Today in Supreme Court History: May 13, 1912

5/13/1912: Seventeenth Amendment is approved by the House of Representatives. The Senate approved it the prior month. The Seventeenth Amendment was ratified in 1913.

Comments

[Dan Schiavetta]

Brady v. Maryland, 373 U.S. 83 (decided May 13, 1963): prosecution must turn over to defendant all exculpatory evidence

Apple v. Pepper, 587 U.S. --- (decided May 13, 2019): purchasers of apps at App Store are direct purchasers and therefore can sue Apple as a monopoly under the Clayton Act

Bowman v. Monsanto, 569 U.S. 278 (decided May 13, 2013): it is a patent infringement for a farmer to sell soybean seeds produced by plants grown from patented genetically modified soybean seeds

Morris & Co. v. Skandinava Ins. Co., 279 U.S. 405 (decided May 13, 1929): no jurisdiction over insurance dispute where only connection with forum state (Mississippi) was reinsuring some risks there; policy at issue was issued in South America, loss occurred there, and defendant was based in another state (Louisiana)

United States v. Noland, 517 U.S. 535 (decided May 13, 1996): bankruptcy court can re-order priority of creditors but not as to the IRS which has statutory priority absent "inequitable conduct"

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (decided May 13, 1991): Age Discrimination in Employment Act of 1967 did not invalidate arbitration clause in securities representative's employment contract

44 Liquormart v. Rhode Island, 517 U.S. 484 (decided May 13, 1996): statute prohibiting advertising of liquor prices violated First Amendment

In re Nielsen, 131 U.S. 176 (decided May 13, 1889): double jeopardy rule precluded prosecution against Utah man for adultery involving one woman where he had already served time for bigamy during the same time period involving that woman and another woman

[Commenter_XY]

Never knew the exact origin of the Brady rule. Thanks captcrisis.

[John F. Carr]

I recall a sort of followup to Gilmer where the government was allowed to sue a company for employment discrimination on behalf of an employee even though the employee had agreed to arbitration.

[Dan Schiavetta]

You're probably thinking of EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).

[apedad]

It's says Waffle House so I had to look it up.

Facts of the case
Waffle House, Inc.'s employees must each sign an agreement requiring employment disputes to be settled by binding arbitration. After he suffered a seizure and was fired by Waffle House, Eric Baker filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) alleging that his discharge violated Title I of the Americans with Disabilities Act of 1990 (ADA). The EEOC then filed suit, alleging that Baker?s discharge violated the ADA, and sought injunctive relief and specific relief for Baker, including backpay, reinstatement, and compensatory damages, and punitive damages for malicious and reckless conduct. Under the Federal Arbitration Act (FAA), Waffle House petitioned to stay the EEOC's suit and compel arbitration. The District Court did not stay the action. The Court of Appeals concluded that the arbitration agreement between Baker and Waffle House did not foreclose the enforcement action because the EEOC was not a party to the contract, but had independent statutory authority to bring suit in any federal district court where venue was proper. The appellate court also held that the EEOC was limited to injunctive relief.

Question
Does an agreement between an employer and an employee to arbitrate employment-related disputes bar the Equal Employment Opportunity Commission from pursuing victim-specific judicial relief in an enforcement action alleging that the employer has violated Title I of the Americans with Disabilities Act of 1990?

Conclusion
No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the arbitration agreement did not bar the EEOC from pursuing victim-specific judicial relief in an ADA enforcement action. The Court reasoned that the EECO's statutory enforcement powers unambiguously authorized the EEOC to obtain the relief that it sought in its complaint, if it could prove its case against the employer. The Court further noted that no language existed to suggest that an arbitration agreement between private parties materially changed the EEOC's statutory function or the remedies otherwise available. Justice Clarence Thomas filed a dissenting opinion, in which Chief Justice William H. Rehnquist and Justice Antonin Scalia joined.

(oyez)

[Rev. Arthur L. Kirkland]

6-3, with Thomas, Rehnquist, and Scalia dissenting?

No need to read the case to identify the wrong side of history.

[Krychek_2]

The government wasn't a party to the arbitration agreement. Also, the government has different rights than the employee since the government has a general interest in vindicating the anti-discrimination laws.

[Brett Bellmore]

And thus was the constitutional scheme for successfully dividing power between the federal and state governments undermined. The next generation of Senators were happy enough to confirm Justices who'd engage in wholesale transfers of power to the federal government, because they no longer had to fear the state legislatures taking back the power to select Senators.

[Dan Schiavetta]

The 17A was enacted because most people had given up on trusting state legislatures to select senators in a non-corrupt fashion.

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Are corrupt Senators selected by corrupt state legislators still state representatives? Are corrupt federal representatives better than corrupt state representatives?

The point is, it undermined federalism. The huge bloated graspy federal government we have today, usurping so much of what used to be state prerogatives, is partly from reduced federalism.

[Michael D]

With their unshakeable belief in the moral rightness of democracy, progressives argued that legislative election of senators led inevitably to state-level political corruption. Their revisionist historians painted a picture of a vast political conspiracy, in which state elections were regularly bought and sold by local party machines to elect senators who would serve the interests of the elites above those of the people. (For all you film buffs, they argued that the conflict portrayed in the excellent movie “Mr. Smith Goes To Washington” was the rule, rather than the exception.)

But as many historians have recognized, the data simply wasn’t on progressives’ side. Only three senatorial elections were investigated for corruption between 1857 and 1900. And over more than a century of legislative election of senators, only ten total elections were contested for impropriety of any sort. State electoral deadlocks over selection of federal senators were also rarer than progressives claimed, and most state legislatures dealt with such disagreements while continuing to govern.

The progressives dealt with this roadblock to their agenda by spreading “fake news.” Media mogul William Randolph Hearst and his “yellow journalists” spread the idea of widespread senatorial corruption using flamboyant headlines like “The Treason of the Senate.”

Over time, people began to believe the lie. In a grassroots rebellion, they elected state representatives who supported direct election of senators. When 31 states passed resolutions calling for an amendment, Congress finally capitulated.

Thus, out of manufactured hysteria over nonexistent corruption, the Seventeenth Amendment was born.

[bernard11]

Balderdash.

This seems to some sort of article of faith for some conservatives. It's nonsense.

Here's a question. Suppose the wishes of the people of a state conflict with the wishes of the state legislators. Whose opinions should a Senator honor?

Besides, without the 17th the gross gerrymandering of the state legislature would extend its ill effects into the choice of Senators.

Objections to the 17th are nonsensical.

[Michael D]

Did the 17th amendment irreparably harm the balance between the state and national governments by reliving the voice of the state legislatures from national governance?

The fact that each state has two independent legislators in the Senate sends the message that Senators are really just older, richer versions of members of the House of Representatives. Thus, under the current system, when Senator A from State X votes yea or nea on a measure, it is seen simply as the preference of Senator A. Senator A's vote may in fact be canceled out by Senator B's vote from the same state.

Has the 17th Amendment over politicized the Senate and all its activities including its role in the appointments process for the judiciary?

Consider the first Senate hearing for a SCOTUS justice took place when the Senate became a popularly elected body. Since the Brandeis hearing, it is difficult to say the process has improved.

Should the 17th Amendment be repealed, replaced or allowed to remain?

Repealing the 17th Amendment of the Constitution will not revolutionize the Senate the way many supporters of repeal imagine. A fundamental problem of the Senate has long been the fact that Senators do not vote as representatives of a state delegation, but as independent legislators. This reality has long obscured the fact that the Senate was intended to be a council of the states and not simply an "upper house" of a national legislature.

The status quo should be abandoned in favor of allowing each state delegation only a single vote in the Senate. What this change would do is emphasize the fact that the United States government is a collection of member states where it is recognized that each member state has a distinct set of preferences and interests.

Because of this reality, I proposed an amendment to change the Senate into a body of state delegations:

Amendment: The Senate of the United States shall be composed of three Senators from each state, chosen by the legislature thereof, for six years, with a power reserved to a two-thirds majority of each legislature to recall its Senators, or any of them; and each State shall have one vote in the Senate except in trials of impeachment when each Senator shall have one vote. They shall be divided equally into three classes, each class composed of one member of each state delegation so that one third may be chosen every second year.

[apedad]

Why not just have one Senator per state then?

[Michael D]

A 3 member delegation would allow subsequence legislatures to be better represented. State legislatures are generally on a 2-year cycle. A new legislature would have an opportunity to place a new senator in their delegation and thus represent any possible change while also no “throwing the baby out with the bath water” by maintaining a slower change by keeping the existing senators appointed by prior legislatures.

[bernard11]

Did the 17th amendment irreparably harm the balance between the state and national governments by reliving the voice of the state legislatures from national governance?

Wherein lies the value of having the state legislature, as opposed to the people of the state at large, have a voice in national governance?

[Brett Bellmore]

Let's recap: A basic principle of American constitutional design is to limit and safeguard power by dispersing it between entities that, jealous of their own prerogatives, will resist that power being centralized.

This is done by distributing it horizontally, between branches of government that are NOT entitled to exercise each other's power, and shouldn't even be delegated that exercise.

And it's done by distributing it vertically, between levels of government.

Now, state legislators ARE "jealous of their own prerogatives,". State voters? Not so jealous of the legislature's own prerogatives.

So, you have to expect people who actually exercise the state governmental power to put up more of a fight against its centralization in the federal government, than you would people who don't exercise that power, the voters.

And that's the value: The state legislature has an institutional interest in opposing the federal government's power grabs. The voters? Not so much.

I'd add that the voters actually have very little power to oppose that centralization, even if they want to, because voting is a very low bandwidth affair, you can't do anything even slightly complicated with it. And because each individual voter has a negligible influence, it really doesn't make sense for them to devote much effort to the fight.

The smaller number of legislators, who do this for a living, can act much more effectively in this regard.

Now, it may be that you, personally, don't mind the centralization of power. But that was the design, and the 17th amendment broke it.

[Michael D]

I could not have said it better.

[Syd Henderson]

I think I'd prefer three, so we have a senatorial election every other year in each state.