Today in Supreme Court History: January 31, 2006

1/31/2006: Justice Samuel Alito takes oath.

Justice Samuel Alito

 

Comments

[Dan Schiavetta]

Brotherhood of Locomotive Engineers v. Chicago, Rock Island & Pacific R.R. Co., 382 U.S. 423 (decided January 31, 1966): Arkansas statute regulating size of train crews survives Dormant Commerce Clause attack (it in effect applied only to intrastate lines)

United States v. Shubert, 348 U.S. 222 (decided January 31, 1955): theatrical productions are "interstate commerce" subject to Sherman Act (defendant produced the shows + booked them + operated the theaters, which even defendant admitted could amount to violation)

West River Bridge Co. v. Dix, 47 U.S. 507 (decided January 31, 1848): power of eminent domain supersedes prohibition on impairing contracts (art. I, §10) (state allowed company to build bridge over river and collect tolls for 100 years; 44 years later paid it off with a lump sum and turned it into a free bridge; company didn't like that)

Railway Express Agency v. People of the State of New York, 336 U.S. 106 (decided January 31, 1949): upholding against Equal Protection attack New York City regulation forbidding vehicles used only for advertising display (in the 1990's you'd see trucks going around midtown advertising "gentleman's clubs"; they looked like mobile billboards but they did have a minimum amount of cargo space inside (for the dancers?))

Kovacs v. Cooper, 336 U.S. 77 (decided January 31, 1949): on the same day, upholding for the same reason (public safety) Trenton, N.J. regulation prohibiting "loud and raucous" sound trucks

Prince v. Massachusetts, 321 U.S. 126 (decided January 31, 1944): tax deductions must be construed narrowly (here, a deduction on excise taxes on tires for tax already paid on raw materials did not also apply to taxes paid on "partly processed" materials; Black parses the code sections and reviews legislative history) (I didn't know until I read this case that cotton used to be an ingredient in tires)

[Dan Schiavetta]

Formatting mistake on the toll bridge case (sorry). Didn’t mean for it all to be italics.

[Dr. Ed 2]

" (I didn’t know until I read this case that cotton used to be an ingredient in tires)"

In a way it still is -- polyester replaced cotton and still is used, along with nylon and steel. See: https://www.treadworld.com/bias-vs-radial/

[Dan Schiavetta]

Thanks!

(there’s a threads-treads joke in here somewhere but I can’t find it)

[Dr. Ed 2]

When the tread is worn down enough for steel threads to come through, driving on the tire is a joke?

NB: This usually happens when a wheel is unbalanced or misaligned, and often goes unnoticed because there IS still tread elsewhere on the tire.

[Dan Schiavetta]

I know what you’re talking about. It looks like little floppy needles coming out at an angle. With halfway decent care the amount of wear should be detected before it gets to that point.

[Life of Brian]

True story. Many a ~$1000* set of tires has been prematurely ruined by not springing for a ~$150* alignment during the install.

* Probably not reflective of recent inflation. YMMV.

[Dan Schiavetta]

That’s why I converted to the don’t-rotate-your-tires view. Tire wear can indicate alignment problems.

[Brett Bellmore]

Also, you have to rotate your tires absurdly often, to get practically no benefit. I guess it was a bigger deal back in the day, with poorer materials.

[Dr. Ed 2]

When it really mattered was when you had a full-sized spare tire in the trunk -- the 5-tire rotation ensured that they all got used and you weren't throwing away an unused spare with good tread.

I think it also made a difference with bias tires and rear-wheel drive when the front tires turned via shear.

And tires are a lot better today than before -- ever notice in old movies how new tires arrived wrapped? I've never seen that....

[Dan Schiavetta]

In the old days you would keep the best tire of the old set as the spare. So your spare was never very old

Now, to save 0.5 mpg on the EPA rating, we’re stuck with that silly donut for the entire life of the car. Rubber rots after a few years.

[Brett Bellmore]

Real rubber does. Synthetic rubber is good for a lot longer.

[Mr. Bumble]

General rule is that max life for tires is 10 years but that at 5-6 years tires should be considered to be replaced regardless of remaining tread.

[Dr. Ed 2]

WHO pays $3000 for tires? Or $150 for an alignment? (I pay a third of that...)

[bernard11]

How often?

[Dr. Ed 2]

Less now as I drive fewer miles, but Cooper CS-5 is a damn good tire and I got four of those *and* an alignment for about $1500.

Back when I could get them, I used the same model of Continental Touring tires that the Mass State Police use — they came stock on state bid “fire chief” cars and I liked how they handled. Memory is that Conti discontinued that model, which is why I went to the CS-5s.

And I have always run speed-rated tires, not that I’m driving 112 MPH but I like how they handle at slower speeds.

[DonP]

Every tire has the code for the year and month of manufacture and the facility where it was made, embossed on the outside of the tire.

Vintage car guys know that specific tires, over 8 to 10 years old, might be OK for a car show but just aren't road safe anymore. The original Redline radials that were popular in the '60's through the "80's on British Roadsters, are hoarded and used for car shows but not safe to drive on, other than on and off the trailer.

[Kazinski]

Goodyear Arizona was founded by Goodyear when they bought 16000 acres to grow cotton specific to Goodyear's tiremaking needs.

[BravoCharlieDelta]

That's an interesting fact. Thanks for sharing!

Also in the early 90s, Goodyear, AZ was the furthest west Cracker Barrel. I know this because I had to swing through there to run an audiobook during a cross country trip.

You used to could buy an audiobook at a CB, then return it at any other for your money back less about $2.

[Krayt]

Brotherhood of Locomotive Engineers v. Chicago, Rock Island & Pacific R.R. Co., 382 U.S. 423 (decided January 31, 1966): Arkansas statute regulating size of train crews survives Dormant Commerce Clause attack (it in effect applied only to intrastate lines)

So declaring intra-state trade inter-state trade was going a little too far.

Chris Farley voice: Well la dee frickin’ da!

[defaultdotxbe]

I read about the West River Bridge case (or a very similar case) here recently. IIRC the price paid to the company was $4000 and I wondered if that represented the market value of the bridge, or the value of the contract for collecting tolls for an additional 56 years.

[Dan Schiavetta]

John F. Carr mentioned it as one of the few opinions written by Justice Peter Daniel, whose birth that day (or something like that) was posted by Josh. So I looked it up and added to my comments when the date of decision came up.

[F.D. Wolf]

The $4000 was for the whole shabang.

The said commissioners have therefore assessed to the said West River Bridge Corporation the sum of four thousand dollars, to be paid to the said West River Bridge Corporation out of the treasury of said Town of Brattleboro', in full compensation for all real estate, easement, or franchise belonging to said corporation

[Dan Schiavetta]

Compensation for a taking is supposed to be market rate. But even if $4000 was a fair present value, one can easily think up reasons why the West River folks wanted to keep a constant revenue stream for the next 56 years.

[F.D. Wolf]

This decision was, of course, before the Fourteenth Amendment and WAY before the Fourteenth Amendment was held to incorporate the Takings Clause of the Fifth Amendment against the states, so the Supreme Court would have had no jurisdiction to adjust the compensation amount. Presumably, the company challenged the amount of compensation in the state courts, but those decisions are unreported, though I wouldn't be surprised if the state supreme court merely summarily adopted the commisioners' report.

[bernard11]

The tolls would have to be awfully small for $4000 to be the PV over 56 years.

[John F. Carr]

The figure is tolls less operating expenses. The opinion notes that local taxpayers became liable for upkeep.

Tolls must have sounded like a license to print money. In fact toll roads were bad investments and the railroads finally killed them. See, generally, The Turnpikes of New England by Frederic J. Wood. The bridge in question is not mentioned in the book but the turnpike through Brattleboro is.

As for the dollar amount, I heard there was a time in Massachusetts when the state would offer you $1 for your property and make you sue to determine the real value. Now federal-aid highway projects have to make reasonable offers to property owners. It is still the case that your property can be taken by eminent domain before the fair market value is determined.

[Brett Bellmore]

We have a local toll road that was authorized on the theory that it would pay for itself. Never did.

The fact that it largely duplicates an existing freeway, merely cutting a corner that shortens some trips by as much as a few minutes, meant that almost everybody routinely avoided it. Honestly, nobody around here can figure out why they thought it would be a paying proposition; The going theory is that it was just pretext, and somebody connected got the contract for the concrete.

[John F. Carr]

Toll road agreements often include financial incentives for the government to sabotage free routes competing with the toll road.

My favorite example is Texas SH 130, where the operator paid to have an 85 mph limit on the toll road and much lower speed limit on the free Interstate to the west.

[Dan Schiavetta]

! What some folks won't do for a thrill!

[defaultdotxbe]

Thanks. It seemed a bit high for the bridge alone, but also a bit low for 56 years of tolls. Maybe it was a very low toll or a little-used bridge.

[F.D. Wolf]

I suspect today the advertising vehicle case would be argued on First Amendment grounds, but in 1949, the Court had not yet extended First Amendment protection to commercial speech. In Valentine v. Christianson, 316 U.S. 52 (1942), the Court had reiterated the historical view that commercial speech was not protected by the First Amendment.

The first crack in reversing that would come in Bigelow v. Virginia, 421 U.S. 809 (1975). Bigelow had been convicted and fined $500 for advertising abortion availability in New York, where abortion was legal, though it was not Virginia. On initial review, the Court remanded the case to the Virginia state courts for reconsideration in light of its intervening decision in Roe v. Wade. The Virginia Supreme Court again affirmed the conviction, noting that Roe had said nothing about abortion advertising.

The Court, in an opinion by Justice Blackmun, reversed, holding that the ad was "more than" pure commercial speech, and was thus entitled to First Amendment protection. Blackmun was rather vague about what "more" in the ad raised it above ordinary commercial speech. Justice Rehnquist, joined by Justice White, dissented, writing the ad was a classic example of an ad for a commercial transaction and was, therefore, not entitled to First Amendment protection. (This was the same 7-2 lineup that had decided Roe)

Shortly thereafter the Court, in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), extended First Amendment protection to commercial speech, striking down a Virginia statute that prohibited pharmacists from advertising drug prices. This time, Rehnquist would be the sole dissenter.

[Dan Schiavetta]

Thanks. But wouldn’t public safety supersede First Amendment?

[F.D. Wolf]

I'm not sure. There may be some cases on point, but I haven't researched the issue. I only suggested that the case would be argued on First Amendment grounds, not that it would necessarily be won. I suppose the court would hear evidence about the effects of the trucks on traffic safety and weigh that against the free speech interests.

[Dilan Esper]

Nowadays Railway Express would be evaluated under the Central Hudson test, which allows a lot of regulation of the manner of commercial speech as long as there are alternative channels of communication left open. I suspect it is still constitutional.

[John F. Carr]

Depends on whether it is compelling public safety, important public safety, or ordinary public safety.

[David Nieporent]

This time, Rehnquist would be the sole dissenter.

This is why one can't evaluate cases on a single dimension when predicting how the Court will rule. Rehnquist was a conservative, so pro-business? Maybe. But the 1A coded as liberal in those days, and he was more anti-speech than he was pro-business. (That's one of the reasons I'm pretty sure Pruneyard comes out differently nowadays. The conservative judges are a lot less reflexively hostile to speech than they were in the 70s and 80s.)

[SRG]

in 1949, the Court had not yet extended First Amendment protection to commercial speech.

So the history and tradition of 1A jurisprudence is that it did not cover commercial speech. Do we expect the 6 conservative justices to revert to that tradition? Bollocks we do.

[Dr. Ed 2]

"New York City regulation forbidding vehicles used only for advertising display"

These apparently are legal in Massachusetts -- I've seen them both in Boston and Amherst, and the classic tactic in Amherst was to park it somewhere on campus.

They are on the frame of a small U-haul truck and the sign is about 18" wide -- no way that they could ever haul cargo. I also wouldn't want to drive one of those in high wind.

[John F. Carr]

In the 2000s Cambridge wanted to ban them. I remember talking about the proposed ban, going out to dinner in Cambridge, and looking at just such an ad parked at the gas station across the street.

A West Coast tactic is to ban driving on the same street more than once per day, said to be an anti-"cruising" law.

[Dr. Ed 2]

The question I would ask is how a city can ban vehicles licensed by and registered by the Commonwealth? It gets even more interesting with vehicles (legally) registered out of state because there are "nondiscrimination" regs tied into all the Federal highway monies -- states can't discriminate against out of state vehicles.

I ran into the latter when a small island demanded a $250 "deposit" to drive on its state-aid roads (including the state-run ferry) -- the State of Maine doesn't have jurisdiction over the vehicle's registration until it has been in the state for 30 days and it wound up becoming "if the vehicle will be on the island for more than 30 days."

So while I have no doubt that Cambridge would like to ban them, other than banning all commercial vehicles (e.g. Storrow Drive), I don't see how they could do it. And banning commercial vehicles would create other problems, such as refilling that gas station's tanks...

[John F. Carr]

That gas station was demolished as part of Lafayette Square reconstruction, but your point stands.

It is trendy to ban gas stoves. I have been wondering when Massachusetts towns will notice the gas stations dotting the landscape and declare them climate enemies. That is politically harder, but if any city can do it Cambridge can.

A recent law (Chapter 358 of the Acts of 2022) repeals the requirement that the state approve truck exclusions, so Cambridge will be free to ban trucks. It might threaten to do so to squeeze more money out of the universities, which are exempt from property taxes but half voluntarily make payments in lieu of taxes.

[Dr. Ed 2]

Old Orchard Beach, Maine has such an ordinance -- "Unnecessary repetitive driving means driving a motor vehicle past a traffic control point in the designated area more than six times in any two-hour period between the hours of 7:00 p.m. and 2:00 a.m. from June 1 to September 5 in any calendar year. Passing a designated traffic control point a sixth time under such conditions shall constitute unnecessary repetitive driving and cruising."

I don't know how well it worked as the town also shuts down the particular street at 6 pm in the summer.

https://library.municode.com/me/old_orchard_beach/codes/code_of_ordinances?nodeId=PTIICOOR_CH54TRVE

[not guilty]

Then-Judge Alito's elevation to SCOTUS was premised upon statements during the 2006 Senate confirmation process about the validity of Roe v. Wade and the constitutional right to privacy that were at best misleading. https://www.nytimes.com/2022/10/24/us/politics/alito-kennedy-abortion.html What he said then cannot be reconciled with the reasoning of his opinion of the Court in Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022).

[Dan Schiavetta]

Kavanaugh too.

[Brett Bellmore]

"“I am a believer in precedents,” Judge Alito said, in a recollection the senator recorded and had transcribed in his diary. “People would find I adhere to that.”"

Recorded the recollection, mind you, not the supposed statement by Alito. (I wonder how long after the supposed statement he recollected this?) I'm a bit interested in how we're supposed to conclude that Alito lied on the basis of Ted Kennedy's 'recollections', when we've got contrary on the record statements by him.

[Kazinski]

I too believe in precedents, but that doesn’t mean that there aren't some cases are such outliers in constitutional reasoning that they need to be excised.

Should Kavenaugh be impeached by Congress for lying about his respect for precedent when “Kavanaugh labeled two well-known Supreme Court decisions “egregiously wrong when decided”: the 1944 ruling upholding the detention of Japanese Americans during World War II, Korematsu v. United States, and the 1896 decision that blessed racial segregation under the rubric of “separate but equal,” Plessy v. Ferguson.”

There are exceptions to every rule.

And there is a reason Supreme Court nominees, most famously RBG, refuse to make blanket statements about how they would rule in any specific case. They need to be open to new arguments, in new cases and new facts.

[Bob from Ohio]

"WASHINGTON — At her confirmation hearings in March, Ketanji Brown Jackson declared herself to be an originalist, meaning, she explained, that she would interpret the Constitution based on how it was understood at the time it was adopted.

“I look at the text to determine what it meant to those who drafted it,” she said."

[Bob from Ohio]

"statements during the 2006 Senate confirmation process"

Was Kennedy sober when he supposedly heard it?

[Frank Drackman]

Fat Face had moments of clarity

[Orbital Mechanic]

A bit off topic but I see that Blackman has been quoted over at the Lawyers Guns Money blog.

https://www.lawyersgunsmoneyblog.com/2023/01/owning-the-libs-is-a-kind-of-judicial-philosophy

[apedad]

But…but…Josh said the 5th judges don’t care about Georgetown elites and their swanky parties!!!

And yet here they are.

[Rev. Arthur L. Kirkland]

Is Justice Alito the only person who wears a tuxedo at Federalist Society parties?

(I just checked . . . a series of events at a Federalist Society event at a top-shelf D.C. hotel formally indicate "Black Tie Optional." But no indication what one of those cocktails costs.)

[apedad]

[Dan Schiavetta]

Thanks!

Perhaps the Justices should return to doing that. They shouldn’t have to explain every thought they have, particularly if it doesn’t change the outcome. “This smells funny, but ok.”

[Mr. Bumble]

Tell Kavanaugh.

[John F. Carr]

I wish we could impose a word limit on appellate opinions with a much shorter limit for concurring and dissenting opinions.

[Dan Schiavetta]

“When I met you at the restaurant
You could tell I was no dubitante.”

— Blondie, “Dreaming”

[Commenter_XY]

Appreciated the dubitante explication. I learned something new, too.

[Bob from Ohio]

Missed the classes on metaphors in high school?

[Magister]

More than a decade ago Gingrich deployed it: "The literati sent out their minions to do their bidding. Washington cannot tolerate threats from outsiders who might disrupt their comfortable world. The firefight started when the cowardly sensed weakness. They fired timidly at first, then the sheep not wanting to be dropped from the establishment’s cocktail party invite list unloaded their entire clip, firing without taking aim their distortions and falsehoods."

[David Nieporent]

It's not recent; I've been hearing it since the 1990s at least.

[Brett Bellmore]

Didn't bother following the link, did you. The memo he'd authored. Other statements, too, of course.

My point is, why are we supposed to assume Alito lied, rather than that Kennedy lied, or just misheard? He was in his 70's by then, we're supposed to believe he had a phonographic memory, could remember precisely every word out of Alito's lips?

I suspect that Alito was a bit ambiguous, and Kennedy just heard what he wanted to, but we'll never know. Certainly it's absurd to assume Ted Kennedy's recollections are enough to prove Alito lied.

[Bob from Ohio]

Ted was also a drunk and highly motivated to lie.

[not guilty]

Diaries are typically recorded contemporaneously, and this relates to a topic that Senator Kennedy specifically inquired about. The New York Times article that I linked states:

“I recognize there is a right to privacy,” [Alito] said, referring to the constitutional foundation of the [Roe] decision. “I think it’s settled.”

That is plainly inconsistent with what Alito wrote in Dobbs.

[Frank Drackman]

and left a young woman to asphyxiate (Not drowned, there's a difference) and faked a neck injury for the funeral

[Brett Bellmore]

" Some longtime court watchers say that nominees like Justice Kavanaugh and Justice Alito are more guilty of selective truth-telling than lying, and that if justices say they believe in precedent, it should not be considered absolute."

I think that's precisely right. In fact, nominees like Kavanaugh and Alito are very careful indeed about NOT committing to how they would vote on cases.

[Rev. Arthur L. Kirkland]

Speaking of Ohio and schools . . .

Is Bob from Ohio on that organization's board, or just another satisfied customer?

[David Nieporent]

And Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986).

[Dan Schiavetta]

That’s quite true.

But I do know what if I was stuck at one of those cocktail parties I’d get as drunk as possible. The atmosphere would be so thick with obsequiousness or pomposity, and the probabilities of anybody saying anything original, interesting, funny or engaging, so low, that I wouldn’t be able to bear it otherwise.

[Brett Bellmore]

I can't say that she has, but I can't say that she's had much opportunity or cause to, yet. I'm guessing we'll be able to say better if the Court ever gets around to deciding more cases.

I think it's notable that she chose to say that, though. As I pointed out at the time Heller was decided, Stevens went out of his way to make a show of originalism, himself. Fake originalism, sure, but a show of it. Decisions liable to draw public attention are basically always written to have at least a gloss of originalism about them.

Living constitutionalism has a fervent base of support, but it doesn't extend much into the general public.

[not guilty]

Senator Kennedy's conduct regarding the Chappaquidick fatality is indefensible. That, however, is not germane to whether Alito misled Kennedy seventeen years later.

[Brett Bellmore]

I think it has some value, sure, just not remotely enough for somebody to confidently say that Alito had lied. Sure, maybe he contradicted his public statements in private, dishonestly, in order to get confirmed. It's not impossible, certainly.

But why expect that a 72 year old habitual drunk would recall perfectly what he'd said? That seems a bit of a stretch to put so much weight on.

[Dan Schiavetta]

I remember Bork saying it in the aftermath of his nomination.

(BTW I actually met Bork in 1989. It was a post event reception. He was overweight and drank and smoke like crazy. It was basically a cocktail party and he was a star.)

[Brett Bellmore]

No, it isn't. Lemme quote Alito:

"As to precedent, citing a broad array of cases, the Court found support for a constitutional “right of personal privacy.” Id., at 152. But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference."

In fact, Alito didn't deny that there was a right to privacy. He denied that it extended to abortion.

[Frank Drackman]

So he changed his mind, like Barry Hussein O. did on Same-Sex-Marriage

[Commenter_XY]

Why not? There is a pattern of behavior to consider with Senator Kennedy.

[Frank Drackman]

The goddamn Germans got nothin' to do with it! (HT Sheriff B.T. Justice)

[Rev. Arthur L. Kirkland]

I was in a room with Robert Bork in the 1970s; he was trying to persuade white parents to fight a desegregation order (and pushing them to contribute to a fund to pay him). I do not recall a dapper figure or a pleasant demeanor. More of a televangelist vibe.

[Frank Drackman]

Sure it wasn't Teddy Kennedy??

[John F. Carr]

"Alito. Oh oh oh oh." – Boz Scaggs

[Dan Schiavetta]

By the time I saw him he knew he would never get onto the Court and he was probably “letting himself go”, no longer driven by ambition.

[Dan Schiavetta]

“runnin for the county line, goin for broke!”