Today in Supreme Court History: April 1, 2003

4/1/2003: Grutter v. Bollinger and Gratz v. Bollinger argued.

Comments

[Brett Bellmore]

In which O'Connor accidentally created the DIE industry.

[Dr. Ed 2]

Historians will say that she did something even worse than that -- she eliminated the presumption that racial discrimination was wrong. These were the Dredd Scott decisions of the new millennia.

Before then, there was the hope that Bakke meant what Bakke ruled but after these, racism became legitimized, and 20 years later, we are seeing the consequences.

First, the value of college itself is gone -- see: https://www.wsj.com/articles/americans-are-losing-faith-in-college-education-wsj-norc-poll-finds-3a836ce1

And second is the siren song of actual White supremacist groups in response. That's why the indictment of Trump is so dangerous - a Black DA bringing trumped-up charges can easily spark race riots, much as the 1986 World Series (Red Sox v Mets) did...

[Sarcastr0]

she eliminated the presumption that racial discrimination was wrong.

And yet, your argument is based on the fact that you and the readers here think that that's bad - i.e. that racial discrimination is wrong.

Way to self refute, dude.

[Brett Bellmore]

Legal presumption, dufus.

[Sarcastr0]

There was never such a legal presumption, from the drafting of the 14A.

[Brett Bellmore]

And so we see the left, retroconning their present devotion to endless racial discrimination, to pretend that the nation never aspired to give it up.

[Sarcastr0]

Yes we never did. Affirmative Action has been a thing for a while. True efforts to deal with race bookend Jim Crow. When was the time we didn’t discriminate?

The right likes to make a virtue out of white grievance. Actual history can kinda sit back; this is written by emotion and a mythic America that never was.

[DWB]

Stop being a racist Sarc -- it's not really that hard.

[Rev. Arthur L. Kirkland]

Tips on tolerance from right-wing bigots are always a treat, especially at a white, male, bigot-hugging blog.

Carry on, clingers. So far as your betters permit, of course.

[Frank Drackman]

the words of Jerry Sandusky, still bitter and clinging to his claims of innocence. Maybe S-S-S-S-Stuttering John Fetterman (C'mon Man, Sandra Bullock only took 28 days to detox) can arrange a transfer so you can be butt buddies with Alex Murdaugh (I know, he claims to be innocent to)

Frank

[Brett Bellmore]

And I've already pointed out to you that "affirmative action", as originally begun, was a command to affirmatively refrain from discrimination!

Executive Order 10925

"SECTION 201. The President's Committee on Equal Employment Opportunity established by this order is directed immediately to scrutinize and study employment practices of the Government of the United States, and to consider and recommend additional affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of nondiscrimination within the executive branch of the Government."

"SEC. 203. The policy expressed in Executive Order No. 10590 of January 18, 1955 (20 F.R. 409) with respect to the exclusion and prohibition of discrimination against any employee or applicant for employment in the Federal Government because of race, color, religion, or national origin is hereby reaffirmed."

"(1) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.

"(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, or national origin."

So, yes, there was a time when we at least aspired to stop racially discriminating, and stopping was official government policy, as well as the 'dream' of the civil rights movement. You know, before they got impatient, and decided to try to speed things up with explicit racial quotas and preferences, instead.

Of course, since it is now the left's open and notorious demand for racial discrimination today, tomorrow, and forever, you're trying to erase that history, pretend it was never what we were aspiring to.

The general public hasn't yet forgotten, though, which is why you keep getting citizen initiatives like California's Prop 209, or Michigan's Proposal 2, banning racial discrimination even under the pretext of 'affirmative action' passing by healthy margins.

I'll put it to you straight out: If the majority ever does change their minds, and decide that racial discrimination is OK after all, they're not going to demand that they be discriminated AGAINST. Only a small minority of people are that self-hating. A public that again embraces racial discrimination is going to want it working FOR them.

So this is a damned dangerous road you're insisting on marching down.

[Sarcastr0]

Yes, we have discussed how your definition of nondiscrimination is wrong as actually used.

Actions, not semantics. Actual practice.

Quote all the laws you want, if you interpret them wrong, you can make yourself feel as righteous as you want. I’ll stick with the actual history.

[Brett Bellmore]

So, your fall back position is "will not discriminate" actually meant "must discriminate"?

[Brett Bellmore]

I mean, even for you that's pretty lame.

[Sarcastr0]

My position is that actual practice form the beginning indicates the government and people do not agree with your definition of discrimination.

[Brett Bellmore]

So, you have at least conceded that the official policy was to NOT discriminate, and the policy just wasn’t being followed in practice? That’s a major breakthrough.

And, "the people"? Explain California's prop 209, (They recently failed an attempt to repeal it.) and prop 2 in Michigan. Were they somehow not enacted by "the people"?

Here's some recent Reuter's polling. It continues the trend of large majorities of Americans being opposed to racial discrimination, no matter what excuse you make for it.

It's ironic: The civil rights movement triumphed, they convinced Americans racial discrimination was wrong. Then they gave up on their own triumphant principles.

[Sarcastr0]

No, Brett. I am saying you don’t use the word right, based on the evidence of how it’s been used. Your definition is convenient for you, and also wrong.

I have said this to you multiple times I’m this thread. You can’t seem to grasp that though and keep declaring victory.

[Brett Bellmore]

Yeah, you can’t seem to grasp that you don’t get to redefine “may not” to mean “must”, just because some politicians decide that they’re going to racially discriminate anyway.

Don’t want to address all the initiatives and propositions outlawing racial discrimination, do you? Prop 16, which would have repealed Prop 209, was defeated by a larger margin than 209 originally passed by; Your position has actually been losing ground. In California!

[Sarcastr0]

People aren’t using the word the way you say it should be.

You can insist everyone has been lying this whole time all you want, but the simpler explanation is that your simplistic definition is not operable.

What’s disappointing is you moving to a policy/populism argument in California. That is inconsistent with your seeming formalism; you know you are playing semantics!

[Brett Bellmore]

"You can insist everyone has been lying this whole time all you want,"

The only one lying here is you, only I think you're more deluded than lying. You've actually convinced yourself that we never, not for one instant, adopted a policy of just not discriminating. To the point where you can't even understand contrary words in an executive order.

And my point in referencing those ballot initiatives is to demonstrate that while some policy makers may have given up on the dream of simply not discriminating, the public, thankfully, never did.

[Sarcastr0]

You’ve actually convinced yourself that we never, not for one instant, adopted a policy of just not discriminating. Something you cannot contradict out of your own semantics. Because the actual actions back me up.

To the point where you can’t even understand contrary words in an executive order.
You still can't even comprehend my argument still. No one called affirmative action discrimination when it started. Do you think they were just busy that day, or maybe your personal take on the way the word is and was used socially is not actually the universal one.

To make it clear what my thesis is and what it is not, so maybe you'll manage to actually engage with it one day:
I'm not saying the government never uses the word discrimination or nondiscrimination, I'm saying history and practice demonstrate that it doesn't mean what you think it means.

[Stephen Lathrop]

Bellmore was quoting an executive order, not a law. It applied to Federal government hiring. Bellmore might be interpreting it right. JFK might very well have intended a just-for-show bit of racial window dressing. In 1961, nothing else was expected or likely. Like practically every major Democratic political leader of his age, Kennedy initially resisted accommodating blacks' demands for actual equality. But that was about to change.

[Brett Bellmore]

Lathrop, the only equality the Constitution recognizes is equality of rights, of treatment. (By the government...) Equality of outcomes is alien to our constitutional heritage, and can only be approximated by shitcanning equality of rights and treatment. Because people, as individuals and in aggregate, are not equal in their capacities, their aims, or anything else save their rights, and if equally free, will always end up attaining differently.

Harrison Bergeron was a warning, IOW, not an instruction manual.

[Sarcastr0]

If the playing field is either not level or non hermitian (takes past path into account) then equality of treatment is nontrivial.

[Brett Bellmore]

Sarcastr0, you're obviously trying to set things up so that, unless the past was perfect, we're not allowed to refrain from discrimination in the present, either. In fact, equal treatment is trivially easy: You treat people the same regardless of the characteristic you're not discriminating on.

I have to ask you: Why exactly do you think discrimination against blacks was BAD, if you don't think it's wrong to discriminate against people who aren't black? Because it's a zero sum game: You can't discriminate in favor of one group without discriminating against other groups.

Discrimination, I think, is like a hill feud: You can't end it by getting the last shot in to equalize the body count. You end it, as Roberts said, by ending it.

[Gandydancer]

Sarcastr0: "No one called affirmative action discrimination when it started."

Yes they did.

[Brett Bellmore]

Gandydancer, I do need to point out that "affirmative action" as Kennedy started it, was not discriminatory. It was literally 'affirmative action to not discriminate'. For a few months...

It was LBJ who flipped it into a system of race based quotas and preferences, while keeping the name. As he famously said, “I'll have them niggers voting Democratic for the next two hundred years."; He very cynically knew exactly what he was doing.

The Democratic party has been equivocating ever since about what AA consists of. But, see Sarcastr0: I think they've finally worked themselves up to the point of openly embracing racial discrimination again.

[Gandydancer]

Not buying the story that Kennedy was any better than LBJ when it comes to truth in propagandistic names.

[Dr. Ed 2]

"If there is anything worse than a one-sided race war, it is a two-sided race war, especially when one of the races outnumbers the other several times over."
https://www.nationalreview.com/2012/05/censored-race-war-thomas-sowell/

[Stephen Lathrop]

You know, before they got impatient, and decided to try to speed things up with explicit racial quotas and preferences, instead.

By 1961 blacks had not yet been patient enough, Bellmore? You obviously cannot remember the circumstances you are talking about; you have the context catastrophically wrong.

In 1961 there were too many people like you in government. Without some way to measure black progress, there wouldn't be any black progress. There would instead be, "All deliberate speed," interpreted to mean all deliberation, and no speed.

"Be patient," had become for decades the defining utterance of malignant racism in high places. People pretending enlightenment couldn't face up to responsibility, but had to squirm only a little as they chose to sacrifice black hopes to their personal convenience—which always involved getting along with virulent racists.

"Be patient," became such a notorious signal of racial malice that what had been routine and commonplace vanished completely during the early 1960s. Martin Luther King turned it into a badge of moral depravity, and even the racists gave up using it.

I guess you have not heard about that nasty history, or you would not be so stupid, and repeat now one of the worst manifestations of overt racism which disgraced this nation during the memories of people still living.

[Gandydancer]

Brett was of course merely being unduly generous when he suggested that the race hustlers plumped for a spoils system because they were “impatient”. It is in fact idiotic to give the likes of you the benefit of any such doubt. Your motives are in fact as loathsome as your demands.

[Dr. Ed 2]

"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." (42 U.S.C §§ 2000d)

Exactly what part of "No Person" do you not understand?

[Frank Drackman]

They meant "Black Persons" but they're hard to see in the Penumbra

[bernard11]

First, there were no race riots after the 1986 World Series. And should the Mets have lost on purpose, to prevent those hypothetical riots?

Second, you are suggesting that Trump can never be prosecuted for anything, no matter how serious, or how evident his guilt.

The people you are talking about, presumably Oath Keepers and other such scum, aren't going to carefully evaluate an indictment to see if it's justified. They are 5th Avenue Trump loyalists. They are going to do whatever they want, which is to make trouble.

If we had a responsible right in this country it would be calling for calm, for letting the process proceed. Instead, they attack Bragg - issuing death threats among other things - and implicitly the entire population of Manhattan by declaring that a fair jury can't be found there.

Disgusting behavior.

[Dr. Ed 2]

There were race riots at UMass.

This indictment is more of a travesty than the Duke Lacrosse Rape Case, and this DA should also be disbarred. Not murdered, simply disbarred.

And no, I don't think a fair jury can be found in that county.

[Gandydancer]

You’re not all that likely to find a fair judge who will even let Trump have a fair shot at seeking a fair jury.

And no one is obligated to pretend otherwise than that “the process” is an atrocity. Your idea of a "responsible right" is cucks all the way down.

[Joe_dallas]

The CA6 stunt of the bogus "Findings of Fact" via de novo that was especially egregous. De novo - accepted the UM pleading as facts without any examination or cross .

The trial court held based on a full trial that the quota that had been in place for 10-15+ years was in fact a quota. Same number of black law students (plus/minus one) every year.

See thomas' dissent.

[Dan Schiavetta]

FCC v. Prometheus Radio Project, 592 U.S. --- (decided April 1, 2021): In 2017 the Trump-led FCC reversed long-standing policy, affirmed in 2016, and permitted, in the same market, cross-ownership of radio, television and newspapers, and cross-ownership of several stations. Plaintiffs alleged this would hinder female and minority ownership and local viewpoints. Reversing the Circuit Court (which had ordered the FCC to develop a better record), the Court holds that in the internet era the FCC's decision was not "arbitrary and capricious" and dismisses the suit.

The St. John, 154 U.S. 586 (decided April 1, 1872): affirming verdict for upstream-heading vessel, where downstream-heading vessel, having blown its whistle twice, should have gone to the right (without blowing whistles she should have gone to the left -- such were the rules of the road on the river); instead she meandered somewhat to the left and hit the upstream-heading vessel

Brinkmeier v. Missouri Pacific Ry. Co., 224 U.S. 268 (decided April 1, 1912): trainman injured by faulty coupling can't sue under federal Safety Appliance Act because the train was on a siding (not interstate commerce)

Greenwald v. Wisconsin, 390 U.S. 519 (decided April 1, 1968): burglary suspect with a ninth-grade education and hypertension denied the crime, kept without food or medication overnight, asked for lawyer, not given Miranda statement, could not sleep on the wooden plank they led him to, next morning finally confessed; not surprisingly, confession inadmissible

Florida v. Georgia, 592 U.S. --- (decided April 1, 2021): ruling against Florida in its contention that Georgia was sucking up so much upstream water that it was ruining its "oyster fisheries"; I suppose the Court can make up its own rules in original jurisdiction cases; it assumes that plaintiff's proof must be "clear and convincing" (not the usual "preponderance")

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (decided April 1, 2009): Clean Water Act, which requires power plants to use "best technology to minimize environmental impact", allows EPA to use cost-benefit analysis; upholds EPA regulations as to extracting water from rivers and lakes for cooling

14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (decided April 1, 2009): night watchmen who were demoted due to age (allegedly) are bound by arbitration clause in collective bargaining agreement; case dismissed (5 - 4 decision; Souter in dissent points out that the Court previously ruled that the right to sue given by civil rights statutes (here, the Age Discrimination in Employment Act) supersedes arbitration clauses in collective bargaining agreements, Alexander v. Gardner-Denver Co., 1974)

Honig v. Students of California School for the Blind, 471 U.S. 148 (decided April 1, 1985): dismissing appeal of preliminary injunction (which ordered school for the blind to do testing to ensure that it complied with seismic safety standards) because testing already completed (not sure why the school kept the appeal alive)

Village of Belle Terre v. Boraas, 416 U.S. 1 (decided April 1, 1974): upholding city ordinance limiting house occupancy to "traditional families" because keeping families together is a state interest; opinion by Douglas (that dedicated family man); Brennan and Marshall dissent (suit was brought by college students sharing a house)

United States v. Oregon, 295 U.S. 1 (decided April 1, 1935): affirming Special Master's finding for the United States as to ownership of various ponds and surrounding areas (what is now Lake Malheur National Wildlife Refuge; I fantasized about camping there and, one morning over "cowboy coffee", doing an unhurried reading of this long decision with its many references to local features); introduced me to the term "meander line", an informal line made by surveyors marking water boundary

[Michael P]

What was the cert-worthy aspect of The St. John? The syllabus I found said the decision was purely a question of fact.

[Dan Schiavetta]

In those days the Court had more mandatory jurisdiction. They handled admiralty cases like an ordinary appellate court.

I think (I’m no expert) the only cases they have to hear these days are original jurisdiction cases and appeals from a three-judge court on certain Constitutional issues, 28 U.S.C. 1253.

[bernard11]

They handled admiralty cases like an ordinary appellate court.

But did the flag in the courtroom have a yellow fringe?

[Dr. Ed 2]

?????

[John F. Carr]

He's referring to a common tax protester theory that the presence or absence of a fringe on the flag distinguishes regular courts from admiralty courts.

[The Margrave of Azilia]

That's a fringe idea.

[Brett Bellmore]

Not saying it isn't an incredibly stupid theory, but it's not really any stupider than some of the legal fictions, lies really, that the legal system uses. Like civil forfeiture not having to respect people's rights because it's the property being charged, not a person...

[bernard11]

Well, yes. That's really insane.

But I don't think many people actually believe it. Mostly those involved see it as a conveniently legal way to steal stuff, and don't go into it.

[The Margrave of Azilia]

Apparently, I've learned, they don't have to take original jurisdiction cases, either.

[John F. Carr]

We still have laws like the one in Belle Terre meant to limit the density of college students. The family group language is a cover. Nobody is going to ask for your marriage license or birth certificate unless you look like somebody the neighbors want gone.

There's an ordinance in one of the Boston suburbs requiring people renting out certain apartments to reassure the town every few years that they haven't been renting to any urban people. Wait, we can't put that in writing. To apply for a permit renewal every few years where the only barrier to renewal is neighbor complaints. And who or what are the neighbors of a rich suburb going to complain about?

[bernard11]

Which suburb?

Not arguing, just curious.

[John F. Carr]

Lincoln. It's a sunset town. They import black students from Boston and brown-skinned workers from all over during the daytime.

[bernard11]

Thanks.

I had a friend who lived there.

It may be all white, but I very much doubt it's "sunset town" in the sense that some towns in the South were, or may still be.

[Frank Drackman]

Every major metropolitan "Inner City" is a "Sunset Town" for white peoples, (just try walking around the King Center in ATL, and why are the most violent areas of every city named after Martin Lucifer King?)

Frank

[Dr. Ed 2]

Both Worcester and Amherst have bylaws which prohibit more than four "unrelated" persons from living in the same house.

Clearly directed at college students, I somehow doubt that it would ever be directed at -- say -- the "Brady Bunch."

Remember that unless she adopted his three sons and he adopted her three daughters, the children are *not* related even if their parents are married. This is why I took the "to what end" attitude toward gay marriage -- I know someone who had to jump through the DC&F hoops to adopt her new wife's daughter.

[John F. Carr]

I have wondered if the blood or marriage relationship would be considered transitive if the question went to court.

[Dr. Ed 2]

IF went to court -- against the unlimited resources of a town?
Ain't gonna happen...

[Michael P]

"Clearly directed at college students"?

Usually those kinds of laws are directed towards "bawdy houses".

[Dr. Ed 2]

Actually, UMass Amherst used to ask for copies of marriage licenses to live in the university apartments. A friend from Israel pointed out that his marriage license was in Hebrew which (I presume) all Israeli marriage licenses are -- and his point was that it could be his shopping list and no one in the UM Admin would know the difference.

It was all about money -- they got more money from two students renting rooms in the (quite unpopular) graduate dormitory than they did from both of them renting an apartment. UMass has now sold the 365 units to a private developer who is building market-rate apartments on the land.

But UM promised to the graduate student union that the rents of CURRENT graduate students wouldn't be increased. And when they graduate in 2-3 years?!?

And what the town -- who made a fuss about having to educate K-12 children living there -- never quite understood is that the university had a full-time social worker and numerous supportive campus police officers dealing with problems that the town is now going to have to deal with on its own -- AND that the undergrads living in taxable private apartments didn't have children, AND that the town could ask the university police to stomp on them.

Oh, it's going to be interesting, but my point is/was that the UM demand for a copy of the marriage license was a violation of the fair housing act, etc... And in fairness, UM's excuse was that they waived the marriage license for single mothers with a child in residence, and that somehow didn't violate the fair housing act.

My reading was a tad different == I read "shall not discriminate on the basis of" meaning either *against* or *for* the person, but then I also believed that Affirmative Retribution was illegal....

[John F. Carr]

A classmate of mine at a private university got to move to married student housing when she got pregnant. Sounds like the same deal that UMass had... with the same legal questions.

[bernard11]

A friend from Israel pointed out that his marriage license was in Hebrew which (I presume) all Israeli marriage licenses are — and his point was that it could be his shopping list and no one in the UM Admin would know the difference.

You mean no one in the administration - including you - was competent enough to find a Hebrew speaker to translate the license?

I presume your friend was not the only Israeli around, and there are some Americans who could probably manage it.

[Gandydancer]

"But UM promised to the graduate student union that the rents of CURRENT graduate students wouldn’t be increased. And when they graduate in 2-3 years?!?"

Why would the graduate student union care about students who aren't members yet?

[John F. Carr]

On Honig: The lawsuit included claims under the Rehabilitation Act (a proto-ADA applying only to federal-aid programs). If attorney's fees were available a lot of money could have been riding on the validity of the injunction.

[Dr. Ed 2]

I don’t see how that could have been a 504 case — unless Honing had requested that (I presume) CA law be complied with as an accommodation for disability (eg blindness), I don’t see how Section 504 could have applied.

If it were the *students* appealing, I could maybe guess that they had tacked some ADA request into this, maybe some staircase beeper or something, but Honing was the one appealing — and (presumably) Honing had already complied with the injunction.

I’ve given up trying to understand academic administrators with an unlimited legal budget, but could this have been an ego thing? Or perhaps wanting to tell students (not legally savvy enough to know) that “he won”?

But as to 504, how does this constitute a discrimination on the basis of disability OR a refusal to provide a reasonable accommodation? I’d think that ensuring that your building won’t collapse is, pursuant to law, a duty owed everyone.

Like, umm, don't the sighted have an equal right not to be crushed to death???

[John F. Carr]

I have not read the lower court decisions. If children at the special school would be crushed in an earthquake while children in regular schools would survive, would that be discrimination? The Supreme Court decision begins,

Respondents, students of the California School for the Blind, brought this lawsuit in Federal District Court against petitioner state officials, claiming among other things that the school's physical plant did not meet applicable seismic safety standards. Their complaint alleged rights of action under the Education for All Handicapped Children Act of 1975, 89 Stat. 773, 20 U.S.C. §§ 1232, 1401, 1405, 1406, 1411-1420, 1453, and § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. § 794.

[John F. Carr]

On the arbitration case: Massachusetts public employers are very generous in giving out the right to arbitration and arbitrators are very generous in reinstating employees. Once in a while a case comes along where an employment action is dictated by a statute instead of a contract. Then the employer gets a rare victory. Once in a while is becoming more common. A new police reform law gives the state power to revoke certification of bad cops, bypassing the city's contractual waiver of its right to fire them.

[Dr. Ed 2]

The police reform law gives me hope.

As someone who was financially injured by a police officer who prevented me from shutting off the water in a building I own *before* the pipes froze (causing LOTS of damages), I'm seriously considering bypassing the entire department I/A process and simply requesting decertification of the officer.

There's a rather damning 911 recording of him mocking me that he's either going to have to explain (he can't) or explain why he/they can't produce it.

And there is no exigency excuse here, we're talking freezing pipes, not flying bullets.

[BrotherMovesOn]

You are drifting into Hein (sp?) Territorial waters..

[John F. Carr]

Was the FCC's policy the one mandated by Ted Kennedy to force Rupert Murdoch to sell one of his Boston media properties? Murdoch sold the Fox affiliate and kept his newspaper. This was before Fox News when Fox was a small, apolitical competitor to the Big Three broadcast networks.

[Dr. Ed 2]

Yes, but the better example is Channel 5.

As I understand it, the origional (pre 1972 WCVB-TV) Channel 5 was owned by the Boston Herald Traveler Newspaper (which later merged with the tabloid Record American to become first the Herald American, and now the Boston Herald). This was WHDH-TV, see https://en.wikipedia.org/wiki/WHDH-TV_(channel_5)

I don't remember the details, but the Herald was the Republican newspaper at the time, and a lot of the adults (Republicans) at the time considered this to be a very dirty deal. I've heard something about the Boston Post newspaper collapsing and the Globe being pissed because the Herald wouldn't merge with them, and I've heard references to the Kennedys and all the rest. The grownups all said it was a dirty deal, and refused to watch WCVB for years afterwards.

But the bottom line is that WHDH-TV lost its license because it was owned by a newspaper - one of at least FOUR then in the city itself (not only was there the Record American, but there was the Boston Phonex and then numerous suburban newspapers, many with significant regional influence).

And you gotta admire WCVB for its chutzpah -- expecting WHDH-TV to give them its broadcast tower and studios. And regardless of what Wiki says, a *LOT* of the WHDH folks did *NOT* go over to WCVB, they instead hired a lot of young people.

[Brett Bellmore]

"Brinkmeier v. Missouri Pacific Ry. Co., 224 U.S. 268 (decided April 1, 1912): trainman injured by faulty coupling can’t sue under federal Safety Appliance Act because the train was on a siding (not interstate commerce)"

A reminder that the judiciary at one time took the interstate commerce clause's limits seriously...

[Dan Schiavetta]

My understanding of sidings (based on, years ago, watching “Thomas the Tank Engine” with my 6-year-old son) is that they are an integral part of Sir Topham Hatt’s business operation, and of Island of Sodor commerce. Though unglamorous. James, who hates getting dirty, avoids them if possible.

[Dr. Ed 2]

That's not the issue here -- the initial statute required automatic couplings on all cars actually used in moving interstate commerce, which these two weren't.

In 1903, Congress amended the law to include all cars on a *railroad* engaged in interstate commerce, which is probably what they meant, but hadn't actually said.

cars 'used on any railroad engaged in interstate commerce,' but the amendment came too late to be of any avail to the plaintiff.

[Dan Schiavetta]

Thanks

[Dr. Ed 2]

Amazingly, Europe still does *not* have "knuckle" couplers, although theirs are not quite as dangerous as our link & pin couplers were -- the link had to be manually guided into a box on the other car, and then a pin dropped down to snag it. Employees often lost fingers if not whole hands in the process, with others crushed to death if the train suddenly moved.

Today they still have to go between cars to connect the air brake hoses and (for passenger cars) the 480 volt electrical connections. Initially the cars had steam heat, with early diesel locomotives having to have a steam boiler and a steam line to be attached between cars, but today they are all electric with the locomotive either generating the HEP or taking it from an overhead wire.

But the European system has buffers and turnbuckles and requires a guy to be between the cars to tighten the turnbuckles. [shudder]
So much for European superiority....

[Mr. Bumble]

Welcome to the All Fool's Day edition.
Be wary of all comments (that is probably good advice on any day).

[Dr. Ed 2]

Florida v. Georgia was different -- Florida was challenging the City of Atlanta's increasing use of water from the river and wanted SCOTUS to *create* an apportionment of the river's water between the two states. Florida held the burden of proving that Georgia’s water consumption was a threatened or actual injury “of serious magnitude” and that “the benefits of the apportionment substantially outweigh the harm that might result.”

This is where I think the "clear and convincing" standard came in, as this was a water rights suit, and there were other plausible explanations including drought and stuff the Army Corps of Engineers was doing.

Knowing something about Oysters, I have to wonder what Atlanta is doing with its sewerage as Oysters live in brackish water with salinity content varying by the seasons -- low in spring when lots of fresh water is in the river, high in fall when little fresh water is in the river, and that's without all of the winter's fresh water being released in one month as snowmelt.

https://www.fisheries.noaa.gov/species/eastern-oyster

What killed them in Maine was the practice of water-powered sawmills dumping sawdust into the river, it sank and built up on the bottom, choking the Oysters to death. 150 years later, there are still beaches of this sunken sawdust -- there is one SW of the bridge where US Route 1 crosses the Damriscotta River (you can see it from the bridge). So my thought was Atlanta's sewerage as much of the water taken for human use returns as sewerage, as does a lot of the rainfall through storm sewerage.

[Dan Schiavetta]

thanks!

[Bob from Ohio]

Racial discrimination against whites not banned by Constitution, but might be in 25 years, though words in Constitution will not change!

There have been a few worst decisions but few better examples of "Living Constitutionalism".

[Dr. Ed 2]

If the republic survives....

[Estragon]

Dr Ed’s trucker strike any day now!

[Frank Drackman]

You better pray there isn't one, unless you've got years of Toilet Paper stored.

[Estragon]

Ever wiped your ass with a rock? Works great, just find your nearest river. Make sure you say “chappaquiddick” three times real fast or you’ll be haunted by dreams of dr. Ed telling stories about lobster pots in an Arbys in Dover-Foxcroft forevermore

[Frank Drackman]

Like that line in Caddyshack, Wiping your ass with a rock works well (in Haiti). Served on a humanitarian medical mission for Hatian refugees in Guantanamo, nobody could figure out (Southern for "Ascertain") why they didn't seem to use any toilet paper, or why the rocks all smelled like shit. Guess who "Figured it out"?? (yours Truly)
Seriously, they wipe their asses with rocks, although they really love roofing shingles (yes, "Shit on a Shingle")

Frank

[Rev. Arthur L. Kirkland]

The Trump indictment has hit the Volokh Conspiracy hard. The Fox ass-whacking, too. The Conspirators, usually undeterred despite decades of losing, are essentially speechless today. I sense they, and their fans, could use a pick-me-up.

Here is some inspiration, apt for today. Enjoy!

[Frank Drackman]

Well it there's an Authority on "Ass-Whacking" it's All Amurican Former Penn State Defensive Coordinator Jerry Sandusky!!!!!

[hoppy025]

Conspirators, where is your outrage that Biden's black U.S. attorney has criminalized free speech and parody?

https://www.justice.gov/usao-edny/pr/social-media-influencer-douglass-mackey-convicted-election-interference-2016

[Rev. Arthur L. Kirkland]

That criminal reportedly could get 10 years.

I figure eight would be about right.

[hoppy025]

Until it's reversed on appeal. I figure that a jury seated in EDNY is going to be at least 10 non-whites, of which 4 or 5 out of the 10 are likely to be joggers. Hardly an impartial or mentally capable jury.

[Rev. Arthur L. Kirkland]

Another day, another day of bigotry at the Volokh Conspiracy, another day of silence from the Volokh Conspirators -- every one of them -- concerning the overt bigotry that permeates their blog.

Carry on, clingers.

[Frank Drackman]

It's just people don't like talking to Pediofiles, Jerry.

[Estragon]

Drackman really mailing it in here. No mention of Ted Kennedy, Sanford and sons or Eartha Kitt? I think you need a nap or a 5 hour energy or something. Do better!

[Frank Drackman]

OK, Rush has to play "Tom Sawyer" Frankie has to do his Ted Kennedy bit,
"Let's hear it for our Senator Ted Kennedy, and there's no truth he left Mary Jo Kopeckney to Drown!!!! She Asphyxiated! there's a difference. Of course Senator Kennedy was #1 in his Law School Class, and even made the Valedictorian Address, where he said "Give me Liberty, or Give me another Rum & Coke!"
I kid the Senator...."
OK, been a long weekend, and maybe its the Glaucoma medication, but don't believe I've every referenced Earth Kitt,

Frank

[Estragon]

“ but don’t believe I’ve every referenced Earth Kitt,”

Then you’re screwing up even more than I thought! That’s Dr Eartha kitt to you btws

[David Nieporent]

Tell us that you don't know anything about EDNY without saying that you don't know anything about EDNY.

[hoppy025]

I lived on Long Island for 20 years, moron. Nassau and Suffolk jurors usually got sent to Central Islip. A Brooklyn EDNY jury is likely all Kings, Queens and Richmond. Meaning mostly non-white.

[Estragon]

This pencils out. A lot of patchogue energy with this one.

[Estragon]

“For 20 years”

How long ago was this? Things have changed my friend. You should peruse the census data sometime. Or don’t— I can only help you so much.

[hoppy025]

Yes, things have changed for the non-whiter. So my point is even more true than it was.

[Frank Drackman]

It's like that opening scene in Pulp Fiction,
"Too many foreigners own Convenience stores these days. Vietnamese, Koreans, they don't even speak fucking English. You tell them, give me a pack of Lucky's, they don't know what the fuck you're talking about. "
Like the time I got preopped for my Rotator Cuff, some Chink Med Student, Wap, Lap, Fand, Dang, Charley Chan, Connie Chung,
"You wahn Intelscarene??" "What?" "Intelscarene Brock! you wahn Intelscarene Brock??"
actually, I did want the Intelscarene Brock, finally got to talk to a fellow Gas Passer (Anesthesiologists probably get less surgery than any other profession, hey, we see how the sausage gets made)
The Chinese Med Student noted that I seemed to be hard of hearing...

Frank

[Dr. Ed 2]

The late Sam Kinnison: https://www.youtube.com/watch?v=eQQ2btbidWE

[Estragon]

So brain dead. Points for Richmond county though. Not everyone knows that. So you didn’t answer! HOW LONG AGO?

[Estragon]

“Patchogue”

That’s a bingo I think. You remind me of my moms kin.

[David Nieporent]

Nassau and Suffolk jurors usually got sent to Central Islip. A Brooklyn EDNY jury is likely all Kings, Queens and Richmond.

Tell me that you don't know anything about the EDNY without saying that you don't know anything about the EDNY. (Hint: there are no divisions for juries. For the last quarter century, juries in both Brooklyn and Islip have been chosen randomly from all five counties.)

[hoppy025]

Not fucking true.

[David Nieporent]

I mean, it is, although I should note that I was rounding when I said "quarter century," as that's actually been the jury rule in place since 1995.

[Frank Drackman]

Jerry Sandusky, Expert in Sentencing Enhancement Guidelines!!!!!

[Frank Drackman]

8 minutes as your "Cell Mate" would be the definition of "Cruel & Unusual"

[Brett Bellmore]

Well, her's was not the original sin, that much I'll grant. She sure blew the chance to redeem that sin, though.

[Dr. Ed 2]

No Brett, Bakke was merely a plurality decision while O'Connor eliminated the legal presumption that racial discrimination was verboten.

That's why I compare these decisions to Scott v Sanford...

[Gandydancer]

Plurality decision or not Bakke made racial discrimination in college admissions legal... as long as you dishonestly pretend that that's not what you're doing. The Bollinger decisions merely confirmed that the SCIOTUS scum had only gotten worse in the interval.