Justice Scalia’s dissent in Morrison v. Olson is the cornerstone of conservative authorized thought. Yearly I train it, I achieve new insights into the separation of powers. Almost 4 a long time later, the opinion will get higher with time. (Justice Kagan stated that, or a minimum of something like that.) Alas, Chief Justice Rehnquist’s majority opinion stays controlling legislation. The Courtroom had no event to overrule Morrison, however it has been eroded in circumstances like Seila Legislation and Arthrex. Nevertheless, Particular Counsel Jack Smith’s prosecution of Donald Trump presents simply that chance for Morrison to be overruled. And I personally made certain of it.
Throughout oral argument in Choose Cannon’s court docket, I preserved the problem of whether or not Morrison needs to be overruled by the Supreme Courtroom. It was the very last item I stated earlier than I sat down.
MR. BLACKMAN: I’ll make only one final level, Your Honor, after which I am going to sit down. Morrison v. Olson, after all, is precedent. I do not know that the defendants have requested to protect the problem over whether or not Morrison needs to be overruled. Possibly I can. I’ll. However I believe it is a precedent that has been chipped away by Seila Legislation and different circumstances. And I believe it is a minimum of honest to acknowledge that this stands on a shaky basis.
THE COURT: All proper. Thanks very a lot. I recognize your help.
MR. BLACKMAN: Thanks, Your Honor.
[ECF No. 647, p. 112.]
Throughout rebuttal, James Pearce, the lawyer for the Particular Counsel, referenced my comment, although I do not assume he fairly bought what I used to be making an attempt to do.
MR. PEARCE: Now, I wish to spend only a second, if I might, on the distinction between “worker” and “officer.” I believe that was the thrust of what I understood the Tillman amicus transient and Mr. Blackman—though Mr. Blackman was wide-ranging, I believe he requested this Courtroom to overrule Morrison v. Olson, which I do not assume is in any approach introduced. However I wish to give attention to what the transient was about. [ECF No. 647, p. 155 (bold added).]
However Choose Cannon understood precisely what I stated. Her opinion expressly referenced the preservation of this difficulty in Footnote 54:
Publish-Edmond, the viability of Morrison has been known as into query. See, e.g., N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 315 (2017) (Thomas, J., concurring) (“Though we didn’t explicitly overrule Morrison in Edmond, it’s tough to see how Morrison‘s nebulous strategy survived our opinion in Edmond. Edmond can be in step with the Structure’s authentic which means and due to this fact ought to information our view of the principal-inferior distinction.”); Harmony Mgmt. & Consulting LLC, 317 F. Supp. 3d at 617 & n.8 (citing circumstances and scholarship). Nonetheless, as a result of it has not been overruled, the Courtroom proceeds to use the Morrison take a look at alongside Edmond. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (stressing the Supreme Courtroom’s “prerogative of overruling its personal selections”). Defendants haven’t argued for the overruling of Morrison on this court docket, though the matter was raised at argument by the Landmark Authorized amici. [Tr. of Oral Argument (June 21, 2024)] ECF No. 647 p. 112; ECF No. 364-1 (criticizing Morrison). [slip op. 71 n.54 (bold added).]
Just a few hours after my oral argument concluded, I wrote about Mapp v. Ohio. In that case, the ACLU as amicus requested the Supreme Courtroom to overrule Wolf v. Colorado. And the Supreme Courtroom did simply that. I wrote, with some extent of self-awareness, that it will be even higher for the problem to have been raised by an amicus within the decrease courts:
Extra related to the current day, the holding of Mapp means that an Amicus who’s invited to take part can ask the Supreme Courtroom to overrule a precedent, and the problem will not be waived. Certainly, the Amicus was allowed to make this request for the primary time earlier than the Supreme Courtroom, even the place it was not raised within the decrease court docket litigation. The Supreme Courtroom apparently didn’t see any downside with waiver or the occasion presentation rule right here. If what the ACLU did was correct, it stands to purpose {that a} related request may very well be made by an amicus who’s invited to take part within the decrease courts, if solely to place everybody on discover {that a} precedent is unsure, and to protect the problem for overview by the Supreme Courtroom.
One other related precedent is Teague v. Lane (1988). In that case, the plurality, per Justice O’Connor, addressed a retroactivity difficulty that was solely pressed by amicus:
The query of retroactivity with regard to petitioner’s honest cross-section declare has been raised solely in an amicus transient. See Temporary for Prison Justice Authorized Basis as Amicus Curiae 22-24. Nonetheless, that query will not be overseas to the events, who’ve addressed retroactivity with respect to petitioner’s Batson declare. See Temporary for Petitioner 21-32; Temporary for Respondent 31-38. Furthermore, our sua sponte consideration of retroactivity is way from novel. In Allen v. Hardy, we addressed the retroactivity of Batson though that query had not been introduced by the petition for certiorari or addressed by the decrease courts. See 478 U.S. at 478 U. S. 261-262 (MARSHALL, J., dissenting). See additionally Mapp v. Ohio, 367 U. S. 643, 367 U. S. 646, n. 3 (1961) (making use of exclusionary rule to the States even though such a plan of action was urged solely by amicus curiae).
In dissent, Justices Brennan and Marshall expressed astonishment that the plurality reached this difficulty primarily based on the illustration of an amicus:
Astonishingly, the plurality adopts this novel precondition to habeas overview with out advantage of oral argument on the query, and with no extra steerage from the litigants than a three-page dialogue in an amicus transient. See Temporary for Prison Justice Authorized Basis as Amicus Curiae 22-24.
However such is the legislation of difficulty preservation earlier than the Supreme Courtroom. Until a distinct set of legislation applies these days.
Given Mapp and Teague, from my vantage level, the problem of whether or not Morrison v. Olson needs to be overruled has been preserved. And the Particular Counsel is squarely on discover that the query of whether or not Morrison‘s holding needs to be preserved or overruled is at difficulty.
With the advantage of hindsight, Lawyer Basic Merrick Garland’s determination to nominate Smith could turn into one of many best blunders in DOJ historical past. Or, from a distinct vantage level, his determination could result in the best strengthening of the President’s Article II energy in Supreme Courtroom historical past. First, the investigation led to the sweeping immunity ruling in Trump v. United States. Second, the prosecution could result in the particular counsel rules being known as into query by the Supreme Courtroom, if not the overruling of Morrison. Third, none of those circumstances yielded a trial, not to mention a conviction, earlier than the election. Fourth, regardless of all the pieces that has occurred over the previous 4 years, Trump remains to be main in lots of polls, and should still be reelected. What good did any of those proceedings accomplish? Garland would have been higher off indicting Trump in January 2021, or doing nothing in any respect.
