Today in Supreme Court History: April 25, 1938

4/25/1938: United States v. Carolene Products decided.

Comments

[Dan Schiavetta]

United States v. Carolene Products Co., 304 U.S. 144 (decided April 25, 1938): Congress's Commerce Clause power extends to public safety concerns; upholding statute prohibiting interstate sale of filled milk (sounds gross from the description, but the statute was later repealed and you can still buy it in the supermarket) but the decisions is famous for its (unnecessary) fourth footnote, where the "presumption of Constitutionality" as to federal statutes is questioned as to laws involving religion or racial minorities -- the beginning of the "strict scrutiny" idea

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (decided April 25, 1938): We all know this one, where the Court finally abandons Swift v. Tyson, 1842, and holds that on a state law claim a federal court must apply the law of the state in which it sits, and not on any federal common law (though there is such a thing as to federal-based law). Younger, I., "What Happened in Erie", 56 Texas L. Rev. 1011-31 (1978), which we were referred to in Civ Pro class, extols the "genius" of the attorney who argued the winning side. But it was clear that Swift was becoming unworkable (see discussion in Gilmore, "The Death of Contract", 1974), and the product of this "genius" was that poor Harry Tompkins, who was injured due to the railroad's admitted negligence, went through life minus his right arm and, being uneducated, was barely employable. See "The Ballad of Harry James Tompkins", 52 Akron L. Rev. 531 (2019) (it's online), which treats his plight with smirking levity but does contain a 1960 photo of the one-armed Tompkins with his wife.

Northern Ins. Co. v. Chatham County, Ga., 547 U.S. 189 (decided April 25, 2006): county is not "arm of the State" (no, I'm not making a joke about Tompkins) and therefore does not enjoy Eleventh Amendment immunity from suit for injury due to drawbridge it built

Palmore v. Sidoti, 466 U.S. 429 (decided April 25, 1984): racial bias (a.k.a. the concerns of the Spencer Tracy character in "Guess Who's Coming to Dinner?") is not a basis for divesting (White) mother of custody of child after she married a Black man

National Society of Professional Engineers v. United States, 435 U.S. 679 (decided April 25, 1978): striking down on antitrust grounds canon of ethics issued by professional association prohibiting competitive bidding; Court's holding did not violate First Amendment

Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723 (decided April 25, 1977): order remanding diversity action to state court can't be appealed (there are some exceptions, not noted by the court but noted by me in my stupefyingly dull CLE on federal court jurisdiction)

Carson v. Dunham, 121 U.S. 421 (decided April 25, 1887): another removal case, this one pointing out that the removing party has the burden to show grounds for removal, i.e., he must establish that plaintiff is not from the same state

Huron Portland Cement Co. v. City of Detroit, Mich., 362 U.S. 440 (decided April 25, 1960): Dormant Commerce Clause did not prohibit Detroit smoke abatement ordinance as applied to docked ships (belching steam boiler smoke) even though they are engaged in interstate commerce

California v. Zook, 336 U.S. 725 (decided April 25, 1949): state statute prohibiting unlicensed transport of passengers (these were clients of a travel agency) preempted by ICC regime (which exempted "casual, occasional, or reciprocal" transportation)

Duignan v. United States, 274 U.S. 195 (decided April 25, 1927): right to jury trial is waived if not demanded (tenant was claiming unconstitutionality of claim for repossession due to Prohibition-era liquor nuisance)

[Brett Bellmore]

"upholding statute prohibiting interstate sale of filled milk (sounds gross from the description"

I've had filled milk in the Philippines, and yes, it is pretty gross. The cheese they made from it, too.

[Dr. Ed 2]

But it was safer than whole milk.

[Brett Bellmore]

Eh, I'm not sure it was safer. It wasn't any more dangerous.

Really, it's just a way to sell the butter while pretending to sell whole milk, too.

[Dan Schiavetta]

In those days milk was considered “the perfect food” and great effort went into creating approximations or derivatives in situations where whole milk wasn’t feasible. Those days are gone, fortunately.

When my wife stopped breast feeding we put our kids on Prosobee (soy) until they graduated to solid food. Neither has had a sip of milk since and they’re in great health.

[Brett Bellmore]

I grew up in a suburban neighborhood where the houses all literally had a little hatch in the wall, in the outside wall of the kitchen, where the milkman would pick up empties and replace them with fresh bottles of milk, without having to disturb the household. It was that regular a part of our diet.

[Dan Schiavetta]

You’re even older than I thought!

[Mr. Bumble]

Why? Because he remembers home delivery of milk and milk products or because the homes had a feature to accommodate it?

[Brett Bellmore]

I'm 64, how old did you think I was?

[Dan Schiavetta]

I'm 66, grew up in a northeastern suburb, and when I was a kid milkmen were a thing of the past.

[Brett Bellmore]

I suppose it went out of style earlier in some places than others. I grew up in one of those suburban neighborhoods that sprouted up after WWII, where basically everybody moved in about the same time after getting married; Essentially every home had multiple children. (Halloween was wild!)

I imagine that made the milk delivery business profitable longer than it would have been in more diverse neighborhoods.

These things changed at different times in different places.

[Dr. Ed 2]

Hood had home deliveries in Metro Boston until at least 1980.
It was a plastic-lined metal box on the porch.

[Drbusybody]

I was raised in a small town in the Midwest where if you weren't home, the milkman would come in anyway (people didn't lock their doors in those days even when they weren't home) and take note of what you were low on or out of and then restock accordingly. This continued until about 1982.

I once boosted that milkman's truck, which he left running in the street, in gear. To run it, all you had to do was step on the accelerator. I was 4 or 5. Who knew that old milkman could run so fast!

[Dr. Ed 2]

Filled milk had been cooked and was in a sealed can -- way safer than unpasturized fluid milk.

[Brett Bellmore]

Not necessarily, the filled milk in the Philippines was sold in cartons, even, in the refrigerated dairy aisle. It really was about replacing the profitable butterfat with cheap coconut oil.

[apedad]

Re: Palmore v. Sidoti

Facts of the case

Anthony and Linda Sidoti, both Caucasians, were divorced and Linda was awarded custody of their daughter. One year later, Anthony sought custody of the child after Linda began cohabitating with Clarence Palmore, an African-American. The Florida courts awarded Mr. Sidoti custody of the child, arguing that the child would be more vulnerable to social stigmatization in a racially mixed household. No evidence was introduced that indicated Ms. Sidoti was unfit to continue the custody of the child.

Question

Did the removal of the child from Linda Sidoti's custody violate the Equal Protection Clause of the Fourteenth Amendment?

Conclusion (Unanimous!)

In a unanimous decision, the Court held that while ethnic prejudices did exist in society, those private biases were not permissible considerations for the removal of an infant child from the custody of its mother. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." The Court thus held that the decision of the lower courts was an unconstitutional denial of rights under the Fourteenth Amendment. (oyez)

Now we'll hear from our VC colleagues who think this decision is an absolute travesty . . . .

[Dan Schiavetta]

I don't expect much constructive commentary on this around here either, but it is certainly true that in a small town in 1981 the fact that mom was shacking up with a black man was going to have repercussions on the child, all bad. Classmates can be very mean, and neighbors, and perhaps even teachers would suddenly be a lot more suspicious.

[John F. Carr]

I know a very white woman who going to school in the South around that same time let it be known that she liked a particular black man. He got scared over what would happen to them if they were seen as a couple.

[Dan Schiavetta]

I can believe that.

And it’s not just white people. My old girlfriend had been involved with a black man and she said the worst grief she got was not from white people (though they weren’t thrilled) but from black women. This was the early 1970s, in the North.

[Brett Bellmore]

I still remember as a teen (Michigan, mid 70's.) chatting a cute girl up, and the amazingly hostile reception I'd gotten, that left me wondering if I had bad breath or something. It was years later that I figured out that the fact that I was white and she was black might have had something to do with it.

Or maybe I did have bad breath...

[apedad]

". . . but it is certainly true that in a small town in 2016 the fact that mom was shacking up with a black man. . . . "

FTFY

https://www.washingtonpost.com/news/post-nation/wp/2016/08/19/white-supremacist-stabs-interracial-couple-after-seeing-them-kiss-at-bar-police-say/

[Dr. Ed 2]

I think it was more the unmarried part.

[Dan Schiavetta]

Yes at first, but according to the decision they got married a few months later.

[Dan Schiavetta]

Not well phrased. I should have said, "striking down on antitrust grounds canon of ethics issued by professional association prohibiting competitive bidding; outweighs Freedom of Speech argument"

[Rev. Arthur L. Kirkland]

captcrisis, one year ago:

Josh doesn’t mention the only reason the case is important.

The committee has ruled that this observation does not qualify for a Noble Prize. Mere shoddy scholarship does not meet the committee’s standards. The deficiency must constitute error.

[Dan Schiavetta]

I suppose it's because without membership in the association, one can't practice that profession, if not de jure then de facto. So the association is sort of a "state actor".

[Dan Schiavetta]

One wonders if in the first place the mother thought carefully about what she was doing. If she did, and she was happy with the man, and the child was being brought up with love and attention, and they were careful to not make a big deal about it either in the house or with other people, even in those days the child would have probably ended up o.k.

Funny how this reminds me of an episode of "The Waltons". As corny as it usually was, there were threads of reality running through it. In one episode an orphaned black boy, around age 6, gets attached to John Walton. He follows him around and wants to be adopted. John is trying hard not to tell him the truth -- that it simply cannot happen, in 1930's Virginia, that a white family can adopt a black boy. Finally they find a black friend who will adopt him.

[John F. Carr]

I see her as paler than the average white woman. I have not used a color card to check. She comes from a very white dot on the map in the middle of nowhere. She was new to the South. Since then she has lived and worked all over North America.