Did Justice Black violate the Emoluments clause?

[Max_S]

I just came across Ex parte Levitt, 302 U.S. 633 (1937). The Supreme Court dismissed the case for standing, but on the merits it looks like Justice Black would have needed a Saxbe fix to avoid violating the Constitution when he turned 70, if not on his first day. What’s the straight dope?

~Max

[ASL_v2.0]

I’m having a hard time parsing this. How does being 70 relate to the Emoluments Clause? I see this “saxbe” thing has to do with salary increases for elected officials and am also having a hard time seeing how that applies to a Supreme Court Justice.

[Little_Nemo]

@ASL_v2.0

I’m having a hard time parsing this. How does being 70 relate to the Emoluments Clause? I see this “saxbe” thing has to do with salary increases for elected officials and am also having a hard time seeing how that applies to a Supreme Court Justice.

When Black was a Senator a law was enacted that increased the pension of Supreme Court Justices who retired after turning seventy. Black was then appointed to the Supreme Court.

[Little_Nemo]

I’m not sure how the emoluments clause would be interpreted in this case.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Was Black a Senator when the law was changed? Yes.

Was he appointed to the Supreme Court while his term was still in effect? Yes, he was appointed in 1937 and his current term would have run until 1939.

Were the emoluments of his new position increased during the appropriate period? Well, maybe. The law had been enacted during Black’s term. But it wouldn’t go into effect for Black until he turned 70 in 1956. And by 1956, his term in office as a Senator would have long been over.

What’s the interpretation for “the Emoluments whereof shall have been increased during such time”? Does it mean the law that would eventually authorize those payments was enacted during that time period or does it mean the payments were actually received during that time period?

[Max_S]

First, the Constitutional provision (ninja’d):

U.S. Const. art. I, § 6

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; …

The law in question is Representative Sumner’s brainchild, “An act to provide for retirement of Justices of the Supreme Court”, signed into law by FDR on March 1, 1937 and notable as a major part of the resolution to the infamous court-packing battle of the day. The law has been recorded in the Statutes at Large, and I will reproduce it below.
50 Stat. 24

[CHAPTER 21]

AN ACT
To provide for retirement of Justices of the Supreme Court.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Justices of the Supreme Court are hereby granted the same rights and privileges with regard to retiring, instead of resigning, granted to judges other than Justices of the Supreme Court by section 260 of the Judicial Code (U.S.C., title 28, sec. 375), and the President shall be authorized to appoint a successor to any such Justice of the Supreme Court so retiring from regular active service on the bench, but such Justice of the Supreme Court so retired may nevertheless be called upon by the Chief Justice and be by him authorized to perform such judicial duties, in any judicial circuit, including those of a circuit justice in such circuit, as such retired Justice may be willing to undertake.

Approved, March 1, 1937.

I downloaded the Senate and House Journals for 1937. Consideration of the bill in the Senate begins in earnest at 81 Cong. Rec. 1643 (February 26, 1937), and Mr. Black’s “yea” vote is recorded on page 1649.

~Max

[Max_S]

@Little_Nemo

Were the emoluments of his new position increased during the appropriate period? Well, maybe. The law had been enacted during Black’s term. But it wouldn’t go into effect for Black until he turned 70 in 1956. And by 1956, his term in office as a Senator would have long been over.

The law itself went into effect on March 1, 1937 (50 Stat. 24). The benefits provided are described as retirement benefits: “the rights and privileges with regard to retiring” (Id). Further, the Constitution provides that Justices “shall hold their Offices during good Behavior”, that is, effectively for life (U.S. Const. art. III, § 1). Finally, a Justice’s “Compensation” “shall not be diminished during their Continuance in Office” (Id).

If a civil office’s retirement benefits qualify as “Compensation” and “Emoluments” (which I believe are synonyms) from the moment the job is accepted, it follows that Mr. Black’s appointment violated the Constitution.

I’m not sure of the answer to that question either. I’m unfamiliar with labor laws but I generally lump retirement benefits in under compensation at work.

~Max