Today in Supreme Court History: March 5, 1934

3/5/1934: Nebbia v. New York decided.

Comments

[Dan Schiavetta]

Nebbia v. New York, 291 U.S. 502 (decided March 5, 1934): a pre-"switch" case where Roberts, writing the opinion, sides against the "Four Horsemen", upholding the New York Milk Board's setting of maximum and minimum prices, being that milk prices were important to public welfare, no violation of Due Process (maybe OT, but look up the bio of Jimmy Savo, a mime popular with Italian Americans of my Brooklyn grandparents' generation; his family was too poor to afford Grade B millk, used powdered instead, and as a result he didn't die in the typhus epidemic, and that was just the first example in his life -- "hard luck made him a star")

Ewing v. California, 538 U.S. 11 (decided March 5, 2003): Upholding California's 1993 "three strikes" law (two previous "serious" felonies results in indeterminate life sentence) against Eighth Amendment attack (this was one of several such laws nationwide at the time; Mark Alan Stamaty did a cartoon "debate" where the candidates try to outdo each other -- "TWO strikes and you're out" -- "ONE strike and you're out" -- "NO strikes" -- the other candidate is nonplussed and says, "NO strikes?" and she loses the election) (in another debate, the two candidates keep jumping up and down saying "Death Penalty! Death Penalty! Death Penalty!" -- and the one who pauses momentarily to take a breath, loses the election)

The Merino, 22 U.S. 391 (decided March 5, 1824): deals with forfeiture of several ships holding slaves; interesting because as to two of the ships the Court seems to be saying that the 1800 Act prohibiting overseas slave trade doesn't apply to a ship carrying slaves who were already sold, they being at that point merely passengers being transported to their owners

Lance v. Coffman, 549 U.S. 437 (decided March 5, 2007): individual citizens have no standing to contest state supreme court's revision of redistricting plan

Smith v. Doe, 538 U.S. 84 (decided March 5, 2003): statute requiring registration of convicted sex offenders was not punitive (technically) and therefore was not ex post facto

Anders v. Floyd, 440 U.S. 445 (decided March 5, 1979): District Court should not have stayed state court prosecution for murder after abortion of 25-week-old fetus; remanded to see how state court proceeding turned out and what kind of instructions are given as to "viability"

Ohio v. Kentucky, 410 U.S. 641 (decided March 5, 1973): Ohio precluded, by its long acquiescence, from contesting Kentucky's claim that its border extended to the far side of the Ohio river; Court notes that its original jurisiction is basically equitable, not legal (i.e., it can fashion whatever remedy or use any common law theory it wants to)

Harris v. United States, 390 U.S. 234 (decided March 5, 1968): no warrant needed for search of robbery defendant's impounded vehicle (while closing windows, found registration card showing car belonged to victim)

McKoy v. North Carolina, 494 U.S. 433 (decided March 5, 1990): Eighth Amendment violated by requirement that jurors find mitigating factors precluding death penalty only beyond a reasonable doubt (Marshall writes opinion for a 6 - 3 Court)

Lynch v. Donnelly, 465 U.S. 668 (decided March 5, 1984): Pawtucket, R.I. nativity scene did not violate Establishment Clause; was part of city display with secular elements such as Santa and his sleigh (this case was the birth of the "reindeer rule")

[John F. Carr]

Post-Dukakis Massachusetts got a "truth in sentencing" law in the 1990s. Under prior law sentences were harsh on paper to please the tough on crime crowd, but much, much shorter in reality. The judge could send felons to Concord or Walpole. Walpole was for the bad guys. Concord was for those considered susceptible to rehabilitation and parole was available after serving one tenth of the term. As a result of sentencing reform the so-called "Concord sentence" was abolished. Massachusetts also got school zone drug laws and mandatory minimums. Many judges thought the mandatory minimum sentences were too harsh. You can see that by looking at sentences. Felony sentences sometimes need to be in the form of a range, parole eligibility and maximum to serve. The range was often only one day long, "five years to five years and a day". The judge thought justice was not served by holding the defendant any longer than the minimum required by statute.

[Dan Schiavetta]

And all that, because Willie Horton was black instead of white.

[David Nieporent]

No, I'm pretty sure that any stubbornly tone-deaf defense of an insane policy of letting convicted murderers serving life without parole out for weekend jaunts resulting in home invasion rapes would've led to those laws.

If Dukakis/Democrats had just said, "Yeah, that was a terrible policy, and we're stopping it immediately" rather than, "We did nothing wrong; anyone upset about this is racist," things might have gone a bit differently.

[Rev. Arthur L. Kirkland]

Would it have made the Republican Party less racist? Would it have resulted in fewer conservative, superstitious gay-bashers? Would it have inclined fewer right-wingers to become misogynists, chanting antisemites, backwater Islamophobes, or immigrant-hating, authoritarian bigots?

Would it have influenced the trajectory -- or predicable result -- of the culture war?

[Dan Schiavetta]

David

“We will make Willie Horton Dukakis’s running mate!” — Lee Atwater, running the George HW Bush campaign.

If W.H. was white the commercial would not have run, we wouldn’t have heard of him, and things would be unchanged. Dukakis inherited the furlough program from the previous (Republican) governor. And in California Reagan had happily continued the furlough program even after two furlough murders.

No, this was strictly political. Dukakis did make a mistake in not responding to lies and distortions (like this one) coming from the Bush camp. Unfortunately the press repeated those lies, as if they were truth. Clinton learned the lesson and promptly responded with corrections when Bush tried the same thing in 1992. (Atwater had died of cancer by then, having on his deathbed told Dukakis -- who, Christian that he was, was visiting him in the hospital -- that he was sorry.)

[bevis the lumberjack]

If WH were white it would have made no difference. A criminal caught a break under Dukakis’s watch and did violence. That was the point.

The message was “Dukakis is soft on crime”, not “Dukakis is a ______ lover”. The color of the criminal was immaterial.

[Rev. Arthur L. Kirkland]

The fact that Horton was black was just circumstance.

Lee Atwater might be howling at these clingers' gullibility and bigotry -- on which he relied and from which he profited -- from the grave.

[Dr. Ed 2]

Kirkland, compare it to what the Dems did last November which was far worse.

[Dr. Ed 2]

" Horton and two accomplices robbed Joseph Fournier, a white 17-year-old gas station attendant, and then fatally stabbed Fournier 19 times after he had cooperated by handing over all of the money in the cash register. His body was stuffed in a trash can, so his feet were jammed up against his chin. Fournier died from blood loss"

This was a gratuitously violent murder and why he was sentenced to Concord is beyond me.

It really wasn't that people were walking away from Concord and never coming back -- there was something like 238 who had done that and were still at large at the time -- it was (a) someone who had done what Horton had done, and then (b) proceeded to do what he did in Maryland. (Maryland refused to return him -- he's still in prison down there.)

And it was Reader's Digest that broke the story in the July 1988 edition and their take was that it was outrageous that Massachusetts had let someone with Horton's record out of prison.

[David Nieporent]

If W.H. was white the commercial would not have run,

An assertion with zero evidence. (Note that Bush's commercial on the topic didn't even depict Horton. It was an independent PAC's ad that showed his picture.)

And in California Reagan had happily continued the furlough program even after two furlough murders.

The prisoners who committed those crimes during their furloughs were not murderers. (Well, obviously they were after the fact. But at the time they had been furloughed, they were not. And they were not serving LWOP at the time.) And then they tightened up the policies after those crimes, rather than saying that anyone upset about it was racist.

No, this was strictly political. Dukakis did make a mistake in not responding to lies and distortions (like this one) coming from the Bush camp. Unfortunately the press repeated those lies, as if they were truth.

"Whatabout Reagan?" is not a lie.

[Dilan Esper]

I am sure that some Republicans subjectively thought that the Horton issue was all the more useful because he was Black (Lee Atwater seemed to say as much), but I agree, flip the race and you still have a guy who should have never been given a weekend pass from prison, who goes out and rapes someone. It still would have been an albatross around Dukakis' neck in an era when crime had real power as a political issue. Not everything is about race.

[David Nieporent]

Not everything is about race.

And I think that this was one of the biggest own goals in history. Not the policy itself, which was just really poorly thought out, but the attempt to deflect attention from it by calling it racist.

Even in a low crime era, people hearing about a murderer serving LWOP who got a weekend vacation pass from prison, who then attacks and rapes people, are likely to be quite upset; in a high crime era like the late 1980s, they were going to be outraged.

So when the response is, "There's nothing to see here; raising the issue is racist!", normal people are not going to say, "Oh, in that case, I guess I'm wrong to be upset about it"; they're going to say, "Hey, I'm not racist. You are a lunatic. Now I can't trust you on race or crime."

Only people living in a massive liberal echo chamber could've thought that response was a good idea.

[The Margrave of Azilia]

Do any states *today* allow killers serving life without parole to be released on furlough?

If none – wow, that’s a lot of racism out there!

And if the furlough law was the Republicans’ fault, then that’s what Dukakis should have said – “I’m shocked that my Republican predecessor adopted this horrible policy, I ask all Republicans to denounce this Republican initiative, and I demand legislation to repeal what the Republicans have done.”

Maybe Dukakis could even have won with that attitude.

[bernard11]

Whatever the Willie Horton business was about, Dukakis wasn't going to win. He was a MA liberal, and his campaign was generally inept. Bush was VP, and had a fine resume on top of that.

Bush got close to 54% of the popular vote, and over 400 EV's. No one thing would have made the difference.

[The Margrave of Azilia]

We’ve seen how politically-adept leftists can run appealing campaigns.

I’m imagining the media, following the cue of a politically-adept Dukakis, asking Bush about his fellow-Republicans who allowed furloughs to convicted killers. Dukakis would promise to fight such soft-on-crime Republicans nationally like he did in MA.

Of course, Dukakis wasn’t politically adept, so I guess the question doesn’t arise.

[Frank Drackman]

AlGore was the first to bring up Willie Horton, in a debate with Do-Cock-Us in early 1988.
Ironic (Dontcha Think?) that since then, Willie's exhaled 3,679,200 liters of CO2 into the Troposphere,

Frank

[Dr. Ed 2]

No, this appears to be a racially diverse group:
https://www.youtube.com/watch?v=rZToNflF1z8

[David Nieporent]

Roberts, writing the opinion, sides against the “Four Horsemen”,

See? Bob from Ohio and his ilk have been trying to tell you that the guy is a squish!

[Dr. Ed 2]

"Harris v. United States, 390 U.S. 234 (decided March 5, 1968): no warrant needed for search of robbery defendant’s impounded vehicle (while closing windows, found registration card showing car belonged to victim)"

I know it probably was a phone call to the state registration folk back then, but you'd think they'd have run the plate -- just in hopes of getting lucky if nothing else.

[John F. Carr]

I think a phone call would do. I knew somebody in college who had the connections needed to run a plate. This was before the Driver's Privacy Protection Act made it illegal to snoop on motor vehicle records without a legitimate reason. The law is not much enforced against police, who still help themselves. The records are no longer so easily available to people who know a dispatcher. There is a similar story with ticket fixing. It's technically illegal in Massachusetts. The practical effect of the ban is you need to have a solid connection and not merely a friend of a friend type connection.

[Dr. Ed 2]

There was a time when plate numbers were considered public information -- DownEast Magazine once published a story about a farmer who was upset about a couple littering his field after having a picnic there -- he wrote to Augusta and got their address from their plate number, and proceeded to dump all their trash on their front lawn in the city.

In 1968 the plate numbers likely were on microfiche -- they were in the 1970s -- and if it was an in-state plate the Feds could probably have called the local PD and asked them to look it up. Not mentioned here is how the Feds got jurisdiction -- I'm thinking either Indian Reservation or National Park.

The heyday of ticket fixing was before they had the multi-part tickets -- they had to type up a complaint & mail it to you. See: https://mitpress.mit.edu/9780262730273/violence-and-the-police/

[SRG]

When you read of an appeal against the DP from 1990, and it's 6-3 for the plaintiff, you can guess without looking that two of the minority were Rehnquist and Scalia, And so it proved. SDO'C was the 3rd.

[The Margrave of Azilia]

"McKoy v. North Carolina, 494 U.S. 433 (decided March 5, 1990): Eighth Amendment violated by requirement that jurors find mitigating factors precluding death penalty only beyond a reasonable doubt (Marshall writes opinion for a 6 – 3 Court)"

As I recall, the federal death penalty used to say the judge could impose a death sentence - *unless* the jury was unanimous against it.

[The Margrave of Azilia]

There's no constitutional right to sell cheap milk to the poor!

[Krayt]

"Mr. Mainway, your company supplies milk to school children all across the city."

"Yeah, kids drink their little milks."

"We've had it analyzed. It's dog milk."

[The Margrave of Azilia]

You must not have any good arguments for the Nebbia decision, if you have to use this sort of misleading scenario in lieu of the actual facts.

[Michael P]

It's a scenario from the same documentary show that brought us Sarah Palin saying "I can see Russia from my house" -- when have they ever gotten the facts wrong on something like that?

[Rev. Arthur L. Kirkland]

It’s a scenario from the same documentary show that brought us Sarah Palin saying “I can see Russia from my house”

Here is another one from that documentary show -- this time, addressing a page one defamation issue the Volokh Conspiracy does not find interesting.

[Dr. Ed 2]

Kirkland, THIS is when it was funny:https://www.youtube.com/watch?v=veMiNQifZcM

It isn't anymore.

[Dr. Ed 2]

https://www.cntraveler.com/story/yes-you-can-actually-see-russia-from-alaska

Palin's point was that Alaska is unique in that it is bordered on all sides by a foreign country, i.e. Canada & Russia. And as it is only 50 miles, I have no doubt that you can see Siberia if you are up high enough, particularly on days when you get refraction in the atmosphere.

[bernard11]

Whatever, Ed.

The idea that that gives Alaskans some unique insights into policy wrt Russia is ridiculous.

[bernard11]

It's a comedy show, Michael P. You know, satire.

[The Margrave of Azilia]

Is anyone going to go out on a limb and say the Nebbia decision was right - either for the reasons articulated by the court or for some other reason which can be explained?

[Dr. Ed 2]

As my Great Aunt explained it to me, Maine imposed minimum prices when they also imposed a lot of really expensive sanitation requirements -- a ban on the 5 gallon milk cans and the rest.

[Dr. Ed 2]

Here's the actual clip: https://www.youtube.com/watch?v=b-82_xCvWV4

[The Margrave of Azilia]

So the commentary on the Nebbia decision seems to be:

Premise 1: Republicans are evil

Premise 2: ???

Conclusion: It’s perfectly constitutional to raise the price of milk for the poor during the Depression in order to protect the dairy industry.

[Dr. Ed 2]

Maine still does that -- see https://www.maine.gov/dacf/milkcommission/minimum.shtml

The one I had a real issue with was the ban on filled milk because that was safely stored (in a sealed can) at room temperature and from a reputable source while regular milk wasn't and wasn't.

[The Margrave of Azilia]

No, Article XII is the right to abortion.