Monday, March 6, 2017

Cushman on the Missing Justice in Coleman v. Miller

Barry Cushman, Notre Dame Law School, has posted The Missing Justice in Coleman v. Miller, forthcoming in the Journal of Supreme Court History 42 (2017) 67-76:
All nine of the sitting justices took part in the 1939 case of Coleman v. Miller, which concerned whether the Kansas legislature had ratified the pending Child Labor Amendment. One of the issues in the case was decided by a vote of 5-4, while another was resolved by a vote of 7-2. With respect to a third issue, however, Chief Justice Charles Evans Hughes reported that it presented “a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.”

Scholars understandably have been puzzled by how a decision in which a full Court participated could have been “equally divided” on an issue. Shortly after the decision was handed down, the Yale Law Journal published an anonymous Note entitled Sawing a Justice in Half, which remarked that the division “should astonish even a Yogi magician.” The perplexed author concluded by asking, “is it possible to saw a Justice vertically in half during a conference and have him walk away whole?” This brief article seeks to determine what happened in Coleman, and to pin down the identity of the missing justice