Monthly Archives: December 2016

This Day In Supreme Court History

This Day In Supreme Court History—December 8, 1902

Leave a comment

On this day in 1902, Justice Oliver Wendell Holmes Jr. was sworn in as an Associate Justice of the U.S. Supreme Court.

The seat Holmes would occupy for the next thirty years opened up when Justice Horace Gray informed Roosevelt on July 9, 1902, that he was retiring. Roosevelt immediately wrote his close friend Henry Cabot Lodge, Senator from Massachusetts, to discuss nominating Holmes, who was then the Chief Justice on the Massachusetts Supreme Judicial Court. Holmes,  wrote Roosevelt,  “has been the most gallant soldier, a most able and upright public servant, and in public and private life alike a citizen whom we like to think of as typical of the American character at its best.” Roosevelt also hinted that he favored Holmes because he believed he shared the President’s views on American imperial policy in Puerto Rico and the Philippines. “Judge Holmes’ mental attitude …  is such that should naturally expect him to be in favor of those principles in which I so earnestly believe,” Roosevelt explained to Lodge. “Judge Gray has been one of the most valuable members of the Court. I should hold myself as having been guilty of an irreparable wrong to the nation if I should put in his place any man who was not absolutely sane and sound on the great national policies for which we stand in public life.”

In accepting Gray’s resignation, Roosevelt saluted Gray (who, like Holmes, was a native of Massachusetts and had served on that state’s  Supreme Judicial Court prior to his appointment to the U.S. Supreme Court) for his years of service and asked him postpone his retirement until a successor has been appointed. He concluded the letter with a flattering postscript: “The sentence I am about to write I suppose must not be made public because it might mistakenly be held to imply that I had anticipated a change in the Chief Justiceship! If through any accident to my good friend, the Chief Justice, there had been such a vacancy, it had been my intention to appoint you to it.” (Roosevelt’s flattery was misguided in this case: Gray’s resignation was brought on by grave illness; he would die just two months later.)

Roosevelt then wrote to the other U.S. Senator from Massachusetts, George Frisbie Hoar, who was the chairman of the Bar Committee of the Senate (what we now call the Senate Judiciary Committee). The President informed Hoar of his intention to appoint Holmes, but he explained that he would not make the appointment official until speaking with Hoar. The Senator felt slighted. “If the matter be decided, I do not understand what you expect or desire to hear from me,” he wrote. “As a Massachusetts lawyer, as the Senior Senator from the New England Circuit, and as Chairman of the Bar Committee of the Senate, I naturally feel great interest in the appointment of a Judge of the Supreme Court of the United States from my own Circuit and my own state. There is no doubt of the absolute right of The President to make such appointment on such advice as he chooses to take, or without advice, if he prefer.”

Roosevelt then sought to clarify his intentions. “I wrote to you, of course, so that if there was any reason why Holmes should not be appointed in our judgement, you would tell me.” Roosevelt explained that his appointment of Holmes was motivated by his goals of locating a nominee with the requisite professional prestige and ensuing there remains a justice from Massachusetts on the bench. “Equally, of course, my statement that I would make the appointment did not mean that I would make it if I was shown that such reason existed. I did not phrase my letter as carefully as if it was an ordinary appointment, simply because Homes being chief justice in the State, and having the reputation he has, I suppose it was a rather formal matter. But if there is the slightest reason against his appointment I of course wish to know it. Ever since Judge Gray’s sickness I have been looking over the field as carefully as I could in Massachusetts, as I wish to fill the place from that state, if possible.”

On August 11, Roosevelt wrote Hoar once again regarding Holmes’ appointment. He was moving ahead on the matter, he explained. “It would now be an idle formality for me to consult the public at large about Holmes – whatever it might have been well to do at the beginning – and so I shall announce his appointment.”

On that same day, President Theodore Roosevelt gave Holmes a recess appointment to the Court. Holmes, however, chose not to begin serving on the Court until the Senate confirmed his appointment, which it did on December 2.

Six days later, on December 8, 1902, Oliver Wendell Holmes Jr. was sworn in.

OT 2016, Patent Law, Voting Rights Act, Weekly Preview

The Week Ahead – December 5, 2016

1 Comment

The Court will kick off this week by hearing oral arguments in Bethune-Hill v. Virginia Board of Elections on Monday. After the Virginia General Assembly redrew its legislative districts, the plaintiffs sued, alleging that race was a predominant factor in the redistricting. The Court will have to decide if Virginia’s political leaders unconstitutionally gerrymandered the districts to diminish the power of African American voters. The Washington Post discusses the history of the case, leading up to its arguments in front of the high court.

Additionally on Monday, the Court will hear a similar case, McCrory v. Harris. In McCrory, the Court will consider whether the district court was wrong in deciding that North Carolina did in fact redraw their legislative districts to decrease the power of African American voters and therefore violating the Equal Protection Clause. Check out PBS for further details.

On Tuesday, the Court will move away from issues involving politics and race and will hear arguments in Life Technologies Corp. v. Promega Corp. This case involves infringement and the meaning of a specific statute involving the manufacturing and supply of patented inventions used overseas. They will ultimately have to decide if making just one component of a multi-component invention from the U.S. for sale overseas makes the manufacture liable for infringement based on the worldwide sales of the invention. John Duffy of SCOTUSblog breaks down the arguments, here.

Finally, on Wednesday the Court will hear arguments in Czyzewski v. Jevic Holding Corp. The Court will have to decide whether bankruptcy courts can approve settlements providing for the distribution of assets in a manner inconsistent with the priorities set forth in the Bankruptcy Code. Jevic Transportation filed for bankruptcy and the settlement distributed assets to creditors that held lower priority than the truck drivers employed by Jevic. The drivers argue that this distribution violates the Bankruptcy Code. Daniel Bussel of SCOTUSblog discusses how Chapter 11 bankruptcy cases will be effected in the future based on various decisions the Court could make.

Weekly Roundup

Weekly Roundup, December 2, 2016

Leave a comment

On Monday the Court heard arguments in Beckles v. United States. The case presents several issues revolving around a sentence enhancement for what prior convictions for what the sentencing guidelines call “a crime of violence.”  The case involves both issues of interpretation of the phrase and a constitutional challenge that it is void for vagueness. During oral arguments, some of the justices noted that the guideline commentary partly interpreted the clause, presumably providing meaning. They also questioned whether the commission could not best clarify its own language. Janice Bergmann, representing Beckles, responded that the guideline language was drawn from the ACCA residual clause, so interpretation or examples offered by the commission would be arbitrary. Deputy Solicitor General Michael Dreeben argued for the government. Dreeben presented a due-process framework that is fair but considers “history and practice.” Discretionary sentencing, he explained, is built on “individualization or proportionality.” SCOTUSblog discusses Monday’s arguments in detail, here.

On Tuesday, the Court heard arguments in Moore v. Texas, which presents the issue of whether Texas’s method of determining whether an inmate is intellectually disabled, and therefore cannot be executed, violates the Constitution. Attorney Clifford Sloan, representing Bobby James Moore, argued that the determination of intellectual disability must consider the medical community’s diagnostic framework. The state’s standards date back to 1992. Arguing on behalf of the state, Texas Solicitor General Scott Keller said that the Texas framework was not “free-floating” but was consistent with the Supreme Court’s decisions in Hall v. Florida in 2014 and Atkins v. Virginia in 2002. The New Yorker dives into the life of James Moore in its interesting article titled “Will the Supreme Court stop Texas from executing the intellectually disabled?”

In the final case of the week, Jennings v. Rodriguez, the Court must determine whether immigrants must be guaranteed a bond hearing and possible release from custody. On Wednesday Ahilan Arulanantham of the American Civil Liberties Union of Southern California argued for detained immigrants. He defended a lower court injunction and argued that the Ninth Circuit’s requirement of a bond hearing every six months was appropriate. Ian Gershengorn, the Acting Solicitor General, argued for the government, and relied on Demore v. Kim, particularly with respect to detaining immigrants convicted of certain crimes. He argued that “[t]he Ninth Circuit’s decision is a serious misuse of the constitutional avoidance canon.” Kevin Johnson breaks down the arguments on either side of this debate via SCOTUSblog.