Balkinization  

Sunday, December 25, 2011

A Holiday Puzzle for Supreme Court Trivia Fans

Mark Tushnet

There's (at least) one Supreme Court case in which nine justices participated, and the Court announced that it was equally divided. Name the case and explain the outcome. (The case involved multiple issues, but the puzzle doesn't arise, at least directly, from one of the standard paradoxes of aggregation of votes on multiple issues.)

I don't know how to enable comments, but I'll post the first correct answer I receive.

Comments:

You're probably thinking of Connecticut v Johnson, 460 US 73 (1983), in which an equally divided court affirmed the judgment of the Supreme Court of Connecticut, with Justice Stevens concurring. The affirming plurality would dismiss certain convictions because the trial court's jury instructions were erroneous and not harmless. Justice Stevens would dismiss the writ as improvidently granted—as the harmless error issue raised no federal question—but agreed to affirm so that judgment could be entered.

Another option would be US v Jordan, 342 US 911 (1952), in which an equally divided court affirmed the judgment of the Sixth Circuit, with Justice Frankfurter concluding separately that the writ should be dismissed as improvidently granted. Given your prompt, however, I suspect Jordan isn't the case you're thinking of.
 

The case I have in mind is more puzzling than these. You can tell from the printed opinions what happened in these cases, but not in the one I have in mind. When I described the case to my wife, she said that one of the justices must have been of two minds about the case. And a law review comment wondered (paraphrasing to make locating the source more difficult) whether one of the justices had been split in two inside the conference room and reassembled before the justices emerged.
 

One final clue: "My" case has been cited by the Supreme Court 365 times, according to Lexis. (Johnson, which was part of Justice Frankfurter's campaign against hearing fact-specific tort cases, has never been cited by the Court.) The most recent citation of my case was in 2011, more than seventy years after it was decided.
 

COLEMAN v. MILLER.

Dealt with the second attempt to ratify the Child Labor Amendment in Kansas.

The Supreme Court held the question of a second attempt to ratify after a span of years was a political question.

It evenly split on the judiciability of the lieutenant governor splitting a tie in the state senate, the question being if he was a member of the "legislature" for Art. V purposes.

Query if a justice might have disqualified himself on this specific issue for some reason, such as knowing the person or something.
 

Joe has the right case. The explanation is different(and to the extent that I've found evidence, it's not conclusive). Frankfurter told an anecdote to the effect that the Justices thought until late in the writing that they would be able to dispose of the case without reaching a conclusion on the lieutenant governor issue. But, right at the end, they realized that they had to say something about that issue. But,McReynolds had left for his vacation by then, and no one wanted to try to get him back. So, Hughes let the issue be decided by an evenly divided Court. (The problem with this is that it's hard to figure out why they thought they didn't have to reach that issue when they were reaching two others on the merits, with four justices acceding to Hughes's views on those issues, but apparently unwilling to do so on this one.)
 

This was a great post for a holiday change of pace, i.e., not too constitutionally adversarial. I hope Prof. Tushnet posts more frequently, however, on some of the adversarial aspects. In another thread at this Blog, I referenced the Winter 2011 issue of Constitutional Commentary with its Symposium on "The United States Constitution (rev. ed.) How would you rewrite the United States Constitution?" which includes Prof. Tushnet's submission "Abolishing Judicial Review" which focuses on the role of the Court with acts of Congress. Girardeau Spann's submission "Constitutional Hypocrisy" took a broader approach on abolishing judicial review. With the ongoing battles between originalists and non-originalist, I find the subject of judicial review interesting as it is not specified in Article III or elsewhere in the Constitution. Prof. Spann states in his Introduction: "There are, of course, practical problems entailed in 'rewriting' a Constitution to eliminate a provision that never actually appears in the Constitution ...." (p.558) And of course judicial review leads to judicial supremacy of the Court over the President and Congress even though Article III and the rest of the Constitution do not specifically provide for such supremacy.

So I hope Prof. Tushnet, and others, will post on judicial review/supremacy from time to time at this Blog, whether with or without accommodating comments.
 

Taking the FF explanation at face value, McReynolds voiced his opinion on that other issue (dissenting) while in effect being absent for the settling of the l.g. issue (so the "nine justices participated" is a bit of a trick question).

It is a curious result especially since the amendment was only ratified by 28 states, even counting Kansas. I don't see why, except for perhaps Hughes efficiency, they could have not delayed the decision until a full court was there.

A bit of trivia mixed with trying to pull one over perhaps.
 

This comment has been removed by the author.
 

Great article. I merely found your blog along with planned to declare i get genuinely liked looking at your blog blogposts.

Who wrote the sonnet of seaside romance? Guess Shakespeare would feel wordless at the sight of marine motif lace wedding dress. Amber’s beach simple wedding dresses unfold pictures of sea-inspired details like pearl beading, shelly appliqué and metallic embroidery. A profusion of drapes, bubbles, pleating and ruffling echoes to the very physique of the beach and the sea.
 

Bennett Boskey, who was a Justice Reed law clerk (1940-41) and then CJ Stone's chief law clerk (1941-43), mentioned the Coleman decision as follows in 2006: "Sometimes [CJ] Hughes would accept things in his opinions, in order to get an opinion that became
the opinion of the Court with the maximum number of Justices, that looked absolutely unbelievable. Some looked as if they were in
conflict with something else in his opinion. But that didn’t bother Hughes as much as the problem of getting a united opinion of the Court. There’s one opinion of Hughes, for example, in a voting rights case in which nine Justices voted, on which Hughes said as to a particular issue, the Court 'is equally divided.' Harry Shulman, who was then the Dean of the Yale Law School, wrote an article about this entitled Sawing a Justice in Half." That article, to which Mark referred, is Note, Sawing a Justice in Half, 48 YALE L.J. 1455 (1939).
 

Thanks Mr. Barrett for the cite.

Marty Lederman has a new post up and refuses to have comments. I went to Opinio Juris, where he refers us for extended discussion, and the second post has one comment and then it seems comments were cut off.

The matter is complex and deserves some discussion [and back in the day, we would have some here] but Mr. Lederman unfortunately is taking the Balkin approach of talking to himself.

I'm sorry for the non-germane post and happy new year and thanks to those here who still finds it productive to allow comments.
 

The cite for Boskey's comment, which I quoted above, is "Recollections of West Virginia State Board of Education v. Barnette," 81 St. John's Law Review 755, 786-87 (Fall 2007).
 

The second article cited is also interesting and has this ancedote:

I later found out through Felix Frankfurter what had really happened in that case. Justice McReynolds, who was a very ornery Justice, used to go off a little bit early before the end of the Term on vacation. And in this particular case, the point involved was a new point that came up after Justice McReynolds had gone off on vacation. And nobody was going to try and call him back - he would have told them, frankly, "Go to hell." He wouldn't have come back. So Hughes just said, "On this issue, the Court is evenly divided."

But, the LG issue was addressed by the state court, so was not really "new," except perhaps that the justices didn't think they had to decide the issue or forgot about it.

Another tidbit in the law review article is the interesting story about how the lower court in the second flag salute case in effect predicted the Supreme Court would change its mind on the issue.
 

Thank you for your great post.I also like Mark Tushnats comment.I think attorney cleveland tn is always best.
 

Do not seek to follow in the footsteps of the men of old; seek what they sought.
Agen Judi Online Terpercaya
 

Tái định cư Thông tin Chung cư 360 Giải Phóng. Tổ hợp thương mại Chung cư Quận Ba Đình. Khu thương mại của Chung cư Quận Cầu Giấy. Lựa chọn đúng khi mua Chung cư Hà Nội.của đơn vị chủ đầu tư uy tín.Tầng hầm để xe của Chung cư Quận Đống Đa. Khu nhà ở của cư dân Chung cư Quận Hà Đông . Giới thiệu dự án bất động sản Chung cư Quận Hai Bà Trưng. Căn hộ đẳng cấp tiện nghi Chung cư Quận Hoàn Kiếm . Cuộc sống tiện nghi tại Chung cư Quận Hoàng Mai. Bàn giao căn hộ cho khách hang mua Chung cư Quận Long Biên . Tiến độ xây Phú Mỹ Complex. nhanh chóng. Tiện ích có tại Lạc Hồng Complex. hiện đại. Chung cư Thương mại tại Hà Nội như Chung cư Quận Tây Hồ . Bất động sản vip Chung cư quận Thanh Xuân. Bao gồm 4 tòa nhà cao 40 tầng Chung cư quận Từ Liêm. Tổng cộng có 440 căn hộ tại Dự án Cao cấp Vinhomes Liễu Giai. VÀ cả khu thấp tầng với 100 căn hộ có Vị trí Vinhomes Mễ Trì . Nếu có thời gian hãy tới trung tâm thành phố hà nội để xem dự án có Vị trí Biệt thự Dương nội. Nơi đây còn có cả nhiều tiện ích cực khủng như trường học Vị trí Green Life City. Chuẩn bị bàn giao nhà những dự án có Vị trí Dự án Cư xá Cienco 5
 

ngày bán ra Vị trí Chung cư CT36 Định Công. Dòng sản phẩm chung cư - Biệt thự - Liền kề ở phía đường Hồ Tùng Mậu Vị trí Chung cư Goldmark City . Nếu khách hang muốn đầu tư Bất động sản hãy tới Địa điểm Chung cư Goldseason . Nhiều người tìm kiếm cơ hội đầu tư ở Số nhà Chung cư Vinhomes Cầu Giấy đây là bất động sản cao cấp tại Hà nội . Vị trí Chung cư 36 Phạm Hùng được cho là khu vực phát triển nhất hiện nay. Tọa độ Liền kề Vinhomes Gardenia nhu cầu của khách hang sinh sống tại khu vực chung cư cao cấp ngày càng cao do đóĐịa điểm Chung cư cao cấp đang được xây dựng với tốc độ cực kỳ nhanh. Tầng Trung tâm thương mại Thông tin Shophouse Park Hill Times City được bố trí tại tầng 1. Cư dân sống tại Tòa nhà Helios Tower Tam Trinh có một môi trường hoàn hảo. chia sẻ cách mua Chung cư 259 Yên Hòa Condominium | nhà đất Chung cư Tràng An | dịch vụ nhà đất Dự án Chung cư Hà Đông | Tổng hợp Chung cư Quận Cầu Giấy | Giới thiệu Chung cư Quận Thanh Xuân | truyền thong Chung cư Quận Từ Liêm | đất đai Chung cư Quận Hoàng Mai | nhà đất Chung cư Quận Đống Đa | thong tin mới Chung cư Quận Long Biên | tin tức chung Chung cư Quận Tây Hồ | Tổng quan về UDIC Complex | tổng quan sơ lược Chung cư Quận Ba Đình | giới thiệu chung chung UDIC Riverside | Dự án hiếm hoi Chung cu 199 Ho Tung Mau | bất động sản nghỉ dưỡng Horizon Tower | nhà tái định cư Hanoi Center Point |
 

Post a Comment

Older Posts
Newer Posts
Home