Supreme Court Season, Part 6

William Cushing, Joseph Story, Levi Woodbury, Benjamin Curtis, Nathan Clifford, Horace Grey, Oliver Wendell Holmes Jr., Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Harry Blackmun, and Stephen Breyer

William Cushing, Joseph Story, Levi Woodbury, Benjamin Curtis, Nathan Clifford, Horace Grey, Oliver Wendell Holmes Jr., Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Harry Blackmun, and Stephen Breyer

The second-most senior associate justice in the original lineup of the Supreme Court was William Cushing (1732-1810), who was sworn in on September 26, 1789, and served until his death in 1810.

William Cushing was born in Scituate, a seaside town in Plymouth County, Massachusetts. He graduated from Harvard in 1751 and was admitted to the bar in Massachusetts in 1755. After a brief stay in Scituate, Cushing became the first practicing attorney in Maine (which was then part of Massachusetts). In 1772 Cushing was appointed to the Superior Court of Judicature of Massachusetts to replace his father, justice John Cushing. He was the only member to be retained when the Court was dissolved and reconvened in November 1775 following the start of the War of Independence, and became the new Court’s first sitting Chief Justice in 1777, serving until 1789. (John Adams was appointed its first Chief, but never took the bench and resigned in 1776.) In 1783 Cushing presided over the Quock Walker Cases, wherein Walker, a slave, sued for his freedom, claiming slavery went against the Massachusetts Constitution of 1779. Cushing ruled in his favour, and in 1783 Massachusetts became the first US state to abolish slavery.

Cushing was the longest-serving of George Washington’s Supreme Court appointments, but between Cushing’s ill health and spotty record-keeping only 19 of his decisions are known to exist. Upon John Rutledge’s rejection as Chief Justice, George Washington nominated Cushing as Chief Justice, who was confirmed unanimously by the Senate, and Washington sent Cushing his commission on January 27th, 1796. Cushing sent it back on February 2nd, with a letter declining the appointment. Cushing died in Scituate in September of 1810.

James Madison attempted to fill the seat with former attorney-general Levi Lincoln, Sr., who declined the offer. Madison then nominated Alexander Wolcott, a customs inspector from Connecticut with a lot of sway in the Democratic-Republican Party. He was defeated in the Senate by a vote of 9-24, the widest defeat of any Supreme Court nominee. Cushing was eventually succeeded by Joseph Story (1779-1845), who took office on November 18, 1811, and served until his death in 1845. Story is the youngest justice in Supreme Court history: he was 32 at the time of his appointment. He also holds the record for longest time spent as the most junior justice, for 4,228 days, until the appointment of Smith Thompson in 1823.

Joseph Story was born in Marblehead, Massachusetts. His father, Elisha, a doctor, was one of the men who dressed as an Indian and threw tea in the harbour at the Boston Tea Party. Story went to Harvard and passed the bar in 1801, settling in Salem, Mass., working as counsel to a large shipping firm and writing poetry. He was elected to the state House of Representatives from 1805 to 1808, when he spent ten months as a federal Congressman, ending in March 1809. He went back to law in Salem and was re-elected to the state legislature, becoming Speaker in 1811.

After John Marshall, Story was the most important member of the antebellum Supreme Court. He was a brilliant legal scholar, and from 1829 was concurrently a law professor at Harvard. He wrote the decision in 1816’s Martin v. Hunter’s Lessee (establishing SCOTUS’s supremacy over state courts ), and for the United States v. Amistad case in 1841, made into the 1997 Spielberg movie. (Story was played by Harry Blackmun, a retired Supreme Court justice.) He wrote a number of legal texts, which paid handsomely: by 1844 he made more than twice as much annually from book royalties than from his Supreme Court salary. His most important work, the 3-volume “Commentaries on the Constitution of the United States”, was written in 1833, and was the first scholarly treatise examining the provisions of the American Constitution.

Joseph Story died at his home in Cambridge, Mass., in September of 1845. His son was William Wetmore Story, a famous sculptor, whose Angel of Grief of 1894 is an often-imitated model for tombstones.

Story’s seat was filled by Levi Woodbury (1789-1851) on September 20, 1845, until his death in 1851. He was the first Justice to have went to an actual law school.

Levi Woodbury was born in southern New Hampshire, graduated from Dartmouth in 1809, briefly went to Litchfield Law School in Connecticut, and was admitted to the New Hampshire bar in 1812. He was a clerk of the New Hampshire state senate from 1816 to 1817, a justice of the state Supreme Court from 1817 to 1823, the Governor from 1823 to 1824, the Speaker of the New Hampshire House of Representatives in 1825, a US Senator (Democrat) from 1825 to 1831, the Secretary of the Navy from 1831 to 1834 (he was elected to the N.H. state senate in 1831, but didn’t take office), the Secretary of the Treasury from 1834 to 1841, and a US Senator again from 1841 to 1845.

Levi Woodbury’s work on the Supreme Court is not very noteworthy; however, he was the first of only three people to serve in all 3 branches of the federal government plus serve as a state governor (the others being Salmon Chase and James F. Byrnes). Woodbury died in Portsmouth, New Hampshire, in early September, 1851.

Famously do-nothing president Millard Fillmore then appointed the only Whig to serve on the Supreme Court, Benjamin Curtis (1809-1874). He took his seat on September 22, 1851, and sat for 6 years, 1 week, and 1 day. Though Woodbury, his predecessor, was the first justice to go to law school, Curtis was the first Supreme Court justice to graduate from law school.

Benjamin Robbins Curtis was born in Watertown, a suburb of Boston. He graduated from Harvard in 1829 and from Harvard Law School in 1831, passing the bar the next year. He became a leading figure in Massachusetts legal circles and was elected to the state House of Representatives in 1849, where he chaired a committee to reform the state judiciary; the resulting act was so well received it passed without amendment.

Curtis wrote the decision in 1852’s Cooley v. Board of Wardens, which set an important precedent in Congress’s power to regulate interstate commerce, particularly in matters of marine navigation. But Benjamin Curtis’s most important contribution to the Supreme Court was the way in which he left it. In the infamous Dred Scott Case of 1857, Curtis was, along with John McLean, one of two dissenting justices. Not only that, but Curtis disagreed so strongly with almost every point of the majority decision that he resigned in disgust on September 30, 1857. He remains to this day the only Supreme Court justice to resign on a matter of principle.

(Some historians have since suggested there was more to Curtis’s resignation than that: he disliked circuit duty, didn’t get along with his fellow justices, and made much less money on the Court than he did in private practice.)

Benjamin Curtis returned to private practice in Boston and went on to argue several cases before the Supreme Court. He was chief counsel to president Andrew Johnson during his impeachment trial in 1868, and thereafter turned down an appointment as Attorney-General. He ran as a Democrat for a US Senate seat in 1874, but lost. Benjamin Curtis died in Newport, R.I., on September 15, 1874. He was buried in the noteworthy Mount Auburn Cemetery, in Cambridge, Mass.

Nathan Clifford (1803-1881) was appointed by James K. Polk to the seat Curtis vacated. He took office on January 12, 1858, and stayed until his death 23 years later.

Nathan Clifford was born on a farm in northwestern New Hampshire and attended a college-prep school in New Hampton, N.H. He was a schoolteacher for a while, then studied law under Boston mayor (and future Harvard president) Josiah Quincy III and was admitted to the bar in Maine in 1827. He was a state Representative from 1830 to 1834 (Speaker 1832-34) and state Attorney-General from 1834 to 1838. He then served as a US Congressman (Democrat) from 1839 to 1843, US Attorney-General from 1846 to 1848, and ambassador to Mexico from 1848 to 1849.

Clifford brought experience in Mexican land grants to the Supreme Court. He was also proficient in commercial and maritime law. He believe in a sharp division of power between state and federal government, and wrote nearly 400 majority opinions, many of which were much too long and overly digressive. He sat on the Electoral Commission of 1877, voting for Samuel Tilden and never fully accepting Rutherford Hayes’s victory as President.

Clifford died of a stroke in Cornish, Maine, in July of 1881, and was buried in Portland, Me.

Horace Gray (1828-1902) succeeded Clifford On December 20, 1881, and sat until he died nearly 20 years later.

Horace Gray was born in Boston to a family of wealthy merchants. He graduated from Harvard at 17 and traveled through Europe before returning to sort out his family’s finances and pass the bar in 1851. He was appointed as Reporter of Decisions to the Massachusetts supreme court in 1856, and was appointed to that court in 1864, becoming Chief Justice in 1873. He was also elected a Fellow of the American Academy of Arts and Sciences in 1866.

Gray was the first Justice to hire a full-time law clerk. He wrote too-long opinions that relied heavily on legal history. He wrote the opinion in the 1892 case of United States v. Wong Kim Ark, which helped established the legal existence of “anchor babies”. He also wrote the 1892 opinion in Mutual Life Insurance Company of New York v. Hillmon, where it was decided an out-of-court statement of intention to do something was not hearsay.

Gray resigned from the Supreme Court in July 1902 after falling gravely ill. He died that September in Nahant, Mass.

Theodore Roosevelt then chose to appoint one of the Supreme Court’s greatest all-stars, Oliver Wendell Holmes, Jr. (1841-1935), who was sworn in on December 4, 1902. When he retired on January 12, 1932, two months before turning 91, he was the oldest-ever Supreme Court justice.

Oliver Wendell Holmes, Jr. was born in Boston, the son of Oliver Wendell Holmes, Sr., a doctor, medical reformer, abolitionist, poet, essayist, co-founder of The Atlantic Monthly magazine and close friend to many of the luminaries of 19th-century American literature, including Henry Wadsworth Longfellow, Nathaniel Hawthorne, John Greenleaf Whittier, and Walt Whitman. Oliver Jr. went to Harvard, like his father, and immediately upon graduating in 1861 joined the Union Army and fought in the Civil War, seeing action everywhere from the Peninsular Campaign to the Battle of the Wilderness. Holmes was shot in the chest at the Battle of Ball’s Bluff, wounded in the neck at Antietam and at Chancellorsville he hurt his heel so badly his foot was nearly amputated. He was a Captain by the end of the war, and was brevetted to Colonel before he was discharged. After the war he returned to Harvard to study law and passed the bar in 1866. For the next 15 years he practiced commercial and maritime law in Boston during the fall and winter, and went to London in the spring and summer, where he was the toast of British society. He became a law professor at Harvard in 1882, but resigned that December to take a seat on the Massachusetts supreme court, assuming the chief justiceship in 1899.

Holmes was known for his short, pithy, quotable opinions, a style that ensured he would become one of the most widely referenced justices in Supreme Court history. In the thirty years that Holmes was on the Supreme Court, his most famous ruling was in the 1919 case of Schenck v. Untied States, which upheld the conviction under the Espionage Act of a critic of the US government during world War I. Holmes’s majority opinion in the case famously said the First Amendment did not protect the right to “falsely shout ‘fire’ in a theater.” Conversely, later that year he dissented in the similar case of Abrams v. United States, writing that such measures could not be taken if the criticism didn’t interfere with the war effort. He also wrote the majority opinion in the 1927 case of Buck v. Bell, allowing for the forced sterilization of a mentally disabled woman, in which he wrote, “Three generations of imbeciles are enough.” Holmes was a proponent of legal realism, a philosophy which held that legal thought was inseparably linked to contemporary moral and political discourse. This caused him to support judicial restraint in overturning labour protection laws (he dissented in Lochner v. New York), and thus became an early opponent of the Lochner Era on the Court, and would later be an ally to genuinely liberal justices like Louis Brandeis. He so often found himself on the losing side of the Court that by the 1920s he was nicknamed “the Great Dissenter”.

Upon turning ninety in 1931, someone asked Holmes if he had anything he wished for. Holmes is said to have replied, “Ah, to be young and seventy again.” He finally retired in January 1932 and died of pneumonia at his home in DC, two days before his 94th birthday. His life was made into the 1950 film The Magnificent Yankee, directed by John Sturges (The Magnificent Seven, The Great Escape) and starring Louis Calhern as Holmes. It did not do well at the box office, although Calhern was nominated for an Oscar for his performance.

Benjamin Cardozo (1870-1938), the second-ever Jew on the Supreme Court, was appointed to replace Holmes, taking office on March 2, 1932, and dying six years later. Herbert Hoover was praised for his choice of Cardozo; the appointment is characterized as one of only a few in the Court’s history to be totally unmotivated by politics.

Benjamin Nathan Cardozo was born in NYC to Sephardic Jews descended from pre-Revolutionary immigrants from England. He was a cousin of the poet Emma Lazarus, and was tutored as a teen by the novelist Horatio Alger. His father, Albert, was a judge of the New York Supreme Court until resigning over a corruption scandal involving a corporate takeover of the Erie Railway. Benjamin got into Columbia at the age of 15, passed the bar in 1891, and made it onto the New York Supreme Court in 1914, moving up to the New York Court of Appeals in 1917, becoming Chief Justice in 1927 and serving for five years.

Cardozo was an expert in tort and contract law, and was vital in adapting common law to the demands of the 20th century. He was also one of the “3 Musketeers” that supported New Deal legislation in the Supreme Court. Cardozo himself was very humble about his abilities; he called himself a “plodding mediocrity”.

Cardozo suffered a heart attack in late 1937, then a stroke early the next year, finally dying in Westchester County, N.Y., on July 9, 1938, and was buried in Queens. Owing to the fact Cardozo never married, was apparently celibate his whole adult life, and had an early relationship with Horatio Alger – a man accused of doing unseemly things with boys – unfounded rumours have circulated Cardozo was secretly gay; yet Learned Hand, a contemporary of his, is quoted as saying he had “no trace of homosexuality”.

Felix Frankfurter (1882-1965), a fellow Jew, took Cardozo’s seat on January 20, 1939, and held it for 23 years. He was the first justice to hire a black law clerk, in 1948. His firm belief in judicial restraint made him the Court’s chief devil’s advocate for most of the Warren era. It was a position he defended… with relish.

Felix Frankfurter was born in Vienna (making him, in the original German, a genuine Wiener) and immigrated to America when he was 12, settling in the Lower East Side of Manhattan. He played chess and shot craps on the streets of New York as a teen, and graduated from City College of New York in 1902. He got into Harvard Law School, where he shone academically and graduated in 1906 (he really cut the mustard). He practiced law in Manhattan and became an assistant to the federal attorney for the Southern District of New York, Henry Stimson. When Stimson was appointed Secretary of War, Frankfurter went to DC with him and became the law officer to the Bureau of Insular Affairs. Frankfurter supported Theodore Roosevelt in the presidential election of 1912, and became politically disengaged following the collapse of the Progressive Party thereafter. He accepted a position at Harvard Law School in 1913, staying until the American entry to World War I in 1917, when he left to become a JAG and a special assistant to Secretary of War Newton Baker.

After the war he became involved in Zionism, at the encouragement of Louis Brandeis. He lobbied Woodrow Wilson to support the Balfour Declaration of 1917, participated in the first conference of the American Jewish Congress in Philadelphia in 1918, and was a Zionist delegate to the Paris Peace Conference of 1919. Frankfurter was one of the founders of the ACLU in 1920, and the next year was made a chair at Harvard Law School. After 1932 he became a trusted high-level advisor to Franklin Roosevelt; his service was interrupted briefly in 1933 and 1934, when he was the visiting Eastman Professor of Law at Oxford University. Frankfurter brought with him to FDR a number of bright young lawyers to help build the New deal; these men were often referred to as “Felix’s Happy Hot Dogs”.

On the Court, Frankfurter wrote a lot of opinions: 247 majority opinions, 132 concurring, and 251 dissenting. He opposed the doctrine of incorporation and any interpretation of the Constitution that severely limited executive or legislative powers, a concept known as judicial restraint. While this would have made him a liberal on the Court during the Lochner Era, during the Civil Rights era his reluctance to assert the rights of the individual against the powers of the government made him its most capable conservative. Earl Warren and Hugo Black disliked how talkative he was. He attempted to bring new justices under his wing, becoming a mentor to Tom C. Clark, Sherman Minton, John Marshall Harlan II, Harold Hitz Burton, and Charles Whittaker; he had attempted to do the same with William Brennan, but the two men repelled each other.

Felix Frankfurter suffered a stroke in 1962 and retired near the end of that August. He was awarded the Presidential Medal of Freedom in 1963, and died of heart failure in February, 1965.

Arthur Goldberg (1908-1990) was appointed on September 28, 1962, by John Kennedy, serving until he quit in March of 1965. He was the last member of the Cabinet to be appointed to the Supreme Court.

Arthur Joseph Goldberg was born on the West Side of Chicago (the youngest of 8 children of Russian immigrants) and went to DePaul University before earning a doctorate in law from Northwestern University in 1930. He worked as a labour lawyer and taught at John Marshall Law School in Chicago from the 1930s to the 1950s, and served in the OSS during World War II. He became general counsel to the Congress of Industrial Organizations in 1948 and negotiated its merger with the American Federation of Labor in 1955 to form the AFL-CIO. In 1961 John Kennedy appointed Goldberg as Secretary of Labor, serving until he was appointed to the Supreme Court.

Despite being on the Supreme Court for less than three years, Goldberg was very influential on liberal thought in the Court. He wrote a very well-received concurrence on 1963’s Griswold v. Connecticut, and was the first Supreme Court justice to hold the opinion that the death penalty constituted cruel and unusual punishment.

Goldberg left the Supreme Court in March of 1965 to succeed Adlai Stevenson II as Ambassador to the United Nations, which he did for the rest of the LBJ administration. He served during the Six-Day War and was the key drafter of Resolution 242, calling for Israel to vacate its occupied territories. After leaving the UN in 1968 Goldberg returned to private practice in New York City; he ran for Governor of New York in 1970 as a Democrat, but lost to Nelson Rockefeller. Thereafter he practiced law in Washington and served as president of the American Jewish Committee. Goldberg was awarded the Presidential Medal of Freedom in 1978 and died in January of 1990 in DC.

Abe Fortas (1910-1982) succeeded Goldberg on October 4, 1965, and served until his scandal-ridden resignation in 1969.

Abraham Fortas was born in Memphis, the son of British Jews who taught him the violin, for which he got the nickname “Fiddlin’ Abe”. He graduated from Rhodes College in Memphis in 1930, and graduated second in his class from Yale Law School (paying his way through with fiddling gigs) in 1933. He then commuted between New Haven and Washington, DC, working as an assistant professor at Yale and as a legal advisor to the Securities and Exchange Commission. During the FDR administration he was general counsel to the Public Works Administration, and became Undersecretary of the Interior in 1942; while there he became enamored with Puerto Rico, and became good friends with Luis Muñoz Marin, the first elected governor of Puerto Rico. Fortas later had a hand in drafting the Puerto Rican constitution in 1952. While living in DC he started up the N Street Strictly-No-Refunds String Quartet, perfoming every Sunday, and through it he became friends with the violinist Isaac Stern. During World War II he left temporarily to join the Army, but was discharged a month later for tuberculosis of the eyes. He advised the US delegation to the UN organizational meeting in San Francisco in 1945, then left to start the private law firm of Arnold & Fortas, which later became Arnold & Porter and is now one of the largest law firms in the world. In 1948 Fortas persuaded Hugo Black to overturn an unfavourable ruling against his client, Lyndon Johnson, during a close Senate primary. Johnson won the election, and was thereafter very good friends with Fortas. In a case before the DC circuit in 1953, Fortas convinced the Court to allow for expert testimony in the then-nascent science of psychiatry to back up the defense’s case for an insanity plea, a system for deciding insanity cases now known as the Durham Rule. Fortas’s biggest moment as a lawyer came in 1965, when he went to the Supreme Court and successfully defended a poor Florida man accused of breaking into a billiards hall. The man was named Clarence Gideon, and the case of Gideon v. Wainwright established that states needed to provide lawyers to suspects unable to afford their own. (The case was made into the film Gideon’s Trumpet in 1980. Fortas was played by Oscar-winning Puerto Rican José Ferrer.)

Johnson persuaded Arthur Goldberg to leave the Supreme Court in 1965 to give his friend Fortas a place On the Court. Fortas collaborated with Johnson while on the Court, steering his Great Society reforms away from possible constitutionality challenges. Fortas also wrote Johnson’s 1966 State of the Union address. Fortas was very concerned with children’s rights and wrote the majority opinion in 1967’s In re Gault, which extended constitutional rights to juvenile justice proceedings, and in 1969’s Tinker v. Des Moines Independent Community School District, which established First Amendment rights for students in public schools.

When Earl Warren announced his retirement in 1968, Johnson nominated Fortas as Chief Justice, but his appointment was blocked by Republicans and Dixiecrats in the Senate. In 1969 scandal erupted when it was discovered that Fortas had signed a contract in 1966 with Wall Street financier Louis Wolfson, for unspecified legal consultations in exchange for a retainer of $20,000 per year for life. Wolfson came under investigation for securities fraud, and rumours arose that Fortas was pushing for the President to pardon Wolfson. Earl Warren persuaded Fortas to resign from the Court, which he did on May 14th, 1969. He then founded a new law firm, Fortas & Koven, and practiced prosperously in DC. He sat on the board of directors of Carnegie Hall and of the Kennedy Center, made friends with the cellist Pablo Casals, and advised Martin Scorsese (who was then dating Maggie Koven, Fortas’s law partner’s daughter) on the First Amendment protection of the use of foul language in film. Abe Fortas died in Washington on April 5, 1982, and a memorial service was held at the Kennedy Center.

Once Fortas’s seat was vacant, Richard Nixon nominated as his replacement Clement Haynsworth, a judge of the 4th Circuit from South Carolina. Haynsworth’s nomination was defeated in the Senate on November 21, 1969, and so Nixon nominated Harrold Carswell, a Georgia native and judge of the 5th Circuit. The senate rejected Carswell on April 8, 1970. Nixon’s third choice, Harry Blackmun (1908-1999), passed the Senate on May 12, 1970, and was sworn in on June 9. Blackmun, a Methodist, broke the 38-year streak of Jews holding the seat he assumed.

Harold Andrew Blackmun was born in Nashville, Illinois, and was raised in a working-class suburb of St. Paul, Minnesota, where he went to the same elementary school as Warren Burger. He got into Harvard on a scholarship, joined the Harvard Glee Club, and earned a degree in mathematics in 1929, then went to Harvard Law School, graduating in 1932. He went back to the Twin Cities to practice law and serve on the law faculties of UMinn and William Mitchell College, and in 1959 was appointed to the US Court of Appeals for the 8th Circuit.

Blackmun started his time on the Supreme Court as a conservative, supporting the death penalty and voting with Warren Burger so often they were known as the “Minnesota Twins”. He did, however, have liberal leanings; he authored the majority opinion in Roe v. Wade (and wrote a concurrence to Planned Parenthood v. Casey 19 years later) and the majority opinion in 1975’s Stanton v. Stanton striking down unequal ages of majority between men and women, and by the mid-1980s he had split with Burger over the nature of unspecified rights guaranteed under the 9th Amendment, as shown in his scathing dissent in Bowers v. Hardwick, where he defended the right to sodomy. By end of his tenure, he sided with liberal justices more often than not.

Blackmun retired from the Supreme Court in the summer of 1994 at the age of 86. He appeared in the 1997 Stephen Spielberg film Amistad, playing his predecessor, Supreme Court justice Joseph Story. Blackmun broke his hip at home on February 22, 1999, and died ten days later in hospital from complications after surgery. His crazily complete collected papers, including an oral history with former law clerk Harold Koh lasting 38 hours, were given to the Library of Congress in 2004.

Stephen Breyer (1938-present) was made Blackmun’s successor by Bill Clinton on August 3, 1994, He spent 4,119 days as the junior-most Justice, until the appointment of Samuel Alito in 2006 – 29 days short of the record set by Joseph Story.

Stephen Gerald Breyer was born in San Francisco and went to Stanford, Magdalen College, Oxford (on a Marshall scholarship) and Harvard Law School. In 1964 he was a law clerk to Supreme Court justice Arthur Goldberg, and was an assistant to the Assistant Attorney-General for Antitrust from 1965 to 1967, the same year Breyer married the daughter of the 1st Viscount Blakenham (British agriculture minister under Harold Macmillan and son of the Earl of Listowel). Breyer was continuously on the faculty of Harvard Law School between 1967 and 1994. Concurrently, Breyer was on the Watergate special prosecution team in 1973, chief counsel to the Senate judiciary committee from 1979 to 1980, a judge of the US Court of Appeals for the 1st Circuit from 1980 to 1994 (chief judge from 1990), and a member of the US Sentencing Commission from 1985 to 1989.

Breyer is a liberal, pro-choice judge. He tends to uphold legislation being challenged, deferring to Congress more than any other justice. His expertise is in administrative law, and is a staunch defender of the Federal Sentencing Guidelines.


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