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Justice Amy C. Barrett

October 29, 2020

It is certainly good that the Federalist Society guided the selection of Federal Judges for the Trump Administration. And we should savor the moment as the Progressive invasion of our Federal Courts is slowed. But the icing on the cake is appointment to the U.S. Supreme Court of Justice Amy Coney Barrett. I will have more to say about this new Justice when I catch the drift of her decisions. But, for now, Chicago attorney and fellow Philadelphia Society member, Joe Morris, explains the reason we should celebrate.

From:            Joseph A. Morris,  Former General Counsel, United States Office of Personnel Management Under President Ronald Reagan and Director Donald J. Devine
To:                 OPM Alumni and Friends
Subject:         An Old OPMer’s Note on Amy Coney Barrett’s Oaths

I’m the guy who thinks of Marbury v. Madison as, first and foremost, a personnel  management case.
You remember the facts:  In a post-election drama, a defeated, lame-duck President, John Adams, nominated, the Senate confirmed, and President Adams then appointed, a slew of new judges, including a new Chief Justice of the United States, then as now the top rung of the Federal judiciary, and a new justice of the peace for the County of Washington (as it was then juridically known) in the District of Columbia, then the bottom rung.  He signed the commissions and gave them to his Secretary of State to countersign, seal, and deliver to the appointees.  
The Secretary of State delivered the commission to the new Chief Justice, who took office immediately.  Time ran out, and the Secretary of State failed to deliver the commission to the new justice of the peace, one William Marbury.  
The new President, Thomas Jefferson, took office and appointed a new Secretary of States, James Madison.  Madison physically entered his office, found an undelivered commission, and, as it were, sat on it.  Marbury brought suit against Madison directly in the Supreme Court, as authorized by the Judiciary Act of 1789, seeking a writ of mandamus directed to Madison commanding him to deliver up the commission.
Chief Justice John Marshall wrote the opinion by which the Supreme Court decided the case.  
First came the important part, the personnel decision. The Supreme Court held that Marbury had been duly appointed.  With consent having been given by the Senate, the appointing official — the President — was then fully authorized to make the appointment, and by signing the commission — a fancy version of today’s OPM Standard Form 50, “Notification of Personnel Action” — the President had perfected the appointment.  Marbury was, indeed, appointed and was entitled to his commission and his office.  This was the foundational decision of all subsequent Federal employment jurisprudence:  Except, of course, for the problem that, as the rest of the decision would make clear, it was obiter dictum.
For then came the part of the decision that everyone remembers — perhaps the most amazing way to say “Never mind!” ever recorded.  The Constitution confers on the Supreme Court very limited “original” (as opposed to “appellate”) jurisdiction, and Marbury’s case didn’t fall within the scope of the Constitution’s text.  Even though Congress, in enacting the provision of the Judiciary Act that Marbury had invoked, purported to confer additional powers on the Court, under the Constitution Congress did not have power to confer them.  So, Congress may have tried to overstep its bounds, but the Court would not overstep its.  Chief Justice Marshall said that the Constitution trumps (he used a different verb, I’m sure) a statute.  Accordingly, the offending part of the act was held unconstitutional and void.  That was a first, and that’s the part about the decision the every schoolchild remembers.  (At least she ought to.  You’d better believe that my granddaughter does.)
Don Devine’s General Counsel may have been  be the only bureaucrat in America who, when called upon to opine on the validity of an S.F. 50, would routinely cite principles of  Marbury v. Madison to decide the matter.
I also seem to be one of the few people who noticed that, when Chief Justice John Marshall wrote his opinion in Marbury v. Madison, he never mentioned the name of the hapless Secretary of State who, on the night of March 3 – March 4, 1801, lost the game of Beat the Clock.  Perhaps that was because the Secretary of State was … John Marshall.  Secretary Marshall may have failed to deliver Marbury’s commission, but he delivered his own in plenty of time and, in fact, in a circumstance that would be deemed an intolerable conflict of interest today, Marshall served for a full month (February 4, 1801 – March 4, 1801) as both Secretary of State and as Chief Justice.
All this is prologue to my note on the administration of an oath of office tonight to Associate Justice Amy Coney Barrett at The White House, which I watched, perhaps along with you, on national television.
In her remarks after taking an oath administered by Justice Thomas, Justice Barrett said, “The oath that I have solemnly taken tonight means at its core that I will do my job without any fear or favor and that I will do so independently of both the political branches and of my own preferences.”
Now, the Judicial Oath, prescribed at 28 U.S.C. § 453, reads as follows:
I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God.
It is this oath that emphasizes the duty to act “without respect to persons”, or as Justice Barrett put it in her remarks, “without fear or favor”;  and to discharge her duties under the Constitution “faithfully and impartially”, or, again as the put it, “independently of both the political branches and of my own preferences”.
But the oath she took tonight at the hands of Justice Thomas was not the Judicial Oath.  (The Judicial Oath will be administered to her tomorrow, at the Court, by Chief Justice Roberts).  It was, instead, the standard Federal oath that is prescribed at 5 U.S.C. § 3331, and which reads as follows:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic;  that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
Now, Title 5 is that part of the Federal Code administration of which is confided largely to OPM, hence my proprietary interest in it.  Section 3331 requires that this oath be taken by every person  “elected or appointed to an office of honor or profit in the civil service or uniformed services” — that is to say, every Federal employee, including the Vice President, every Senator, every Representative, every judge, and every other civilian and military person who goes to work for the United States Government.  Only the President is exempt, because the President takes a different oath, the text of which is specified, word for word, in Article 2 of the Constitution.

Thus, the text of the oath taken tonight by Justice Barrett is identical to that set forth on the face of OPM Standard Form 61, “Appointment Affidavits”, which every Federal employee (except the President) signs when starting a new job;  without that form in the file he or she won’t get paid.  I’ll bet that, tomorrow morning, when Justice Barrett sits down at her new desk at the Court  to do her new employee paperwork, among the documents she’ll sign will be, in fact, a copy of S.F. 61.  (She’ll take the Judicial Oath orally, in a ceremony, but she’ll probably sign it on a written form, too.)
Part A of S.F. 61 is the Title 5 Oath that I’ve quoted above.
Part B of S.F. 61 is the “Affidavit as to Striking Against the Federal Government”, required by 5 U.S.C. §§ 3333 and 7311,  the existence of which Don Devine famously confirmed to President Reagan in a meeting in the Cabinet Room early on an August morning in 1981, the first day of the PATCO strike, when the President looked across the table and asked, “Don, isn’t it true that every Federal employee takes an oath not to strike?” and Don firmly answered, “Yes”, and handed the President a copy of S.F. 61 that the kid sitting behind his Director just happened to have brought stuffed into his jacket, next to his pocket copy of the Constitution, and quickly handed to his boss.  That section of the form reads:
I am not participating in any strike against the Government of the United States or any agency thereof, and I will not so participate while an employee of the Government of the United States or any agency thereof. 
Part C of S.F. 61, “Affidavit as to Purchase and Sale of Office”, contains a promise that one’s office was not acquired through the standard personnel practices historically prevailing in the municipal government of Chicago:
I have not, nor has anyone acting in my behalf, given, transferred, promised or paid any consideration for or in expectation or hope of receiving assistance in securing this appointment. 
Among the things they paid me for when I was the General Counsel of OPM was to consider carefully every word of the Title 5 Oath and every word of S.F.61, to make sure that Federal personnel practices ensured that the obligations imposed by the oath and the affidavit were enforced.  (The phrase, “all enemies, foreign and domestic”, always haunted me, because of the necessary implication:  There are domestic enemies.)
In any event, when all the oath-taking and affidavit-signing has been completed, ACB will take her seat on the Court.  It is a seat that everyone knows was lately occupied by Ruth Bader Ginsburg.  In Chief Justice Marshall’s time it was held by Thomas Todd.  Later holders of the seat included Charles Evans Hughes, George A. Sutherland, and Byron R. White.  Justice Barrett is the 14th person to occupy the seat, and the 115th justice overall in the history of the Court.
Sharing her views of the nature of the judicial function and her philosophy regarding the reading of constitutional, statutory, and other texts, I am delighted to see her join the Court.  And I take special satisfaction in knowing that the oath she took tonight at The White House, administered to her by Justice Clarence Thomas — variously known as the “Title 5 Oath”, the “Federal Oath”, the “S.F. 61 Oath”, or the “OPM Oath” — is the same oath that was administered to me every time I entered upon a new office during my career in government.  It was administered to me at USIA by Judge Lawrence Silberman, and it was again administered to me at the Department of Justice by Attorney General Edwin Meese.  But my first post after leaving OPM was as the Counsel to the Chairman of the United States Equal Employment Opportunity Commission, where, on my first day on the job, the selfsame oath was administered to me by the EEOC’s Chairman at the time — one Clarence Thomas.  I thought that voice sounded familiar.

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