March 26, 2004 – John Roberts Makes the Case For Judicial Minimalism

On this day in history, the United States Court of Appeals, District of Columbia Circuit, decided the case of PDK Laboratories v. U.S. Drug Enforcement Administration (362 F.3d 786, 2004).

John Roberts, now Chief Justice of the U.S. Supreme Court but then serving on the Court of Appeals, concurred in part with the judgment filed by Circuit Judge Randolph in a case involving the DEA’s interpretation of the regulation of ephedrine.

Chief Justice John Roberts

Chief Justice John Roberts

Judge Roberts wrote in his concurrence:

I agree with the majority that PDK has standing to seek review of DEA’s suspension order, and that the order must be vacated because it relies, in significant part, upon a conclusion that PDK violated certain export notification regulations — a conclusion that contradicted relevant agency precedent without explanation. This much is not terribly controversial; DEA conceded its error and all but conceded that this court should remand the decision on that basis. See DEA Br. 59 (“we acknowledge that, in such circumstances, the ordinary practice would be a remand to the agency”). This is a sufficient ground for deciding this case, and the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more — counsels us to go no further. [emphasis added]

My brethren, however, are not content with this narrow and effectively conceded basis for disposition, and instead adopt an alternative ground of far broader significance, one that precipitates disagreement among us but at the end of the day leads to the same result — vacatur and remand to the agency. I cannot go along for that gratuitous ride.”

As Chief Justice, Roberts has continued to follow the advice with which he began and ended his partial concurrence in PDK Laboratories:

I end where I began — with regret that the majority feels compelled to address far-reaching questions on which we disagree, when they are wholly unnecessary to the disposition of the case. As Justice Frankfurter once put it: ‘These are perplexing questions. Their difficulty admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.’ Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 372-73, 75 S.Ct. 845, 850, 99 L.Ed. 1155 (1955).”

March 19, 1891 – Birthdate of Earl Warren

On this day in history, Earl Warren was born in Los Angeles, California. He sought the nomination for the U.S. President of the Republican party in 1952, but lost out to Dwight D. Eisenhower, who then nominated Warren under a recess appointment as the 14th Chief Justice of the Supreme Court.

Section 2 of the U.S. Constitution requires that the most senior federal officers must be confirmed by the Senate before assuming office, but while the Senate is in recess the President may act alone by making a recess appointment to fill “Vacancies that may happen during the Recess of the Senate.” To remain in effect, a recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again.

President Eisenhower nominated Warren as Chief Justice on September 30, 1953, and he was confirmed by The Senate on March 1, 1954.

Warren is best-known for four landmark decisions enacted during his tenure: Brown v. Board of Education (347 U.S. 483, 1954), Gideon v. Wainwright (372 U.S. 335, 1963), Reynolds v. Sims (377 U.S. 533, 1964), and Miranda v. Arizona (384 U.S. 436, 1966).

Warren retired on June 23, 1969, after fifteen years of service, and died on July 9, 1974, at the age of eighty-three.


February 20, 1809 – Justice John Marshall Declares The Power of the Federal Judiciary Greater Than That of Individual States

On this day in history, US Supreme Court Chief Justice John Marshall, writing for a unanimous Court, ruled in United States v. Peters (9 U.S. 115, 1809) that a state legislature could not annul a judgment of a federal court:

If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.”

Chief Justice John Marshall

Chief Justice John Marshall

Governor Snyder of Pennsylvania, against whose interests the ruling was made, and who was an avid supporter of state-rights, sent a message to the Pennsylvania legislature saying he would call the militia if necessary to prevent enforcement of the Court’s decision. The legislature obviously concurred with him:

Resolved, That, from the construction the United States’ courts give to their powers, the harmony of the States, if they resist encroachments on their rights, will frequently be interrupted; and, if to prevent this evil, they should, on all occasions, yield to stretches of power, the reserved rights of the States will depend on the arbitrary power of the courts.

Resolved, That should the independence of the States, as secured by the Constitution, be destroyed, the liberties of the people in so extensive a country cannot long survive.” 21 Annals Cong. 2265-66 (1810)

The Governor sent a letter to President James Madison, expecting his support, but received none. In a letter from Madison to Snyder on April 13, 1809, the President wrote:

…the Executive of the United States is not only unauthorized to prevent the execution of a decree sanctioned by the Supreme Court of the United States, but is expressly enjoined, by statute, to carry into effect any such decree where opposition may be made to it.” (21 Annals of Cong. 2269, 1810)

President James Madison

President James Madison

On April 15, the Pennsylvania legislature voted to withdraw the militia.

February 7, 1794 – The Supreme Court Decides Georgia v. Brailsford: An Endorsement for Jury Nullification?

The Seventh Amendment establishes the right to a trial by jury whenever the case is one that would have required a jury at common law. And when a state is a party, the Supreme Court may be the court of original jurisdiction. During the 1790’s the U.S. Supreme Court impanelled juries at the beginning of every term, but has not done so for more than 200 years.  Although the Court is known to have presided over at least three jury trials, only one of them was ever reported: Georgia v. Brailsford (3 U.S. 1, 1794).

During the Revolutionary War, many states – Georgia included – enacted legislation to “sequester” debts owed to British creditors.  However, the 1783 Treaty of Paris ending the war provided in part:

Creditors on either Side shall meet with no lawful Impediment to the Recovery of the full Value in Sterling Money of all bona fide Debts heretofore contracted.”


Once federal courts were created, foreign creditors hastened to bring suits. Samuel Brailsford was a British subject who was owed a bond dated 1774 by Georgia citizen James Spalding.  The State of Georgia claimed that Spalding rightfully owed the debt to the state, not to Brailsford, since it had sequestered the debts of all British creditors by statutes it passed before the Treaty of Peace.  In Georgia’s view, the state had replaced the British creditors.  

The Brailsford case presented two questions. First, when Georgia “sequestered” Brailsford’s debt, did the right to receive payment vest in the state? This was a matter of statutory interpretation.

Second, if it did vest in Georgia, was the state’s right to payment abrogated by the Treaty of Peace? This second question concerned the supremacy of treaties and state sovereignty. Both the State of Georgia and Brailsford had stipulated all the facts, obviating a factual inquiry.

Nevertheless, because it was a common law action, the Supreme Court impanelled a jury despite there being no facts to determine. But then, this was no ordinary jury. In the 17th and 18th centuries, it was a recognized practice of common law courts to impanel “special” juries in complex cases or cases that involved specialized mercantile knowledge or expertise. Such juries were composed entirely of experienced businessmen rather than citizens chosen at random. In a sense, they acted as a panel of expert witnesses as well as the jury’s traditional role of fact finder.

Chief Justice John Jay, portrait by Gilbert Stuart

Chief Justice John Jay, portrait by Gilbert Stuart

The report of the case includes the instructions given to the jury by Chief Justice John Jay on the distinction between law and fact:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.”

It seems as if Jay were telling the jurors that they should respect the legal opinion of the judges, but that they were not bound by those opinions! These words have been considered by some scholars as the foundation of the jury’s right to “nullify,” i.e., to ignore the court’s instructions.

Other scholars contend that such interpretations ignore the context of the case and of the time. In the mid-18th Century, Lord Mansfield, Chief Justice of King’s Bench in England, commonly used special juries of merchants to assist him in incorporating the law merchant into the common law, inviting the special merchant jurors to “call[] upon their own experience and knowledge in reaching their verdicts.” Furthermore, in late eighteenth-century America, a similar use of special juries of merchants was widespread and exerted a great influence over the development of post-revolutionary commercial law. [James Oldham, “The Origins of the Special Jury,” 50 U. Ch. L. Rev. 136 (1983); and James Oldham, “The History of the Special (Struck) Jury in the United States and Its Relation to Voir Dire Practices, the Reasonable Cross-Section Requirement, and Peremptory Challenges,” 6 Wm. & Mary Bill Rts. J. 623, 1998.]

William Murray, 1st Earl of Mansfield

William Murray, 1st Earl of Mansfield

[Interestingly, special juries are still sometimes used, even in this day and age of expert witnesses. Oldham also discusses the issue of whether “the standards for the admissibility of expert testimony require upward adjustment because of the supposed greater capabilities of the special jurors.” (Ibid, p. 661.)]

In any event, not only this Supreme Court case, but some statements made by Founding Fathers show an early belief in jury nullification at least in some circumstances. For example, John Adams said of the juror:

…it is not only his right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (cited in Yale Law Journal, 1964:173.)

Portrait of Adams by John Trumbull, 1792–93

Portrait of Adams by John Trumbull, 1792–93

A century after Brailsford, however, in Sparf v. United States (156 U.S. 51, 1895), the Supreme Court held that the constitutional right to jury trial does not give a jury the right to decide questions of law or to reject the law as presented to it by the court.

Some scholars – especially those labeling themselves as “originalists,” maintain that, because Founding-era juries had the right to nullify, the right was implicit in the constitutional meaning of jury, and should be restored. They contend that Sparf should be overruled.

But if in fact the instructions issued in Georgia v. Brailsford are seen more as an outline to guide experts, as was clearly the case in its historical context, Chief Justice Jay’s comments appear to be not so much advocacy of jury nullification as deferral to recognized expertise. 

Moreover, an article by Jonathan Bressler, former law clerk to Justice Stephen Breyer, argues convincingly that a proper construction of the Fourteenth Amendment eliminates any power to nullify that may have existed during the Founding Era.  Bressler observes:

…the Reconstruction Congresses understood the Fourteenth Amendment not to incorporate against the states the jury’s historic right to nullify, even as it incorporated a general right to jury trial. On the contrary, Reconstruction Republicans understood jury nullification to be incompatible with new constitutional rights they were charged with protecting in the former Confederate states and in the Utah Territory. In what was then among the most significant revolutions in federal jury law, Reconstruction Republicans supported legislation that would purge en masse from criminal juries Southern and Mormon would-be nullifiers—even some prospective jurors who plausibly believed that a federal criminal statute was unconstitutional.” (Jonathan Bressler, “Reconstruction and the Transformation of Jury Nullification,” U. Chicago Law Review Volume 78 Fall 2011 Number 4)

January 28, 1916 – President Wilson Nominates Louis Brandeis to the U.S. Supreme Court

On this day in history, President Woodrow Wilson nominated the successful Boston attorney Louis Brandeis to the Supreme Court. An ugly and hard-fought battle ensued, tinged by anti-Semitism. Brandeis was the first Jew ever nominated for the Supreme Court.

Brandeis was born on November 13, 1856, in Louisville, Kentucky. In 1875, at the age of 18, Brandeis entered Harvard Law School without a formal college degree. Although Brandeis was not the required age of 21, the Harvard Corporation passed a special resolution granting him a bachelor of law degree in 1877. After a further year of legal study at Harvard, he was admitted to the bar.

Louis Brandeis c. 1900

Louis Brandeis c. 1900

In 1879 Brandeis began a partnership with his classmate Samuel D. Warren. Together they wrote one of the most famous law articles in history, “The Right to Privacy,” published in the December 1890 Harvard Law Review. In it Brandeis enunciated the view he later echoed in the Supreme Court case of Olmstead v. United States (277 U.S. 438, 1928), in which he argued that the makers of the Constitution, as evidence of their effort “to protect Americans in their beliefs, their thoughts, their emotions and their sensations … conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”

By 1890 Brandeis had developed a lucrative practice and often donated his services pro bono to various public causes. He also took part in the effort to bring legal protections to industrial laborers. In that capacity, in 1908 he introduced, in a case before the Supreme Court, the so-called “Brandeis Brief.” It went far beyond legal precedent to consider the various economic and social factors which related to the law in question. Many lawyers adopted his practice and began to include in their briefs relevant scientific evidence and expert opinion that might affect the judicial litigation.

When Wilson nominated Brandeis to the Supreme Court on Jan. 28, 1916, six former presidents of the American Bar Association and former U.S. President William Howard Taft denounced Brandeis for his allegedly radical political views. Pro-business Senators and corporate titans like J.P. Morgan objected to Brandeis’s efforts in favor of workplace-safety and labor laws. But at the end of a grueling four-month confirmation process, Brandeis was approved by the Senate in a 47 to 22 vote and took his seat on June 5, 1916, becoming the first Jewish Justice on the high court.

Justice Louis Brandeis

Justice Louis Brandeis

Although the New York Times had opposed Brandeis in 1916, at his retirement in 1939 the paper opined:

The retirement of Justice Brandeis takes from the bench of the Supreme Court one of the great judges of our times.”

Not everyone changed their mind about Brandeis. Supreme Court Justice James Clark McReynolds, who served on the Court from October 12, 1914 to his retirement on January 31, 1941, would not accept “Jews, drinkers, blacks, women, smokers, married or engaged individuals” as law clerks. He refused to speak to Louis Brandeis for three years following Brandeis’s appointment and, when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to justices on their retirement.

Justice James McReynolds

Justice James McReynolds

January 23, 1964 – The U.S. Ratifies the 24th Amendment to the Constitution, Ending the Poll Tax

On this day in history, the 24th Amendment to the US Constitution, eliminating the poll tax in federal elections, was ratified. Many Southern states adopted a poll tax in the late 1800s as part of “Jim Crow laws” to counter the effects of the 15th Amendment, which gave former slaves the right to vote. These laws were often supplemented by literacy tests and intimidation.

The U.S. Supreme Court had declared the poll tax constitutional in Breedlove v. Suttles (302 U.S. 277, 1937), ruling:

Voting is a privilege derived not from the United States, but from the State, which may impose such conditions as it deems appropriate, subject only to the limitations of the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution.”

However, while the 24th Amendment abolished the use of the poll tax (or any other tax) as a pre-condition for voting in federal elections, it made no mention of poll taxes in state elections.

In the 1966 case of Harper v. Virginia Board of Elections (383 U.S. 663, 1966), the Supreme Court overruled its decision in Breedlove v. Suttles, and extended the prohibition of poll taxes to state elections, declaring:

A State’s conditioning of the right to vote on the payment of a fee or tax violates the Equal Protection Clause of the Fourteenth Amendment. Breedlove v. Suttle, supra, pro tanto overruled.”

But those who would restrict the voting rights of minorities don’t give up easily….



Practice Makes Perfect: Supreme Court Justices Who First Served As Court Clerks


Six Supreme Court Justices served as law clerks. They are:

• Byron R. White (1962-1993) clerked for Chief Justice Fred Vinson, 1946-47.

Justice Byron R. White

Justice Byron R. White

• William H. Rehnquist (AJ 1972-1986, CJ 1986-2005) clerked for Justice Robert H. Jackson, 1952-53.

Justice William H. Rehnquist

Justice William H. Rehnquist

• John Paul Stevens (1975 to 2010) clerked for Justice Wiley B. Rutledge, 1947-48.

Justice John Paul Stevens

Justice John Paul Stevens

• Stephen G. Breyer (1994 to Present) clerked for Justice Arthur Goldberg, 1964-65.

Justice Stephen G. Breyer

Justice Stephen G. Breyer

• John G. Roberts, Jr. (2005 to Present) clerked for Justice William H. Rehnquist, 1980-81.

Justice John G. Roberts, Jr.

Justice John G. Roberts, Jr.

• Elena Kagan (2010 to Present) clerked for Justice Thurgood Marshall, 1987-88.

Justice Elena Kagan

Justice Elena Kagan


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