Today in Supreme Court History: December 9, 2015

12/9/2015: Fisher v. University of Texas at Austin II argued.

Comments

[Dan Schiavetta]

MacMath v. United States, 248 U.S. 151 (decided December 9, 1918): clerk employed as "acting U.S. weigher" at collection port not entitled to $2,500 statutory salary assigned to weighers (collection ports were notoriously a gold mine of booty, but I suppose not for lowly weighers, acting or otherwise)

Warger v. Shauers, 574 U.S. 40 (decided December 9, 2014): enforcing Fed. R. Evid. 606(b): juror cannot testify, and court cannot receive affidavit, as to statements during deliberations (here, as to bias) (exceptions: jury considered extraneous prejudicial information; was subjected to outside influence; or foreman made a mistake on the verdict form)

Virginia v. Maryland, 540 U.S. 56 (decided December 9, 2003): what to do about the Potomac River? Charles I, as a favor to his friend Lord Baltimore, had set the Maryland border on the Virginia side of the river, instead of in the middle or along the thalweg; this decision overruled Charles and said Maryland couldn't interfere with Virginia's use of the river, in particular drawing water from it for drinking. (Actually the Mount Vernon Conference of 1785, a precursor to the Constitutional Convention, had already made the same decision, but it no longer had legal force.)

[defaultdotxbe]

(collection ports were notoriously a gold mine of booty, but I suppose not for lowly weighers, acting or otherwise)

I don't know, $2500 is pretty rich for 1918, particularly since I don't imagine "weigher" is a very highly skilled profession.

[Dan Schiavetta]

My point is that this clerk didn’t get any “gravy” so he was hoping for the $2500.

[Jonathan Affleck]

Maybe the current session of SCOTUS will make history by slaying the evil twin dragons

• of social medium platform discrimination and
• of ideological corruption of the federal judiciary.

In my petition to SCOTUS for a writ of certiorari to the Court of Appeals for the First Circuit, I correctly point out the following on pp. 43-44.

A social medium platform is role model for Constitutional violation, statutory violation, common law violation, and nasty discrimination.

The Internet culminates technological evolution that goes back at least 180 years. Caselaw developed along with technology. The attempt of District Courts and Appeals Courts to ignore long standing and well-reasoned precedents is not judicial but is ideological and creates a legal and political disaster transforming a court of law into a court of discretionary abuse.

[Jonathan Affleck]

If you wish to help battle the utter evil of a social medium platform, please contribute to the 9th Amendment Challenge to Social Medium Abuse.

This case goes back to district court even if SCOTUS does not grant cert.

The petition reached SCOTUS Dec. 8. Now the costs of the next steps in the battle against social medium platform discrimination must be covered.

[David Nieporent]

The case was dismissed, and thus does not go back to district court.

[apedad]

Re: Fisher v. University of Texas at Austin II

Note: Fisher II was decided by a 4-3 decision with Justice Kagan recusing herself due to prior involvement and Justice Scalia dying shortly before the decision.

This makes it a “minority” decision, i.e., there is not a 5-vote majority, which can raise a question whether a minority decision is truly a binding decision.

One position says as long as there is a quorum (6 justices with the present 9 total), then a minority decision must stand.

IANAL so don’t have an opinion on this; just thought it was interesting.

[F.D. Wolf]

The common-law rule is that a majority of a quorum of a collective body has the authority to act for that body. So, for example, there would be no question that a Senate vote of 31-20 would constitute valid passage of a bill. The Supreme Court has applied this rule to other bodies, recognizing a 2-1 vote of the 5-member FTC as valid, for example. I have little doubt that today’s Supreme Court would view its own 4-3 (or 4-2) vote as binding precedent.

But it was not always so. Only five of the Court’s then-full complement of seven justices were present at arguments in the case of Briscoe v. Commonwealth’s Bank of Kentucky, 33 U.S. (8 Pet.) 118 (1834). Chief Justice Marshall ruled:

The practice of this Court is not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved unless four judges concur in opinion, thus making the decision that of a majority of the whole Court. In the present cases, four judges do not concur in opinion as to the constitutional questions which have been argued. The Court therefore directs these cases to be reargued at the next term, under the expectation that a larger number of the judges may then be present.

Id. at 120.

The Court generally adhered to this rule for the next 100 years or so, but, I think it is fair to say, it has completely abandoned it.

One might acknowledge one minor contradictory authority in Roofing Wholesale Co. v. Palmer, 502 P.2d 1327 (Ariz. 1972), in which the Arizona Supreme Court held that a 4-3 decision by the United States Supreme Court was not binding upon it. Two justices in that case dissented, writing that the court was clearly wrong in that respect. A note published soon thereafter in the Harvard Law Review said the decision “found support in neither precedent nor reason.”

[Dan Schiavetta]

Thank you (as usual).

[Dan Schiavetta]

You're welcome!

I learned it myself from reading a previous case (Arkansas v. Tennessee, 1940) which I summarized here on October 14.

[Jonathan Affleck]

Social medium platform immunity by current Section 230 caselaw vitiates all anti-discrimination law.

By my standards that vitiation hits the absolute evil bullseye.

If you don't understand the logic, suppose I am a white racist restaurateur that does not want to serve a black.

I get together with the other white racists to create a discriminatory social medium platform, which must be used to make an obligatory reservation.

Zeran-based caselaw says the social medium platform has complete editorial discretion to remove any user for an undisclosed reason. Guess which user will be removed for an undisclosed reason.

[defaultdotxbe]

And I would have thought Thalweg was an NPC in Skyrim.

[David Nieporent]

Even if your understanding of the operation of § 230 were correct, and even if your fanciful hypothetical were anything other than such, you understand that the restaurant itself would still be liable, right?