Today in Supreme Court History: May 3, 1802

5/3/1802: Washington D.C. incorporated as the capital of the United States. Article I, Section 8 empowers Congress to "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."

Comments

[Dan Schiavetta]

Shelley v. Kraemer, 334 U.S. 1 (decided May 3, 1948): the first case invalidating “restrictive covenants” prohibiting black people from buying houses in white neighborhoods; though covenant was between private parties, judicial enforcement of covenant was “state action” implicating Fourteenth Amendment equal protection clause (there’s something odd about this argument — it seems to swallow up everything — any agreement at all between private parties turns into “state action” once anyone takes it to court)

Lee v. Lee, 33 U.S. 44 (decided May 3, 1834): A freedom suit brought by slaves who had formerly lived in Virginia with their owner, appealing from a verdict in his favor. When Maryland and Virginia ceded parts of their land to the new D.C. in 1801, Congress provided that all laws of Maryland would remain in force. This would have included a 1796 law freeing any slave brought into the state. But in D.C. as a whole, slavery was legal. The part of Maryland ceded included “Washington County”; the part of Virginia ceded was “Alexandria County” (more or less modern-day Arlington County, later given back to Virginia). Here, the owner moved to Washington County, but assigned his slaves to owners in Alexandria county, and after a year brought them to him in Washington County. Was this an attempt to circumvent the 1796 law? The Court here holds that this question should have been heard by the jury and sends back for a new trial. Unknown what happened later. (With slaves being the appellants, the Court also refuses to entertain whether their market value was less or more than $1,000, the jurisdictional limit; “the value of their freedom is not susceptible of a pecuniary valuation”, although oddly mentions that it would have been relevant if it was the owner appealing.)

Stinson v. United States, 508 U.S. 36 (decided May 3, 1993): courts are bound by the commentaries of the Sentencing Commission (which unlike the guidelines, are not approved by Congress) which say that gun possession is not a “crime of violence” so as to make defendant a “career offender” for aggravated sentencing

Hui v. Castaneda, 559 U.S. 799 (decided May 3, 2010): can’t bring Bivens action (violation of Constitutional rights by federal personnel) against Public Health Service officers for failure to diagnose cancer while in federal custody; 42 U.S.C. §233 provides immunity to PHS officers and suit can be brought only against the United States (I don’t understand why this is important if the United States is already in the case — §233 also says the United States can be sued, waiving sovereign immunity)

Jones v. R.R. Donnelley & Sons, 541 U.S. 369 (decided May 3, 2004): statute of limitations for claim under 1991 amendment to 42 U.S.C. §1981 (class action for racial discrimination) is four years under the federal catch-call statute for newly created causes of action (28 U.S.C. §1658) instead of statute for analogous state law action

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (decided May 3, 1999): The Price-Anderson Act of 1957 got the nuclear power industry going by limiting liability for nuclear accidents. It also provided for federal court (removal) jurisdiction at defendant’s request. Here the Court holds that this includes removal from tribal courts despite the federal courts’ usual rule of comity requiring exhaustion of tribal court remedies before filing in federal court.

United States v. Padilla, 508 U.S. 77 (decided May 3, 1993): co-conspirator has no expectation of privacy in conspirator’s place or property (no standing to contest consented-to search of car in which cocaine was found)

Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (decided May 3, 1971): this is the leading case on defensive non-mutual collateral estoppel: patent case dismissed because in another case defendant had established that its patent was valid

United States v. Thirty-Seven Photographs, 402 U.S. 363 (decided May 3, 1971): Censoring for obscenity, per the Court’s prior rulings, required a time limit for the censor to approve/disapprove, and prompt judicial review, Freedman v. Maryland, 1968. Here, to save the Constitutionality of a federal statute (prohibiting importation of “immoral articles”, 19 U.S.C. §1305) the Court feels free to invent a deadline of 14 days for decision and 60 days for completion of judicial review. At issue were pictures from Europe found by customs inspectors which publisher Milton Luros was intending to use to illustrate an edition of the Kama Sutra. (See Wallach, I., “Kama Sutra Sexual Positions (and How to Get Out of Them Without Injury)”), 1976.)

Martin v. City of Struthers, O., 319 U.S. 141 (decided May 3, 1943): ordinance against doorbell-ringing violated First Amendment (plaintiff was a Jehovah’s Witness) (I don’t agree with this decision — the Court admits that Struthers is a steel town where many work nights and need their sleep)

[John F. Carr]

Better than the "state action" argument, which applies to any contract, is the "public policy" argument. There is a longstanding tradition that in rare cases contractual terms can be disregarded because they offend judges' notion of the way the world ought to work, or because they clearly invite violation of law.

[John F. Carr]

My neighborhood got two visits from Jehovah's Witnesses in five years. Also three visits from suspicious home improvement companies. That rate is not worth regulating. Struthers, being more densely populated, might have had a higher rate of unwanted ringing. If you don't want solicitors you can buy signs. "No soliciting." "No trespassing." "We don't call 911." (That last is modern. There was no 911 in 1943.)

A neighborhood in the Boston suburbs was worried about news of a suspicious person going door to door and finding nobody home. Help! Police! Stop this man! He's casing our houses. Then a picture was circulated. He was black. Residents got worried about the optics of a xenophobic rich town asking the cops to hunt down and remove a black person. He was selling magazines. Must have stumbled through a time portal from the 1970s.

[Dr. Ed 2]

Magazines? In 2023? Do they even still exist?
Is there any money to be made from selling legitimate subscriptions?

Ice Cream Trucks were worse because there was always the fear of child molesters driving them -- but the increase in minimarts & convience stores really did in their business.

What some towns did was require a municipal license through the police department -- a solicitor's license -- initially $25 it's now $165 with the fingerprinting and not worth it. And I think this applies to Jehovah's Witnesses & the LDS as I haven't seen either recently.

https://www.wakefieldpd.org/sites/g/files/vyhlif5136/f/uploads/wpd_application_for_soliciting_0.pdf

[Mr. Bumble]

Never got a Publishers Clearing House mailing?

Never been driven crazy by a Mr. Softee truck blaring their tune over and over?

Magazines and ice cream trucks are still a thing.

[John F. Carr]

The only ice cream truck I have seen in a long time stopped next to the children's park on Trapelo road near the Waltham/Belmont line. I never saw it cruising for business.

[Dan Schiavetta]

They still cruise where I live.

[Mr. Bumble]

It's a big country. I suppose location makes the difference.

[Gandydancer]

I don’t think you can require licensing of Jehova’s Witnesses nor enforce “No Soliciting“ signs against them.

[Krayt]

There’s the whole SC ruling that squashed efforts to make dropping off newspapers or pamphlets “littering”, where, IIRC, you needed a cute white picket fence with a closed gate and no soliciting to stop it otherwise. Otherwise it counts as the historical approach to your house to talk to you by knocking on your front door, and your freedom of speech to do that ruled, in that government could not stop it.

I assume business solicitation/legal ban/licensing derives out of business speech being a secondary right (a sketchy concept beyond truth in advertising, but fully in line with millenia of corruption getting in the way). This would not apply to non-business speech, especially religious speech, as proselytization is part of free exercise practice as well as speech.

[Jerry B.]

"Blonder-Tongue Laboratories, Inc."

Regardless of outcome, they were obviously doing something racist, and probably lewd.

[Dan Schiavetta]

Anyone with a blonde tongue should really see a doctor.

[Mr. Bumble]

"Regardless of outcome, they were obviously doing something racist, and probably lewd."
Lesbian White Supremacist group?

[Noscitur a sociis]

This is what Prof. Blackman came up with when he could have done Shelley v. Kraemer???

[Gandydancer]

You do realize that the same dates recur each year, jackass?

[Frank Drackman]

not really the same date if it's a different year, dumbass

[LawTalkingGuy]

"(there’s something odd about this argument — it seems to swallow up everything — any agreement at all between private parties turns into “state action” once anyone takes it to court)"

I don't think its that odd. Judicial enforcement is obviously a type of state action. I mean people go to court to get an arm of the state to enforce their agreement possibly with coercive remedies. Otherwise there would be no point.

[Dan Schiavetta]

There's a body of case law on who is and is not a "state actor". Often the court rules that they are not. And so there is no 14th Amendment liability.

The holding here ignores all that case law, or rather, makes it all moot.

[LawTalkingGuy]

I mean that case law is likely wrong. It makes no sense. How are the courts, which use coercive state powers, not state actors?

[Dan Schiavetta]

So anytime someone gets dragged into court, they incur 14A liability by definition?

[LawTalkingGuy]

No. Not at all. Parties simply can’t expect the court to violate the equal protection clause along the way to resolving their disputes with judicial power. It’s the same concept as not enforcing a contract for an illegal activity. Courts can’t enforce a liquidated damages clause in an assassination contract either.

[Dan Schiavetta]

The only reason it was illegal was because a court got involved.

[LawTalkingGuy]

The court got involved because the neighbors asked it to use judicial power, including its coercive remedies, to engage in racial discrimination. The supreme court correctly refused to do so because that would violate the equal protection clause.

[Dan Schiavetta]

It is odd to say that someone has the right to do something — unless they’re taken to court over it.

At the time, private parties had the right to discriminate.

[Michael P]

Who had which right in your hypo?

The Shelley family had a presumptive right to occupy the house they bought. The previous owner had a de facto right to sell it to the Shelleys. Kraemer how'd to enforce a restrictive covenant, but could not exercise that putative right except through court order. Which of them had a right to do something that disappeared when they were taken to court?

(One might argue that happened with the overturned lower court rulings, but I don't think that is what you were talking about.)

[LawTalkingGuy]

The neighbors took the buyer/seller to court to enforce the covenant. To stop them from exercising a purchase right.

[Michael P]

Sure, that is what my parenthetical addressed. I thought captcrisis's criticism was that the Supreme Court's decision would lead to "someone has the right to do something — unless they’re taken to court over it", not that the (overturned) lower court decisions would do that. My question is why captcrisis thinks the Supreme Court's ruling would have such a result.

By default, the seller had the right to sell the property to willing buyers. The restrictive covenant purported to waive that right. I think the Supreme Court might have been on clearer or stronger grounds to say that US courts cannot enforce such covenants as being contracts against public policy, but the Court did not rule in those terms.

[David Nieporent]

No. Not at all. Parties simply can’t expect the court to violate the equal protection clause along the way to resolving their disputes with judicial power. It’s the same concept as not enforcing a contract for an illegal activity. Courts can’t enforce a liquidated damages clause in an assassination contract either.

It's not in the realm of contract, but NYT v. Sullivan is based on a similar principle: that invoking the power of the courts is state action. Obviously a private individual cannot violate the 1A no matter what he or she does — but by asking a judge to punish someone for their speech, the government is involved and thus the 1A is at issue.

[Dilan Esper]

So all court action is state action. But in an ordinary breach of contract action, the rules that apply to contracts don't violate any constitutional provision (but see the Federal Arbitration Act and jury trials).

OTOH, I suspect everyone believes if a court ruled that "white people may get expectation damages but Black people may only get reliance damages in their breach of contract actions", that WOULD be an equal protection violation.

So the best reading of Shelley (and I wrote a law review article on this topic back in the day) is that the decision to find racially restrictive covenants enforceable is state action and that decision violates the Equal Protection Clause because of discriminatory intent and effect.

[LawTalkingGuy]

Yes. This exactly. It’s the judicial remedy that violates the EPC and is state action. If you live in a community that agrees and wants use social shame to enforce a racist covenant that’s fine and not illegal. But don’t expect to get a judicial remedy from the arm of the state.

[Bob from Ohio]

"(there’s something odd about this argument — it seems to swallow up everything — any agreement at all between private parties turns into “state action” once anyone takes it to court)"

Court did not want to be associated with upholding a bad thing so it invented a one time only doctrine.

[Krayt]

(there’s something odd about this argument — it seems to swallow up everything — any agreement at all between private parties turns into “state action” once anyone takes it to court)

Subject matter aside, conceptually, The People created the government, and the courts, to, among other things, deliberately resolve private disputes in a public forum. The People also gave government certain powers, and no others, and specifically gave them a list of things not to touch, just in case. I cannot conceive of them deciding to apply that to themselves, through government.

[Krayt]

“I paid him (or her!) money to shut the hell up, and he’s not shutting the hell up.”

[Dr. Ed 2]

How did Virginia get its half of DC back?

I know it's not secession, exactly, but...

[Dan Schiavetta]

It was getting neglected by Congress, Virginia declared it wanted it back, and Congress gave it to them.

[Mr. Bumble]

Apparently the lack of any development (I suppose no bridges existed) and the possibility of a ban on slave trading led to Arlington petitioning the federal and state government to allow it to rejoin Virginia.

From Wiki: Residents of Alexandria saw no economic advantage from being in the District. No federal buildings could be built on the south side of the Potomac, nor did they have representation in Congress. Some resistance was expressed immediately. One leading figure in the fight to retrocede through the 1820s was Thomson Francis Mason, who was elected mayor of Alexandria, D.C., four times between 1827 and 1830. Also Alexandria was a center of the profitable slave trade – the largest slave-trading company in the country, Franklin and Armfield, was located there – and Alexandria residents were afraid that if the District banned the slave trade, as seemed likely, this industry would leave the city.

To prevent this, Arlington held a referendum, through which voters petitioned Congress and the state of Virginia to return the portion of the District of Columbia south of the Potomac River (Alexandria County) to Virginia. On July 9, 1846, Congress retroceded Alexandria County to Virginia, after which the district’s slave traders relocated to Alexandria.[9]: 292 [10] The district’s slave trade was outlawed in the Compromise of 1850.[11] The penalty for bringing a slave into the district for sale, was freedom for the slave.[12] Southern senators and congressmen resisted banning slavery altogether in the District, to avoid setting a precedent. The practice remained legal in the district until after secession, with the District of Columbia Compensated Emancipation Act signed by Lincoln on April 16, 1862, which established the annual observance of Emancipation Day.

[Dr. Ed 2]

Now was Lee's estate (now Arlington Cemetery) part of that or not?

[Mr. Bumble]

Today in Supreme Court History: May 3, 2023.

...and yet another day without a decision being released.

[Dr. Ed 2]

And what happens if they don't get done on time?

Extra innings?

[John F. Carr]

Does Maryland need to consent to the return of DC or can Congress force it on them? I keep hearing it's unjust that Washington isn't part of a state.

[Dan Schiavetta]

Maryland would have to consent?

“no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.“ Art. IV, sec. 3.

[Noscitur a sociis]

Returning DC to Maryland would not be any of those things.

[Dan Schiavetta]

True, and at the time of the original Constitution there was no such thing as D.C., but the implication is clear.

[Krayt]

I would have added a clause that if the feds didn’t wanna use a part of DC anymore, they had to give it back to the state it came from, and could not give it to another state, or hang onto it for some other purpose.

For the record, this opinion formed decades before the recent idiocy of turning DC into a state because we care so damned much about senatorial representation, but giving it back to said states doesn’t meet with our real goals.

[Mr. Bumble]

Wouldn't the return of DC to Maryland defeat the whole purpose of the creation of the district? At the time Arlington was returned to Virginia there wasn't much of a federal government to speak of and no federal infrastructure on the Virginia side. Not so today in the remaining district.

[Dan Schiavetta]

The Capitol, White House, etc. are in small, well-defined area. As I understand it the idea is to retain this as the federal district, while the rest of the present D.C. either joins Maryland or becomes a new state.

[Frank Drackman]

Good! they'll find out taxation isn't any better with representation

[Mr. Bumble]

Since the original land was part of Maryland, wouldn't they have to agree to the creation of a new state from their former territory?

[Dan Schiavetta]

This would seem to be true whether or not it was formerly theirs, though as Noscitur pointed out above, the Constitution does not directly address the issue.

[Gandydancer]

Irrelevant.

[Mr. Bumble]

Why irrelevant?

[Brett Bellmore]

The goal was twofold, as I understand it.

One point was to give the federal government independence from any particular state government. DC accomplished that pretty well, but the supremacy clause, as currently understood, largely rendered that function redundant.

The other point was to avoid any particular state from profiting/becoming dependent on, the federal government. And thus automatically supporting that government's efforts to grow.

DC was a complete and utter failure in that regard, the wealthiest areas in the country are the counties neighboring DC, and both Maryland and Virginia have a strong financial incentive that the central government grow.

In the end, I guess DC wasn't big enough to be an effective isolation ward.

[The Margrave of Azilia]

And they forgot to put gates around it to keep the inmates from escaping.

[SRG]

Dr Hui of Hui v Castaneda is still practicing. She was sued in another case of inmate malpractice: https://casetext.com/case/banderas-v-united-states-2

and was later suspended for 3 years for her (in)actions in the two cases.

https://medicalboardcases.com/wp-content/uploads/2018/05/California-Internal-Medicine-Right-Leg-Infection-Complicated-With-Diabetes-Fails-To-Improve-Despite-Treatment.pdf