Today in Supreme Court History: February 3, 1812

2/3/1812: Justice Joseph Story takes oath.

Justice Joseph Story

Comments

[Dan Schiavetta]

Germany v. Philipp, 592 U.S. 518 (decided February 3, 2021): Foreign Sovereignty Immunities Act barred suit in U.S. courts by Holocaust survivors to recover value of property they were forced to sell at below market value to agents of Goering; exception for "property taken in violation of international law" applied to property taken by one country from another, not from individuals

Marshall v. Barlow's, Inc., 429 U.S. 1347 (decided February 3, 1977): OSHA needs a warrant to inspect a workplace (this was a random search of an electrical/plumbing business and the owner did not consent)

United States v. Gilliland, 312 U.S. 86 (decided February 3, 1941): "Hot Oil" Act, which criminalized falsifying records so as to transfer amounts of petroleum in excess of regulations, applied to transfers between private parties, not just to and from Government

Gooch v. United States, 297 U.S. 124 (decided February 3, 1936): Federal Kidnaping Act applied to abductions to prevent arrest (defendants overwhelmed police officers in Texas and dumped them in Oklahoma); monetary gain incentive not required

United States v. California, 297 U.S. 175 (decided February 3, 1936): state-owned railroad was indirectly involved in interstate commerce and therefore subject to common carrier regulations and fines (Shepard's says this was overruled by Garcia v. San Antonio MTA, 1985, but I don't see it -- help me, John F. Carr or F.D. Wolf!)

[Dilan Esper]

Didn't Garcia overrule National League of Cities v. Usery, which had held that states had a sovereign interest that overrode the Fair Labor Standards Act? US v. California seems entirely consistent with Garcia.

[Dan Schiavetta]

Yes. That’s why I’m puzzled by why Shepard’s says it was overruled.

[SMP0328]

Footnote 6 of the Opinion of the Court in Garcia cites a reference in United States v. California to "traditional" state activities. The opinion doesn't claim to overrule California, but that may be how Shepard's got confused.

[Dan Schiavetta]

Thanks

[apedad]

Re: Garcia v. San Antonio MTA (Oyez can help!)

Facts of the case

The San Antonio Metropolitan Transit Authority (SAMTA), the main provider of transportation in the San Antonio metropolitan area, claimed it was exempt from the minimum-wage and overtime requirements of the Fair Labor Standards Act. SAMTA argued that it was providing a "traditional" governmental function, which exempted it from federal controls according to the doctrine of federalism established in National League of Cities v. Usery (1976). Joe G. Garcia, an employee of SAMTA, brought suit for overtime pay under Fair Labor Standards Act.

Question

Did principles of federalism make the San Antonio Metropolitan Transit Authority immune from the Fair Labor Standards Act?

Conclusion (5 - 4)

In a 5-to-4 decision, the Court held that the guiding principles of federalism established in National League of Cities v. Usery were unworkable and that SAMTA was subject to Congressional legislation under the Commerce Clause. The Court found that rules based on the subjective determination of "integral" or "traditional" governmental functions provided little or no guidance in determining the boundaries of federal and state power. The Court argued that the structure of the federal system itself, rather than any "discrete limitations" on federal authority, protected state sovereignty. (oyez)

[Dr. Ed 2]

(Shepard’s says this was overruled by Garcia v. San Antonio MTA, 1985, but I don’t see it

Could Natl League of Cities have overruled it, with Shepards then updating that when Garcia came out?

[Dan Schiavetta]

In National League of Cities the Court held that the language in United States v. California about states being able to regulate traditional state activities, but totally unable to regulate commerce, as "dicta" and "simply wrong". So the Court, as it often does, was bending over backwards to avoid explicitly overruling itself. If it was explicitly overruling U.S. v. California then Shepard's would have said so.

[Rev. Arthur L. Kirkland]

116 Supreme Court Justices.

108 white men.

That’s nearly as white and male as is The Volokh Conspiracy — and just the way this blog and its Republican, movement conservative fans like it.

[Bill H.]

Start reducing the population of white men with yourself.

[Rev. Arthur L. Kirkland]

You either are unaware of how culture wars work or are unwilling to acknowledge how modern America will continue to develop.

There is nothing wrong with being a white man. It is the ignorance, backwardness, bigotry, superstition, and disaffectedness among certain obsolete white men that is a problem (but no problem modern America will not continue to solve).

[Dr. Ed 2]

It is people like Kirkland who make White males look bad.

[Rev. Arthur L. Kirkland]

Carry on, clingers.

As well as conservatives are able, that is.

[SRG]

They're doing it to themselves thanks to anti-vaxxing.

[Mr. Bumble]

You forgot to mention anti-masking and social distancing.

[BravoCharlieDelta]

Are that lone dumbass I see still doing that?

What a retard.

[Mr. Bumble]

sarc

[BravoCharlieDelta]

SRG must be that lone dumbass doing that.

[Frank Drackman]

How many Knee-Grows did 1/2 Knee-Grow Barry Hussein appoint to the Surpremes?? That WASP George Henry Woodrow Bush appointed more.

Frank

[Dr. Ed 2]

For the record, the man's name is George Walker Bush.

[defaultdotxbe]

Frank must be talking about George Herbert Walker Bush though

[Frank Drackman]

Correct-O-Mundo!! (HT (Not a Reverend) Arthur L. Fonzarelli)
That Dr. Ed 2 thinks he's so smart (Like most who insist on being called "Dr"), I was talking about "41" and trying to be Ironic by throwing in the "Woodrow" part (Woodrow Wilson didn't appoint any Peoples of Color either, to busy trying to make the world "Safe for Democracy") There's a method behind my random madness

Frank

[Dr. Ed 2]

Woodrow Wilson segregated the Federal government.

[BravoCharlieDelta]

I bet that Tyre fella was wishing Memphis had ratios like that at the police department and city leadership!

[F.D. Wolf]

After Justice William Cushing died in September 1810, President James Madison nominated former Attorney General and Massachusetts governor Levi Lincoln, Sr., to succeed him. Lincoln was confirmed by the Senate but was forced to decline the position due to his failing eyesight which would soon result in complete blindness. Madison would next nominate Alexander Wolcott, who was rejected by the Senate by a vote of 9-24. Madison's next nominee was his Ambassador to Russia, John Quincy Adams, who, like Lincoln, was confirmed by the Senate but declined the position, preferring to continue his career in politics and diplomacy. Finally, Madison's fourth nominee, Joseph Story, was appointed to fill the vacancy which had, by then, persisted for 17 months.

When Madison's successor, James Monroe, was looking for a Secretary of State, Story, perhaps partly to return the "favor" suggested Adams, who was still serving as the ambassador to Russia. In those days, the position of Secretary of State was viewed as a stepping-stone to the Presidency, and, indeed, the last three presidents - Jefferson, Madison, and Monroe - had all previously served as Secretary of State. Henry Clay (who coveted the position himself) and others expressed their reservations to Monroe. Adams, a former Federalist, was not, they suspected, fully committed to the Democratic-Republican party and its platform. Again, it would be Story who would assure Monroe that Adams was a committed Republican. Monroe would appoint Adams his Secretary of State, and, continuing the trend, Adams would succeed him as President.

So, it would seem, if not for John Quincy Adams, Joseph Story would probably never have been a Supreme Court Justice, and, if not for Joseph Story, John Quincy Adams would probably never have been President.

[Mr. Bumble]

Thanks for taking the time and effort to post this. The "rest of the story" is always interesting.

[F.D. Wolf]

It is my pleasure. (If it weren't, I wouldn't do it.)

I was struck by the historical note on Secretaries of State. Five of our first eight presidents - Jefferson, Madison, Monroe, J.Q. Adams, and Van Buten - had all served as Secretary of State. James Buchanan, our fifteenth president (1857-1861) had previously been President Polk's Secretary of State.

And no Secretary of State has gone on to become President since then. Though many have tried. (John Kerry and Hillary Clinton quite recently, of course.)

[Dan Schiavetta]

Of all possible prior jobs, being SoS is probably the best preparation for President. Governors might have experience in running things and dealing with legislatures, but a President must be conversant with interacting with other countries and be familiar with where they are coming from. Within my lifetime we have had a number of foreign affairs disasters caused by lack of information and refusal or inability to use skillful diplomacy.

[F.D. Wolf]

That is well said.

[Bob from Ohio]

"Of all possible prior jobs, being SoS is probably the best preparation for President. "

Its been over 150 years since that happened.

Defense Secretary [and NSAdvisor] run foreign policy now. State is a backwater.

[David Nieporent]

It's not clear to me that there's much correlation between Secretary of State and skillful diplomacy in the modern world. (I'm not putting down a specific individual; I'm discussing the office.)

[Mr. Bumble]

The 17 month period of a vacancy on the Court got me to wondering if there were other instances of long periods without the full compliment of Justices. Most think the period after Scalia's death was long but per the linked article it was small beer with the longest being two years, seven months and sixteen days.
https://morecontext.wordpress.com/2016/08/03/the-top-5-longest-us-supreme-court-vacancies-in-history/

[F.D. Wolf]

Despite all the histrionics at the time, today, as a practical (as opposed to political) matter, a vacancy in the Supreme Court is among the least urgent in government to fill. Eight people can do the job pretty much as well as nine. A district judgeship, for example, would be a more critical vacancy, as zero people cannot do the job of one. That would present a greater delay in the wheels of justice, which turn slowly enough as it is. Admittedly, it was more of an issue back in the day when the justices were required to "ride circuit" and preside over trials in their assigned circuits throughout the country.

Some might note the issue with having an even number of justices leading to more tie votes, but the initial full complement of justices was six (1789-1807) and has also been eight (1866-1869) and ten (1863-1866) at different periods.

[David Nieporent]

A district judgeship, for example, would be a more critical vacancy, as zero people cannot do the job of one.

It's not zero vs. one; it's 13 vs. 14 (or whatever). Obviously the 13 other district judges are unlikely to be happy about doing the work of 14 district judges, but they're there to do it.

[F.D. Wolf]

I understand that as I'm sure does most everyone here. but ultimately, one district judge is wholly responsible for any one given case. If he dies during the pendency of a case, there is no backup judge who can hop right in and barely miss a beat. If District Judge X suddenly has to take over District Judge Y's caseload, in addition to his own, reading and ruling on motions, presiding over trials, etc., the ultimate effect is long delays for the litigants with pending cases and those waiting to have their cases heard in the first place.

[Area Man]

That's a great story (no pun). It's especially fascinating that anyone would ever turn down a SCOTUS seat--especially after they've already been confirmed! Can you imagine that happening today? (Of course, today, no one would be sitting in an embassy in Russia without modern forms of communication to tell them about their nomination and confirmation.)

The story about Wolcott's rejection is also interesting. From Wikipedia: https://en.wikipedia.org/wiki/Alexander_Wolcott#:~:text=Alexander%20Wolcott%20(September%2015%2C%201758,a%20vote%20of%209%E2%80%9324.

[F.D. Wolf]

Thank you. I imagine there's more to the story about Alexander Wolcott. He seems to have come practically out of nowhere, and 9-24 is a pretty resounding rejection, especially when the President's own party overwhelmingly controls the Senate.

[Dr. Ed 2]

"Opposition to Wolcott's nomination centered on two main reasons: his lack of judicial experience and his role as a customs inspector. Wolcott was widely believed to be unqualified and incapable of serving in such an important judicial position. On the second point, Wolcott was criticized for his strict enforcement and support of the Embargo Act of 1807."

See: https://en.wikipedia.org/wiki/Alexander_Wolcott

[Dr. Ed 2]

Remember that the 1824 Election went to the House, with Andrew Jackson claiming that Clay conspired to deny him the Presidency -- and much like Trump now, Jackson spent the next 4 years complaining about having the election stolen. Jackson then defeated Adams in 1828.

https://prologue.blogs.archives.gov/2020/10/22/the-1824-presidential-election-and-the-corrupt-bargain/

[bernard11]

Thanks for the background.

Just out of curiosity, though, did Madison not ask Lincoln and Quincy Adams if they wanted the job before he nominated them?

[F.D. Wolf]

I am fairly certain he did not. In fact, after Lincoln was confirmed, Madison sent him a letter that said (paraphrasing): "Congratulations! I took the liberty. Here is your commission."

As for Adams, he might be excused, as by the time the inquiry got to Russia, and the answer got back, literally several months would have passed.

[The Margrave of Azilia]

Thank you, F. D. Wolf.

And now we know...the rest of the Story.

[Rev. Arthur L. Kirkland]

If Volokh Conspiracy fans do not get their fill of whining about how strong, mainstream schools are insufficiently hospitable toward conservatives’ bigotry, delusion, backward, and ignorance at this blog, here is a chance to supplement consumption of right-wing nipping at the heels and ankles of America’s better elements.

The whimpering and wailing is scheduled to begin Monday at noon. (I didn't see any indication whether continuing legal education credit is to be provided, so this one may be worthwhile solely for the entertainment value.)

[Mr. Bumble]

ZZZZZZZZZZZZZZZ

[Rev. Arthur L. Kirkland]

Are you trying to hurt Prof. Volokh's feelings?

I tentatively plan to watch his presentation.

[Frank Drackman]

Nemo Curat,
that's Latin.

Frank

[Rev. Arthur L. Kirkland]

No one in the American mainstream cares much about the Federalist Society's muttering and sputtering, but I expected a bunch of Conspiracy-class clingers to be interested in a presentation by Prof. Volokh, Paul Clement, and some other disaffected right-wingers.

[apedad]

"I didn’t see any indication whether continuing legal education credit is to be provided. . . . "

There better be!

I'm about 30% complete on my Volokh Conspiracy University (VCU), courses and need these credits.

[Frank Drackman]

Is "Continuing Legal Education" like "Continuing Medical Education" ("" intended) where you speed click through a boring Power Point Lecture (remember when people gave lectures from notes, or even better, the So-crates style, where the students just got peppered with questions?) answer a few questions at the end, if you get them wrong, just keep going till you get the right one, then claim your "2.5 Hrs AMA Category 1 CME Credit"
Positively Mid-Evil, a Futile System if you will,

Frank

[BravoCharlieDelta]

I am particularly fond of CME granting experiences that were held on cruise ships.

[Frank Drackman]

and Tax Deductible! Mine were all coincidentally in Vegas or Key West,

Frank

[Dan Schiavetta]

I was hoping my posts would be “the rest of the story!”

[Mr. Bumble]

Unfortunately when it comes to SC decisions, we never get to the rest of the story. Instead we get the never ending story.

[Dr. Ed 2]

Jacksonian Democrats -- Jacksonian Democracy.

[F.D. Wolf]

The Federalists disintegrated after the War of 1812. They had been the pro-England party, whereas the Democratic-Republicans were pro-France, and after England invaded us, the Federalists didn’t look too good. (I’ll note that the Federalists correctly perceived that France was a superpower in rapid decline, and England was the superpower on the rise, so that was who you wanted on your side,)

So, the so-called Era of Good Feelings was the brief period when there was essentially only one political party began. In the presidential election of 1824, all the major candidates were Democratic-Republicans: Andrew Jackson, John Quincy Adams, William Crawford, and Henry Clay, who finished in that order. But no one had a majority of the electoral votes, so per the Constitution, the election went to the House to choose among the top three.

Jackson had finished first ahead of Adams, 41%-30% in the popular vote and 99-84 in the electoral college. Jackson fully expected the House to pick him. It picked Adams. The Era of Good Feelings was over.

The Democratic-Republicans would split roughly into a Jackson faction and an Adams faction, the former developing into the Democrats, the latter eventually becoming the Whigs. Jackson would defeat Adams in the 1828 election.

[F.D. Wolf]

I guess I didn't really answer your question, Queen Almathea. Per wikipedia:

Marty members generally, but not exclusively, referred to it as the Republican Party, although the word Republican is not to be confused with the modern politics of the current Republican Party. Partly to distinguish this party from the current Republican Party, political scientists have used other names for the party such as "Democratic-Republican", "Jeffersonian Republicans" and the "Democratic Party" (used pejoratively by Federalists opponents, but embraced by some within the party). Some argue that the party is not to be confused with the present-day Democratic Party, however, a direct historical political lineage between them is often affirmed by some historians, political scientists, commentators, and by modern Democrats, reinforcing both names' continued and occasionally interchangeable use. For details and references, see the section Party name.

[Area Man]

It's important to remember that, while Jackson won the popular vote, several states, including New York, did not hold popular votes for president. Jackson may still have won the popular vote, but that's not a guarantee. By the next election--which also cast Jackson vs. Adams--the franchise had been greatly expanded, as evidenced by the huge increase in total votes cast: ~366,000 in 1824, versus ~1,146,000 in 1828. Obviously, Jackson won in 1828, meaning he may very well have won in 1824 under similar voting rules. But that makes a lot of assumptions. People may have supported Adams in 1824 only to sour on him by '28. We'll never know. But the fact that so many states didn't even hold an election, casts doubt on the relevance of Jackson's popular-vote win in 1824. (Of course, the popular vote isn't legally relevant even today.)

[Dr. Ed 2]

No, the Federalists were pretty much done in the 1800 election -- but held on through the judiciary.

Then there was the Hartford Convention of 1814 where they literally considered secession -- and that truly was the end of them. See: https://en.wikipedia.org/wiki/Hartford_Convention

[Mr. Bumble]

I think he claimed collusion.

[David Nieporent]

The latter. It came to be known as the "corrupt bargain." There wasn't really any dispute about the fact that Clay worked to help Adams. And then Adams appointed Clay as SoS. All perfectly legal; the issue is just that since Jackson led in the electoral vote and (at least nominally) in the popular vote, there was kind of an expectation he'd be picked.

[F.D. Wolf]

Adams did befriend Tsar Alexander I while he was in Russia.

Hmmmmm...

[F.D. Wolf]

The Federalists, despite losing seats in the 1800 elections, maintained their majority in the Senate. And, if not, for the Three-Fifths Compromise, Adams likely would have won the presidential election. Obviously, this greatly shifted electoral votes and House seats that would have been in free states to slave states. At the least, this would have greatly mitigated Federalist losses in the House.

As an aside, if not for the Three-Fifths Compromise, Henry Clay would have almost certainly finished ahead of Crawford in the 1824 election, advancing his name for consideration in the House. As he is generally credited with being the driving force that delivered the election there to Adams, he may very well have been able to deliver it to himself.

[Dan Schiavetta]

True!

Up to the Civil War, the South was in the driver’s seat, even though its voting population was only 30% of the total adult population nationwide (I’m talking just men of course).

[F.D. Wolf]

But Henry Clay is dead. His long and eventful life is closed. Our country is prosperous and powerful; but could it have been quite all it has been, and is, and is to be, without Henry Clay? Such a man the times have demanded, and such, in the providence of God was given us. But he is gone. Let us strive to deserve, as far as mortals may, the continued care of Divine Providence, trusting that, in future national emergencies, He will not fail to provide us the instruments of safety and security.

-Abraham Lincoln, Eulogy on Henry Clay (July 6, 1852)