The Court's 1935 rulings effectively allowing the federal government to override the contractual consequences of devaluing U.S. currency were viewed in apocalyptic terms at the time, but aren't today.
I was wondering if we could start a “Show Your Work” campaign to encourage the Supreme Court to do the minimum we expect of elementary schoolers learning problem solving? Thoughts?
Also, wondering what happened to simplicity in the Trump emergency order matters. It seems to me that the equities should rarely fall in favor of the government where fundamental rights are at stake. After all, simply stated, the Constitution was written not only to organize government but more importantly to protect We the People from government overreach and abuse. The assessment of the equities in these unexplained orders is just wrong on its face. To keep the analysis in the dark is to confirm the Court’s siding and abetting the overreach and abuse. Again, they Must Show Their Work! Else, they are mere instruments of the King’s dictates. That’s not the job!
Back when my wife was in law school, we went to a... coffee?... where Paul Freund, then 76, talked about his time as a 27-year-old working for the RFC and co-writing the government's briefs for Norman and Perry, and more generally about the Roosevelt administration's desperate strategy to try to figure out how to peel Hughes and Roberts off from Sutherland, Butler, McReynolds, and Van Deventer.
I (dimly: I did not pay as much attention as I should have) think I remember some things in particular:
- The decision not to seriously try to win Perry, but rather to "shadow docket" it—to focus on how the important thing was to delay serious consideration of damages until the Depression had ended, precisely because of fears of immediate financial crisis, and so to try to push Hughes and Roberts only to the point of not making their judgment self-executing. (After all, a remedy could be found later—and, if the Republicans won the 1936 election, the political branches would legislate a remedy into being.)
- The fact that the United States was sufficiently divided that the "clean" way of implementing what Roosevelt and the Congress had decided to do with the First New Deal—Constitutional amendments—was not possible in the time needed.
- The Establishment's strong desire not to confront the 70-person Democratic Senate and the 320-person Democratic House caucuses, but rather to hope what they saw as the anti-constitutional political fever to break in the 1936 election, or at least to hope that by 1937 enough Southern Democrats would recall that they were Bourbon Conservatives first and Populist-Progressives second.
- A definite feeling inside the New Deal that Roosevelt's court-packing campaign was a great success—that with the Switch in Time That Saved Nine, they had gotten everything they really wanted and more, and that pretending it was a big defeat for the administration was seen within the administration as a face-saving gift to Hughes.
- The resources that Cravath and company were pouring into their anti-New Deal litigation strategy, and how Freund had never figured out whether they were genuine pro bono on Cravath's part (how does a Brooklyn kosher butcher acquire Cravath as their counsel, anyway?), or whether there was shadow funding on a large scale.
- Admiration for Cravath for its success in turning Schechter not into an economic-regulation but an exercise-of-religion case.
> **Steve Vladeck**: 178. The Gold Clause Cases: 'The Gold Clause Cases faded (with shocking speed) into the pages of history. But they remain an interesting lesson today—not just of how the Court of days past navigated stormy political waters or of how close we came to the specter of presidential defiance of an adverse Supreme Court decision, but of the extent to which predictions that a particular ruling will lead to “financial chaos,” like the claim currently being advanced by the Trump administration in the tariffs cases, don’t always pan out.... The Gold Clause Cases are an object lesson in the Supreme Court being part of, and not aloof from, interbranch constitutional politics at the highest level. We’ll debate until the end of time whether the Court got the politics “right.” But no one can plausibly look back at what the Court did in February 1935, especially in Perry, and seriously argue that the justices were just calling balls and strikes...
This is about the evolution of "new legal slang" for our times. For example, we've recently seen dissents mention "Calvinball" and "turtles all the way".
From what is a not-related-to-current-events discussion (actually, about fun and funny anecdotes about past college professors, decades ago) someone inadvertently wrote "Fraudian" instead of "Freudian". This in turn made me think we should have (or invent) the term "fraudian slip". My definition for that would be: "a reveal of one's true thought process and inner motivation, via accidentally revealing inconsistent, illogical and/or insincere justification(s)". One-off opinions on the Emergency Docket always risk being "fraudian slips", arguably. (Which is exactly why the Court usually wait for more measured and complete opinions. No?)
Scalia had a "sharp pen". There's a time and place for a sharp pen. Shorthand can be useful. (Sorry to "nerd out" on linguistics and legal slang, but it's useful in making a more-accessible argument, at times.)
This is informative. I thought that the Calvinball in a recent District Court decision (gov.uscourts.mad_.283718.238.0.pdf since I don't know how to give it in official legal form) was the first.
So it has also been used in a Supreme dissent? And the "turtles all the way down" bit is news to me in that context (IANAL), though I read the apparently original appearance of that story long ago in a book by Carl Sagan.
The Congress appropriates, and the agency obligates. Thereafter the funds may be dispersed, if the Administration doesn’t change and decide to unlawfully impound both obligated and unobligated funds. The problem is acute for one year funds, but not trivial for no year funds. Is there case law on the ability of the courts to revive otherwise expired one year appropriations? (Not that SCOTUS will, of course.).
I never heard of these cases, but they are worrisome for 3 reasons as per the tariff cases:
1-there is a LONG history of Congress providing tariff authority. To enable Trump to bypass a clear Constitutional power bcz he illegally imposed tariffs and collected money, while also lying continually the money comes from foreign countries, by claiming the sky would fall down if invalidated, would be another travesty, in effect allowing the Court to issue a Constitutional amendment.
2-in the gold cases, as I read your summaries, the issue was whether the govt could cancel contract clauses at all, not which branch. In the tariff cases, tariffs is clearly a power granted by the people to the government, and lodged in the Congress. It’s a branch issue. Period.
3-the tariff cases also raise the issue of whether the Prez deserves deference abt whether an emergency exists at all. Clearly, that cannot stand bcz it means that a Prez can declare an emergency for every exigency Congress has provided this power and thus seize absolute power w/o recourse.
Very well done. Steve! Thanks.
I was wondering if we could start a “Show Your Work” campaign to encourage the Supreme Court to do the minimum we expect of elementary schoolers learning problem solving? Thoughts?
Also, wondering what happened to simplicity in the Trump emergency order matters. It seems to me that the equities should rarely fall in favor of the government where fundamental rights are at stake. After all, simply stated, the Constitution was written not only to organize government but more importantly to protect We the People from government overreach and abuse. The assessment of the equities in these unexplained orders is just wrong on its face. To keep the analysis in the dark is to confirm the Court’s siding and abetting the overreach and abuse. Again, they Must Show Their Work! Else, they are mere instruments of the King’s dictates. That’s not the job!
Back when my wife was in law school, we went to a... coffee?... where Paul Freund, then 76, talked about his time as a 27-year-old working for the RFC and co-writing the government's briefs for Norman and Perry, and more generally about the Roosevelt administration's desperate strategy to try to figure out how to peel Hughes and Roberts off from Sutherland, Butler, McReynolds, and Van Deventer.
I (dimly: I did not pay as much attention as I should have) think I remember some things in particular:
- The decision not to seriously try to win Perry, but rather to "shadow docket" it—to focus on how the important thing was to delay serious consideration of damages until the Depression had ended, precisely because of fears of immediate financial crisis, and so to try to push Hughes and Roberts only to the point of not making their judgment self-executing. (After all, a remedy could be found later—and, if the Republicans won the 1936 election, the political branches would legislate a remedy into being.)
- The fact that the United States was sufficiently divided that the "clean" way of implementing what Roosevelt and the Congress had decided to do with the First New Deal—Constitutional amendments—was not possible in the time needed.
- The Establishment's strong desire not to confront the 70-person Democratic Senate and the 320-person Democratic House caucuses, but rather to hope what they saw as the anti-constitutional political fever to break in the 1936 election, or at least to hope that by 1937 enough Southern Democrats would recall that they were Bourbon Conservatives first and Populist-Progressives second.
- A definite feeling inside the New Deal that Roosevelt's court-packing campaign was a great success—that with the Switch in Time That Saved Nine, they had gotten everything they really wanted and more, and that pretending it was a big defeat for the administration was seen within the administration as a face-saving gift to Hughes.
- The resources that Cravath and company were pouring into their anti-New Deal litigation strategy, and how Freund had never figured out whether they were genuine pro bono on Cravath's part (how does a Brooklyn kosher butcher acquire Cravath as their counsel, anyway?), or whether there was shadow funding on a large scale.
- Admiration for Cravath for its success in turning Schechter not into an economic-regulation but an exercise-of-religion case.
> **Steve Vladeck**: 178. The Gold Clause Cases: 'The Gold Clause Cases faded (with shocking speed) into the pages of history. But they remain an interesting lesson today—not just of how the Court of days past navigated stormy political waters or of how close we came to the specter of presidential defiance of an adverse Supreme Court decision, but of the extent to which predictions that a particular ruling will lead to “financial chaos,” like the claim currently being advanced by the Trump administration in the tariffs cases, don’t always pan out.... The Gold Clause Cases are an object lesson in the Supreme Court being part of, and not aloof from, interbranch constitutional politics at the highest level. We’ll debate until the end of time whether the Court got the politics “right.” But no one can plausibly look back at what the Court did in February 1935, especially in Perry, and seriously argue that the justices were just calling balls and strikes...
This is about the evolution of "new legal slang" for our times. For example, we've recently seen dissents mention "Calvinball" and "turtles all the way".
From what is a not-related-to-current-events discussion (actually, about fun and funny anecdotes about past college professors, decades ago) someone inadvertently wrote "Fraudian" instead of "Freudian". This in turn made me think we should have (or invent) the term "fraudian slip". My definition for that would be: "a reveal of one's true thought process and inner motivation, via accidentally revealing inconsistent, illogical and/or insincere justification(s)". One-off opinions on the Emergency Docket always risk being "fraudian slips", arguably. (Which is exactly why the Court usually wait for more measured and complete opinions. No?)
Scalia had a "sharp pen". There's a time and place for a sharp pen. Shorthand can be useful. (Sorry to "nerd out" on linguistics and legal slang, but it's useful in making a more-accessible argument, at times.)
This is informative. I thought that the Calvinball in a recent District Court decision (gov.uscourts.mad_.283718.238.0.pdf since I don't know how to give it in official legal form) was the first.
So it has also been used in a Supreme dissent? And the "turtles all the way down" bit is news to me in that context (IANAL), though I read the apparently original appearance of that story long ago in a book by Carl Sagan.
The Congress appropriates, and the agency obligates. Thereafter the funds may be dispersed, if the Administration doesn’t change and decide to unlawfully impound both obligated and unobligated funds. The problem is acute for one year funds, but not trivial for no year funds. Is there case law on the ability of the courts to revive otherwise expired one year appropriations? (Not that SCOTUS will, of course.).
GC
Georgetown Law ‘75
Thank you.
I never heard of these cases, but they are worrisome for 3 reasons as per the tariff cases:
1-there is a LONG history of Congress providing tariff authority. To enable Trump to bypass a clear Constitutional power bcz he illegally imposed tariffs and collected money, while also lying continually the money comes from foreign countries, by claiming the sky would fall down if invalidated, would be another travesty, in effect allowing the Court to issue a Constitutional amendment.
2-in the gold cases, as I read your summaries, the issue was whether the govt could cancel contract clauses at all, not which branch. In the tariff cases, tariffs is clearly a power granted by the people to the government, and lodged in the Congress. It’s a branch issue. Period.
3-the tariff cases also raise the issue of whether the Prez deserves deference abt whether an emergency exists at all. Clearly, that cannot stand bcz it means that a Prez can declare an emergency for every exigency Congress has provided this power and thus seize absolute power w/o recourse.
An interesting coda to this is that there are gold clauses that have sprung back to life based on subsequent legislation. See, e.g.: https://www.opn.ca6.uscourts.gov/opinions.pdf/08a0322p-06.pdf