122. Contempt of the Supreme Court

The Supreme Court has the power to hold individuals in contempt (and send them to jail) for defying its judgments. In its 235-year history, it has exercised that authority only once.

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Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

As court orders blocking Trump administration policies continue to mount, with the Justice Department taking its first appeal in one of these cases (to the Ninth Circuit in one of the birthright citizenship challenges), and with the Vice President and Elon Musk starting to flood the zone with charges of courts behaving badly, it seemed like an opportune moment to tell a story that is, perhaps surprisingly, not well known outside of certain nerdy law professor/legal historian circles: The story of United States v. Shipp—the only example of the justices holding someone (or, in that case, six people) in contempt for defying the Court’s mandates.

As noted below, Shipp reflected a remarkable (and rousing) defense of the Court’s authority—even over state criminal proceedings at a time before the justices had subjected them to most of the Constitution’s protections. But it also underscored just how much the Court’s ability to even adjudicate (let alone enforce) its contempt power depended upon the acquiescence, if not the affirmative support, of the federal executive branch. It is, at its core, a story about both the extent of and the limits on federal judicial power—all in the context of the ugly state of race relations in turn-of-the-century Tennessee.

But first, the (Court-related) news.

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On the Docket

The Court, which is still in the middle of its annual mid-winter recess, made very little news last week. On Monday, Justice Sotomayor vacated an administrative stay she had previously entered in a federal criminal appeal and denied a stay pending appeal—clearing the way for the defendants’ new trials to go forward. On Wednesday, the full Court, over no public dissents, refused to block Texas’s execution of Steven Nelson. And on Thursday, the Court denied three of the Acting Solicitor General’s four motions seeking to pause cases in which the federal government is a party (presumably while the Trump administration considers whether to change the government’s position). Although the Court provided no explanation, it appears that it denied each motion to which the opposing parties objected, and granted the motion in the only case in which the opposing party didn’t object. The result is that only one case—about whether the Department of Education has the statutory authority to directly forgive loans for students swindled by their schools—will be put off for now.

Speaking of cases not being delayed, the Justice Department also notified the Court on Friday that, even though it no longer stands by the Biden administration’s position in Skrmetti (the major case about the constitutionality of Tennessee’s ban on gender-affirming medical care for minors), it is not seeking to dismiss its appeal. In other words, the Court should do whatever it was already going to do after and in light of the December oral argument. (One suspects that this DOJ might’ve tried harder to get the Court to dump the case if it thought the Court wasn’t likely to uphold the Tennessee law.)

There’s nothing on the Court’s calendar for this week (the next Conference is next Friday, February 21). Thus, if we get anything, it would be, as it was last week, miscellaneous orders relating either to housekeeping or emergency applications. At this point, it seems like only a matter of time before some of the Trump cases start bubbling up, but next week seems more likely at this point than this week.

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The One First “Long Read”:
Sheriff Shipp and the Lynching of Ed Johnson

As lawyers (and Law and Order-watchers) know, “contempt of court” is the principal disciplinary mechanism courts can utilize against those who misbehave in court and those who take steps to frustrate judicial processes outside of the courtroom. Although the Supreme Court has heard appeals in a number of contempt cases, for obvious reasons, contempt of the Supreme Court itself is exceedingly rare. Even the famous Andrew Jackson quote (“John Marshall has made his decision; now let him enforce it”) is likely apocryphal. What’s not apocryphal is the story of United States v. Shipp—the one time in its history that the Court has directly punished contempt.

The full story of the sordid affair is compellingly told in Mark Curriden and Leroy Phillips, Jr.’s 1999 book, Contempt of Court, from which some of the history described in this post is derived. In short, the contempt in Shipp arose from the 1906 lynching of a Tennessee criminal defendant, Ed Johnson, who had been tried, convicted, and sentenced to death for a rape he had clearly not committed. (Johnson, as you might suspect, was Black; the rape victim was white.)

Johnson’s post-conviction lawyers, Noah Parden and Styles Hutchins, brought a federal habeas petition challenging the conviction and sentence on an array of novel federal constitutional grounds (most of which have since been recognized). Although the federal district judge, C.D. Clark, denied the petition on March 10, 1906, he also gave Parden and Hutchins 10 days to appeal to the Supreme Court. Rather miraculously (for that time, anyway), Parden and Hutchins persuaded Justice John Marshall Harlan on Saturday, March 17, and Harlan persuaded the full Court on Monday, March 19, to accept their appeal—and to stay Johnson’s execution pending that appeal:¹

But news of the Court’s unexpected intervention provoked a Chattanooga mob into storming the jail where Johnson was being held and lynching him. A subsequent investigation by federal officers dispatched by Attorney General (and future Justice) William Henry Moody quickly focused on Hamilton County Sheriff Joseph Shipp—who had not only done nothing to prevent the mob from forming or stop it once it had formed, but who appeared to have taken various steps to facilitate the mob’s lawlessness. The problem was that there was no way to charge Shipp and his accomplices with Johnson’s murder—that was a matter of state law, and local prosecutors were … unlikely … to find issue with Shipp’s conduct. And prosecution under federal civil rights laws would’ve been a stretch—legally, given the lack of precedent; and practically, given that it would have to be tried before a Tennessee jury.

Meanwhile, Harlan, joined by an incensed Justice Oliver Wendell Holmes, Jr., persuaded Chief Justice Melville Fuller (and the rest of their colleagues) that the Court itself had to do something to stand up for its authority—especially over state courts in criminal cases. The compromise, apparently worked out privately between Fuller and Moody, was for the Department of Justice to file contempt charges directly in the Supreme Court—and for the Court to take things from there.

Thus, on May 28, 1906, Moody filed an “information” in the Supreme Court charging 27 defendants, led by Shipp, with contempt of the Supreme Court for interfering with Johnson’s appeal. The Court quickly ordered the defendants to show cause why they should not be held in contempt, returnable at the beginning of the next term on October 15, 1906. Although one defendant could not be found, 26 of the 27 were served and promptly objected to the Court’s power to hold them in contempt in the first place. That led to the first round of argument and decision in Shipp—not over whether the defendants had actually engaged in contempt, but over whether the Supreme Court could even resolve the question if, as the defendants argued, the lower courts had lacked the power to grant the habeas relief Johnson had sought.

After hearing two days of argument in early December, the Court issued a unanimous,² five-page ruling on December 24, 1906, penned by Holmes, holding that it could adjudge the contempt charges, and setting the matter for trial. Of course, the justices were in no position to conduct a contempt trial themselves, so they instead appointed a commissioner—the Court’s own Deputy Clerk, James D. Maher—to take testimony, hear the evidence, and file a formal report with the justices reflecting his conclusions. Maher devoted much of the next 18 months to the task—holding months of hearings in the federal courthouse in Knoxville.³ Maher’s initial report, filed on October 14, 1907, ran to 20 typewritten volumes containing 2,283 pages. After additional evidentiary proceedings in the summer of 1908, the matter finally came back to the Court on a full record in early 1909, and with charges still pending against nine defendants, led by Shipp.⁴

After two days of argument in March on the liability of the nine remaining defendants, the Court handed down its verdict on May 24, 1909. Although Holmes had asked Fuller to be allowed to write the merits ruling, as well, Fuller kept it for himself—noting that such a ruling ought to come from the Court’s center seat. And although the Court had been unanimous as to its power to impose contempt against the defendants, it divided on the facts. Writing for a 5-3 majority,⁵ Fuller held that six of the nine defendants were indeed guilty of contempt—Shipp, two of his deputies, and three leaders of the mob. (The Court unanimously concluded that the evidence was insufficient against the three remaining defendants.) In the key passage, Fuller wrote that:

In our opinion it does not admit of question on this record that this lamentable riot was the direct result of opposition to the administration of the law by this court. It was not only in defiance of our mandate, but was understood to be such. The Supreme Court of the United States was called upon to abdicate its functions and decline to enter such orders as the occasion, in its judgment, demanded, because of the danger of their defeat by an outbreak of lawless violence. It is plain that what created this mob and led to this lynching was the unwillingness of its members to submit to the delay required for the appeal. The intent to prevent that delay by defeating the hearing of the appeal necessarily follows from the defendants’ acts, and, if the life of anyone in the custody of the law is at the mercy of a mob, the administration of justice becomes a mockery. When this court granted a stay of execution on Johnson’s application it became its duty to protect him until his case should be disposed of. And when its mandate, issued for his protection, was defied, punishment of those guilty of such attempt must be awarded.

Justice Peckham, joined by Justices White and McKenna, dissented—arguing that the evidence was insufficient even against those six defendants.

There remained the question of the exact punishment to be imposed. On November 15, 1909, with the six defendants present in the Court’s courtroom in the Old Senate Chamber and standing at the bar (they had been arrested and brought to Washington by U.S. marshals), Chief Justice Fuller pronounced the Court’s judgment:

The grounds upon which the conclusion was reached are set forth in the opinion filed herein on Monday, May 24, 1909, and need not be repeated, nor need we dwell upon the destructive consequences of permitting the transaction complained of to pass into a precedent for unpunished contempt. It is considered by the court, and the judgment of the court is, that as punishment for the contempt you, Joseph F. Shipp, Luther Williams and Nick Nolan, and each of you, be imprisoned for the period of ninety days, and that you, Jeremiah Gibson, Henry Padgett and William Mayes, and each of you, be imprisoned for the period of sixty days, in the jail of the District of Columbia. The marshal of this court is charged with the execution of this judgment.

As Curriden and Phillips recount, Shipp and the other defendants were promptly delivered by federal marshals to the D.C. Jail, where they served most of their sentences (with credit for good behavior) before being released; Shipp was the last to walk free on January 30, 1910. The Supreme Court’s authority, in the end, had been powerfully asserted—but only with significant investigative and prosecutorial assistance from the Department of Justice. The Shipp case was thus an object lesson—in the force of federal judicial power, and in its fragility.

Indeed, current events drive home the difficulties the Supreme Court would face in seeking to enforce a contempt judgment against the federal executive branch itself—since the U.S. Marshals Service is an agency within the Department of Justice. This is also a powerful illustration of exactly why the Court’s support among the populace is such an essential aspect of its true power—and why the erosion of that support in recent years has been such a threat to that power.

As for the Johnson case, 90 years later, in February 2000, Hamilton County Criminal Judge Doug Meyer overturned Johnson’s conviction—concluding that Johnson’s trial had been hopelessly and irredeemably unfair. The Tennessee House of Representatives passed a resolution in 2016 to “pay respectful tribute to the memory of Mr. Ed Johnson as we remember the loathsome circumstances of his death, the valiant efforts of his attorneys to seek justice for their client, and the actions of the United States Supreme Court in its effort to secure Mr. Johnson's constitutional rights.” And in 2021, Chattanooga dedicated a memorial to Johnson—with Mayor Tim Kelly issuing a procla­ma­tion ​“apologizing to Mr. Ed Johnson [for] the mis­car­riage of jus­tice that occurred on March 19th, 1906.” The court of history, at least, eventually reached the correct judgment.

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SCOTUS Trivia:
The First Black Lawyer to Argue Before the Court

It is widely accepted that the first Black lawyer to be sworn into the Supreme Court bar was John Rock, who was admitted on February 1, 1865—the day after Congress adopted the Thirteenth Amendment.

But for some time, there was debate over the identity of the first Black lawyer to argue before the Supreme Court. Indeed, in Contempt of Court, Curriden and Phillips made the case, in 1999, that Noah Parden’s March 1906 “in-chambers” argument before Justice Harlan in support of the stay of Ed Johnson’s execution should count.

Even if Parden’s argument counted, though, it doesn’t appear to have been the first. As retired Texas Court of Appeals Justice John Browning persuasively demonstrated in an article for the Journal of Supreme Court History in 2022, the first Black lawyer to argue before the Court appears to have been Everett J. Waring—who represented the plaintiffs in error in Jones v. United States in 1890. Ten years after Belva Lockwood broke one part of the Court’s glass ceiling as the first woman to argue before the justices, Waring broke another.

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1. Indeed, although Parden never appeared before the full Court, his “in chambers” argument before Harlan represented the first time a Black lawyer had ever argued in even that setting.

2. Now-Justice Moody did not participate in the 8-0 decision.

3. The lead prosecutor in the proceedings before Maher was Assistant Attorney General Edward Terry Sanford—who, like Moody, would also go on to serve on the Supreme Court, and who would shortly be appointed to the federal bench in Knoxville, the same court in which Johnson’s habeas petition had originated.

4. Curriden and Phillips refer to the proceeding as the only “criminal trial” the Court has ever conducted. Whether the proceedings in Shipp are better understood as civil or criminal is a matter that, in my view, is open to debate. The Court itself was not especially clear as to the line between civil and criminal contempt until the 1960s; the Shipp case had elements of both.

5. Moody again recused.