Today in Supreme Court History: April 30, 1789

4/30/1789: President Washington's inauguration. He would appoint eleven members to the Supreme Court: Chief Justices Jay, Rutledge, and Ellsworth, and Justices Wilson, Blair, Cushing, Rutledge, Iredell, Johnson, Paterson, and Chase.

President Washington's Appointees

Comments

[Dan Schiavetta]

Bad Elk v. United States, 177 U.S. 529 (decided April 30, 1900): Kid shot a gun into the air for fun. Tribal policeman (his cousin) had no right to arrest him, such that he had self-defense argument when things came to a head the next day when the policeman drew a gun on him. The extensive account of the facts describes a slower-moving frontier society and might have made a good episode of “Gunsmoke”, though with an all-Native American cast. (The defense that one has the right to resist an unlawful arrest, is no longer permitted, at least not in Texas where this incident happened, Texas Penal Code §38.03.)

Berra v. United States, 351 U.S. 131 (decided April 30, 1956): can’t give jury the choice of convicting for felony (filing false tax return) or misdemeanor (submitting false valuation) where same facts supported either charge (overlap was removed by later Code change, see Sansone v. United States, 1965)

KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (decided April 30, 2007): electronic sensor for pedal position adaptable for short-legged people was too “obvious” to be patentable in light of then-existing technology (unfortunately no diagram is provided) (my knowledge of pedal mechanisms is intimate but it begins and ends with my 1959 VW Beetle)

Turner v. Murray, 476 U.S. 28 (decided April 30, 1986): error to refuse request to question jurors as to racial bias in capital crime prosecution involving black defendant and white victim

Wilkins v. United States, 441 U.S. 468 (decided April 30, 1979): petition for certiorari should have been entertained even though 17 months late due to court-appointed attorney’s inaction after defendant wrote to him repeatedly requesting that a petition be filed; this petition was pro se, supported by affidavits from wife and minister; remanded to Circuit Court so that proper, lawyerly petition could be filed (this was a Mann Act case; not clear how it turned out)

Addington v. Texas, 441 U.S. 418 (decided April 30, 1979): Due Process requires that showing of mental illness requiring commitment must be made by “clear and convincing” evidence, not just preponderance

Comm’r of Interal Revenue v. Bilder, 369 U.S. 499 (decided April 30, 1962): rent paid for winter Florida apartment can’t be deducted as medical care expenses even though was following doctor’s orders to spend cold months in warm climate (fact that wife accompanied him might have been a factor, but what did they expect?)

Communist Party of United States v. Subversive Activities Control Board, 351 U.S. 115 (decided April 30, 1956): The CPUSA argued that it wasn’t a “Communist-action organization” (controlled by Moscow, dedicated to world Communist revolution) requiring registration and monitoring. Here, there was so much perjured testimony that the finding against them had to be vacated. Case remanded; no record of what happened after this. (My understanding is that though the CPUSA marched in lockstep with Moscow, it was their choice to do so, and there was internal debate between world revolution and single-country revolution.)

Scott v. Harris, 550 U.S. 372 (decided April 30, 2007): police enjoyed qualified immunity after stopping high-speed car chase by ramming car from behind, causing loss of control of vehicle and injuries; §1983 suit dismissed

Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (decided April 30, 2007): Microsoft can make lots of $ infringing AT&T’s voice recognition patent so long as it’s sold for overseas use (even though the disks incorporating the software are made here)

[John F. Carr]

California legal jargon includes the term "wobbler" for an offense like the one in Berra that fits both a felony and a misdemeanor. The prosecutor is granted the power to choose which to prosecute. The dissent inBerra has some words about this now-ubiquitous practice:

A congressional delegation of such vast power to the prosecuting department would raise serious constitutional questions. Of course it is true that under our system Congress may vest the judge and jury with broad power to say how much punishment shall be imposed for a particular offense. But it is quite different to vest such powers in a prosecuting attorney. A judge and jury act under procedural rules carefully prescribed to protect the liberty of the individual. Their judgments and verdicts are reached after a public trial in which a defendant has the right to be represented by an attorney. No such protections are thrown around decisions by a prosecuting attorney. Substitution of the prosecutor's caprice for the adjudicatory process is an action I am not willing to attribute to Congress in the absence of clear command. Our system of justice rests on the conception of impersonality in the criminal law. This great protection to freedom is lost if the Government is right in its contention here.

Berra v. United States, 351 U.S. 131, 140 (1956)

[Dan Schiavetta]

Thanks! You add depth, as always.

[The Margrave of Azilia]

"Communist Party of United States v. Subversive Activities Control Board"

I believe the *Party* was ultimately required to register, but individual *officers* had a 5th Amendment right not to sign the form since it would be self-incriminating.

[Dan Schiavetta]

I believe you are correct.

My summary posted here on Nov. 15, 2022:

Albertson v. Subversive Activities Control Board, 382 U.S. 70 (decided November 15, 1965): requiring members of the Communist Party to register as such violates self-incrimination clause (by doing so they could automatically be prosecuted under the Smith Act)

[The Margrave of Azilia]

The Party itself still had to register, but no human Party members could be forced to do the registering. Maybe they could have used an AI – I don’t think AIs have constitutional rights.

[Voize]

Bad Elk happened in South Dakota, not Texas, but SD has also removed the common law defense unless the arresting officer uses unreasonable force.

John Bad Elk died in jail of tuberculosis in 1900, waiting for the retrial he had been granted.

[Dan Schiavetta]

Thanks.

Will make change for next time.

[Dr. Ed 2]

The real question was Soviet funding of the CPUSA -- although it lost a *lot* of support in 1968 after the Prague Spring was crushed. That was Leonid Brezhnev, not Stalin, and it opened eyes.

https://www.history.com/this-day-in-history/soviets-invade-czechoslovakia

[David Nieporent]

Scott v. Harris, 550 U.S. 372 (decided April 30, 2007): police enjoyed qualified immunity after stopping high-speed car chase by ramming car from behind, causing loss of control of vehicle and injuries; §1983 suit dismissed

The VC's own Orin Kerr worked on the cop's side on this case.

The main takeaway from this case was not the routine QI decision, but the fact that SCOTUS held that in the face of an undisputedly accurate video depicting the events in question, the district court was not free to adopt a contrary view of the facts.

[No One Of Consequence]

Regarding Wilkins v. United States, 441 U.S. 468 (decided April 30, 1979), and the "not clear how it turned out" part.

The district court opinion, 422 F. Supp. 1371 (E.D. Pa. 1976), had been affirmed without opinion by the Third Circuit prior to getting vacated by the Supreme Court. After the Supreme Court vacated, it was again affirmed without opinion in U.S. v. Wilkins, 601 F.2d 577 (3d Cir. June 15, 1979), and cert. denied, 444 U.S. 877 (Oct. 1, 1979).

Because I'm sure everyone wanted to know.

[Frank Drackman]

Washington, yeah, right, Slave/Gun owning White guy, on the seal of the Confederate States, didn't get his Diphtheria jab and paid the consequences, the original Race-ist/Gun-Nut/Vaccine denier, and how many LGBTQ-M-O-U-S-E in his Cabinet???

Frank

[Magister]

No vaccine for diphtheria in the 18th century.
Washington ordered inoculation of recruits against smallpox.
Washington endorsed a free people being "armed, but disciplined".
Probably more gay or bisexual men than women in his cabinet.

[Rev. Arthur L. Kirkland]

how many LGBTQ-M-O-U-S-E in his Cabinet???

That point likely was obscured, consequent to bigotry.

A great element of American progress is that the bigotry and bigots are being diminished -- consequent to the efforts of courageous, better people -- in our society.

[Frank Drackman]

yes, bigoted Senescent Joe is being diminished, by his own peoples, the Blacks for not realizing they're not Black if they don't vote for him, so diminished that nutty RFK Jr (At 69, the "Youth Candidate") and Marriane Williamson (actually not as nutty as Sleepy, and more accomplished than Mrs. Sleepy) are polling nearly a 1/3 of the DemoKKKrat vote. Such a Diverse party, 3 white Seasoned Citizens!!!!

[Dr. Ed 2]

Call him "nutty" but RFK2 is asking real questions about what is the most significant aspect of Brandon's first term, and at any other time in history, the media would be demanding they be answered.

And don't rule out Tulsi Gabbard -- 50 years ago, no one ever thought a state could have an Independent Governor, now Maine's had two (a former R and a former D) and Minnesota's had Jessie Ventura.

She could draw a lot of people who are p*ssed at both parties -- she's a LTC in the Army Reserve who served in both Iraq & Kuwait.

[Frank Drackman]

I'd vote for a Tulsi (Veteran BTW) and Jesse "The Body" (former Navy SEAL) ticket

[Noscitur a sociis]

I will bet you any sum you care to name that Tulsi Gabbard will receive exactly zero electoral votes in 2024.

[Frank Drackman]

OK, I'll bet you a Google-Plex Tulsi gets as many EV's as Senescent Joe.

[John F. Carr]

She's different, I grant you that, but she has proved uninteresting to voters.

[David Nieporent]

And don’t rule out Tulsi Gabbard — 50 years ago, no one ever thought a state could have an Independent Governor, now Maine’s had two (a former R and a former D) and Minnesota’s had Jessie Ventura.

There were many independent governors before Angus King, but I'm sure a trucker once told you otherwise.

[Dr. Ed 2]

In the 20th Century, there was Longley and one other.

[David Nieporent]

If by "one other" you mean a bunch of people that I didn't remember specifically but which wikipedia lists here.

Of course, you might try to quibble that some of those weren't true "independents" but were members of third parties — but so was Jesse Ventura, who you counted, so that quibble fails. (Also not sure why you're limiting it to the 20th century, but that's a side issue.)

[Intelligent Mr Toad]

Did Justice Cushing suffer from Cushing syndrome?

[Frank Drackman]

Actually named after the great actor Peter Cushing (great in everything! was there ever a better Dr. Frankenstein?) who dabbled in medicine on the side.

[F.D. Wolf]

In 1772 pre-Revolutionary America, William Cushing, succeeding his father who had resigned. was appointed a justice of the Superior Court of Judicature of Massachusetts by the royal governor Thomas Hutchinson. After the Revolution broke out in 1775, the Massachusetts Provincial Congress dissolved the royal courts and reestablished them as state courts. Cushing was the only justice who was retained.

As shown in his portrait, Cushing was the last judge in the United States to continue to wear full court dress, including the full-bottomed wig. He finally gave up the practice in 1790 in large part because of the merciless taunts he received from street urchins in New York, where the Supreme Court met for its first two sessions (hearing no cases). In 1791, the Court would leave for Philidelphia with the rest of the federal government.

[Dr. Ed 2]

Cushing & Ellsworth are both Maine towns.

[Dr. Ed 2]

Other than Samuel Chase, famous for his impeachment, did any of the 11 do anything notable as Justices? (Yes, John Jay had before.)

Almost like SCOTUS (and the Judiciary) wasn't considered important.

[Frank Drackman]

Rutledge freed all of his Slaves when he died (actually he didn't, but by that time he only had 1)

[Rev. Arthur L. Kirkland]

Three years ago, Eddy was awarded the initial Noble Prize for this achievement:

You counted Rutledge twice to get to 11 – once as associate justice and once in his promotion to Chief Justice.

Eddy also offered this:

Rearrange the pieces and you get an extra Justice – rearrange the pieces again and the extra Justice disappears!

[Dr. Ed 2]

Josh wrote: "He would appoint eleven members to the Supreme Court...." -- and I didn't count names...

But I think you proved my point as to how insignificant the early Court was....

[Frank Drackman]

Original Court had several Military Veterans, almost like the guy who appointed them was a Veteran himself, who knows the only Veteran on the current Court??

[Mr. Bumble]

That would be Alito.

[Frank Drackman]

You are correct sir!
Big Brain Brett Kavanaugh doesn't know how much he missed not being in the Navy in the 90's (OK, up until "Tailhook" anyway) lots of Beer/Broads/Flunitrazepam) he'd have been a "natural"

Frank

[Dr. Ed 2]

Tailhook was in September of 1991, when Kavanough was in High School.

[David Nieporent]

Another brilliant Dr. Ed contribution. Apparently he thinks Brett Kavanaugh (whose name he can't even spell) was still in high school at age 26.

[Frank Drackman]

I know I was, (Hey Now!!!!!)

[gVOR08]

WIKI says he joined ROTC after getting a bad number in the draft lottery (I lucked out with a 330) and aside from training after law school he served most of his time in the inactive reserve. So yes, he’s a veteran, he wore his countries uniform, and he successfully dodged the Vietnam draft.

[Dan Schiavetta]

“he successfully dodged the Vietnam draft.“

How often have we seen this from that generation of conservatives?

[Rev. Arthur L. Kirkland]

There are fewer conservatives these days, but still plenty of chickenhawks.

Which of the Conspiracy fans is Max Kues? Several strong candidates come to mind.

Or did Max change his name, attend law school, join the Federalist Society, and become a Volokh Conspirator? Which Conspirator would that be? I have a "pretty good idea."

[Frank Drackman]

Which "Law School" did you attend, Jerry??
I mean besides the "School of getting (redacted) at
https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx"
and is that still your current, umm, "Abode"??
I know they have to be reticent about where they keep their "Special Prisoners" (NOT "Inmates", there's a difference")

Frank

[Frank Drackman]

Admittedly, (you left out "W" who cowardly flew F-102s in the Texas Air National Guard) and I know you're a bunch of Homo's who wouldn't know an F-102 ("Voodoo" yes, very "Unwoke" nickname) from getting fucked up the ass,
They weren't as clever as William Juffuhson Rodman or Senescent Joe, who managed not to get drafted anyway, 1: for promising to go into ROTC, and 2: not sure what Sleepy's claiming, would be bullshit anyway,
Best answer was Barry Hussein, like "45" didn't want to waste his talents in a Bullshit Government Bureaucracy, (I'm a Veteran, but you look up "Bullshit Government Bureaucracy", you see the US Military, it's saying something (bad) that it's actually better serving in Combat)
Couldn't convince my daughters to avoid the Bullshit (where else do you get paid to fly jet fighters? Ok, Israel)

Frank

[Dr. Ed 2]

Bullshyte

The F-102 was retired early because of its high accident rate but you need to remember what the coastal ANG units were doing during the Cold War -- they were flying up to challenge Soviet aircraft, knowing that they didn't stand very good odds as they were (a) in obsolete planes and (b) the Soviets would shoot first, if that was their intent.

He was on the front line.

[David Nieporent]

Yes, once again, the Soviet Union was attacking Alabama in Dr. Ed's mind.

[Dr. Ed 2]

They encroached on our airspace, and we had to chase them away.

[Bob from Ohio]

“he successfully dodged the Vietnam draft.“

He at least didn't fake asthma like Biden.

[Dr. Ed 2]

It’s simpler now in hindsight — but do not forget that Truman sent the Guard and Reserves into Korea, and Bush sent them to Iraq — there was no way of knowing that both LBK and RMN would make a *political* decision not to do likewise!

(I know people who thought their units *were* going…)

It’s also important to remember when and why ROTC was created — in the midst of something known as the Civil War, the US Army was going through a lot of 2LTs (or whatever they were called then) and while West Point turned out officers for the Army, there was a need for *RESERVE* Officers to replace the dead ones. Hence ROTC.

In 1969, he had no way of knowing that Nixon would pull out before he was commissioned — I know someone who did the same thing in 1950 and didn’t go to Korea because it had ended when he got commissioned in 1954.

And look at how long we were in Afghanistan — 20 years…

“Alito was commissioned a second lieutenant in the United States Army Reserve in 1972. He began his military duty after graduating from law school in 1975 “

When the Army had too many officers and was downsizing — just like in 1992…

He “completed his service obligation as a member of the inactive reserve before receiving his honorable discharge in 1980” when he was 30 years old and the Army wanted someone younger. Remember this was before Reagan’s buildup and they had a limited number of Officer slots.

[John F. Carr]

I remember a high school teacher telling the class that the Vietnam war used up a lot of second lieutenants because they tended to be not far behind the point, where the ambush would strike. I don't know if this was backed up by statistics.

[Dr. Ed 2]

Well they aimed for the officers -- not a bad tactic and why we went to cammo rank insignia.

[Frank Drackman]

Well you're a combat Vet, you should know. Of course the Marines don't have "Cammo rank insignia", seriously, Dr. Ed2, next you'll be claiming "The A Team" was a documentary

[No One Of Consequence]

Weird that John Blair would hire a caricaturist to do his official portrait.