Today in Supreme Court History: June 1, 1925

6/1/1925: Pierce v. Society of Sisters is decided.

Comments

[Dan Schiavetta]

Pierce v. Society of Sisters, 268 U.S. 510 (decided June 1, 1925): struck down Oregon statute requiring all children to go to public school as infringing liberty right of parents to decide how to educate their children, and property right of Catholic school plaintiff which would lose business

Near v. Minnesota, 283 U.S. 697 (decided June 1, 1931): striking down on First Amendment (Fourteenth) grounds statute allowing state to enjoin newspaper publishing of “malicious, scandalous or defamatory” material (articles at issue named gangsters and law enforcement who were suspiciously not pursuing them)

United States v. Cooley, 593 U.S. --- (decided June 1, 2021): tribal officer had power to conduct (otherwise legal) search and detention of non-Native American driver on public highway running through reservation (Breyer’s opinion notes that “most people living on Indian reservations are not Indians” -- I honestly never knew that)

Betts v. Brady, 316 U.S. 455 (1942) (decided June 1, 1942): government not required to provide attorney for criminal defendant who can’t afford one; affirming conviction for robbery (overruled by Gideon v. Wainwright) (one assumes Mr. Betts acted as his own lawyer at trial but one Jesse Slingluff is listed as his lawyer before the Court)

NAACP v. Alabama, 377 U.S. 288 (decided June 1, 1964): this entertaining opinion blows to bits the b.s. reasons the Alabama Supreme Court upheld an order forbidding the NAACP to do business in Alabama, from rejecting a brief which was in fact punctiliously drafted, to claiming the right to “oust” the organization for not paying a licensing fee when state rules provided merely for issuing a fine

Bank of America, N.A. v. Caulkett, 575 U.S. 790 (decided June 1, 2015): Chapter 7 (liquidation) debtor can’t void junior mortgage (11 U.S.C. §506(d)) even when property is already underwater due to senior mortgage

Dunbar v. Dunbar, 190 U.S. 340 (decided June 1, 1903): agreement to pay alimony not in the form of a court order but still not dischargeable in bankruptcy

Nasrallah v. Barr, 590 U.S. --- (decided June 1, 2020): court can’t review INS’s determination that noncitizen can be deported but can review his claim (under 1984 international Convention Against Torture) that he would be tortured if he’s sent back (guilty of larceny but might be tortured in Lebanon as member of Druze religion) (remanded to Circuit Court which let him stay, 824 Fed. Appx. 667)

Mifflin v. R.H. White Co., 190 U.S. 260 (decided June 1, 1903): author is not protected by copyright in publisher’s name (superseded by Copyright Act of 1909) (at issue were articles published in The Atlantic written by plaintiff’s predecessor in interest, Oliver Wendell Holmes, Sr.; it’s odd that Holmes Jr. didn’t recuse himself) (the articles were called “The Professor at the Breakfast Table” and would have made fascinating reading; Dr. Holmes, who prefigured Darwin on evolution and Freud on the unconscious, was a more interesting person than his son, who confined himself to the dreary topic of law, though he did write a children’s book which I can’t find right now)

Ebeling v. Morgan, 237 U.S. 625 (decided June 1, 1915): chronic ripper of mail sacks chargeable separately for each sack (three years prison time per sack x 5 sacks = 15 years) (arguably overruled by Bell v. United States, 1955, which rejected the formula of 2½ years per woman x 2 women = 5 years)

[defaultdotxbe]

(Breyer’s opinion notes that “most people living on Indian reservations are not Indians” — I honestly never knew that)

It's a tough statistic to put your finger one, since there are so many ways to define American Indian. I think the one Breyer is using is the narrowest definition, those that are are official members of a federally-recognized tribe (which is to whom tribal law applies while on reservations, so it makes sense in this context) but there are many more who have definite Native American ancestry, but aren't members of the tribe, who still live on the reservations.

[Dan Schiavetta]

Thanks

[Dilan Esper]

one assumes Mr. Betts acted as his own lawyer at trial but one Jesse Slingluff is listed as his lawyer before the Court

Gideon also acted as his own lawyer, but one Abe Fortas was listed as his lawyer before the Court. Wonder what happened to him....

[The Margrave of Azilia]

In grade school we was the movie version of Anthony Lewis' Gideon's Trumpet. Celebrating a triumph of civil liberties (which it is in principle).

[Syd Henderson]

And Holmes, Sr. wrote "The Deacon's Masterpiece," which always makes me smile.

[Dan Schiavetta]

Thanks! Just read it.

(The insistent rhyming reminds me of William Topaz McGonagall, sorry.)

Holmes Sr. also wrote that poem about the USS Constitution which appears in schoolbooks.

[bernard11]

"Aye, tear her tattered ensign down.
Long has it waved on high.
And many an eye has danced to see
That banner in the sky."

We had that, and memorized it too - at least those lines.

Apparently it was part of a protest against the plan to decommission the ship.

[Dan Schiavetta]

Oldest ship still afloat (though Theseus might quarrel with that).

[Mr. Bumble]

Not sure about the oldest ship still afloat, but it is the oldest commissioned warship still afloat.
And, if the navy keeps going the way it is currently may have to be put back in service.

[Dan Schiavetta]

“At this point, less than four hundred yards from their objective, the marchers’ luck turned against them. The open ground between the rioters and the entrance to Downing Street was occupied by the parade ground of the Royal Horse Guards. As long as anyone could remember, the only duty of these cavalrymen had been to perform ceremoniously for admiring tourists. Now, preparing to fight for King and Country, they buckled on their glittering helmets, mounted their handsome steeds, drew their gleaming sabers from their polished scabbards, and formed a very thin red line.”

This is from William Manchester’s biography of Churchill, describing one of the “food riots” of 1932. I’m intrigued by the idea of ceremonial artifacts being pressed into real service. I wonder if it’s happened on other occasions.

[Krayt]

And Holmes, Sr. wrote “The Deacon’s Masterpiece,” which always makes me smile.

Search for it, idiotically click first link, explains it's a poem, gives theories of hidden meaning, spoils the ending, then goes on to explain what poetry is. It's a Brittanica article.

Ah, Internet, never change.

[SRG]

Noting that the NAACP had to get to the SC four times in the one case, I wonder what the record is. I'm surprised that the Alabama courts didn't hold that allowing the NAACP to do business there violated the law against perpetuities, the Jones Act, and Young's Law of Refraction...

[F.D. Wolf]

Pierce v. Society of Sisters contains the memorable line, "The child is not the mere creature of the state," or, in slightly expanded context:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

268 U.S. 510, 534 (1925).

This passage, which seems timely of late, was cited with approval in Pope Pius XI's 1926 encyclical Divini Illius Magistri on Christian education:

Istud vero, quod nullam controversiam recipit, familiae ius haud semel est legitime agnitum apud quasdam nationes, ubi ius naturae in civili servare regimine sollemne est. Etenim, ut exemplum ex recentioribus proferamus, Summum Foederatarum Americae Civitatum Tribunal, cum gravissimam quaestionem dirimeret, edixit: « nullam generalem potestatem Civitati esse unius eiusdemque formae decernendae, ad quam iuventus educi debeat, huiusque cogendae ut in publicis tantummodo scholis instituatur », ob hanc scilicet rationem ex iure naturae depromptam: « Puer non est mera res a Civitate procreata; qui eum alunt ac dirigunt, ius habent, cum nobilissimo officio coniunctum, ipsius educandi et ad officiorum perfunctionem comparandi »

And, for those who might prefer an English translation:

This incontestable right of the family has at various times been recognized by nations anxious to respect the natural law in their civil enactments. Thus, to give one recent example, the Supreme Court of the United States of America, in a decision on an important controversy, declared that it is not in the competence of the State to fix any uniform standard of education by forcing children to receive instruction exclusively in public schools, and it bases its decision on the natural law: "The child is not the mere creature of the State; those who nurture him and direct his destiny have the right coupled with the high duty, to educate him and prepare him for the fulfillment of his obligations."

So, perhaps uniquely among Supreme Court decisions, this one has received an imprimatur of infallibility from the Vicar of Christ. I doubt Pope Pius knew much, if anything, about its author, Justice James Clark McReynolds, whom Chief Justice Taft called "selfish to the last degree" and "fuller of prejudice than any man I have ever known", but the Lord works in mysterious ways.

[Dan Schiavetta]

In those days Catholic parents were required to send their kids to Catholic school. There was just no question about it. But my school had double sessions (50 kids in each class — I was in the afternoon group), minimal recess, and no extracurricular. My parents decided to switch me to public school, with the approval of our priest. This was in 1965. It was part of a cultural shift, I think for the better.

[Dan Schiavetta]

1) don't have sex (Pierce)
2) have sex but contracept (Griswold)
3) if contraception fails (Roe)

"Begat" is not the right word. "Don't beget" is more like it.

[F.D. Wolf]

Isn't Dred Scott the progenitor of substantive due process? I believe that is the first case in which the Supreme Court struck down a law as violative of the Due Process Clause [of the Fifth Amendment].

[apedad]

Regret beget?

[M. Potter]

I'm not sure if Scott could be called that in the same sense of later cases finding substantive rights within the "liberty" of due process. I often attribute Allegeyer v. Louisiana (1895) as the first opinion to unanimously endorse the idea that the "liberty" of the Fourteenth Amendment's Due Process Clause encompasses things beyond restraint of liberty, and by extension, substantive due process. There could be other antebellum cases that address it, though:

"The 'liberty' mentioned in [the Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned."

[Dan Schiavetta]

Infallibility (invented only in 1870 due to Pius IX strong-arming cardinals at Vatican I) applies only when speaking “ex cathedra” and has only been invoked once, in 1950 by Pius XII (as to Virgin Mary being received bodily into Heaven).

It's a good thing encyclicals are not infallible; the Church has had to disown some of them (though not of course admitting it).

[F.D. Wolf]

I was making a little joke, not actually suggesting the Pope had declared a Supreme Court ruling infallible doctrine. But, as I would hate to lead anyone astray, your clarification is appreciated.

[Dilan Esper]

Dred Scott was definitely substantive due process, but it was substantive due process as to "property" (sadly, the slave who was the Petitioner).

At any rate, saying there's no substantive due process because Dred Scott may have misapplied it is like saying there should be no war powers because they were misused in Korematsu or saying there should be no federalism because it was misused to allow nonunanimous juries.

[Dilan Esper]

And school prayer (which was often Protestant prayer) was out by that point.

I think something could be written on this subject of how the secularization of American education encouraged at least some Catholics to make the jump to public schools.

[Dilan Esper]

It's hilarious that infallibility dates back to Acts of the Apostles, which of the "historical" books in the Christian Bible (i.e., not counting Revelation), contains the largest proportion of inaccuracies, lies, hallucinations, BS, tall tales, and fables of probably any of them.

Really, I don't know how anyone can read Acts and remain a Christian. The notion was that Jesus rising from the dead was this unique event that occurred to save humanity, but in Acts you have Peter and (more egregiously) Paul (who had no connection to Jesus whatsoever except that he saw him in a hallucination) running around the Levant raising people from the dead right and left. And then, somehow, this stopped and nobody was raised from the dead anymore.

It's absolutely crazy that the third century Church authorities thought including Acts in the Bible would somehow promote the Christian message. It's the best advertisement against Christianity (again, other than Revelation) in the entire thing.

[Dan Schiavetta]

Interestingly, though tradition has Peter as the first Pope, he’s never treated as one. He is just one of several leaders. He’s never called in to settle one of the (many) disputes in the early church. In fact as you point out he's on the losing side at the Council of Jerusalem. The only person in the New Testament who acts like a Pope (in the sense we use the word) is James, who after hearing arguments at the Council pronounces that “it is my judgment” that Torah law need not apply to Christians.

[Dan Schiavetta]

Understood as a joke -- I was responding to mad kalak.

[Dilan Esper]

Yeah. It's actually breathtakingly obvious that Peter never set foot in Rome and wasn't the leader of any church (despite Jesus' "rock" metaphor). Once the Church got established in Rome after Constantine's conversion, they totally retconned Peter to justify the Roman Church (and thus the Roman government) taking charge.

[Dilan Esper]

It's interesting because orthodox Christianity's status as a majority religion spares it from the critiques that we see of things like Scientology (Xenu!) and Mormonism (the Tokens in the Temple Endowment!; the Temple Garments!). But the stuff in the Book of Acts is just as absurd as those things (as is Revelation).

[Dilan Esper]

It's spared the specific indignity of having its doctrines and scriptures mocked.

There's plenty of mockery but not of the same sort that is often thrown at minority religions.

[Dilan Esper]

Those are not Peter’s bones, and the fact that people believe they are is a testament to how much power the Catholic Church really has.

Seriously, the Church has never allowed any non-Catholic archeologist to do any test on those bones, and knows exactly what would happen if it did. They just “discovered” the bones, said a few prayers and brought a few House Men in, and declared them Peter’s bones.

Had Peter actually been in Rome, there would be all sorts of evidence of it. We actually have quite a few letters from early Christian leaders (they wrote each other all the time) and they give us a pretty good sense of what people were in what place. Peter, after his time as Jesus' friend, preached in the Levant and eventually traveled to Babylon at some point. Meanwhile the Christian leaders who were actually in Rome or went to Rome chronicled who they met with and never mentioned Peter.

The Catholic Church hierarchy basically has to lie about this (it's a foundation of their theology) and knows damned well they are lying- the "discovery" of the "bones" was part of that.

[Dilan Esper]

I should add, the phony discovery of bones is actually evidence that Peter wasn't in Rome. If he actually had been in Rome, the Church wouldn't have needed to go through a process of fabricating evidence. The fact they did so is, as we lawyers say, consciousness of guilt.

[The Margrave of Azilia]

...or that there should be no parental rights because Roe used a parental-rights case as a precedent for killing your child in the womb.