explaining that the “absence from the legislative history of any congressional sentiments” either of “moral blameworthiness or punishment” is “probative of nonpunitive intentions and largely undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient to openly assume the mantle of judge or, worse still, lynch mob”
How later courts described this case
- explaining that the “absence from the legislative history of any congressional sentiments” either of “moral blameworthiness or punishment” is “probative of nonpunitive intentions and largely undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient to openly assume the mantle of judge or, worse still, lynch mob”
- stating that “[i]t has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit---- The very specificity would mark it as punishment, for there is rarely any valid reason for such narrow legislation[.]”
- stating "[o]ur treatment of the scope of the [Bill of Attainder] Clause has never precluded the possibility that new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee. The Court, therefore, often has looked beyond mere historical experience and has applied a functional test. . . ."
- finding it significant that “[n]either President Ford nor President Carter support[ed] [former-President Nixon’s] claim” that the challenged statute’s “regulation of the disposition of Presidential materials . . . constitutes, without more, a violation of the principle of separation of powers”
Written by the judges who cited it.
Later courts went against this
Questioned by Warner v. Township of South Harrison, 885 F. Supp. 2d 725 (2012)
In analyzing this issue, the majority expressly declined to address the continued viability of the right to privacy recognized in Whalen, supra, and Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), and stated, “we will assume for present purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional significance.
Distinguished
Distinguished by Neelley v. Walker, 322 F. Supp. 3d 1238 (2018)
But Nixon is distinguishable, most obviously because Ms. Neelley is not President Nixon.
The opinion
Mr. Justice Stevens,
concurring.
The statute before the Court does not apply to all Presidents or former Presidents. It singles out one, by name, for special treatment. Unlike all other former Presidents in our history, he is denied custody of his own Presidential papers; he is subjected to the burden of prolonged litigation over the administration of the statute; and his most private papers and conversations are to be scrutinized by Government archivists. The statute implicitly condemns him as an unreliable custodian of his papers. Legislation which subjects a named individual to this humiliating treatment must raise serious questions under the Bill of Attainder Clause.
Bills of attainder were typically directed at once powerful leaders of government. By special legislative Acts, Parliament deprived one statesman after another of his reputation, his property, and his potential for future leadership. The motivation for such bills was as much political as it was punitive— and often the victims were those who had been the most relentless in attacking their political enemies at the height of *485 their own power. 1 In light of this history, legislation like that before us must be scrutinized with great care.
Our cases “stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” United States v. Lovett, 328 U. S. 303, 315-316 . The concept of punishment involves not only the character of the deprivation, but also the manner in which that deprivation is imposed. It has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, Flemming v. Nestor, 363 U. S. 603 , but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit. Cf. id., at 614 . The very *486 specificity of the statute would mark it as punishment, for there is rarely any valid reason for such narrow legislation; and normally the Constitution requires Congress to proceed by general rulemaking rather than by deciding individual cases. United States v. Brown, 381 U. S. 437, 442-446 .
Like the Court, however, I am persuaded that “appellant constituted a legitimate class of one ....” Ante, at 472. The opinion of the Court leaves unmentioned the two facts which I consider decisive in this regard. Appellant resigned his office under unique circumstances and accepted a pardon 2 for any offenses committed while in office. By so doing, he placed himself in a different class from all other Presidents. Cf. Orloff v. Willoughby, 345 U. S. 83, 90-91 . Even though unmentioned, it would be unrealistic to assume that historic facts of this consequence did not affect the legislative decision. 3
Since these facts provide a legitimate justification for the specificity of the statute, they also avoid the conclusion that this otherwise nonpunitive statute is made punitive by its specificity. If I did not consider it appropriate to take judicial notice of those facts, I would be unwilling to uphold the power of Congress to enact special legislation directed only at one former President at a time when his popularity was at its nadir. For even when it deals with • Presidents or former Presidents, the legislative focus should be upon “the calling” rather than “the person.” Cf. Cummings v. Missouri, 4 Wall. 277, 320 . In short, in my view, this case will not be a precedent for future legislation which relates, not to the Office of President, but just to one of its occupants.
*487 Without imputing a similar reservation to the Court, I join its opinion with the qualification that these unmentioned facts have had a critical influence on my vote to affirm.
At the debate on the impeachment of the Earl of Danby, the Earl of Carnarvon recounted this history:
“My Lords, I understand but little of Latin, but a good deal of English, and not a little of the English history, from which I have learnt the mis-chiefs of such kind of prosecutions as these, and the ill fate of the prosecutors. I shall go no farther back than the latter end of Queen Elizabeth’s reign: At which time the Earl of Essex was run down by Sir Walter Raleigh, and your Lordships very well know what became of Sir Walter Raleigh. My Lord Bacon, he ran down Sir Walter Raleigh, and your Lordships know what became of my Lord Bacon. The Duke of Buckingham, he ran down my Lord Bacon, and your Lordships know what happened to the Duke of Buckingham. Sir Thomas Wentworth, afterwards Earl of Strafford, ran down the Duke of Buckingham, and you all know what became of him. Sir Harry Vane, he ran down the Earl of Straf-ford, and your Lordships know what became of Sir Harry Vane. Chancellor Hyde, he ran down Sir Harry Vane, and your Lordships know what became of the Chancellor. Sir Thomas Osborne, now Earl of Danby, ran down Chancellor Hyde; but what will become of the Earl of Danby, your Lordships best can tell. But let me see that man that dare run the Earl of Danby down, and we shall soon see what will become of him.” (Footnote omitted.) As quoted in Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, p. 127 (1956).
See Burdick v. United States, 236 U. S. 79, 94 .
Cf. Colder v. Bull, 3 Dall. 386 , 390:
“That Charles 1st. king of England, was beheaded; that Oliver Cromwell was Protecter of England; that Louis 16th, late King of France, was guillotined; are all facts, that have happened; but it would be nonsense to suppose, that the States were prohibited from making any law after either of these events, and with reference thereto.”