Ex parte Levitt

Ex parte Levitt, 302 U.S. 633 (1937), is a United States Supreme Court case.

Background

In August 1937, President President Franklin D. Roosevelt nominated Senator Hugo Black to the Supreme Court. In March of that year, however, Congress had passed an act "permitting Justices to retire at full salary after a period of specified service, thereby increas[ing] the emoluments of the office ... while [Black] was a Senator." The ineligibility clause bars on Senators being "appointed to any civil Office under the Authority of the United States, which ... shall have been increased during such time...." Nevertheless, Black was confirmed and appointed.

Shortly thereafter, citing the ineligibility clause problem, Albert Levitt filed a pro se motion in that court requesting leave to petition for an order requiring Black to show cause why he should be permitted to serve as an Associate Justice of this Court.

Opinion of the Court

In a brief per curiam opinion, the court dismissed the case for want of standing:

The grounds of this motion are that the appointment of Mr. Justice Black by the President and the confirmation thereof by the Senate of the United States were null and void by reason of his ineligibility under Article I, Section 6, Clause 2, of the Constitution of the United States, and because there was no vacancy for which the appointment could lawfully be made. The motion papers disclose no interest upon the part of the petitioner other than that of a citizen and a member of the bar of this Court. That is insufficient. It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public. Tyler v. Judges, 179 U.S. 405, 406; Southern Ry. Co. v. King, 217 U.S. 524, 534; Newman v. Frizzell, 238 U.S. 537, 549, 550; Fairchild v. Hughes, 258 U.S. 126, 129; Massachusetts v. Mellon, 262 U.S. 447, 488. The motion is denied.

See also

• Saxbe fix
• Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 219 (1974)