The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today in Supreme Court History: August 8, 2009
8/8/2009: Justice Sonia Sotomayor takes oath.
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Public Service Board of State of Vermont v. United States, 87 S.Ct. 3 (decided August 8, 1966): Harlan denies stay of ICC order granting motion by Boston & Maine R.R. to discontinue on economic grounds passenger service from Springfield (Mass.) to White River Junction (Vt.); believes the District Court acted prematurely in initially granting stay because administrative remedies not exhausted, and no irreparable injury in letting order go into effect pending full Court review (B & M went bankrupt in 1970, was revived under new ownership in 1982 and became strictly freight)
Richmond v. Arizona, 434 U.S. 1323 (decided August 8, 1977): Rehnquist denies stay of execution sought pending rehearing of denial of cert; though cert was denied on same day as it was granted in Bell v. Ohio, the cases are different in that Richmond (unlike Bell, who was age 16) did not claim age as a mitigating factor. (In Bell the Court vacated the death penalty; Richmond’s case was remanded on a separate issue, and the Westlaw history runs to 26 cases, ending in 1994 with the Arizona Supreme Court reducing the sentence to life in prison, which he had largely already served. Both Bell and Richmond were named “Willie Lee” by their parents.)
Miroyan v. United States, 439 U.S. 1338 (decided August 8, 1978): Rehnquist denies habeas because no Fourth Amendment violation where government agents tracked defendants’ whereabouts via a beeper attached to rented aircraft utilized to import marijuana
Commodity Futures Trading Comm’n v. British American Commodity Options Corp., 434 U.S. 1316 (decided August 8, 1977): Marshall refuses to vacate stay of new regulation requiring commodity options dealers to segregate client money until their options are exercised or expire (we all know Marshall doesn’t like segregation); “exceptional circumstances” for vacating a Circuit Court stay do not exist
Ward v. United States, 76 S.Ct. 1063 (decided August 8, 1956): In conference, Frankfurter alienated his fellow Justices by delivering hour-long lectures to them as if he were still a law professor. If you want to get a flavor of that, read this windy opinion on the history of bail, in which he implicitly lectures the lower court judges as well. Imagine being Black or Douglas and being subjected to this for 23 years. Anyway here he affirms the District Court’s denial of bail in a securities action where confidential reports indicated defendants were likely to flee.
Also the anniversary of the decision in https://en.wikipedia.org/wiki/Calder_v._Bull (1798) as well, which held, among other things, ex post facto prohibition doesn’t apply to civil law, just civil.
How did I miss that?? Thanks!
“Public Service Board of State of Vermont v. United States, 87 S.Ct. 3 (decided August 8, 1966): Harlan denies stay of ICC order granting motion by Boston & Maine R.R. to discontinue on economic grounds passenger service from Springfield (Mass.) to White River Junction (Vt.) … (B & M went bankrupt in 1970, was revived under new ownership in 1982 and became strictly freight)”
There is a lot more to this — between 1958 & 1962, the B&M discontinued ALL of its passenger service with the exception of (a) Boston commuter service, which Massachusetts was subsidizing, and this train, which was one daily train between Washington, DC and Montreal, PdQ (Canada), and another between NYC and Montreal. The New Haven & Pennsylvania Railroads (later Penn Central) carried it south of Springfield, and the Central Vermont & Canadian National carried it north of White River Junction — with equipment from all five railroads being used.
The B&M was *badly* mismanaged, with Patrick B. McGinnis actually being sentenced to 18 months in Federal prison in 1963. The B&M was emerging from bankruptcy circa 1980 only to again be the subject of a hostile takeover and Guilford Transportation. Guilford so neglected this line, which follows the Connecticut River, that Amtrak had to first discontinue the Vermonter and then re-routed it over other railroads, forcing it to make a three-point turn in Palmer. Amtrak also took a portion of the line in Vermont by eminent domain because Guilford wouldn’t repair it.
Guilford then turned around and got a whole bunch of Federal & State money to rebuild the 47 miles running through Massachusetts, and then turned around and sold it to Massachusetts — so the state has to pay to maintain it, but they (Guilford/Pan Am and now CSX) get to run their freight trains on it for free. But the Vermonter can also now use it.
In fairness to the B&M, they’d also discontinued the use of passenger cars, going instead to self-propelled Buddliners before discontinuing passenger service outright.
Thanks
As Paul Harvey would say: …and now the rest of the story.
The Public Service Board case involves a forgotten period of American history, before Amtrak was created. Passenger train service became a huge money loser as the interstate highways were built, cars got more comfortable for long trips, and the jet age commenced. And back in the day, railroads had to petition the ICC to stop passenger service, even if it was driving them into bankruptcy.
There is more to that as well — first, passenger service, at least luxury passenger service such as the 20th Century Limited, was always a money losing proposition. The railroads did it as a form of advertising, hoping to impress the traveling businessmen and encouraging them to ship with the railroad as opposed to competing railroads or coastal freighters. Railroads had been sketchy in the 19th century and most cities had competing railroads.
Second, a lot of railroads were given land as an encouragement to build west — and one of the strings on that was a mandate to provide passenger service. So when Amtrak came around in 1971 in response to the Penn Central Bankruptcy, a lot of solvent railroads jumped aboard because it got them out of the passenger mandate.
It’s true that passenger service often lost money, but it lost far more money once the options of driving and flying became manifestly superior in the 1960’s. That’s when you saw the exodus of passenger service.
I don’t really think it makes sense to talk of a mandate to provide passenger service, even though it did in fact exist as a practical matter. Railroads all over the world carried passengers before highway and air transportation systems caught up. Ours were going to carry passengers too. The railroads didn’t owe the public passenger service once the public perceived that other means of travel were superior.
…and of course the railroads had the expense of building and maintaining their rite of way including bridges and tunnels while the government was funding road and airport construction.
As for the Miroyan case, how was habeas even available given Stone v. Powell?
today’s movie review: 10, 1979
Dudley Moore, a successful California songwriter married to Julie Andrews, in mid-life crisis sees a perfect-looking girl (Bo Derek) and follows her around, including to her wedding when a bee emerges from a floral display he’s been hiding behind and stings him on the nose.
This is a funny movie, particularly the scenes between Moore and Andrews, she knowing what he’s up to and him defending his motivations (while playing piano with a big stung nose). Never having been out of the Northeast, I enjoyed all the warm sunny atmosphere, in SoCal and also in Mexico where he follows the young couple to their honeymoon (the husband, played by Sam Jones, is an equally impossibly beautiful young man). Moore’s conversation with Brian Dennehy as the bartender at a beach bar was fascinating to me; it was such a different world, though years later I did get to visit it.
The movie made a star out of Derek (at least temporarily), though my friend was correct when he said that she was not sexy — “a miracle of natural engineering, but not sexy”.
She does get one interesting scene. Amazingly, the Moore character finally finds himself headed to bed with her, while the husband’s away. They’re about to take off their clothes when he feels a twinge of dissonance, or maybe conscience.
“You’re married, right?”
“Yes.”
“What if your husband was doing this, sleeping with another woman, right now?”
“If it pleases him to do that, then that’s fine with me.”
“Then why did you two get married??”
“Because we wanted to.”
These two people are in different worlds and he doesn’t belong in hers.
Forever connected with this movie is Ravel’s “Bolero”, which the Derek character puts on the stereo, ritualistically, as background music for sex. Contrary to what you hear now, Bolero as “mood music” did not start with this movie. It was almost a cliché by then and I must not have been the only one in the theater rolling his eyes at how predictable it was for her to play that piece. By 1975 Albert Brooks was already putting words to it (“Babe, is the room just the right temperature? Should we do it on the couch? Or should we do it on the floor?” It’s on youtube.) Ravel resented the popularity of this piece because he considered it a trifle, and really it’s not much more than an exercise in orchestration, composed as background music for a dance (though the dilettantes at NPR once analyzed it as a “masterpiece of genius”). I admit it’s enjoyable to listen to. But it’s impractical as “mood music” unless both of you have simultaneous orgasms exactly 17 minutes after you start (if you listen to the Vienna Philharmonic version) or 16 minutes (the Oslo Philharmonic) or if he can’t last that long try 14 minutes (the Seoul Philharmonic).
“Blame it on Rio” was better
“a miracle of natural engineering, but not sexy”.
Yes. It’s unaccountable why. She should be – but just isn’t. In a similar vein, In National Lampoon’s Vacation, Chrissie Brinkely is also thus engineered, while Beverly D’Angelo, who has not the perfection of Chrissie, is far sexier.
Re; Bolero – Ravel seemed to change his mind about it. On one occasion he said that it’s the best thing he ever wrote, but “what a pity it isn’t music”.
FWIW I once saw it played by the HK Phil. The solo snare drummer was seated next to the conductor and started by using his hands, not drumsticks.
I think it was Bo’s “Corn Rows” and I liked Cousin Vicki best
You can’t assemble the ingredients for sexiness. Bo seemed perfectly “arranged” but to no effect.
It’s strange. For a counter example, I’m convinced the reason Lauren Hutton was so hot was because she was slightly cross-eyed.
You mean “cockeyed”? Don’t forget the front tooth gap.
FWIW it’s been observed that in the Bond novels, all the women had some small flaw.
Yet I don’t think that’s quite it. There may be no real solution to the problem. And it’s quite evident that some women get sexier as they get older, which goes against theretical evpsych principles.
It also cuts across genders. What women think turns men on is different from what actually turns men on.
My wife likes to get her hair done up, put on makeup with blush (even though someone with her skin color can never blush) and put on the low cut dress. She can take over a room, I admit. But I think she’s prettiest (and hottest) in the morning, no makeup, in her long T shirt, her hair a mess.
Your wife can’t show “Blood in the Face”???
boy, Mrs. Drackman can (and other places)
Frank
If you think about it, it makes perfect sense.
Character Development 101, your character must have a weakness. Even Superman had his kryptonite.
A Bond girls superpower was their beauty. It makes sense their flaw would be some physical imperfection.
I think because the movie basically orders you to find these two sexy, you are resistant.
A third case is Leeloo in 5th Element, Mila Jovovich, where these two idiots drool over her “perfect body”. Well, she’s rail thin, and so is far from perfect. What the hell are you two dudes talking about?
In other movies, she’s fine. But they aren’t ordering you to think of her as a sexy paragon, and you are free to feel it develop, the way most beauties in most Hollywood movies grow during the 2h or so.
” Well, she’s rail thin, …”
Yeah, Lizzo would have been a better choice.
I never found Mila Jovovich sexy. FWIW supposedly one of the members of my gym in London, himself a male model, dated her and broke it off because she was too dumb. And he was none too smart himself, so god knows…
And sometimes it can be a matter of hair colour – I never found Charlize Theron sexy as a blonde, but as a brunette? You betcha!
But then I generally prefer brunettes to blondes…
To each his own.
As for your gym member friend what is he doing now?
He wasn’t a friend – he was a slight acquaintance, and this was years ago. The gym – Holmes Place on the Fulham Road – was taken over by Virgin and I don’t know what happened thereafter. It was an extraordinary place, though – famous actors and actresses, models, politicians, journalists, athletes, and the rest of us.
I have to smile when I read articles about Pakistan’s Imran Khan because I remember him in the gym posing in front of the mirror half the time. In those days he was still known as a superb cricketer and playboy.
I didn’t mean friend literally. Maybe I should have put it in quotation marks.
The point I was trying to make is that you still know who Mila is, dumb as your “friend” thought she was and have no idea as to what happened to him.
D’Angelo was approachable. Brinkley was not.
Women get much hotter if there’s even the slightest chance of actual relations.
You can test notion this with the lottery. Try imaging yourself winning the lottery, assuming you don’t have any current tickets.
Then try imagining winning even if you have just a single ticket. Even though a 1:230,000,000 is essentially zero, it’s still a non-zero chance to win. It’s a much more entertaining daydream.
One could imagine running to Beverely at a coffee shop and striking up a conversation. She’s pretty but in a weird way.
That could never happen with Christina Brinkley or a Bo Derek.
At least that’s my theory.
Christina Brinkley married Billy Joel.
So you think you’re in the same league as Billy Joel?
Looks? Higher league.
Money? Sadly no.
You speak for us all, I think! Chrissie B dated the brother of a colleague of mine for a while. He was very good looking and well off. And cheated on her…
You (Homo) seem to (Homo) know a lot (Homo) of “good (Homo)looking guys”, (Homo)
of course you also complain about Milla Jovavich (Milli Vanilli probably more your “taste” ) being too skinny (and her boobs are too big!)
Frank
It was truly daring to make a movie about adultery in the repressed Seventies.
/sarc
I recall Ravel describing it as orchestration without music. I also recall a story that there was some sort of dispute about rights to a piece by someone else, causing Ravel to have to fill in the gap in a program by writing something, anything, original very quickly.
https://www.cnn.com/2023/08/08/politics/supreme-court-ghost-guns/index.html
If anybody thinks that the Supreme Court is going to meaningfully rein New York or California in, they’re deluding themselves.
There’s always one or two “conservative” judges that wants to let the issue “percolate,” which means that the left has every incentive to bog people down with processes, knowing it’ll take years.
SOP for Roberts but depressing that Amy joined.
6 appointments and only 2 really reliable. 3 for 3 on the lib side, as always.
Yes, the left is much better at picking doctrinaire appointees. In any case, Barrett is a woman with a black adopted child. She was probably influenced by the emotional “Think of the black children being killed in the cities!” line
Republicans have a hard enough time winning elections without three Trump appointees always being as extreme as Alito or Thomas. (And the three more progressive Justices do not always agree.) Perhaps your problem with Barrett is that conservative billionaires haven’t bribed her enough yet.
It’s not a matter of being “extreme.” it’s a matter of not allowing the left to put forth gun regulations in bad faith solely to cause delays. How come “justice delayed is justice denied” only applies to women killing babies and gay men pegging men to completion?
The only Supreme Court majority that would make you happy would be an extreme Supreme Court majority.
No, a Supreme Court would make me happy if it actually followed the law.
Why Hoppy, those are the tactics used by the anti-Roe crowd for 50 years. Suddenly you don’t condone it?
Yeah, except that the judiciary never allowed the anti-abortion laws to ever come into effect. They were always enjoined the day they were passed.
BY a pleasing coincidence, WQXR played the Bolero this morning – Charles Munch and the Boston SO. Unfortunately, Munch conducts it in a style I have called the “Leningrad Bolero” (Captcrisis will understand, I assume!) – hard-driven and remorseless, and basically missing the point.
Do I remember correctly that at one point they get interrupted and she starts “Bolero” again? It’s not often you wince during a sex scene.
As I mentioned a few days ago, Cantinflas had a famous pantomime routine set to “Bolero” which is reproduced at the end of “Cantinflas.”almost wo
I think you’re right. It exposes the shallowness of the Derek character. Maybe that’s the only way she knows how to have sex?
I had a lot more respect for the candle lit altar ritual of the Tracy Camilla Johns character in She’s Gotta Have It.
I associate it with the evolution sequence in “Allegro Non Troppo.”.
Yup! Good call!
From the same era and somewhat the same story
https://m.youtube.com/watch?embeds_referring_euri=https%3A%2F%2Fwww.google.com%2F&source_ve_path=MzY4NDIsMTY0OTksMTY0OTksMjg2NjQsMTY0NTA2&feature=emb_share&v=7Q0ZuNYHzNg