Justice Baldwin's Dueling Past

"Duels were not altogether uncommon among these men in this day. ... Henry Baldwin had fought a duel against another lawyer, Isaac Meason, Jr., over a grievance that has been described as either political or romantic in nature – possibly both. During the first round of pistol-fire, Baldwin was hit in the chest and began spitting up blood, so witnesses feared he had been shot through; but apparently a Spanish silver dollar in Baldwin’s waistcoat pocket deflected Meason’s bullet. The parties were scared off by a posse sent by Judge Riddle before they could lob a second volley." Henry Baldwin later became an associate justice of the United States Supreme Court.

See The Steel Bar: Pittsburgh Lawyers and the Making of Modern America.

The Mind of Hand

"[A] judge is . . . pulled by two opposite forces. On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words but by trying honestly to say what was the underlying purpose expressed. Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, if we are to realize the hope that we can collectively rule ourselves." -- Learned Hand.

U.S. federal judge Learned Hand was born on this day in 1872 in Albany, New York.

Hand served a record 52 years as a federal judge, and although he was never appointed to the U.S. Supreme Court, he is generally considered to have been among the greatest American judges of the 20th century, combining a profound, skeptical mind with a deliberate, succinct writing style and a wide breadth of reading and allusion, peppering his opinions with illustrations from such diverse sources as Plato, Shakespeare, Cervantes and Joel Chandler Harris.

Hand studied philosophy (under William James and George Santayana) and law at Harvard, and began the practice of law in Albany in 1897. After moving to New York City, President Taft appointed Hand to the federal district court for New York in 1909, and President Coolidge elevated him to the U.S. Court of Appeals (2nd Circuit) in 1924.

In 1945, Hand rendered the final decision in the lengthy Alcoa antitrust case after several Supreme Court justices disqualified themselves, ruling that evidence of greed was not necessary to prove a violation under the Sherman Act ("Congress did not condone 'good monopolies' and condemn 'bad ones'; it forbade all."). At times seemingly liberal (he upheld the lower court ruling that James Joyce's Ulysses was not obscene), he also upheld the convictions of several Communist leaders under the Smith Act for conspiracy to overthrow the government -- evidencing his ongoing, evolving concern with distinguishing between the proper exercises of government power from unreasonable restraints in the name of public welfare.

Hand firmly believed in the importance of judges knowing the great works of history, philosophy and literature, because in constitutional matters "everything turns upon the spirit in which [a judge] approaches the questions before him," and he felt that the words of laws were "empty vessels" without a judge's ability to draw upon his reading to fill them.

It is said that as Chief Justice, Taft kept Hand off of the Supreme Court for a number of years due to Hand's support of Theodore Roosevelt's "Bull Moose" presidential candidacy against Taft in 1912. A persistent legend (perhaps apocraphyl) holds that President Hoover intended to appoint Hand to the U.S. Supreme Court, but that he offered the vacancy to Charles Evans Hughes out of political necessity, fully expecting Hughes to reject the offer since Hughes' son would have to resign as Solicitor General if Hughes were on the Court; according to the legend, Hughes astonished everyone by accepting Hoover's offer, and Hand remained the greatest judge never to be elevated to the Supreme Court. Hand died on August 18, 1961 in New York City.

Categories: Juris-History

John Jay

Possibly the one participant in the American Revolution who deserves more credit in schoolhouses than he currently gets for shaping the American nation, John Jay was viewed by contemporaries as the nation's greatest diplomat and one of its greatest legal minds.

Born on this day in 1745 in New York City, a graduate of Columbia (King's College), Jay successfully practiced law in New York City from 1768, and was initially opposed to colonial agitation and estrangement from England, fearing that American independence would result in mob rule. While he served in the First Continental Congress, he helped to formulate the "Olive Branch Petition" (an attempt at reconciliation with the King, which George III refused to read) and considered leaving North America altogether.

With the adoption of the Declaration of Independence, however, he cast his lot with the revolutionaries and became a fervent supporter of American independence. In 1777, he drafted New York's first constitution and served as the state's first chief justice. The following year, New York sent Jay to the Second Continental Congress, where he was elected president, and in 1779 he was sent to Spain on a diplomatic mission. An exceptionally perceptive negotiator, he was summoned to Paris by Benjamin Franklin to assist in reaching a peace accord with England. Despite being told not to act without the knowledge and concurrence of the French, Jay surreptitiously opened direct talks with the British and on his own won exceedingly liberal terms resulting in the Treaty of Paris (1783), which formally ended the Revolutionary War.

Upon his return he was named secretary of foreign affairs to the Continental Congress, a post which he served in for 5 years. His frustration with the weakness of Congress led him to argue for a stronger central government, and along with Alexander Hamilton and James Madison, Jay authored essays for The Federalist in favor of a new Constitution to replace the Articles of Confederation.

In 1789, George Washington appointed Jay as the first chief justice of the U.S. Supreme Court. As chief justice, Jay was disappointed over the high Court's lack of apparent legitimacy. Nevertheless, he handed down some decisions which were important in shaping the role of the Court, defending the separation of powers among the branches of government in Hayburn's Case (1792) and affirming the subordination of the states to the federal government in Chisholm v. Georgia (1793). When the latter decision was met with defiance and the introduction of the 11th Amendment in Congress, Jay took his leave from the Court, and Washington sent him to England again to negotiate another treaty over certain disagreements which had accumulated since 1783.

The Jay Treaty (1794) settled conflicts over unpaid debts, sequestration of Loyalist estates and New World trading rights, establishing bilateral commissions for the resolution of future disputes. While in England, Jay was elected governor of New York, and upon his return he officially resigned from the Court to serve in the New York statehouse. At the end of Jay's term in 1800, John Adams asked him to return to the Supreme Court, but Jay refused, declaring that the Court lacked "energy, weight and dignity." Alienated by the anti-federalist policies of Thomas Jefferson, Jay retired to his farm in Westchester County, New York for the last 27 years of his life, emerging occasionally to support the anti-slavery cause.

Categories: American-Politicians, Juris-History

The Chief Justice

John Marshall is today remembered as the man who most forcefully gave life to the role of the Supreme Court as the final arbiter of constitutional authority in the early American republic. Despite a tide of political opposition to the notion of a strong federal government -- much of it coming from fellow Virginians such as his third cousin once removed, Thomas Jefferson -- Marshall was the eloquent leader of the judicial estate, using the Court as a platform from which to draw a bright line between federal power and the uneasy idiosyncrasies of state parochialism.

John Marshall was born on this day in 1755 near Germantown, Virginia. As an officer in George Washington's undersupplied Continental Army, Marshall survived the brutal winter at Valley Forge, an experience which some credit as one great source for his impatience with weak central sovereignty. After the War, he practiced law at Richmond, ironically arguing for the side of states' rights in his only case before the Supreme Court. In public life, however, he demonstrated his fierce commitment to federalism at every turn, as a leading member of Virginia's constitutional ratification convention and state legislator.

He turned down offers to become U.S. attorney general, minister to France and associate Supreme Court justice, but did at John Adams' behest serve alongside Charles Cotesworth Pinckney and Elbridge Gerry as part of the macho American delegation to France following the "XYZ Affair." Afterward, Adams made Marshall his secretary of state before appointing him as the nation's third chief justice in 1801.

His first dramatic statement on behalf of the Court was in Marbury v. Madison (1803), in which he took the unprecedented step of declaring void a portion of an act of Congress (specifically, section 13 of the Judiciary Act of 1789) because it was, in the opinion of the Court, prohibited by the Constitution. Although Marshall did not say that the Court had the final word on what was constitutional, the decision did manage to breathe life into the Court's power of judicial review, as Marshall scolded Jefferson on the rule of law and positioned the Court as the protector of the principle.

He continued to establish and refine the Court's role in cases such as McCulloch v. Maryland (1819, there upholding a federal statute) and Cohens v. Virginia (1821, affirming the Court's authority to review state court decisions), emphasizing the Federalist principle that the people had, by their adoption of the Constitution, entrusted to the federal government, not to the states, the powers necessary to promote the survival of the nation.

Sometimes his decisions were not enforced by rebellious state courts or officials, and sometimes states'-rights Presidents Jefferson or Jackson fueled the defiance; Jefferson, in particular, could get the man's goat from time to time, causing Marshall to react impetuously along political lines during the anti-Federalists' attempted impeachment of associate justice Samuel Chase in 1805 (Jefferson's unsuccessful counterattack on the Federalism of Marshall's court) and during the Aaron Burr treason trial in 1807 (in which Marshall acquitted the thorn in Jefferson's side based on a strict interpretation of the law on treason). Sometimes you put the wrong two people together in an enclosed space (say, a room, or a government), and they just can't help but get on each other's nerves.

Even by the time Marshall's personal power began to decline on the Court in the mid-1820s, however, Marshall had nonetheless defined the leadership portfolio of the chief justice in American life for all of his successors to the office. Marshall died on July 6, 1835 in Philadelphia.

Categories: Juris-History, Marbury-v-Madison

Flood v. Kuhn, 407 U.S. 258 (1972)

A seven-time Gold Glove-winning centerfielder who had batted over .300 in 6 of 12 seasons, Curt Flood (who was born on this day in 1938 in Houston, Texas) balked when the St. Louis Cardinals notified him that they were trading him to the Philadelphia Phillies after the 1969 season. At that time, teams enforced a "reserve clause" upon all major league players, which gave the teams the right to trade players without their permission. Flood, incensed that he was being treated as a piece of property that could be bought and sold without his say, took his case to court with the support from the Major League Baseball Players Association, writing "I believe any system that produces that result violates my basic rights as a citizen and inconsistent with the laws of the United States."

The case ultimately went before the U.S. Supreme Court, which voted 5 to 3 in 1972 against Flood. Nevertheless, Flood's case, with its underpinnings of being attached to the Civil Rights movement, galvanized Marvin Miller and the Players' Association, which achieved Flood's aims 4 years after his case by introducing the concept of "free agency" for any player with 10 years' service with 1 team. Many have since claimed that "free agency" has resulted in the degradation of fan loyalty and the spiraling of costs, but it is hard to argue with Flood's essential premise in favor of human rights.

Flood himself never reaped the benefits of "free agency." He retired from baseball after one more season with the Washington Senators (close to the Supreme Court) in 1971 to become a broadcaster for the Oakland A's, and to paint. His portrait of Martin Luther King, Jr. now hangs in the King family home. Flood died of throat cancer on January 20, 1997.

Categories: Baseball, Civil-Rights, Juris-History

Clement Haynesworth

The withdrawal of Harriet Miers' nomination to the Supreme Court brings to mind another failed nomination -- that of Clement Haynesworth, who was born on this day in 1912 in Greenville, South Carolina.

Haynesworth was a somewhat flamboyant but respected Greenville lawyer when he was appointed to the U.S. Court of Appeals for the Fourth Circuit by Dwight Eisenhower in 1957. President Nixon attempted to appoint Haynesworth to the Supreme Court to fill the vacancy created by the resignation of Abe Fortas (following allegations that he received questionable honoraria), but Haynesworth's appointment was scuttled in the Senate when it was discovered that Haynesworth's wife owned stock in a company which came before him in litigation in the Fourth Circuit. Senate Democrats also claimed he was too conservative when it came to civil rights and labor issues, and they were still pretty sore about the Fortas thing.

You never can tell about such things, however. Remaining on the Fourth Circuit bench, it has been noted that Haynesworth's opinions were largely responsible for liberalizing prisoner's rights in the Fourth Circuit. As a sidelight, I'm told he was also, incidentally, the Circuit's authority on insurance "suicide" cases involving sexual self-asphyxiation.

Unfortunately, Haynesworth is today unfairly grouped with Nixon's other failed appointee, Harrold Carswell -- about whom Nebraska senator Roman Hruska, trying to give his support to an unsupportable candidate, said "Mediocre people deserve representation, too." Haynesworth died after an illustrious career as a jurist, in 1989.

Where do Supreme Court Justices Come From?

Apropos of President Bush's nomination of Harriet Miers, a woman with no previous judicial experience, to the U.S. Supreme Court to replace the retiring Justice Sandra Day O'Connor, it is worth remembering that a number of previous Supreme Court justices came to the Court without judicial experience (including the following men who served during the 20th century):

Melville Fuller – Leading Chicago lawyer and Democratic campaigner
George Shiras – Pittsburgh corporate lawyer
William Moody – U.S. attorney general; prosecutor of Lizzie Borden
Charles Evans Hughes – Governor of NY before his first appointment to the Court
James McReynolds – U.S. attorney general and anti-Semite
Louis Brandeis – Public interest lawyer and successful bond investor
George Sutherland – U.S. senator from Utah
Pierce Butler – Railroad lawyer
Harlan Stone – U.S. attorney general, formerly Columbia law dean
Owen J. Roberts – lawyer, prosecutor of the Teapot Dome defendants
James Byrnes – U.S. senator from South Carolina
Stanley Reed – U.S. solicitor general
William O. Douglas – Chairman of the Securities and Exchange Commission
Felix Frankfurter – Harvard law professor and former assistant U.S. attorney
Robert H. Jackson – U.S. attorney general
Harold Burton – U.S. senator from Ohio
Tom Clark – U.S. attorney general
Earl Warren – Governor of California
Arthur Goldberg – U.S. secretary of labor
Byron White – U.S. deputy attorney general, former NFL rushing leader
Abe Fortas – lawyer, a founder of the firm Arnold & Porter
Lewis Powell – lawyer, a partner with a predecessor of Hunton & Williams
William Rehnquist – lawyer with the U.S. Office of Legal Counsel

They've come in all political stripes.

Using these as potential categories of public life from which President Bush could have chosen a nominee, I suppose we should be thankful that he did not choose Utah U.S. Senator Orrin Hatch, former NFL rushing leader O.J. Simpson or California governor Arnold Schwarzenegger.