Today in Supreme Court History: February 7, 1870

2/7/1870: Hepburn v. Griswold decided.

Comments

[Dan Schiavetta]

Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (decided February 7, 1955): Alaskan tribe could not recover from United States value of trees taken from their land because they were "nomadic" and Congress had not recognized their ownership of that land

Hepburn v. Griswold, 75 U.S. 603 (decided February 7, 1870): defendant could not pay off promissory note with new paper money created by Congress in Civil War emergency (previously all money was in coin); Due Process violation by Congress in declaring new money good for payment of existing debts (quickly overruled by Legal Tender Cases, 1871)

Ott v. Mississippi Valley Barge Lins Co., 336 U.S. 169 (decided February 7, 1949): not a violation of the Dormant Commerce Clause for Louisiana to tax barges by miles in Lousiana waters in proportion to miles of entire line (some of which extended up the Ohio River)

Fisher v. Pace, 336 U.S. 155 (decided February 7, 1949): attorney (in trial on extent of injury for worker's compensation) wouldn't shut up after judge kept ruling his argument (as to weekly dollar amounts) irelevant; Court lets Texas court contempt order stand, pointing out that attorney's remedy was putting in exceptions for appeal (the opinion contains parts of the trial transcript which sound like Hollywood's idea of a lawyer, but real life's idea of a judge)

The L.P. Dayton, 120 U.S. 337 (decided February 7, 1887): If a tugboat collides with another tugged vessel, does the damaged tug sue the other vessel, the other tugboat, or its own vessel? It depends on the facts, and the Court here denies a motion on the pleadings. We also learn that if two ships heading the same direction are in danger of collision, the ship on the left has the duty to turn aside. (You'd think both would.)

[John F. Carr]

The right of way rules at sea are subject to exceptions, some of which swallow the rules. I was talking to a sailor, the literal kind whose boat has sails. I mentioned that he had high priority according to the right of way rules. He replied in practice he didn't. If he is in or near port the other ships have deeper draft and are confined to the channel. They are not required to ground themselves to make way for a low-manueverability sailboat. That sort of thing.

[Dan Schiavetta]

Thanks! Good to know that rules yield to practicalities, sometimes.

[SRG]

I recall the old line occasionally used as the caption of a cartoon, "steam gives way to sail".

[John F. Carr]

From the dissents in Fisher v. Pace:

"There is for me only one fair inference from the record — that the judge picked a quarrel with this lawyer and used his high position to wreak vengeance on him."

"I have concluded that the record here discloses answers or remarks made by petitioner to the court which, in some instances, may well have justified punishment for contempt, but for one circumstance. That is, I regret to say, the conclusion to which I have been forced from the record as a whole that in the course of the colloquy and especially in the rapid succession of fines, commitment to jail, and order for removal from the courtroom, as well as in the unjudicial language employed by the judge, the trial court acted in the heat of temper and not with that calm control which the fair administration of judicial office commands under all circumstances."

[Dan Schiavetta]

Queen: Thanks! I think I’m being complimented more than John F. Carr is.

John F. Carr: The dissent may be correct, but reading the transcript the judge’s behavior didn’t seem out of line compared to what I’ve seen in my career, which has been spent mostly in the bowels of the New York City court system (and that is a phrase chosen with care). In fact I’ve seen worse. My impression was that Joe Fisher should not have tried to argue with the judge. I have seen, in criminal cases, a weak judge being worn down by counsel, but only during hearings. In front of a jury the judge wants to look strong and you just don’t do that.

About one-third of judges, in my experience, are good judges. Hardworking, knowledgeable, fair-minded, it’s a pleasure to appear in front of them. One-third are just taking up space. The remaining third should not be judges. They don’t have the work ethic, or the intelligence, or the temperament. The problem is that, on the journey from law school to bench, the process tends to screen out at an early point most lawyers who would make good judges. As a result we get failed politicians, well-connected (but not very good) trial lawyers, or political cronies. The best ones are former law secretaries, but that is a minority. Again, this is just my experience.

[John F. Carr]

I was told by a lawyer who appears occasionally in NYC courts that one became a judge there by giving $50,000 to the local Democratic party.

Massachusetts also has a wide range of talent depending on whether the judge got the job based on merit or patronage. The clerk-magistrate position is especially a dumping ground for people with connections but no talent, or connections but a temper or alcohol problem. Clerk-magistrates preside over traffic court and small claims cases. They sign warrants and set bail. A good job for somebody who wants power, paycheck, and pension without having to perform well.

[Area Man]

When countering arguments that the Supreme Court loses its legitimacy when it reverses itself after a change in Court personnel, The Legal Tender Cases are Ex. A. Only one year after Hepburn, the Court reversed itself. What changed? Two new members were added. That's it. That was the reason. Would Justice Kagan see that as the ultimate delegitimizing event in Court history?

[Dan Schiavetta]

. . . being unable to buy contraceptives in Connecticut.