Today in Supreme Court History: May 24, 1870

5/24/1870: Justice Benjamin Cardozo's birthday.

Justice Benjamin Cardozo

Comments

[Dan Schiavetta]

In re Shipp, 214 U.S. 386 (verdict rendered May 24, 1909): Only once has there been a criminal trial in the Supreme Court and this was it. The Court had stayed proceedings as to a jailed black murder defendant until appeals could be heard. The defendants, nine local law enforcement personnel, had violated the Court’s order by letting (or helping) a mob carry off the prisoner and lynch him. So the trial for contempt was properly in the court which had issued the stay order -- the Supreme Court. (Though actually evidence was heard by a special master -- good! most Justices should not be entrusted with a trial). The verdict is a long decision reciting all the evidence and finding some of the contemnors guilty.

Bob Jones University v. United States, 461 U.S. 574 (decided May 24, 1983): revocation of tax exemption of private university which based on its interpretation of the Bible prohibited interracial dating/marriage did not violate First Amendment freedom of religion (coincidentally or not, 1983 was the last year this white man had a white girlfriend)

Guam v. United States, 593 U.S. --- (decided May 24, 2021): Guam cannot recover toxic cleanup costs from U.S. because cleanup was not a specific CERCLA (“Superfund”) cleanup such as the statute allowing recoupment requires

​Blueford v. Arkansas, 566 U.S. 599 (decided May 24, 2012): no Double Jeopardy bar to retrial on all charges, even though foreperson in first trial reported that though hung on manslaughter charge the jury had voted to acquit on murder charge

​United States v. O’Brien, 560 U.S. 218 (decided May 24, 2010): fact that weapon used in crime of violence was a machine gun (18 U.S.C. §924(c)(1)(B)(ii)) was an element of the crime (beyond reasonable doubt) and not a sentencing factor (preponderance of evidence)

Wilson v. Layne, 526 U.S. 603 (decided May 24, 1999): allowing reporters to “ride along” with a warrant-based search violates the Fourth Amendment, though in that case excused due to unsettled law at the time (and the photos taken were never published)

Merchants’ and Manufacturers’ Bank v. Pennsylvania, 167 U.S. 461 (decided May 24, 1897): deferring to Pennsylvania Supreme Court’s holding that State taxation of national banks as well as in-state banks did not violate Equal Protection even thought the effects were different

Sutherland v. Mayer, 271 U.S. 272 (decided May 24, 1926): no favorable treatment to either side in divvying up distribution of German-American business partnership dissolved by 1917 Declaration of War; postwar German hyperinflation ignored in valuation

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (decided May 24, 1976): statute prohibiting pharmacists from advertising drug prices violated First Amendment

Nelson v. Campbell, 541 U.S. 637 (decided May 24, 2004): condemned man informed on eve of lethal injection execution that his drug-abuse-compromised vein would be accessed an hour before execution by a 2-inch cut and catheterization without physician present could file suit under 42 U.S.C. §1983; habeas corpus not available because not challenging fact of his imprisonment or the sentence imposed (unanimous decision!) (note: Nelson died of unrelated causes in the prison infirmary in 2009)

[The Margrave of Azilia]

The Shipp case is described in detail in Mark Curriden's book
Contempt of court : the turn-of-the-century lynching that launched 100 years of federalism (New York: Anchor Books, 2001)

[Dan Schiavetta]

Thanks!

[Dilan Esper]

I have always wondered if the Fourth Amendment holding of Wilson v. Layne was rightly decided. It seems to me there's substantial value in having the media observe police operations including service of a warrant.

[apedad]

Re: Bob Jones University v. United States

Facts of the case

Bob Jones University was dedicated to "fundamentalist Christian beliefs" which included prohibitions against interracial dating and marriage. Such behavior would lead to expulsion. In 1970, the Internal Revenue Service (IRS) changed its formal policy to adopt a district court decision that prohibited the IRS from giving tax-exempt status to private schools engaging in racial discrimination. The IRS believed that the University's policies amounted to racism and revoked its tax-exempt status. The University claimed that the IRS had abridged its religious liberty. This case was decided together with Goldsboro Christian Schools Inc. v. United States, in which Goldsboro maintained a racially discriminatory admissions policy based upon its interpretation of the Bible, accepting for the most part only Caucasian students. The IRS determined that Goldsboro was not an exempt organization and hence was required to pay federal social security and unemployment taxes. After paying a portion of such taxes for certain years, Goldsboro filed a refund suit claiming that the denial of its tax-exempt status violated the U.S. Constitution.

Question

Can the government prohibit race discrimination at the expense of the First Amendment's Free Exercise Clauses?

Conclusion (8 - 1)

The Court found that the IRS was correct in its decision to revoke the tax-exempt status of Bob Jones University and the Goldsboro Christian School. These institutions did not meet the requirement by providing "beneficial and stabilizing influences in community life" to be supported by taxpayers with a special tax status. The schools could not meet this requirement due to their discriminatory policies. The Court declared that racial discrimination in education violated a "fundamental national public policy." The government may justify a limitation on religious liberties by showing it is necessary to accomplish an "overriding governmental interest." Prohibiting racial discrimination was such a governmental interest. Hence, the Court found that "not all burdens on religion are unconstitutional." (oyez)

William H. Rehnquist was the sole dissenter, arguing that the literal terms of the governing statute could not be read to exclude Bob Jones from charitable status. (wiki)

BTW, where in the Bible does it say interracial dating/marriage is forbidden?

Or is that just made-up bullshit (too)?

[Dan Schiavetta]

The IRS rule, and the Carter Administration's hints that it would be enforcing it expansively, might have contributed to the 1978 "Revelation on Priesthood" where the Mormons suddenly were told by God not to exclude black men from the priesthood.

[defaultdotxbe]

"BTW, where in the Bible does it say interracial dating/marriage is forbidden?"

Its likely a broad interpretation of Leviticus 19:19
Keep my decrees. Do not mate different kinds of animals. Do not plant your field with two kinds of seed. Do not wear clothing woven of two kinds of material.

I believe there were also prohibitions on Hebrew women marrying non-Hebrew men, although Hebrew men were allowed to marry non-Hebrew women (because children were considered to inherit the race of their father, and the goal was to grow the Hebrew population)

[David Nieporent]

although Hebrew men were allowed to marry non-Hebrew women

Deuteronomy 7:3 says "You shall not intermarry with them. You shall not give your daughter to their son and you shall not take his daughter for your son."

Contrary to what you say, Judiasm has traditionally been matrilineal; Jewish men marrying non-Jewish women resulted in non-Jewish children.

(Ruth was a convert.)

[defaultdotxbe]

Matrilinealism is a relatively modern thing, dating from around the 1st century. The Bible, and the Old Testament in particular, is pretty clear in its patrilineal preference.

[SRG]

IIRC the matrilineal change was due to the mixing of Roman soldiers with Jewish women - voluntary or otherwise, so there was a high degree of uncertainty over paternity, while there was none over maternity!

Still, if these crackers are opposed to interracial marriage because it's prohibited in the OT, they should also be bound by all those other restrictions that they don't accept; another example of raging bigotry and hypocrisy, IOW.

[defaultdotxbe]

Fundamentalists always pick and choose what's "fundamental" to their religion.

[SRG]

It's made-up bullshit, demonstrated by two significant instances:

1. Moses marries a Cushite woman - generally held to be Ethiopian - and Aaron and Miriam are afflicted with Biblical leprosy for speaking out against him because of that (Numbers 12)

2. The founder of the lineage that became the House of David, Boaz, marries Ruth, a Moabite woman. Fwiw, she gives him head - the Bible is euphemistic on this. (Ruth).

[Bob from Ohio]

Moabites were Semitic like Hebrews so that is not a good example.

[Rev. Arthur L. Kirkland]

Ostensible adults arguing about fairy tales -- let alone attempting to use fairy tales to justify old-timey bigotry, or to influence public policy -- is always charming.

Choose reason -- and the reality-based world -- every time. Or, at least, please try. Thank you.

[SRG]

"Semitic" is a term for a language group, not a racial group.- Semitic tribes are Semitic, not because they're part of the same racial group but because they speak Semitic languages. The Moabites were a different tribe. Still, even were I to concede your point in the case of the fellatrix Ruth, the case of Moses is confirmation enough.

Out of curiosity, are you personally opposed to inter-racial marriage? And do you think that the Bible opposes it?

[Bob from Ohio]

"The Moabites were a different tribe. "

Iroquois and Huron were different tribes. I guess they were different races too.

"Out of curiosity,"

Just a routine innocent inquiry, no ulterior motive in asking, nope, just curiosity.

[not guilty]

Bob's refusal to answer SRG's questions speaks loudly.

[Mark Regan]

But 1 Kings 11:1-2 lists Moabites among the 'strange women' whom Solomon married and lost the favor of the Lord:

11 But king Solomon loved many strange women, together with the daughter of Pharaoh, women of the Moabites, Ammonites, Edomites, Zidonians, and Hittites:

2 Of the nations concerning which the Lord said unto the children of Israel, Ye shall not go in to them, neither shall they come in unto you: for surely they will turn away your heart after their gods: Solomon clave unto these in love.

[Bob from Ohio]

"Moabites among the ‘strange women’ "

Yes, no doubt, they were idol worshipers so Hebrews were expected to avoid them lest they be corrupted.

[Rev. Arthur L. Kirkland]

At a similar level, what did John Blutarsky and Daffy Duck have to say about this?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Why can't I buy a Canadian? may answer your question.

[The Margrave of Azilia]

In sum, it’s OK for the IRS to raise taxes on Bad People(tm) without specific Congressional approval, based on “public policy.”

Obvioiusly, the IRS can’t raise taxes on Good People(tm) who are similarly circumstanced to the Bad People(tm), which is why universities which practice racial preferences of the right kind don’t need to fear loss of tax-exempt status.

[not guilty]

The litigation culminating in the Supreme Court's Bob Jones University decision is one of the most consequential lawsuits of the twentieth century. In reaction against the IRS revocation of tax exempt status for segregationist educational institutions, Jerry Falwell, Paul Weyrich mobilized "Christian" evangelicals to take control of the Republican Party. https://www.theguardian.com/commentisfree/2021/sep/08/abortion-us-religious-right-racial-segregation (Falwell had founded a segregation academy in Virginia in 1967.)

[apedad]

Wow, 'Virginia' and '1967' are a pretty hefty combination; Loving v Virginia.

[Bob from Ohio]

Christian in scare quotes. Bigot.

Its an opinion piece, not an objective account.

[Rev. Arthur L. Kirkland]

The bigots are the right-wingers who pretend that superstition improves bigotry, or that superstition transforms bigotry into something other than bigotry.

[not guilty]

Not every one who says to me, "Lord, Lord," shall enter the kingdom of heaven, but he who does the will of my Father who is in heaven. On that day many will say to me, "Lord, Lord, did we not prophesy in your name, and cast out demons in your name, and do many mighty works in your name?" And then will I declare to them, "I never knew you; depart from me, you evildoers."

Matthew 7:21-23 (RSV)

Bob, do you regard Jesus as a bigot? Do you regard racial segregation as the will of His Father who is in heaven?

[not guilty]

Hoist with your own “bigot” petard, Bob?

(Hamlet, Act 3 Scene 4)

[Bob from Ohio]

Jesus is a nice Jewish boy.

[not guilty]

No answer as to whether practicing racial segregation ís the will of God?

Doesn't tap dancing become tiresome, Bob?

[The Margrave of Azilia]

I knew I could find a source which was more accurate than a *Guardian* article, and here’s a *pro-IRS* account of the events by an author who is (or was) an aide to Preet Bharara, so judge for yourself if the pro-IRS author is a right-wing troglodyte.

https://cafe.com/article/we-want-them-burned-the-1978-irs-controversy-over-discriminatory-schools/

The controversy erupted in 1978 when Jimmy Carter’s IRS proposed regulations endangering the tax-exempt status of any private school which failed to meet a racial quota.

There was broad opposition. For example:

“Livaughn Chapman, the Black Headmaster of Boston’s Roxbury Community School, said, “Our school mostly enrolls black kids, not because we discriminate against whites, but because we’re in a mostly black community and that’s who applies. If this procedure is applied to us, it would shut us down.”

“Nathan Dershowitz—controversial trial lawyer Alan’s brother—appeared as counsel for several interlocking Jewish school groups and argued that [IRS Commissioner Jerome] Kurtz “failed to recognize the unique and special considerations which affect Jewish religious schools…the fact remains that few non-Caucasian Jews settled in America.””

The proposed policy was so unpopular (even after the Carter admistration claimed to dial it down a bit) that Congress forbade any funding for it.

Still, the Guardian’s campfire horror story about white-supremacist evangelicals pushes the correct buttons, and no dull, boring facts will induce people to give up their narrative.

[Magister]

I initially thought that the Bob Jones case would have something to do with Bob Jones Jr calling on God to smite Alexander Haig, but apparently that was something else.

[Frank Drackman]

Looks pretty good for 153!

[SRG]

Blueford was flatly wrong and the majority should have been embarrassed to find against him. But because they knew that he was a killer, they were motivated to find a way to retry him.

Aleman is a much more entertaining double jeopardy case, fwiwi.

[Dan Schiavetta]

Yes I agree. Thanks!

[The Margrave of Azilia]

As far as Benjamin Cardozo, should Lady Justice jump out of a cake during his birthday party?

[CJColucci]

I once had an opportunity to chat with Andrew Kaufman, who wrote the definitive biography of Cardozo. He told me that the most frequent question he got on book tours and talks was: was Cardozo gay? Cardozo never married and lived most of his adult life with his sister. Kaufman said he couldn’t be positive about Cardozo’s sexuality, but life-long bachelorhood, even celibacy, wasn’t uncommon in the small, insular sephardic community in which Cardozo was raised because of a shortage of suitable marriage partners.

[Rev. Arthur L. Kirkland]

Choosing a birthday over Shipp seems odd.

What would a scholar do?