SETH BARRETT TILLMAN, JUDGE CARPENTER ON TWITTER:
Judge Carpenter says that “officer of the U.S.” is “repeatedly” used in Mississippi v. Johnson, 71 U.S. 475 (1866). That’s a canonical or lead case. If you went to law school, it was probably assigned in Introduction to Constitutional Law or Introduction to Federal Courts. Still, I have written on this issue since 2008—Did I really miss this? And it is not just me—many others have written (or recently begun to write on this issue)—Did they all miss this too? So I looked it up. That phrase—“officer of the United States”—appears exactly one time in the report for the case. It does not appear “repeatedly.” Hyperbole is, at best, a legitimate tool for lawyers. For judges, I think it is less than appropriate.
More importantly, the phrase “officer of the United States,” although it appears in the case’s report, it is not part of the opinion of the Court. And, it is not part of any concurrence. It is not even part of a dissenting opinion. Actually, Judge Carpenter is quoting from an editor’s headnote reproducing a lawyer’s argument. So, the Supreme Court never used the phrase “officer of the United States” in Mississippi v. Johnson. Not even once.
Not very judicious.