Today in Supreme Court History: June 5, 1916

6/5/1916: Justice Louis Brandeis takes the oath.

Justice Louis Brandeis

Comments

[Dan Schiavetta]

Coleman v. Miller, 307 U.S. 433 (decided June 5, 1939): there is no time limit on states ratifying proposed Constitutional Amendments (here, a Child Labor Amendment) unless Congress has set a deadline

Henderson v. United States, 339 U.S. 816 (decided June 5, 1950): segregated dining cars in trains (different tables, with partition) violated Interstate Commerce Act (plaintiff had been told to take dinner in his cabin because the “reserved for blacks” tables were partly occupied by whites)

Hernandez v. Commissoner, 490 U.S. 680 (decided June 5, 1989): payments to Church of Scientology for training sessions are not deductible “charitable contributions” because services were received (“quid pro quo”)

Honeycutt v. United States, 581 U.S. 443 (decided June 5, 2017): brother who was co-conspirator in selling huge quantities of iodine crystals which they should have known were used to make meth not jointly liable for forfeiture of profits gained from sales because he had no ownership interest in the hardware store and received no direct income from them

​Castillo v. United States, 530 U.S. 120 (decided June 5, 2000): additional “machinegun” language in statute criminalizing use of firearm while committing violent crime was an element of the crime and not a sentencing factor

United States v. Jin Fuey Moy, 241 U.S. 394 (decided June 5, 1916): statute imposing registration and tax requirement on prescription of opium did not apply to defendant who was not among class of persons required to register

Cubbins v. Mississippi River Comm’n, 241 U.S. 351 (decided June 5, 1916): suit against commission for damages as to flooding of riverside property caused by construction of levees dismissed as barred by sovereign immunity (of the United States) which had created the commission

Zedner v. United States, 547 U.S. 489 (decided June 5, 2006): bank fraud defendant not bound by permanent waiver of right to speedy trial which judge encouraged him to sign early on

Stump v. Sparkman, 435 U.S. 349 (decided June 5, 1978): dismissing suit against judge who granted mother’s petition to have her daughter’s tubes tied and she underwent procedure being told it was an appendectomy; judge committed “grave procedural error” but was immune from suit because he did have jurisdiction over the petition

Troxel v. Granville, 530 U.S. 57 (decided June 5, 2000): State of Washington statute allowing “any person” to petition for visitation rights “at any time” without showing of parental malfeasance interfered with parent’s Due Process right to raise child (grandparents wanted to visit their deceased son’s children -- he had died by suicide -- but the mother wanted only “one short visit” per month -- there’s more to this story!)

[F.D. Wolf]

Perhaps surprising to the modern observer, when the Child Labor Amendment passed Congress in 1924, Republicans held majorities in both houses, and Republican Calvin Coolidge was President. Charles Evans Hughes, who, as Chief Justice, would write the opinion in Coleman v. Miller fifteen years later, was the Secretary of State.

The Kansas legislature would reject the Amendment in 1925. In 1937, it would vote again. The vote in the state senate was 20-20, and the lieutenant governor cast his tiebreaking vote in favor of the Amendment. The state house would then vote in favor of the Amendment. The senators who had voted to reject the Amendment brought an action in state court, alleging, inter alia, that the tiebreaking vote by the lieutenant governor was invalid under Article V of the Constitution, which provided that the state "Legislatures" alone could ratify an amendment.

This argument relied chiefly on the Court's ruling in Hawke v. Smith (1920). In that case, the Ohio legislature had voted to ratify the Eighteenth Amendment (Prohibition). A provision in the Ohio constitution, however, provided that upon a petition signed by 6% of voters, the issue would be put to a referendum. Sufficient signatures were gathered, but supporters of the Amendment sued to enjoin the referendum, arguing that "legislature", as used in Article V of the Constitution and elsewhere, meant "legislature" and that the popular referendum violated that. A unanimous Supreme Court agreed.

On this particular question in Coleman, Chief Justice Hughes wrote that the justices were equally divided on whether the question presented a justiciable issue or a political question, so the Court would not express an opinion on it. (As all nine justices participated, I'm unsure how they managed to be "equally divided".)

[Dan Schiavetta]

Thanks!

[not guilty]

Louis Brandeis was one of fifteen Supreme Court nominees to be confirmed during a presidential election year, not counting three who were nominated in December after an election. https://www.vox.com/2016/2/13/10987692/14-supreme-court-confirmations

The linked article lists fourteen, but it was published before the eleventh hour nomination of Amy Coney Bear It.

[Dan Schiavetta]

Hmmm . . . are you trying to make a point here?

[not guilty]

Just an observation about the Senate´s refusal to fill the Scalia vacancy when he died in 2016. Mitch McConnell and his Republican colleagues were playing Calvinball.

[Mr. Bumble]

That's the official game of politicians of all stripes.

[Dan Schiavetta]

NG:

At this point I don’t think even Republicans dispute that. (Now that they got what they wanted, Gorsuch and Barrett in for life, and memories are fading.)

[Brett Bellmore]

Nobody disputes that nominees to the Supreme court are sometimes confirmed in presidential election years. And sometimes ignored, depending on the politics of it.

History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020

Bottom line: The only reliable rule is, if a vacancy occurs at the Supreme court at ANY time, the President at that time nominates somebody to fill it. Every time, even if the vacancy occurs after the election.

In election years, if the President and Senate are of the same party, the nominee is almost always confirmed.

In election years, if the President and Senate are of opposing parties, the nominee is almost always rejected, and often simply ignored.

[not guilty]

Can you say Anthony Kennedy, 1988? Nominated by Reagan, confirmed by a Democratic Senate.

[F.D. Wolf]

Chief Justice Earl Warren announced his retirement, upon confirmation of a successor, on June 13, 1968. The Republican presidential primaries had concluded on June 11, and Richard Nixon pretty much had the nomination sown up, having captured 656 delegates, with 667 necessary to secure the nomination at the convention in August. And, given President Johnson's extreme unpopularity, that meant that Nixon would very likely be the next President.

Warren, who was famous for holding on to grudges, probably hated Nixon more than any other man in the world. Their feud dated to their days in California when Warren had been the governor and Nixon a congressman. Warren was particularly steamed about an incident before the 1952 GOP convention in which Nixon had boarded a train full of Warren delegates and successfully flipped many to Eisenhower. Warren was determined not to allow Nixon to pick his successor.

Johnson would nominate Associate Justice Abe Fortas to succeed Warren and Homer Thornberry to succeed Fortas. It was during hearings on the nominations that Fortas' financial irregularities came to light, and Johnson withdrew the nominations on October 2. It was too late now; the vacancy would now be filled by the next President. Fortas, facing possible impeachment, would resign the following May. An enraged Warren considered withdrawing his resignation, but ultimately decided that would be too obscenely political. He would leave the Court in June. By trying to deny Nixon a Supreme Court pick, Warren had handed him two. I imagine swearing in President Nixon on January 20, 1969, was one of the most disagreeable moments of Warren's life.

[Dan Schiavetta]

“trying to deny Nixon a Supreme Court pick” is a very cockeyed way of describing Warren’s decision to retire in 1968. It’s not like he woke up the morning after Nixon was nominated and suddenly decided before breakfast that he would pack it in after 15 years. Nor was it at all “extremely likely” Nixon would win the election. (As it happened, he just barely squeaked in; Humphrey was gaining, and might have won if the election was three weeks later.) Though it was extremely likely that the Democrats would keep their longtime hold on the Senate. At the time they had a 64 – 36 majority, nearly veto-proof.

[F.D. Wolf]

I don't think Nixon's 301-191 electoral victory in 32 states was exactly a "squeaker", nor did it surprise a great many people. The Democrats were tearing themselves apart and were about to deny their incumbent President renomination, before he spared himself that humiliation and dropped out of the race. The American people were down on Johnson, Vietnam, and the economy. I don't think it's a stretch to say the Democrats were facing a very uphill battle in the '68 election, and I don't think picking Johnson's VP was a particularly enlightened choice if you're looking to distance yourself from the negative aura around Johnson at the time.

Regardless, Warren could be a very rash man, and I don't think the timing of his decision to resign was coincidental. He was probably fairly certain Nixon would win. In any event, absent grave health concerns, June of an election year is certainly an unusual time for a justice to announce his retirement. Heck, Warren was literally still cursing Nixon on his deathbed.

[Dan Schiavetta]

I remember that year very well and the press kept telling us that it was going to go down to the wire. Surprisingly Wallace, a breakaway Democrat, who was polling at 18%, only got 11% of the vote. Possibly conservative Democrats who were telling pollsters they were for Wallace got the urge to "come home" when the time came to actually pull the lever.

As for the electoral vote, one of the only things I used to like about the Electoral College (it's not true any more) is that it tended to magnify the victory of a close winner. Nixon himself was on the short end of this in 1960, where he lost the popular vote by only 100,000 but lost in the EC 303 - 219. In 1968 he beat Humphrey by 500,000 votes (about the same margin that Gore beat Bush by in 2000), with Wallace getting 10 million.

[F.D. Wolf]

Four of the five Southern states carried by Wallace had been carried by Goldwater in the 1964 election, which had, of course, been a 60-40 Johnson landslide. So, without Wallace in the race, how would his 10 million voters have broken? If we very conservatively allot only 55% of them to Nixon, then the election begins not to look so close. Another way to look at it is that between the 1964 and 1968 presidential elections, the Democratic nominee lost 12 million votes, while the Republican nominee gained 5 million votes.

[Dan Schiavetta]

The Democrats’ embrace of civil rights by LBJ was one of the truly selfless things I’ve seen in my lifetime. It lost them, as you calculate, a net of 17 million votes, as white racists flew en masse to the Republican side.

[F.D. Wolf]

[F.D. Wolf]

An ahistorical fairy-tale Democrats tell themselves.

The Civil Rights Act of 1964 received a higher percentage of Republican votes in Congress. It was Democrats, not Republicans, who attempted to filibuster it. Besides, it passed in July 1964, three months before Johnson's landslide.

While is racism is today the Left's go-to explanation for everything these days, it was not the civil rights movement which alienated white suburban and rural voters from the Democrats, but the overall excesses and attacks on traditional values that Democrats embraced in the 1960s. Meanwhile, today's Democrats are rediscovering their affection for segregation with their neo-Marxist drivel about systemic racism. But, yes, racial grievance politics don't help their cause with white voters. Appeals to white guilt may grab some, but not ever the majority most likely.

[Rev. Arthur L. Kirkland]

Conservatives began to try to hide behind euphemism such as “traditional values” when American society became less hospitable to racists, gay-bashers, immigrant-haters, antisemites, Islamophobes, misogynists, and other core elements of the Republican-conservative electoral coalition. Better Americans do not appease those morally deficient right-wing assholes.

[Bob from Ohio]

"Warren had handed him two"

Burger and Blackmun! A complete non-entity and the writer of Roe v. Wade.

Such wasted opportunities.

[Bob from Ohio]

"Amy Coney Bear It"

I'll bite. Why do you mis-spell her last name?

[not guilty]

Because she supported the execrable decision in Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022).

[Bob from Ohio]

Why don't you have similar names for the men?

[not guilty]

I haven´t thought of anything phonetically close to the men´s names that I regard as appropriate and descriptive. To refer to Gorsuck is vulgar, so I don´t. When I call out Clarence Uncle Thomas, that is often counterproductive -- too many fellow commenters cry ¨racist¨ as a dodge in order to avoid discussing the merits of what I say.

Thank you for asking.

[Dan Schiavetta]

Yes.

As someone put it, "They didn't necessarily want their kids to learn alongside white kids. They just wanted schools that had books and floors."

[Mr. Bumble]

Will there be a demand for reparations for those who suffered from separate but equal?

[Dan Schiavetta]

Reparations is a non-starter, until someone makes clear 1) what form it takes, 2) who pays it and 3) who gets it.

[SRG]

Here’s a good example where “para-reparations” could be deployed. The facts, as far as I recall them - read in WaPo about 3 or 4 years ago - an interstate highway is built, the specific route chosen because though hundreds of black families will have their properties seized under eminent domain and they will need to be relocated, with major disruption to their community, white communities will be undisturbed.

Many years later, a major interchange is contemplated, and the cheapest and most convenient solution given the existing position of the interstate is to, yes, you guesses it, seizing that same community’s housing by eminent domain and again relocating the families. It is uncontested that this new development is not done on racial grounds per se – it so happens that because of where the community had been relocated the first time, they just unluckily happen to be in the wrong place now.

Without reparations being required, the para-reparation solution is to accept an inferior and more expensive route involving eminent domain on a largely white community. Is it tough on them? Sure. Unfair? Sure. Were any of them involved in the prior racist decision? No.

But given that both solutions are unfair, the unfairness is greater were you to relocate the black community, because it compounds the prior racist relocation.

[defaultdotxbe]

I wouldn't actually be opposed to this, since some people subjected to du jury segregation are still alive today I don't have a problem seeing reparations paid to those individuals.

[Jerry B.]

1. Money.
2. White people.
3. Everyone else.

[SRG]

Yeah, but how can Mr Bumble stir up his fellow crackers if he doesn't throw crap like this out there?

[Dan Schiavetta]

It's not that usual any more for there to be purely "white" and purely "black" communities (fortunately). Also there are likely to be a lot of mixed-race people in both. It doesn't sound workable.

[Mr. Bumble]

Yes, the idea of reparations is crap, fostered by the left.
See Biden appointment of Justin Hanford to UN Permanent Forum on People of African Descent call for:
Biden appointee calls on UN to create reparations tribunal: 'What justice looks like in the 21st century'.

https://www.foxnews.com/media/biden-appointee-calls-un-create-reparations-tribunal-justice-looks-like-21st-century

[Mr. Bumble]

Obviously from your comment below you're more than happy to "stir the pot".

[John F. Carr]

Here is a map of racial composition of my area: https://bestneighborhood.org/race-in-boston-ma/

The darkest blue blocks are uninhabitated parks. The green triangle about 12 miles northwest of Boston, outside the I-95 beltway, is Hanscom Air Force Base which is populated by the military. The military outsources education to adjacent towns, which get to count military families separately from residents when they report test scores.

When I visited the St. Louis suburbs I saw black people. In the Boston suburbs, they are rare. A black woman got pulled over coming to my house. When she convinced the officer she had legitimate business in town he let her go.

[Mr. Bumble]

' A black woman got pulled over coming to my house. When she convinced the officer she had legitimate business in town he let her go.'
Did Obama intercede on her behalf?

[Dan Schiavetta]

John

The strongest argument I can think of for reparations also springs from a race map. Look at those big rural areas. (New York State is the clearest example.). You’ll see widely spaced, tiny concentrations of black people. That’s where the prisons are.

[bernard11]

Interesting map, John. Thanks.

It turns out I live in a dark green diverse/light red Asian majority neighborhood.

I’m not convinced it’s wholly accurate, though. It shows Cambridge (Biden-92% in 2020) as less liberal than Boston(82%) and some other nearby towns.

[Rev. Arthur L. Kirkland]

Here is a map of racial composition of my area: https://bestneighborhood.org/race-in-boston-ma/

That is a useful site. Thank you for the pointer.

[Mr. Bumble]

Then get the ball rolling and make your contribution.