Kurt X. Metzmeier's blog

History at the Bar of the Supreme Court

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The as yet not completely dismantled LA Times has an interesting article on the spate of Supreme Court cases that seemed to turn on the justices view of historical as much as legal writings. Reporter David G. Savage's article focuses mostly on the habeas corpus and Second Amendment cases, but he notes that even the Exxon Valdez case dipped into history (Souter's majority cited Hammurabi's code of 1760 BC--about as an old of a precedent as you can get). The article has comments from historians who give the court low marks for its use of the past, although I would note that the scholars they cite (Jack Rakove, Mark Tushnet) tend to be inveterate amicus brief signers themselves.

Relic of the pre-1975 Court System

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While visiting Frankfort this weekend, I saw this old campaign poster behind the register in the Old Capital Antiques store on Broadway (just a few doors down from Poor Richard's Books). It was not for sale--it is kind of a store mascot--but the shop's owner allowed me to take a picture.

 

My preliminary research indicates that Mr. Timmons was running sometime in the late 1960s (perhaps early 1970s) for the minor judicial office of magistrate (popularly known as justice of the peace) in either Whitley or Bell County (in eastern Kentucky). The judicial aspect of this position was removed by the 1975 constitutional amendment that reformed the court system. Among other things, the reforms set up the district and circuit courts as the only trial courts and eliminated party-line voting in judicial elections.

 

Regretfully, Earl's fluffy running-mate remains nameless at present.

Supreme Court Decides Last Cases Today

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SCOTUSBlog LiveBlog will begin coverage of the open session of the US Supreme Court at 10am.  Justice Roberts announced yesterday that the last three cases will be decided today, including the first case in decades to squarely interpret the meaning of the language of the Second Amendment in the context of gun control regulation, District of Columbia v. Heller (07-290).

And now there are three ...

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From live SCOTUSBlog LiveBlog:

10:21 Tom Goldstein - Guns is not being decided today. Last opinion coming now."

That opinion, the fourth of the day, involved Native American tribal courts It joined opinions which denied states the right to extend the death penalty to cases involving crimes short of murder and one which involved the Confrontation Clause of the Sixth Amendment. In addition, the Court, in the Exxon Valdez case, limited punitive damages under maritime law. But no DC v. Heller...

The Chief Justice announced from the courtroom "that the Court will issue all of its remaining opinions tomorrow at 10 a.m." Tom Glodstein, the Court's cockiest commentator and conference card-counter, is predicting "that in addition to Justice Scalia likely writing Heller, Justice Alito is likely writing Davis v. FEC."

Tune in tomorrow, same Bat time, same Bat channel...

Supreme Court Enters Final Week; One Opinion Today?

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The US Supreme Court is entering it's final week, barring a break in precedent. While Monday, June 30, is the last calendared day for opinions, SCOTUSBlog is reporting that at least one opinion will be rendered today (Weds) and perhaps a few more on Thursday. At least seven opinions are believed to be outstanding, including the much awaited District of Columbia v. Heller Second Amendment case.

To follow today's activities, SCOTUSBlog will be live blogging today starting at 10am.

Legal Historians in Robes

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The recent decision in Boumediene v. Bush highlighted the importance of the perspective of legal history in the interpretation of our nearly 220-year-old Constitution. Moreover, an amicus brief by a group of professional historians is prominently cited in the meat of the opinion. However, the case also might suggest the danger that history can be twisted to any purpose, given that both the lead opinion and dissents both employ historical arguments.

The case turned on whether detainees at the Guantanamo Bay military base could employ the common law writ of habeas corpus to challenge their imprisonment, even though that was specifically denied under a provision of the Military Commissions Act of 2006. In a 5-4 decision the court found that the the detainees had that right and that portion of the MCA was unconstitutional.

Justice Kennedy' s opinion is to a large degree an historical survey of the Anglo-American writ of habeas corpus. He draws deeply upon the amicus brief of historians of English and American law signed by Sir John H. Baker (Cambridge), Lawrence M. Friedman (Stanford Law), Sarah Barringer Gordon (Penn Law), and Hendrik A. Hartog and Stanley N. Katz (Princeton) -- to name only a few. Kennedy's use of history is respectful; he is careful to note what the historical precedents do not show.

The Scalia and Roberts dissents also use history, although their focus on a case involving Nazi detainees after World War II (Johnson v. Eisentrager, 339 U.S. 763 (1950)) tends to found their arguments on a questionable historical analogy.

The Boumediene decision will likely not be the only decision this term to ride on historical opinion: expect more historical ruminations when the first case to re-examine the Second Amendment in years (D.C. v. Heller) is decided (maybe tomorrow or Thursday). Speculation is rampant that Scalia is writing the majority opinion, so a scholarly excursion into the late 18th century is pretty certain; perhaps even we will hear echos (probably in a dissent) of a fascinating animus brief by three historical linguists.

Summer Reading: Kentucky Constitutional History—A Small Library

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Despite our rumored history as a federalist state where power is shared between the center and the regions, state constitutional history has gotten short shift by the writers (and more likely) the publishers of history. Books on the history of the federal constitution and its framers can be purchased by the pallet-load, while most any state's library of books of its constitutional history would fit in one of those eco-friendly cloth shopping bags. Ironically, even the current defenders of the flame of pure federalism who decry incursions on state prerogatives fill their catalogues with books on the 1787 federal constitutional convention in Philadelphia, not the one that meat three years later to revise the Pennsylvania constitution or (to give another example) the one that met in 1792 in Danville to draft Kentucky’s first constitution.

This situation obtains in every state, but is particularly acute regarding our commonwealth. Nonetheless there are a few very readable books that every Kentucky lawyer with an interest in the Kentucky constitution should read.

 

Robert M. Ireland, The Kentucky State Constitution: A Reference Guide (Westport, Conn: Greenwood Press, 1999).

Image of IrelandNo list on the state constitution or indeed the history of Kentucky, can be created without including a title or two written by UK history professor Bob Ireland, the unquestioned dean of Kentucky legal history. I could (and well may one day) write an entire piece exclusively on the important articles he has written on the history of state criminal law or its institutions of government. In the 1999, the wisdom accumulated from writing three books and a dozen articles, was employed in writing an encyclopedia of the Kentucky constitution. Its organization as a guide perhaps makes it a little harder reading than his other books, but there are so many interesting points, I’d encourage a try.


Lowell H. Harrison’s Kentucky’s Road to Statehood (Lexington: University Press of Kentucky, 1992).

The main thrust of Harrison’s book is the decade-long struggle on Kentucky’s frontiersmen (along with a few transplanted Virginia gentry) to obtain statehood from Virginia. However, when the delegates to the tenth convention were in grasp of the prize, they realized that they needed a constitution. Harrison effectively recounts how the 1792 constitution was shaped under the hands of George Nicholas to mix the democratic impulses of the woodsmen pushing into the new state’s interior with the concerns for order expressed by the owners of estates in the more settled Bluegrass. The result was a document that included the revolutionary idea of universal male suffrage (without the property requirements in other state charters) but allowed direct election only of the lower house of the bicameral legislature. The founders further evened the deck with a timeless bill of rights that still is part of our current state constitution.

 

Joan Wells Coward’s Kentucky in the New Republic: The Process of Constitution Making (Lexington: University Press of Kentucky, 1979).

Coward’s monograph starts with a discussion of the 1792 convention that complements Harrison’s chapters, before relating the social and economic changes wrought by Kentucky’s growth in the 1790s—changes that led to the 1799 convention that revised the document. The issue of slavery gets a bit of attention as this period was the state’s last flirtation with abolishing the institution before the Civil War took it out of Kentucky’s hands. Ultimately the 1799 avoided more than slavery, failing not only to stem the growing oligarchic control of county government, but fostered it by giving the county court the major role in selecting its own members and the sheriff. Nonetheless, by instituting the popular election of the governor and the upper house of the legislature, the state came closer to true democracy

 

Robert M. Ireland’s County Courts in Antebellum Kentucky

Ireland’s book on the powerful county courts of the antebellum era has perhaps the best discussion of the background to and activities of the 1849 constitutional convention—simply because issues with the unelected local governments so highlighted the need for more democracy in the state constitution (and because there is no monograph of the convention). Under the 1799 constitution, the county court was the center of all power in the localities. From masterful research in the minute order books and the debates of the 1849-50 constitutional convention, Ireland bring alive these long-extinguished political struggles still-embedded in the sinews of our constitution.

 

Two books discussed in a prior post bear repeat mention. First, Hambleton Tapp and James C. Klotter, Kentucky: Decades of Discord, 1865-1900 (Frankfort: Kentucky Historical Society, 1977) offers the best treatment of the historical background and activities of the 1890 constitutional convention. Second, (more self-promotion) Kurt X. Metzmeier, Michael Whiteman and Jason Nemes, United At Last: The Judicial Article and the Struggle to Reform Kentucky's Courts (Frankfort, Ky.: Court of Justice, 2006) attempts to explain the forces behind the successful 1975 revision of the constitutions judicial article.


The library of good historical treatments of Kentucky’s constitutional history is a small one, dwarfed by many shelves that can be filled with books on the past lore of the University of Kentucky basketball program or on the history of the Kentucky Derby. There is no monographic treatment of the activities off the 1849-50 or 1890 constitutional conventions—despite reams of official documents and full-runs of leading newspapers on microfiche. There is no biography of George Nicholas, or many of the leading figures in Kentucky legal history. So we honor what we have, while hoping for more.

Stanley F. Reed: Man of Maysville

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I recently took research foray into the lovely Ohio river town of Maysville, Kentucky. (For some reason, my trip did not attract the same attention as that of George Clooney and Rene Zellwenger--who premiered their new film, Leatherheads, in George’s Aunt Rosemary’s hometown--or that of Hillary Clinton). Maysville is one of the oldest settlements in Kentucky; its role in U.S. history is as the key terminus in the network of roads to the American West in Henry’s Clay’s ill-fated American System. President Andrew Jackson, who despised both Clay and federal government expenditures, killed the plan and it would not be until President Dwight Eisenhower funded the National Interstate and Defense Highways Act of 1956 (popular name for the Federal-Aid Highway Act of 1956) before a federal transportation scheme this comprehensive would be realized.

While I was there, I took the opportunity to visit the well preserved law office of US Supreme Court Justice Stanley F. Reed. (This is in stark contrast to the St. Louis pizzeria that marks Justice Brandeis first office). I spent a little too much time in the library of the Kentucky Gateway Museum Center to visit Reed's grave, but there are really nice pics on Find-a-Grave.

With the exception of obtaining a degree from the Sorbonne in Paris (the one in France, not Bourbon County), Reed’s early career was pretty typical for a Kentucky lawyer of his time. He read law and was admitted to the bar on 1910 and set up a practice in downtown Maysville near the historic Mason County courthouse. He was elected to the Kentucky General Assembly in 1912, where he served two terms in the house before enlisting in the US Army when America entered WWI. He returned to Kentucky after the war and built a corporate practice with clients like the Kentucky Burley Tobacco Growers Association. Along the way he purchased a large Mason County farm where he raised blue-ribbon Holsteins.

Reed's interest in farming and expertise in the law of agricultural cooperatives made him a natural candidate to join the Federal Farm Board in 1929 as general-counsel. Reed, a Democrat, went on to serve in the same position in the Reconstruction Finance Corporation in the Roosevelt administration, where he helped develop the New Deal's commodity price support policies. In 1935, he was named the Solicitor-General, the third Kentuckian (after Benjamin H. Bristow and UofL law school alumnus William Bullitt Marshall) to serve in that position. (Pop quiz: Reed is one of four future-Supreme Court justices to wear the striped pants and grey morning coat, who are the other three? Hint: One of them is NOT Robert Bork).

In 1938 Reed was appointed to the Supreme Court (the last justice to serve without a law degree; he nicely bookends his fellow Kentuckian John Marshall Harlan, who was the first). He replaced George Sutherland, one of the dying breed of reactionary justices whose majority FDR's appointments had erased. Reed was a solid New Dealer on the court, despite some conservative leanings on the establishment clause and on the incorporation doctrine (which holds that the adoption of the 14th amendment made the federal Bill of Rights apply to the states). He was a workhorse who crafted over 300 opinions in his two decades on the court. Although racial covenants in some of his Kentucky properties caused him to recuse himself in Shelley v. Kramer in 1948, he was in the majority in several of the cases in the 1940s and 1950s that affirmed the civil rights of African Americans, including the 1944 case of Smith v. Allwright, which he authored. Nonetheless, Reed was thought to have had problems with aspects of the holding in Brown v. Board of Education, and may have even considered dissenting, but Warren brought him around and the unanimity of the decision gave it great moral authority. (See the excellent Robert H. Jackson Center sponsored symposium, Supreme Court Law Clerks' Recollections of Brown v. Board of Education, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892367>, for an interesting behind-the-scenes view of the case from one of Reed's law clerks, Jack Fassett).

Reed retired to his Mason County farm in 1957, where he continued to raise prize dairy cows until shortly before his death in a NY nursing home in 1980.

Summer Reading: Kentucky Legal Culture

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In a recent post, I listed some of the most useful books that a new lawyer or recent transplant to the Bluegrass can use to orient themselves to the history and politics that lies just under the surface of Kentucky jurisprudence. But history and politics aren’t the whole story. After all, they deal with the big legal contests and the tectonic shifts in policy and society. What about the life of the working lawyer practicing in small towns and big city courts, meeting in lunchrooms and courthouse porticos between court appearances and sharing stories with fellow toilers? Or their clients: ordinary people whose mundane lives occasionally intersect with the majesty of the common law of Chancellor Coke and Justice Story?

This history--what anthropologists would call “legal culture”--is best captured in memoirs and in collections of the stories and anecdotes that lawyers would share in idle moments in courthouse hallways. Sadly, it is a culture that that has been wounded by a more high-paced world and the drive to maximize billable hours, and may be finished off by e-filing. Nonetheless, a spate of recent books has highlighted this rich slice of Kentucky life:



John S. Palmore, An Opinionated Career: Memoirs of a Kentucky Judge (Georgetown, Ky.: Kentucky River Press, 2003). (Not available online, but I’ve seen copies recently at Carmichael’s Bookstore in Louisville) and Joseph-Beth Booksellers in Lexington).

In this thin volume, John Palmore, a giant of the Kentucky bench and bar who served on both the old Kentucky Court of Appeals and the state's new Supreme Court, offers an entertaining and revealing first-hand view of his life on the bench. Palmore takes us behind the scenes of some still vital high court decisions, shares stories on judicial campaigns, and discusses the 1970s reform movement that led to the 1975 Judicial Article amendment, including his efforts to implement the most challenging reform: the establishment of the district courts. Along the way he offers thumbnail sketches of his fellow justices and lawyers. (Palmore's follow-up, From the Panama Canal to Elkhorn Creek : A Chronicle of Life in the 20th Century by an Old Kentucky Lawyer (Louisville, Ky.: Butler Books, 2006) focuses more on his private life, but is still entertaining).

 

Mac Swinford, Kentucky Lawyer (Lexington: University Press of Kentucky, 2008).

In this reprint of his 1963 classic, the late Mac Swinford, the US District Judge for Kentucky (and the Eastern District after the 1963 division) offers an enjoyable take on the Kentucky bench and bar, mostly through the recounting of anecdotes from his early life as a small town practitioner in Cynthiana, Ky., in the 1920s, then and as a moonshiner-busting U.S. Attorney in the 1930s through his years as a federal trial court judge.  In addition to his own stories, Swinford repeats a few old lawyer tales he heard over his long career and recalls colorful members of the bar he knew.

 

William Lynwood Montell, Tales from Kentucky Lawyers. Lexington: University Press of Kentucky, 2003.


Speaking of old lawyers tales, retired WKU folklorist Lynwood Montell has published a treasury of these anecdotes in this book (recently released in paperback). Montell, who built “one of the most successful folk studies programs in the United States” at WKU and is author of a extremely successful triad of books on Kentucky ghostlore, ably collects and selects stories that show the evolving practice of law in Kentucky, the breadth of experiences of ordinary life that lawyers see, and the fading sense of kinship among attorneys.



Harry M. Caudill, The Mountain, the Miner, and the Lord, and Other Tales from a Country Law Office (Lexington, KY: University Press of Kentucky, 1980) and Slender Is the Thread : Tales from a Country Law Office. (Lexington, Ky.: University Press of Kentucky, 1987).

Harry Caudill is most known to Kentuckians as the author of the classic 1963 expose of poverty in Appalachia and the ravages of the coal-mining industry, Night Comes to the Cumberlands, and as an environmental activist. However before he wrote the book that inspired Robert F. Kennedy to tour eastern Kentucky, Caudill was a small-town lawyer in Whitesburg. In these two books, Caudill draws on his experiences to recount the lives of hard-working mountain folk drawn into his office by the vagaries life.

Finally, I'd recommend a trio of biographies of justices from Kentucky: Loren P. Beth, John Marshall Harlan : The Last Whig Justice (Lexington, Ky.: University Press of Kentucky, 1992), Philippa Strum, Louis D. Brandeis : Justice for the People (Cambridge, Mass.: Harvard University Press, 1984) and James E. St. Clair and Linda C. Gugin, Chief Justice Fred M. Vinson of Kentucky : A Political Biography (Lexington, Ky.: University Press of Kentucky, 2002).

Summer Reading: Kentucky History and Politics for the Young Lawyer

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I had a pleasant conversation with a young lawyer who has recently joined the Beshear administration. He, like many young attorneys employed by state government entities (a category that can include anything from a sewer district to a school board), was somewhat surprised by the number of unresolved Kentucky constitutional issues that surround the matters he’s asked to research. Moreover, even as a Kentuckian, he was unprepared (by his legal training) for the way that the commonwealth’s political history shaped, framed and explained the law. This is nothing new; I hear similar things from former students all the time. Law schools do a good job teaching the law; the context is another matter.* And law and politics in Kentucky are "the damnedest," to paraphrase James H. Mulligan's famous poem.


So for this new gov'ment lawyer's benefit, and others similarly situated, I offer a summer reading list (click the titles to link to places where you can buy them):


Hambleton Tapp and James C. Klotter, Kentucky : Decades of Discord, 1865-1900. (Frankfort: Kentucky Historical Society, 1977).

Without an understanding of late nineteenth century Kentucky, many provisions of our 117-year-old constitution are inexplicable. The 1891 charter was born in a time of great fervor. The state was caught up in the Populist movement and many of the framers were highly suspicious of special interests and corporations, especially the dominating force of the Louisville & Nashville Railroad Company. They wanted the constitution to protect workers by making sure they were paid and that they could sue for workplace injuries. Tapp and Klotter vividly describe these times and how they impacted both the constitution and the political institutions that followed.


James C. Klotter, Kentucky : Portrait in Paradox, 1900-1950. Frankfort, KY: Kentucky Historical Society, 1996.

Klotter continues the story (and the titular alliteration) from where he and Tapp left off. The key theme of this era was how Kentucky’s political system grappled with the changes wrought by the great depression and the increasing role of government, and ultimately, failed. As a result, the state fell behind in education and industrial diversity, ill-served by a Democratic party seemingly permanently crippled by factionalism and by politicians too eager to avoid tough choices. (Lowell H. Harrison and Klotter’s A New History of Kentucky (Lexington, Ky.: University Press of Kentucky, 1997) is more of a college history text than a summer read but I’d recommend its later chapters as a reference for the period from 1950 to the end of the 20th century).

John Ed Pearce, Divide and Dissent : Kentucky Politics, 1930-1963. Lexington, KY: University Press of Kentucky, 1987.

A former political reporter and columnist (with service on both the Courier-Journal & Times and the Lexington Herald-Leader), John Ed Pearce is an excellent writer who cannot help but be entertaining. This book covers the main period of bitter factionalism in the Democratic Party between the progressive Rhea-Clements-Combs wing and the more conservative faction controlled by Happy Chandler. Pearce was a partisan in some of these fights, writing speeches for Combs while covering them as a reporter, but that adds to the feeling for the era. (For fun, and perhaps a little insight into the often raucous history of local politics in Kentucky, I'd also recommend Pearce's Days of Darkness: The Feuds of Eastern Kentucky, 1994).


Penny M. Miller, Kentucky Politics & Government: Do We Stand United? (Lincoln: University of Nebraska Press, 1994)
Malcolm Edwin Jewell and Penny M. Miller, The Kentucky Legislature: Two Decades of Change (Lexington: University Press of Kentucky, 1988).

Despite their age, these two books by UK political science professor Penny Miller (state treasurer Jonathan Miller’s mom), are the best introduction to the Kentucky political system in print and they help to bring the political history of the state up to date. The Kentucky Legislature is particularly valuable for describing the body’s coming-of-age in the late 1970s and early 1980s when it emerged as an independent branch (out from the subservience to the governor that was typical for most of the 20th century). Do We Stand United? (still used at both UofL and UK in poli sci classes), gives a mixed assessment of how Kentucky governors and legislative leaders have adapted to the legislature's new-found power and responsibility. Both books cry out for new editions that include lessons from the Patton & Fletcher administrations—do you hear me, University Press of Kentucky?


Kurt X. Metzmeier, Michael Whiteman and Jason Nemes, United At Last: The Judicial Article and the Struggle to Reform Kentucky's Courts (Frankfort, Ky.: Court of Justice, 2006).

A little log-rolling here, but this book is the only published account of the activities leading up to the 1975 constitutional amendment vote that established the Kentucky Court of Justice as a fully equal branch of government. The measures taken to implement the reforms and establish the branch's independence are also discussed. (LEGAL WARNING: We tried to keep it readable, although I still haven't convinced my own mother that a book on court history can be light reading. So if you're reading poolside, make sure there is a lifeguard around in case you nod off and fall into the water).


Finally, I’d recommend every bright young person entering government read Tracy Campbell, Short of the Glory: The Fall and Redemption of Edward F. Prichard, Jr. (Lexington: University Press of Kentucky, 1998) as a cautionary tale as to what can happen when partisan enthusiasm outruns ones ethics training. Pritchard was a Harvard educated protégée of Felix Frankfurter and young New Dealer who returned to his native Bourbon County only to ruin his career in an election scandal. The book recounts Prichard’s early fall and his long battle to recover his career and good name as an educational reformer (the Prichard Committee that was so important in marshaling support for the Kentucky Education Reform Act was led by "Prich").

 

In a later post, I’ll give my poolside recommendations for entertaining books on Kentucky legal history…

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* The University of Louisville Brandeis School of Law does require that students take a designated "perspectives" course. I teach American legal history as a perspective and try hard to add this context to both national and Kentucky law. Many law schools do not have this requirement; some do not even offer legal history.