July 11, 1921 – William Howard Taft Sworn in as Chief Justice of the U.S. Supreme Court

On this day in history, William Howard Taft became the only person to serve as both U.S. President and Supreme Court Chief Justice.

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Taft was the 27th President of the United States (1909–1913). Before becoming President, Taft served on the Superior Court of Cincinnati, as Solicitor General of the United States, and as a judge on the United States Court of Appeals for the Sixth Circuit. He also was appointed as Governor-General of the Philippines by President William McKinley and as Secretary of War by President Theodore Roosevelt.

Riding a wave of popular support for fellow Republican Roosevelt, Taft won his 1908 bid for the presidency but was defeated after one term.

After leaving office, Taft spent his time in academia, arbitration, and the pursuit of world peace through his self-founded League to Enforce Peace. In 1921, President Warren G. Harding appointed Taft Chief Justice of the United States. Taft served in this capacity until shortly before his death in 1930.

June 23, 1969 – Warren Burger Begins His Term as Chief Justice of the U.S. Supreme Court

On this day in history, Warren Burger took the oath as the 15th Chief Justice of the U.S. Supreme Court. Burger was appointed by President Richard Nixon to replace retiring Chief Justice Earl Warren. Warren had served as an assistant attorney general for President Dwight D. Eisenhower, who in 1956 appointed him to the District of Columbia Circuit of the U.S. Court of Appeals.

President Nixon with former Chief Justice Earl Warren and newly appointed Chief Justice Warren E. Burger

President Nixon with former Chief Justice Earl Warren and newly appointed Chief Justice Warren E. Burger

Earl Warren announced he was retiring while Lyndon Johnson was still President, but Nixon sent word to Congressional Republications to block any candidate named by Johnson so that Nixon could appoint the justice. Thus, Republicans successfully filibustered the nomination of Supreme Court Associate Justice Abe Fortas.

Nixon initially approached two other candidates, former Eisenhower attorney general Herbert Brownell and former GOP presidential candidate Thomas Dewey, but both of them turned down the job.

Widely-known as a conservative, Burger was a strong advocate of “strict construction” to the interpretation of the Constitution. He often tried to dampen some of the Warren Court’s more liberal decisions during his 17 year tenure on the court. But he authored the Court’s opinion upholding the right of trial judges to order busing as a remedy for school segregation, and he spoke for a unanimous Court upholding a subpeona for the Watergate tapes which resulted in President Nixon’s resignation. By the time he retired in 1986, he had become the longest serving chief justice of the 20th century. Burger died on June 25, 1995, and is buried at Arlington National Cemetery.

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Justice Brandeis on the Government as Role Model

On June 4, 1928, the U.S. Supreme Court handed down its decision in Olmstead v. United States (277 U.S. 438, 1928).

In this case, the Court reviewed whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights provided by the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that neither the Fourth Amendment nor the Fifth Amendment rights of the defendant were violated. (This decision was overturned by Katz v. United States in 1967.)

The famous conclusion to the dissent by Justice Louis Brandeis is not only a wonderful piece of writing, but a ringing endorsement of government integrity:

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

Justice Louis Brandeis

Justice Louis Brandeis

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.

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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.”

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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)

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