| Nixon v. Fitzgerald
(No. 79-1738)
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| Syllabus
| Opinion
[ Powell ] | Concurrence
[ Burger ] | Dissent
[ White ] | Dissent
[ Blackmun ] |
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Nixon v. Fitzgerald
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
I join JUSTICE WHITE's dissent. For me, the Court leaves unanswered his unanswerable argument that no man, not even the President of the United States, is absolutely and fully above the law. See United States v. Lee, 106 U.S. 196, 220 (1882), [n1] and Marbury v. Madison, 1 Cranch 137, 163 [p798] (1803). [n2] Until today, I had thought this principle was the foundation of our national jurisprudence. It now appears that it is not.
Nor can I understand the Court's holding that the absolute immunity of the President is compelled by separation of powers concerns, when the Court at the same time expressly leaves open, ante at 748, and n. 27, the possibility that the President nevertheless may be fully subject to congressionally created forms of liability. These two concepts, it seems to me, cannot coexist.
I also write separately to express my unalleviated concern about the parties' settlement agreement, the key details of which were not disclosed to the Court by counsel until the veritable "last minute," and even then, only because the Halperins' motion to intervene had directed the Court's attention to them. See ante at 743-744, n. 24. The Court makes only passing mention of this agreement in Part II-B of its opinion.
For me, the case in effect was settled before argument by petitioner's payment of $142,000 to respondent. A much smaller sum of $28,000 was left riding on an outcome favorable to respondent, with nothing at all to be paid if petitioner prevailed, as indeed he now does. The parties publicly stated that the amount of any payment would depend upon subsequent proceedings in the District Court; in fact, the parties essentially had agreed that, regardless of this Court's ruling, no further proceedings of substance would occur in the District Court. Surely, had the details of this agreement been known at the time the petition for certiorari came before the Court, certiorari would have been denied. I cannot escape the feeling that this long-undisclosed agreement [p799] comes close to being a wager on the outcome of the case, with all of the implications that entails.
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), most recently -- and, it now appears, most conveniently -- decided, affords less than comfortable support for retaining the case. [n3] The pertinent question here is not whether the case is moot, but whether this is the kind of case or controversy over which we should exercise our power of discretionary review. Cf. United States v. Johnson, 319 U.S. 302 (1943).
Apprised of all developments, I therefore would have dismissed the writ as having been improvidently granted. The Court, it seems to me, brushes by this factor in order to resolve an issue of profound consequence that otherwise would not be here. Lacking support for such a dismissal, however, I join the dissent.
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.
3. The agreement in Havens was not final until approved by the District Court, 455 U.S. at 370-371. In the present case, the parties made their agreement and presented it to the District Court only after the fact. Further, there was no preliminary payment in Havens. Each respondent there was to receive $400 if the Court denied certiorari or affirmed, and nothing if the Court reversed. Here, $142,000 changed hands regardless of the subsequent disposition of the case, with the much smaller sum of $28,000 resting on the Court's ultimate ruling. For me, this is not the kind of case or controversy contemplated by Art. III of the Constitution.