Today in Supreme Court History: March 8, 1841

3/8/1841: Justice Oliver Wendell Holmes's birthday.

Justice Oliver Wendell Holmes

Comments

[Dan Schiavetta]

Griggs v. Duke Power Co., 401 U.S. 424 (decided March 8, 1971): the first case holding that policies which had a "disparate impact" were racially discriminatory under Civil Rights Act of 1964 (here, requiring intelligence tests which those with high school diplomas were far more likely to pass, where whites were far more likely to be high school graduates and tests were not related to job ability)

Choctaw Nation of Indians v. United States, 318 U.S. 423 (decided March 8, 1943): resolving a dispute as to lands allotted to the Choctaws and Chickasaws in 1866, under an agreement where they agreed to free their slaves and provide them with an allotment; it looks like only with this decision were the freedmen finally given their allotments, after being in a legal limbo for 77 years

Crawford v. United States, 541 U.S. 36 (decided March 8, 2004): the Court returns to traditional evidentiary rules and prohibits out of court statements in criminal trials; assault defendant's wife's statement as to defendant stabbing her rapist, taped and played to the jury without opportunity for cross-examination, held inadmissible under Confrontation Clause no matter how "reliable" (overruling Ohio v. Roberts, 1980, where the out-of-court witness had been subjected to questioning that was "the equivalent of cross-examination")

Building & Constr. Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, 507 U.S. 218 (decided March 8, 1993): National Labor Relations Act does not preempt Massachusetts regulations as to what a collective bargaining agreement has to contain before state awards contract to management

Smith v. United States, 507 U.S. 197 (decided March 8, 1993): Antarctica was "foreign country" (even though there's no government there) so outside purview of Federal Tort Claims Act; widow of federal contractor employee who fell into crevasse in snow field can't sue

Danforth's Lessee v. Thomas, 14 U.S. 155 (decided March 8, 1816): can't enter Indian lands to survey for possible partition; strict construction of state statute, leaving aside whether treaties gave Indians right of property or merely use and enjoyment

Pierce v. United States, 252 U.S. 239 (decided March 8, 1920): upholds guilty verdict in Espionage Act/conspiracy case; handing out leaflets protesting war ("The Price We Pay") could be said to impede war effort and encourage insubordiation; the dissent by Brandeis, joined by Holmes, goes through the facts of the case and is pretty convincing, I think

Ortega-Rodriguez v. United States, 507 U.S. 234 (decided March 8, 1993): Court of Appeals should not have dismissed appeal of narcotics conviction due to defendant's escaping custody; recaptured before appeal went forward and it was up to the trial court to impose any sanctions

Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577 (decided March 8, 1982): trade association and political action committee did not have standing to invoke expedited review of issue of constitutionality of Federal Election Campaign Act of 1971 (currently codified at 52 U.S.C. §30110); statute affords expedited review only to "The Commission, the national committee of any political party, or any individual eligible to vote for President" (plaintiffs, ironically or maybe obviously, were objecting to the part of the Act which limited soliciations by trade associations and political action committees) (the Court has since eviscerated the Act anyway)

Durham v. United States, 401 U.S. 481 (decided March 8, 1971): deadline for filing cert petition is not jurisdictional; cert allowed because defendant (convicted of counterfeiting) was waiting for word from Court of Appeals on rehearing; case did not abate when defendant died, but cert. granted and case remanded to District Court with instructions to dismiss (this part of the case was overruled by Dove v. United States, 1976)

[The Margrave of Azilia]

Durham: They should have remanded the case to a higher court.

Or if to a lower court, then send him to Minos:

https://www.florenceinferno.com/minos-the-infernal-judge/

[The Margrave of Azilia]

Crawford v. U. S. should be Crawford v. Washington.

If ever there was a use for the marital privilege, here it is. Let the jury hear the outraged husband's claim of self-defense and decide if they're unchivalrous enough to disbelieve it and send the guy to prison.

[John F. Carr]

The city of Boston lost a lawsuit or possibly two because black applicants for the police force passed tests at a lower rate than whites. The city may still be under a court order.

[Frank Drackman]

Ever notice Mark Twain and Justice Holmes were never seen together?

[The Margrave of Azilia]

"leaving aside whether treaties gave Indians right of property or merely use and enjoyment"

My inner wokester revolts at this - didn't the Indians have the property *before* it was "given" to them?

[Dan Schiavetta]

I refer you to:

1. Johnson v. M'Intosh, 1823, the first case law students learn in Property class, where Chief Justice Marshall holds forth on the Rights of Whites by Conquest.

2. A very good 1986 Film Board of Canada production, "Places Not Our Own", told through the eyes of a Metis (First Nations) girl, and probably aimed at adolescents her age, where her family keeps getting thrown out of their living places because they don't have property rights. https://www.nfb.ca/film/places_not_our_own/

[Dr. Ed 2]

" Johnson v. M’Intosh, 1823, the first case law students learn in Property class, where Chief Justice Marshall holds forth on the Rights of Whites by Conquest."

And how do you think the Indians got the property -- yes, by Conquest. They weren't all sitting around the campfire being nice to each other -- far from it!

[Bob from Ohio]

"first case law students learn in Property class,"

FIFY, first case captcrisis learned in Property class

[Dan Schiavetta]

See Wikipedia entry on this case which bears me out

[CJColucci]

The case wasn't taught in Property in my day, though in my day frankalmoign tenure still existed. Thumbing through random Property casebooks and texts doesn't suggest to me that it is widely taught now.

[Dan Schiavetta]

I’m glad to hear that

[David Nieporent]

I can't be 100% sure without going back to my old law school materials, but the first one I remember from Property I is Pierson v. Post.

[Mr. Bumble]

Thanks to all of you for the trip down memory lane.

[Sarcastr0]

It was my first as well.

[apedad]

Re: Crawford v. United States

Facts of the case

Michael Crawford stabbed a man he claimed tried to rape his wife. During Crawford's trial, prosecutors played for the jury his wife's tape-recorded statement to the police describing the stabbing. The statement contradicted Crawford's argument that he stabbed the man in defense of his wife. Because it was pre-recorded, Crawford could not cross-examine the statement. The jury convicted Crawford for assault.

Crawford claimed the playing of his wife's statement, with no chance for cross-examination, violated the Sixth Amendment guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." The state supreme court upheld the conviction, relying on the U.S. Supreme Court's decision in Ohio v. Roberts (1980). That decision allowed the admission of out-of-court testimony against a defendant if that testimony was reliable.

Question

Does playing out-of-court testimony to a jury, with no chance for cross-examination, violate a defendant's Sixth Amendment guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him?"

Conclusion

Yes. In a 9-0 opinion delivered by Justice Antonin Scalia, the Court sided with Crawford and ruled that the Sixth Amendment's Confrontation Clause gives defendants the right to confront witnesses and cross-examine their testimony. This includes testimony police gather. The Court reasoned that the Framers intended the Confrontation Clause to prohibit out-of-court testimony as evidence against defendants. By allowing out-of-court testimony if it was "reliable," the Roberts decision departed from the Framers' intent. The Court overruled Roberts. Chief Justice Rehnquist, joined by Justice Sandra Day O'Connor, concurred but opposed overruling Roberts. (oyez)

I wonder if "Spousal testimonial privilege" (Spousal immunity), was also brought up.

"In criminal cases, the spouse of a criminal defendant who is called as a witness by the prosecution may choose to testify but cannot be compelled to testify against his or her spouse about events that occurred before and during the marriage. While the privilege can be waived by the witness spouse, even if the defendant spouse objects.

In a minority of jurisdictions, the defendant spouse holds the privilege to prevent the witness spouse from testifying, regardless of the witness spouse’s willingness." (cornell law)

[Dan Schiavetta]

thanks!

[John F. Carr]

"In a minority of jurisdictions, the defendant spouse holds the privilege to prevent the witness spouse from testifying, regardless of the witness spouse’s willingness."

Federal law recognizes the more limited privilege where one spouse may not prevent the other from testifying. The privilege is considered a procedural rule, so federal courts will apply the federal rule even when the substantive law of a state applies.

[Dan Schiavetta]

“Federal law recognizes the more limited privilege where one spouse may not prevent the other from testifying.”

This sounds like there’s no privilege at all.

[John F. Carr]

You can't stop your wife from testifying against you. She can choose not to testify against you. It's better than nothing. Be nice to her or you go to prison.

In Massachusetts, one of the states that lets a husband prevent his wife from testifying, defendants occasionally get married to a key witness to stay out of prison. There is an exception to the privilege in domestic abuse cases.

[Dan Schiavetta]

Ok thanks

[Bob from Ohio]

“I wonder if “Spousal testimonial privilege” (Spousal immunity), was also brought up.”

That is why Mrs. Crawford was not “available” to be cross examined.

[Dr. Ed 2]

“Griggs v. Duke Power Co., 401 U.S. 424 (decided March 8, 1971): the first case holding that policies which had a “disparate impact” were racially discriminatory under Civil Rights Act of 1964 (here, requiring intelligence tests which those with high school diplomas were far more likely to pass, where whites were far more likely to be high school graduates and tests were not related to job ability)”

No. Re-read the case — this involved men who did NOT have a high school diploma, which included a significant percentage of the White employees along with a much greater percentage of the Black ones — the court noting “In North Carolina, 1960 census statistics show that, while 34% of white males had completed high school, only 12% of Negro males had done so” (See footnote 6).

The testing requirement for promotion only applied to those without a high school diploma — those with one were exempt from it. And it is this case that the EEOC somehow misconstrued into companies requiring college degrees being an acceptable means of screening new employees while examinations not — and that’s how we got to all kinds of jobs requiring a college degree when they really shouldn’t (and hadn’t in years past).

Remember this was a year before Affirmative Retribution and before the shift from individual rights to group rights.

The thing I always wondered about (remember this was 1971) was how many of the White employees without high school diplomas were WWII or Korean vets, including those who dropped out of high school to enlist at 17. At the time, every US Navy Ship had a steam boiler that was largely similar to Duke’s generating equipment and I can see them grabbing veterans with 4 years of USN boiler operation and not caring about their formal education.

[John F. Carr]

In the past year Maryland and Pennsylvania have cut the number of state jobs requiring a college degree.

[Dr. Ed 2]

Aren't states exempt from the EEOC?

[apedad]

U.S. EEOC Coverage of State and Local Governments

General Coverage
If you have a complaint against a state or local government agency that involves race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, disability, or genetic information (including family medical history), the agency is covered by the laws we enforce if it has 15 or more employees who worked for the agency for at least twenty calendar weeks (in this year or last).

Age Discrimination and Coverage
If your complaint involves age discrimination, the state or local government agency is covered by the law no matter how many employees it has.

Equal Pay Act and Coverage
Almost all state and local governments are covered by the Equal Pay Act (EPA), which makes it illegal to pay different wages to men and women if they perform substantially equal work in the same workplace.

https://www.eeoc.gov/coverage-state-and-local-governments

[not guilty]

Justice Holmes's opinion in Buck v. Bell, 274 U.S. 200 (1927), lives in infamy. "Three generations of imbeciles are enough." Id., at 207. The Supreme Court thereby recognized a state interest in determining who does or does not reproduce.

Justice Blackmun in Roe v. Wade, 410 U.S. 113, 154 (1973), cited Buck for the proposition that a state may constitutionally prohibit third trimester abortions. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022), overruled Roe, extending the state's prerogative to ban abortion to all stages of pregnancy (subject only to rational basis review).

Buck is accordingly the historical antecedent of Dobbs. Each is an abomination.

[The Margrave of Azilia]

"The Supreme Court thereby recognized a state interest in determining who does or does not reproduce."

The Supreme Court also recognized a state interest in inflicting bodily mutilation on persons who had not been convicted of a crime. And in limiting marriage.

[not guilty]

What on earth did Buck v. Bell have to do with limiting marriage?