Today in Supreme Court History: January 27, 1955

1/27/1955: Chief Justice John Roberts's birthday.

Chief Justice John Roberts

 

Comments

[Mr. Bumble]

If this is the best you can do for a post about Supreme Court history, why bother?

[apedad]

Yes!

And instead perhaps Prof. Blackman could address the recent, "Colorado Masterpiece Cakeshop owner loses appeal over gender transition cake."

A Colorado baker who won a partial U.S. Supreme Court victory in a case where he refused to make a cake for a gay wedding lost an appeal in another legal fight in which he rejected a request for a birthday cake celebrating a gender transition.

The Colorado Court of Appeals ruled on Thursday that the refusal by Jack Phillips and Masterpiece Cakeshop to make a cake requested by Autumn Scardina did not constitute free speech. The court also found it was illegal to refuse to provide services to people based on characteristics like race, religion, or sexual orientation.

"We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker," said the court, which also rejected procedural arguments from Phillips.

https://www.foxnews.com/politics/colorado-masterpiece-cakeshop-owner-loses-appeal-gender-transition-cake

Remember, the previous case was decided in Phillips's favor but the Supreme Court, ". . . did not reach the central issues of the case: Would it violate free exercise of religion or freedom of speech under the First Amendment to force Masterpiece Cakeshop to design and bake a cake for a same-sex wedding?

Instead, the Court, ". . . found that the Colorado Civil Rights Commission had expressed impermissible hostility to religion and thus violated the free exercise clause of the First Amendment."

[Michael P]

"We conclude that creating a pink cake with blue frosting is not inherently expressive"

So the customer would have been happy with a vanilla cake and white frosting?

[Bob from Ohio]

Very appropriate to bring up Masterpiece Cakeshop on Roberts' birthday.

Even though it was a Kennedy opinion, it is a classic illustration of the pinched narrow tight a** Roberts idea of harboring "credibility".

A thousand bakeries in Colorado but they have to back to Phillips' shop. Its just bayoneting the wounded lawfare. Its disgusting and hopefully the current court will have the courage to just support Phillips and people like him.

[Ed Grinberg]

re: courage
"Liberals" and "progressives" extol the "courage" of politicians who do (or vote for) something the majority of their constituents oppose. For example, when he was still in high-school, Pete Buttigieg wrote an essay praising Bernie Sander for "ha[ving] taken many courageous and politically risky stands on issues facing the nation." Another example (of a politician being so praised) is Angela Merkel, with her (deeply unpopular) decision welcome huge numbers of "Syrian refugees" to Germany. Another is John McCain, when he voted to save ObamaCare.
Well, as I see it, in the case of politicians, such praise is completely misplaced. We elect them to implement our preferences. When they "courageously" defy our preferences, they abuse / betray the trust we placed in them.
But it's different with judges. I think you're right to talk about courage in this context, and to criticize John Roberts for his apparent lack of courage. Judges should have the courage to stand up for the law, even when such a stand goes against public preferences, or politicians' wishes.
Here's a fine example of a courageous judge, highly worthy of praise:
https://en.wikipedia.org/wiki/Lothar_Kreyssig

[apedad]

"Judges should have the courage to stand up for the law. . . ."

Well, that's exactly what the Colorado courts did.

So maybe you (and Bobby) don't really care about "the law" and are only focused on the outcome.

[Mr. Bumble]

"Remember, the previous case was decided in Phillips’s favor but the Supreme Court, “. . . did not reach the central issues of the case: Would it violate free exercise of religion or freedom of speech under the First Amendment to force Masterpiece Cakeshop to design and bake a cake for a same-sex wedding?

Instead, the Court, “. . . found that the Colorado Civil Rights Commission had expressed impermissible hostility to religion and thus violated the free exercise clause of the First Amendment.”

So did the SC, led by Roberts, stand up for the law and decide the central issue or leave the question unanswered?

[apedad]

They addressed the bad intent of the Colorado Civil Rights Commission and (as noted), therefore violated his freedom of religion right.

That aspect is not present in this current case and the courts have ruled IAW the law.

[Bob from Ohio]

The Bill of Rights is part of the "law". The Colorado court just stomped all over it.

Courageous!

[David Nieporent]

I expect it will be appealed, and will be GVRed in light of the upcoming 303 Creative LLC decision.

[Frank Drackman]

it's like if the entry for "Today in MLB History"

"January 27, 1983 Pete Rose hit a 4 way NBA Monster Teaser"

Frank

[Dan Schiavetta]

Adair v. United States, 208 U.S. 161 (decided January 27, 1908): Congress cannot criminalize sacking an interstate carrier employee for being a union member because membership in a union is not interstate commerce (overruled by Phelps Dodge Corp. v. NLRB, 1941)

Daniel v. Louisiana, 420 U.S. 31 (decided January 27, 1975): holding of Taylor v. Louisiana, 1975, that excluding women from jury violates Sixth Amendment guarantee of fair and impartial jury, does not retroactively apply to other prosecutions (as Douglas points out in dissent, this way of thinking makes no sense, and it was eventually overruled, see discussion in Griffith v. Kentucky, 1987)

Wallace v. United States, 133 U.S. 180 (decided January 27, 1890): dismissing Gen. Lew Wallace's attempt to get paid $10,000 instead of $7,500 as ambassador to Turkey (this is the man who wrote "Ben-Hur", which according to Wikipedia was earning him $11,000 a year by 1886, $290,000 in today's dollars)

Clarke v. Haberle Crystal Springs Brewing Co., 280 U.S. 384 (decided January 27, 1930): brewer can't write off financial collapse due to Prohibition as a business loss

Sandifer v. United States Steel Corp., 571 U.S. 220 (decided January 27, 2014): steelworkers get paid for time spent changing into and out of their furnace clothes (I suppose this accounts for the leisurely shower scenes in "The Deer Hunter")

[Dan Schiavetta]

NOTE: Clarke is, by my count, the ONE THOUSANDTH CASE I’ve summarized since I began doing this here as a lark on May 7 of last year. Even though maybe only five people read these things and in my corner of the law I never have to cite SCOTUS cases. What’s wrong with me???

[F.D. Wolf]

I certainly appreciate your efforts, and I know many others do too. Many thanks!

[SRG]

Well, more people appreciate this than respond, I am sure. Keep it up!

[Michael P]

For whatever it is worth, I think your comments on these posts are way more interesting and relevant to the topic than the book advertisements above them.

[Commenter_XY]

Yo, keep going. I learn here Captcrisis.

[Bob from Ohio]

" What’s wrong with me???"

A daily mystery.

[defaultdotxbe]

I don't comment often, but I look forward to Blackman's daily post only to read your daily comment.

[Sarcastr0]

<3

Remember, more read than comment.

[Alpheus W Drinkwater]

Please keep doing it as long as you can still spare the time. It is much appreciated.

[The Margrave of Azilia]

Very enlightening, a thousand thanks.

[John F. Carr]

Are all the cases applying the Portal to Portal act and similar cases consistent with each other? I got confused trying to keep track of when workers got paid for waiting around at work and when they didn't. This is only of theoretical interest to me. Even when I was paid hourly to work on site I was never required to punch a time clock or count time to the minute.

[John F. Carr]

I understand the practical thinking behind not making some major decisions retroactive. You'd have to retry thousands of cases. It was a big deal when the Supreme Judicial Court of Massachusetts invalidated potentially tens of thousands of drug convictions due to misconduct at state labs. The more typical scenario in Massachusetts is a decision that makes a major change in law but only applies to the case at hand and cases tried after the date of the decision. Abolition of most forms of felony murder is the most recent example.

[bernard11]

Why wouldn't the brewer be entitled to write off his loss?

Seems odd.

[Rev. Arthur L. Kirkland]

I plan to read the decision. Maybe it was a “moral” scolding?

[defaultdotxbe]

I may be reading it wrong but it looks like he was able to write off a little over half of the loss, but wanted to write off all of it.

[Dan Schiavetta]

True.

The point to be gleaned from this case though is (to quote Holmes) “when a business is extinguished as noxious under the Constitution, the owners cannot demand compensation from the government, or a partial compensation in the form of an abatement of taxes otherwise due.”

[defaultdotxbe]

Which would mean even the partial deduction he was allowed was not needed.

I wonder if this case will be cited in the upcoming lawsuits against IL, where FFLs allege, in part, that they are damaged by loss of sales due to no longer being able to sell certain semiautomatic rifles.

[Area Man]

This is interesting because the 14th Amendment says, "[N]either the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void." There is no corresponding provision in the 18th Amendment.

It would seem the inclusion of such a provision for the slave "business," but the absence of such a provision for alcohol businesses, would imply that such "claim[s] for the loss[es]" are available for such businesses.

[defaultdotxbe]

It seems the court drew a distinction between the loss of tangible property (e.g. a slave) and intangible property (the value of the "good will" of a business)

[bernard11]

I think that's the appeals court decision, but SCOTUS ruled as described by CC.

Seems strange to me, since the brewery wasn't "noxious to the Constitution" in 1913, when it was founded.

[The Margrave of Azilia]

Yeah, they left that brewer high and *dry.*

[F.D. Wolf]

Whatever one thinks of Robert's opinions, at least those not written when he is in "let's make a nonsensical compromise" mode, I think people across the political spectrum are in widespread agreement that, when it comes to the administrative and leadership aspects of the position, Roberts is a terrible Chief Justice.

As I'm sure most recall, when Justice Sandra Day O'Connor announced her retirement, President George W. Bush nominated John Roberts to replace her. However, when Chief Justice Rehnquist died a few months later, Bush withdrew the nomination and nominated Roberts to replace Rehnquist instead. Bush then ludicrously nominated Harriet Miers to replace O'Connor. Bush, of course, would ultimately withdraw the Miers nomination and nominate Samuel Alito.

So, if poor Bill Rehnquist had managed to hang on a few more months, we might have gotten Chief Justice Samuel Alito and Associate Justice John Roberts, and the Court would have been a lot better for it.

[Sarcastr0]

I think people across the political spectrum are in widespread agreement that, when it comes to the administrative and leadership aspects of the position, Roberts is a terrible Chief Justice.

I have not really formed a personal opinion, but I've also not heard much negative feedback about his performance in general.

[SRG]

The right have not forgiven him for voting to uphold the ACA's penalty,

[Bob from Ohio]

Even Tony K. voted against it! Of course we hold it against him.

[SRG]

we might have gotten Chief Justice Samuel Alito

And, amongst others, abusive LEOs across the land would have celebrated. Say what you want about Roberts, he isn't driven by White (Christian) Resentment.

https://www.politico.com/news/magazine/2022/05/18/samuel-alito-angry-man-00033207

[Rev. Arthur L. Kirkland]

Maybe better off, if the performance of a Chief Justice Alito had inclined Sens. Manchin and Sinema to change their minds on Court expansion.

[Bob from Ohio]

“ludicrously nominated Harriet Miers”

Spare me. She was targeted because she’s not a double Ivy ex-clerk.

On the whole, I am glad about Sam but she would have been a good and refreshing justice.

Sam and Miers without Roberts would have been much better than what we got.

[SRG]

What makes you think that Miers would have been any good?

[Bob from Ohio]

Pro-life conservative evangelical Christian with political experience. A former conservative Democrat, like many of her age in Texas, so not likely to align with the lefties on the court. A good compliment to Sam.

[Rev. Arthur L. Kirkland]

When "evangelical Christian" is a principle selling point for a judge (likely as an ostensibly more polite way of signaling hospitality toward white Christian resentment and hostility toward gays, Blacks, immigrants, modernity, science, and reason), you are on the wrong side of history and the losing side of the culture war.

And an apt representative of the depleted human residue that remains in Can't Keep Up, Ohio, after generations of brain drain.

[SRG]

Pro-life conservative evangelical Christian with political experience

How are these suitable legal qualifications for Supreme Court justice? Answer: they're not.

And you have conceded that from a legal perspective she was a nothing, else you would have mentioned her legal pedigree and you didn't.

[Bob from Ohio]

She was a commercial litigator for a long time. But you asked why I thought she'd be good so I answered it.

Supreme Court is a political institution with the trappings of a court in any event.

[Sarcastr0]

Supreme Court is a political institution with the trappings of a court in any event.
The bulk of their cases are nonpolitical.

And your self-fulfilling prophecy of nominating a political tool is a riskier move than you might think.

But then, you mostly try to shock people these days, not really think through the implications of your comments.

[Bob from Ohio]

"The bulk of their cases are nonpolitical."

Which most lawyers could handle. No special Double Ivy etc. needed.

I think she would have been trustworthy on political/culture issues, certainly more than Roberts or Kav, who both had political backgrounds too.

[Sarcastr0]

I'd like to see 'most lawyers' handle ERISA cases.

Say what you will about Thomas, he's got an impressive clarity of mind.

[F.D. Wolf]

I don't think conservative activists like Rush Limbaugh, Ann Coulter, and Phyllis Schlafly objected to Miers because they had a great love for the Ivy League. Do you know who recommended to Bush he nominate Miers? Harry Reid. He was almost effusive in his praise and condemned "the far-right wing of the Republican party" after her nomination was withdrawn. Robert Bork called her nomination a "slap in the face" to conservatives, but assessed her chances of confirmation as "very high" because "Democrats seem to like her". The usual left-wing advocacy groups who, as a matter of course, objected to every GOP Supreme Court nominee were uncharacteristically quiet.

Of course, all those people might have turned out to be wrong, but as Miers had written virtually nothing on constitutional issues, she was, at best, a complete unknown, and Republicans at the time were wary of putting another Souter on the bench, and, as the GOP held a majority in the Senate, there was no reason not to pick someone with proven conservative bona fides.

[David Nieporent]

I think people across the political spectrum are in widespread agreement that, when it comes to the administrative and leadership aspects of the position, Roberts is a terrible Chief Justice.

Really? Other than from Josh Blackman, I haven't heard any criticism of those aspects of Roberts' job performance. Lots of people bitter about the fact that he tries to act like a judge rather than an arm of the GOP, but not about the non-judicial parts of his role of CJ.

[Mr. Bumble]

Have a "hearing" problem?

[Rev. Arthur L. Kirkland]

He might not spend much time at Proud Boys and Oath Keepers events, Trump rallies, Klan gatherings, militia weekends, John Eastman lectures, and insurrectionist planning conferences.

[F.D. Wolf]

Yes, I'm sure when former Clinton Labor Secretary Robert Reich, someone I consider a far left-wing loon, and I imagine much in line with your worldview, calls Roberts "the worst chief justice since Roger Taney", it is because he feels Roberts acts too much like a judge and isn't enough of a GOP partisan. Both Politico and the Guardian recently claimed Roberts had "lost control of the Court". I don't recall anyone, right or left, ever suggesting that Rehnquist had lost control of the Court.

Does any sane person not think Roberts handled the Dobbs leak and investigation extremely poorly? Perhaps that you haven't heard these criticisms is more a testament to the places you get your information than to any dearth of criticisms.

[David Nieporent]

Robert Reich, someone I consider a far left-wing loon, and I imagine much in line with your worldview,

You have a very strange imagination.

[Michael P]

He wants a 5% wealth tax on "the rich" (meaning "at least $2.5M net worth"), and seems to think the best use of Twitter is posting the same things over and over. Far left loon.

[David Nieporent]

I wasn't commenting on the "far left-wing loon" part (though if you or Mr. Wolf actually think he's far left-wing, you guys have led a pretty sheltered life; there are people much much farther left than him).

I was commenting on the notion that F.D. Wolf thinks Reich is "much in line with my worldview."

[Paul Elliott]

I see nothing in the constitution about withdrawing a nomination. If a President withdraws a nomination, and then the Congress goes ahead and confirms it anyway, does the confirmation stand? If not, on what grounds?

Indeed, it might be good tactics to continue to process a nomination that was withdrawn and was going to inevitably fail as a way to underline the mistake, and as a pretext to call witnesses!

[David Nieporent]

On the grounds that the president didn't appoint the person.

[Rev. Arthur L. Kirkland]

duplicate

[Dilan Esper]

In other words, just like all your other comments.

[Rev. Arthur L. Kirkland]

If you did not crave repetition (which seems a spectrum-related issue in many cases), you’d have abandoned this blog long ago.

Ready for your daily dose of Hamline yet?

[The Margrave of Azilia]

Stars are merely celestial bodies, the St. Andrews Cross is a harmless expression of Scottish pride, blue is the color of the sky, and red is the color of courage.

What, then, could possibly be controversial about simply combining these elements? Don't discriminate, bake the cake!

https://en.wikipedia.org/wiki/Modern_display_of_the_Confederate_battle_flag

[Rev. Arthur L. Kirkland]

These are your fans, Volokh Conspirators.

And the vestigial fans of disgusting traitors, deplorable bigots, and pathetic losers.

[The Margrave of Azilia]

You keep ranting about people on the spectrum, but then you can't discern obvious sarcasm.

Is there any other characteristic of yours, besides being on the spectrum, which you project onto others?

Like, perhaps, every characteristic?