Today in Supreme Court History: November 5, 1917

11/5/1917: Buchanan v. Warley decided.

The White Court (1916-1921)

Comments

[Dan Schiavetta]

Buchanan v. Warley, 245 U.S. 60 (decided November 5, 1917): striking down on Equal Protection grounds ordinance prohibiting sale to Black people of house on majority-White block (the Court was holding in favor of a White man who wanted to enforce the contract of sale to a Black man) (distinguished Plessy on the grounds that in that case Black people had to ride in separate car, but were not denied access to transportation)

Burt v. Titlow, 571 U.S. 12 (decided November 5, 2013): federal court can't reexamine state court finding of fact so long as it's "reasonable" (here, as to claim of ineffective assistance of counsel causing missed chance at plea bargain)

Lefemine v. Wideman, 568 U.S. 1 (decided November 5, 2012): plaintiff who won no monetary damages but obtained permanent injunction in §1983 case was "prevailing party" and therefore entitled to fees under §1988 (injunction was against the police and allowed plaintiff to exercise his First Amendment rights by displaying photos of aborted fetuses in front of clinic)

[Not Unreasonable]

Burt v. Titlow, a unanimous decision, is noteworthy only because it was one in a series of slap-downs of the liberal members of the Sixth Circuit regarding the correct standard of review in habeas actions brought by state prisoners in federal court. Under 28 U.S.C. 2254(d), a federal court must accept a state's determination on the merits of a claim unless that determination is unreasonable.

[Dan Schiavetta]

It wasn't "unanimous" except as to the result. Ginsburg and Sotomayor concurred on different grounds. Ginsburg said the issue was moot because the plea bargain offer was now (in a literal sense) a dead letter (it was based on defendant’s agreement to testify against a co-defendant who had by then died) and Sotomayor said defendant might have succeeded on her ineffective assistance claim had she developed a more complete record.

The Sixth Circuit did not disobey §2254 but rather held that the Michigan court’s determination was in fact unreasonable, based on a faulty record (the attorney was lazy and uninformed when giving advice on the plea bargain) and an unsupported finding (an attorney is entitled to rely on his client’s protestations of innocence, but the attorney never made that argument nor did he present evidence for it). 680 F.3d 577.

[not guilty]

The Anti-terrorism and Effective Death Penalty Act, enacted in the wake of the bombing of the Oklahoma City federal building, eviscerated federal habeas corpus review of state criminal convictions. It was a low point of Bill Clinton's presidency.

[Dan Schiavetta]

What if it’s a fact situation (or application of law situation) not previously addressed by the Supreme Court? Then the federal court can’t grant habeas no matter how egregious the wrong; the state ruling wasn’t contrary to any “clearly established federal law”. The question won’t go up the appellate ladder to reach the Supreme Court. The law is frozen in amber like a prehistoric insect.

[Not Unreasonable]

You are partially confusing qualified immunity with 2254 review. A federal court can grant habeas relief on factual situations not encountered previously if the state court did not make a reasonable determination of the facts. But a federal court cannot act as a super appellate court over the state courts on a matter of law never passed upon by the Supreme Court. That was a fundamental tenet of federalism the courts got away from until partially restored by Congress in 1996.

[Dan Schiavetta]

I was talking about (d)(1). You’re talking about (d)(2).

[Not Unreasonable]

You said: "What if it’s a fact situation (or application of law situation) not previously addressed by the Supreme Court?"

Unreasonable application of law falls under (d)(1), but you also referred to "a fact situation" which comes under (d)(2). And the feds can grant a habeas petition for a state court's unreasonable fact determination.

[Dan Schiavetta]

I was talking about an undisputed fact pattern that the law is not clear on. A “case of first impression”.

[Mr. Bumble]

191 days since the Dobbs leak (and counting) and still no word on how this happened.

[bernard11]

One possibility is that Roberts is sitting on it because the facts are highly embarrassing to the court.

[Mr. Bumble]

That may be true (or not) but I don't think there is any good reason for continuing to ignore this event. The leak sets a terrible precedent and should be addressed to prevent this happening again.

[Dan Schiavetta]

As bernard pointed out, maybe they’ve found the leaker and have already dealt with it internally. Publicizing the details might not be a good idea.

[Mr. Bumble]

Democracy dies in the darkness.

[Dan Schiavetta]

It’s a personnel matter.

[Mr. Bumble]

It has been speculated by some on both sides that it was a justice who leaked the decision (something I don't think likely). Is that a personnel matter?

Was Aldrich Ames a "personnel" matter?

[Sarcastr0]

It has been speculated?! Holy crap!

[Mr. Bumble]

So YOU know who the leaker is?

[Dan Schiavetta]

In my life I have had experience with three embarrassing leaks.

The first, in a swimming pool when I was 7 years old, is not relevant here.

The second was when I hit "reply all" instead of "reply". The third was when I didn't realize that due to autocomplete on my Outlook I was sending a report to my adversary instead of to my client.

Perhaps what happened was #2 or #3.

[Mr. Bumble]

Something seems to be missing from your response.

[David Nieporent]

Wouldn't someone have to first ignore it before he or she could "continue to" ignore it? From whence did you get the idea that anyone ignored it?

[Mr. Bumble]

The semantics question aside, I get the idea that it is being ignored by the lack of information for the past six months.

[Sarcastr0]

Truly, this is the only explanation.

[Rev. Arthur L. Kirkland]

" 191 days since the Dobbs leak (and counting) and still no word on how this happened. "

What, in your judgment, is the most likely explanation?

Are the Republicans who control the investigation inept?

Are the Republicans who control the investigation disinclined to confirm the leaker's identity?

Have those Republicans identified the leaker but considered it inconvenient to identify the leaker?

[Mr. Bumble]

I could speculate on an explanation, as you have, and it would be just as meaningless, although any of them could be true. My concern is that how the leak occurred and who the leaker was be made known. The failure to do so, so far, rests with the Chief, who took charge of the investigation.

[David Nieporent]

Well, clearly, if they haven't personally informed Mr. Bumble about the results of an investigation, then the only explanation is that they have ignored the investigation and have "failed" in some way.

It's not that the investigation is ongoing. It's not that the investigation is completed but is being kept confidential as a personnel matter.

No, it's that they have 'failed' in some way to live up to Mr. Bumble's desire for instant gratification.

[The Margrave of Azilia]

Why not leak the internal report on the leak?

Leaks all the way down.

[F.D. Wolf]

In Buchanan v. Warley, a unanimous Court struck down a municipal ordinance prohibiting blacks from buying property in majority-white neighborhoods (as well as prohibiting whites from buying property in majority-black neighborhoods.) The Court did so on Lochner-esque “liberty of contract” grounds, in a case clearly manufactured solely for the purpose of garnering judicial review, just like the similar Plessy v. Ferguson. I haven’t looked deep into the case, but I wonder if the case was an early attempt to overturn Plessy, which had been decided 21 years earlier. As captcrisis noted, the Court distinguished Plessy, noting that while Plessy had to ride in a separate train car, his right to transportation had not been completely denied.

Justice Holmes drafted a dissenting opinion, which he ultimately withdrew, probably because he could not find another justice to sign on to it, rather than because he had actually changed his mind. I ran a web search for information on Holmes’ draft opinion, and you might imagine my surprise when near the top of the list was a link to a website called joshblackman.com, which had the text of Holmes’ draft and his handwritten edits.

https://joshblackman.com/blog/2017/07/18/justice-holmess-draft-dissent-in-buchanan-v-warley/

[Dan Schiavetta]

Thanks!

[David Nieporent]

So, whatever we might choose to infer about Holmes' ulterior motives, his proposed dissent was ostensibly premised on what we would today call standing: the notion that the wrong person sued. If the black buyer had sued on the grounds that the ordinance had discriminated against him, that would be one thing. But the white seller sued on the grounds that it violated his rights, and Holmes didn't like that.

As for the actual SCOTUS opinion: I always find it interesting to read cases from earlier eras and compare the way the decisions are crafted to the modern era. There is a lot more ipse dixit in the older opinions. The attempt to distinguish old cases is often (as here) little more than "But this is different."

[Dan Schiavetta]

You’re quite right about that. The older opinions (besides being more long winded; I imagine they were meant to be read by the fireplace on a long afternoon) seem less oriented to convincing the reader and more like Leviticus-style pronouncements.