They sat – separately, Jackson with fellow justices, Irene with Floyd and Jackie – in V.I.P. seats and watched the inauguration of President Harry S. Truman.  Justice Jackson wore a small black cap, custom-made, from Livingston’s, a store in downtown Washington.

In Chicago, a young woman named Betty Stevens was one of many who watched the 1949 presidential inauguration ceremony on television.  She was especially pleased to see two Supreme Court justices, Jackson and Wiley Rutledge, “walking along gaily chatting.”  Her husband, Chicago attorney John Paul Stevens, had clerked for Justice Rutledge a year earlier, and Mrs. Stevens was happy to see that he appeared to “be in excellent health and spirits.”

Nearly four years later, General (ret.) Dwight D. Eisenhower was elected to succeed President Truman.  He, a Republican, would become president after twenty years of presidents (Franklin D. Roosevelt, and then Truman) from the Democratic Party.

In late 1952, Jackie Cochran wrote to her friend Bob Jackson.  She asked if she and Floyd could be Jackson’s guests at the impending Eisenhower presidential inauguration.

Jackson, after checking, wrote back to her in late December 1952:

Dear Jackie:

I have inquired of the Marshal [of the Supreme Court] and so far as I can learn we can carry out this year the same program that we did at the last inauguration – which was that you and Floyd came to the Court and we went from here together.  I think that will work out this time, although it may be something different.  You know the slogan, “It’s time for a change,” and they do have to provide this year for two Cabinets and two sets of officers, incoming and outgoing, and two Presidents’ parties, whereas before there was only one.

The Inauguration Day, January 20, 1953, was indeed different.  On that Tuesday morning, the Supreme Court had an official session.  The justices took the bench and admitted attorneys to the Supreme Court bar.  The Court then adjourned to attend, as it had four years earlier, the inauguration as a body.

At the oath-taking ceremony, the Justices, all bare-headed, walked in procession from the Capitol rotunda to the platform, in pairs according to their seniority on the Court.  Justice Jackson walked with Justice William O. Douglas, smiling and talking.

Later that afternoon, the justices returned to the Court and reconvened briefly in official session.  They did not hear oral argument in any of the ten cases they had, the previous day, put on call for January 20th.  They sent “home” the attorneys who were assembled and prepared to argue those cases, putting them over until the next day.

It appears that Jackson was able to arrange for Floyd Odlum and Jackie Cochran to attend President Eisenhower’s 1953 inauguration.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

A Word Against Smearing Supreme Court Justices

Gabe Roth of the advocacy group Fix the Court published an Op-Ed essay, “The Supreme Court Is Being Hypocritical,” in today’s New York Times.  He points to factual circumstances in various cases that the U.S. Supreme Court has decided recently or is considering.  He argues that these facts and the concerns they raise (in his mind) apply not just to the litigants in those cases, but to the Justices too.

Mr. Roth calls these cases the Court’s “self-referential docket,” but really he’s criticizing what he sees as the Justices’ failures to reference themselves.  He wants the Justices to see ethical issues in their own behaviors and, in response, to promulgate new rules to address them, and to behave in ways that he thinks would be ethically better.

Alas, his list of particulars is flawed.  To wit:

  • Yes, Elena Kagan was Solicitor General of the U.S. before her appointment to the Court. But she did not “surely” have significant involvement as S.G. in Affordable Care Act cases.  In fact, it is well-documented that she avoided them, perhaps because her judicial appointment was already impending when those cases began.
  • Yes, Justices and their family members do own stocks (as many, many people do, directly or at least indirectly). But the ideas that Justice Stephen Breyer or Chief Justice John Roberts—each rich beyond the point of having financial needs or concerns, by the way—cast votes in Supreme Court cases so as to raise their stock share prices is just outrageous.  And so is the idea that Breyer, Roberts, or Justice Samuel Alito, or any justice, will cast a vote in a pending insider trading case so as to move financial markets in the justice’s favor.
  • Yes, the Supreme Court has not recently taken a case to review the constitutionality of a law banning certain protests on the plaza in front of the Court building. And yes, the Court in 2014 unanimously invalidated a state law barring protesters within 35 feet of abortion clinics (McCullen v. Coakley).  But Roth’s implication that judicial self-interest explains these differing legal outcomes oversimplifies matters, vastly—as reading various Supreme Court and lower court decisions on these and other “buffer zone”/speech restriction laws will quickly demonstrate.
  • Yes, Justice Sandra Day O’Connor wrote for the Court, when it upheld Missouri’s age 70 mandatory retirement rule for its judges, that “physical and mental capacity sometimes diminish with age.” (No kidding.)  And yes, Justice Antonin Scalia died last winter just before his 80th birthday, and Justice Anthony Kennedy recently celebrated his 80th.  And Roth’s point?  The idea that any Justices is forgetting his or her age and not monitoring his or her capacities is absurd.  The implication that Justice Scalia had become too infirm to serve, or that any Justice now is, is insulting because it is refuted by their performances on the bench, which occur in public and then are preserved on audio tape, and in their written opinions.

Mr. Roth’s bad examples only weaken his meritorious arguments.  Yes, the Court/the Justices could do much more to advance Court transparency and thus public appreciation for its performance.  For instance, filming oral arguments and then making those films publicly available, routinely but perhaps after an interval of time, would improve public education without affecting much how the Court does its work.

It only sets back public discourse, and it probably makes the Justices less receptive to sound reform proposals, to claim falsely that the Court is broken.

“He’s Been Shot. HELP Him!”

I assume that when a police officer comes upon an injured, and especially a gravely injured, person, the officer typically calls for medical help (EMS) and then, while waiting for its arrival, provides whatever first aid and comfort the officer can.

This seems not to be happening in instances where the person has been injured by the police—and to be specific, where the person has been shot by the police.  This New York Times story chronicles a number of incidents, captured on publicly-released video, where recent police shootings have been followed by groups of officers standing around, just looking at the shot, often dying, person.

Many things might cause this inaction.  At the threshold, some situations and settings might be actively dangerous—a shot person is not automatically safe to approach or to touch.  Some officers, especially shooters, might also be in a kind of shock, frozen in the moment.  Some officers, not knowing much first aid, might feel unqualified to do anything.  Some shooting victims are, possibly, so obviously “gone” that nothing will aid them.  But some police inaction might be based in callousness, and in failures of trainers and commanders to encourage, direct and build human empathy.

We—society, and every police chief, and every individual officer—need to fix this.  Policing, properly done, is about law enforcement.  But it also is about caring for the community, and each person among us.  We recognize this in our constitutional law:  the Fourth Amendment prohibits unreasonable searches and seizures, including touching and handling persons, but it is objectively reasonable for police officers to engage in searches and seizures when they are trying to help an injured person.  (See Chief Justice Roberts’s 2006 opinion for the unanimous Supreme Court in Brigham City v. Stuart.)

Yes, it can be constitutionally reasonable for the police to seize a person by, for valid reasons, shooting him or her—that is the lawful use of deadly force.  But even after a lawful seizure of a person, the government may not arbitrarily cause suffering.  (Think of a convicted criminal lawfully incarcerated.  The government has seized him.  But it may not then torture him or, without reason, deny him basic attention, care and sustenance.)

I have never come upon a shooting victim.  But I have seen injuries, and I have been injured—as you have too.  As a bystander, I’ve tried to help—to perform modest first aid, to speak words of comfort, to stay at the side of the person in pain.  As a victim, I’ve received the first aid, the kind words, the held hand, and I’ve been grateful.  It seems a basic thing that makes our world decent.

Our cops—our community caretakers—should jump in to care for injured people as much, as often, as reflexively, as they jump into situations to enforce our laws.  I believe that this instinct is already in most cops as people, or it was.  It should be reignited, trained, encouraged, rewarded, applauded.

Every victim of violence is a person whom the police have, commendably, sworn to protect.