October 07, 2005

My Cold Dead Hand

by PG

Apologies if all this was recited during the process of confirming John Roberts to the Chief Justice seat, but I just ran across some information on Oyez while composing the Today in History item.

Regarding the second Chief Justice of the United States:

President George Washington appointed [John] Rutledge as one of the original associate justices to the Supreme Court. Rutledge soon resigned without ever deciding a case and became chief justice of South Carolina. Washington sought him again; this time to be chief justice of the United States where he presided briefly over the six-man Court as an interim appointee. He spoke publicly against the Jay Treaty which aroused the ire of his fellow Federalists who controlled the Senate. They refused to confirm his appointment and he left the bench in 1795.
His successor Oliver Ellsworth left on his own steam, enjoying almost seven years of retirement after serving for less than five, but Ellsworth was followed by Marshall, Taney, Chase, Waite, Fuller and White, who all went feet first. Taft technically retired, but died a month after. I wonder whether such a reluctance to leave office peculiar to Chief Justices, or common to their Associates as well.

Recalling that O'Connor was preceded by Powell Stewart, and he by Burton (the only Republican appointed 1933 to 1953), I wonder if that's unintentionally become something of a centrist seat. Both O'Connor and Powell are politely described as fact-specific pragmatists, and impolitely bewailed as hair-splitters who never established a consistent jurisprudence, particularly in the area of affirmative action. While Burton may have ended up being the most liberal of Truman's appointees, he certainly failed liberalism in several major cases.

Colegrove v. Green (no requirement of equal population numbers in congressional districts, overturned by Baker v. Carr); Adamson v. California (14th's due process clause did not extend 5th Amendment to state courts, overturned by Malloy v. Hogan); Bute v. Illinois (defendants have no right to counsel, overturned by Gideon v. Wainwright); Terminiello v. City of Chicago (dissented against holding that "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech); Wolf v. Colorado* (exclusionary rule did not apply to state courts, overturned by Mapp v. Ohio*) -- and these are just the major cases of his first three years. He also seems to have had some leanings toward federalism even aside from his opposition to incorporation, as indicated by Pennsylvania v. Nelson (dissented against having state laws regarding sedition precluded by federal laws).

Anyway, while some wonder if Miers could be the conservative version of Earl Warren, I think her more likely to follow the buttprints of her predecessors in being a relatively moderate justice.

* Wolf and Mapp are both interesting fact situations: Wolf was prosecuted for aiding an illegal abortion, because he examined the patient before and after the procedure; Mapp is the only woman of whom I know in constitutional law who was prosecuted for the possession of obscene materials.

UPDATED upon realization that Kennedy holds Powell's centrist seat, not O'Connor.

October 7, 2005 02:14 PM | TrackBack
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