Monday, December 16, 2019

The Good Ol' Days of Solicitor General Humility (and Reconsideration): Some Things You Probably Didn't Know About Myers v. United States [UPDATED]

Marty Lederman

I was just rereading the briefs and arguments in the landmark Myers v. United States (1926) case, and ran across a small thing I thought some readers might appreciate, reflecting how very different Supreme Court practice is today than it was a century ago.

The case, of course, involved an important constitutional question: whether Congress can give the Senate a role in the removal of an inferior officer.  President Wilson (allegedly--see below) had removed a Postmaster (First Class) of Portland, Oregon, Frank Myers, without the Senate's consent--in violation of a statutory condition requiring the Senate's concurrence--and Myers sued for the salary he would have received had he remained in office.  [This was the first case ever in which the Executive branch declined to defend--and, indeed, attacked--the constitutionality of a federal statute.]  

After Myers's lawyer [technically counsel for his estate--Myers died during the litigation] and the United States filed their briefs in the Supreme Court, the Court set the case for argument on November 17, 1924, but Myers's counsel declined to argue, deciding instead to rely upon his brief.  At the suggestion of the Solicitor General, the Court therefore rescheduled the case for argument on December 5, but once again Myers's counsel again chose not to appear and the SG made only a brief statement and argument.  (Myers's counsel was William King, a former Justice of the Oregon Supreme Court.  King's briefing was very serious--this wasn't a case involving an inadequate counsel.  I don't know whether there's any record of why King declined twice to argue.)

The Court then scheduled yet a third argument date, January 5, and asked George Pepper, Senator from Pennsylvania, to file an amicus brief on behalf of Congress, which Pepper did.  At the third scheduled argument, which finally occurred on April 13-14, 1925, all three counsel argued, for many hours (King having finally gotten the message), with very little interruption by the Justices.  

That's all unusual enough---not the sort of thing we'd see today.  But the reason I'm writing this post is what happened next.

The SG and Myers's counsel then filed "substitute" briefs in anticipation of the January argument.  And in his new brief, Solicitor General James Beck abandoned two of the arguments he had made in his earlier brief and his short statement at the (uncontested) December argument.  Here's what Beck wrote, which speaks for itself:
At the former argument I suggested, but did not press with confidence (!), the contentions that the appellant had been guilty of laches and that the statute need not be interpreted as designed to restrain the President from removing the postmaster.  I assume that the court has not been impressed with either of these suggestions, and I am frank to to say--but without technically confessing error--that neither of them seems to me tenable
In this substitute brief, therefore, I shall consider only the question of constitutional power . . . .
Is anyone aware of any analogous change-of-heart confession by the Solicitor General (or any other esteemed Supreme Court advocate) in recent years?  [UPDATE:  At the end of this post I offer some analogous, but not quite identical cases of Solicitors General refusing to support a government position.]

* * * *

Two other minor features of the Myers litigation are worth flagging, too:

First, in his "substitute" brief Solicitor General Beck also significantly tempered the constitutional argument he had made in his earlier brief:  He virtually implored the Court not to reach the question of whether Congress could impose any limits at all on the President's removal authority--such as the sort of tenure-protection provision currently pending before the Court in the CFPB case (Seila)--and instead urged the Court simply to hold that Congress could not give the Senate a role in removal (which is, today, the only holding from Myers that survives as binding precedent).   In his earlier brief Beck had only made the more categorical argument--one he later described as an "extreme view."  Beck later confessed to Senator Pepper that he was "so stunned by the powerful reasoning of [Pepper's amicus] brief that I re-arranged my battle lines and tried to take the line of least resistance."

Second, it's actually not clear whether President Wilson ever removed Myers from office.  Postmaster General Albert Burleson sent Myers a telegram on February 2, 1920, stating that "order has been issued by direction of President removing you from office as postmaster at Portland effective January 31st. . . .  You must have nothing further to do with the office."  Burleson did not say by whom or to whom this supposed "order" was issued.  And, in any event, neither Burleson nor anyone else, other than Wilson, had the authority to remove Myers.  Nor is it clear whether Wilson even "directed" Burleson to remove Myers:  Wilson had, after all, suffered a debilitating stroke several months earlier and probably knew nothing of the matter.  As Chief Justice Taft noted in his opinion for the Court, however, Wilson--or someone acting in his name--the following August did "ma[k]e a recess appointment of one Jones, who took office September 19, 1920."  Therefore Wilson (or his anonymous stand-in, anyway) apparently did think there was a vacancy in the office as of August 1920.

* * * *

ADDENDUM:  There are other examples of Solicitor General actions partially analogous to what Beck did in Myers, although none of them involved an SG repudiating a position he argued earlier in the same case.  

In McBoyle v. United States (1931), for example, the Court granted certiorari to consider whether an aircraft was covered by a federal law prohibiting the interstate transport of stolen “motor vehicles.”  In his brief in defense of a conviction under the law, Solicitor General Thomas Thacher argued that aircraft were covered by the statutory definition, i.e., a “self-propelled vehicle not designed for running on rails.”  But then, below his signature line, he appended this “Note”:  “The above brief has been prepared in support of the majority opinion of the Circuit Court of Appeals. I can not persuade myself that that decision is correct, but have signed the brief because I believe the question is one which this Court should decide for the guidance of Congress.”  The Court reversed the conviction in a short, unanimous opinion written by Justice Holmes.  (Thanks to Mark Tushnet for bringing this example to my attention.)

In Peters v. Hobby (1955), Solicitor General Philip Perlman conspicuously refused to sign the DOJ brief to the Court arguing that application of a loyalty oath was procedurally valid. 

In Oregon v. Mitchell (1970), the Court considered a provision of the Voting Rights Act of 1970 that lowered the minimum age of voters from 21 to 18 in state and local elections.  In his signing statement, President Nixon wrote--consistent with views expressed to Congress by Deputy Attorney General Kleindienst and by Assistant Attorney General Rehnquist--that he “believe[d]--along with most of the Nation's leading constitutional scholars--that Congress has no power to enact [the eighteen-year old voting age] by simple statute.”  Although Solicitor General Erwin Griswold thereafter defended the constitutionality of the statute, at the outset of his oral argument in the Supreme Court he went out of his way to flag the views of the President and the Department officials, provided citations to the Department’s legal analysis, and stated that “the Court will, of course, want to give consideration to these views.”  The Court voted 5-4 against the constitutionality of the provision.  One Senator later remarked that Griswold’s defense of the law was “lackluster and unenthusiastic.”

Finally, in Bob Jones University v. United States (1983), the Court considered the legality of an IRS ruling that denied tax-exempt status to private universities that prohibited students from dating persons of another race.  The Department of Justice, in a reversal of its previous defense, argued to the Court that the IRS lacked authority to enforce the ruling.  Acting Solicitor General Lawrence Wallace, however, dropped a footnote in the brief stating although “[t]he brief sets forth the position of the United States on both questions presented,” he (the Acting SG) “fully subscribes to the position set forth on question number two, only,” and that his views on the statutory question were those set forth in the government’s brief at the cert. stage, which supported the IRS.  The Court ruled 8-1 in favor of the IRS, thereby validating Wallace’s view.

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