Today in Supreme Court History: September 15, 1857

9/15/1857: Chief Justice William Howard Taft's birthday.

Chief Justice William Howard Taft

 

Comments

[Martinned]

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
(...)
We must assume, then, that there are school districts for colored children in Bolivar County, but that no colored school is within the limits of the Rosedale Consolidated High School District. This is not inconsistent with there being at a place outside of that district and in a different district, a colored school which the plaintiff Martha Lum may conveniently attend. If so, she is not denied, under the existing school system, the right to attend and enjoy the privileges of a common school education in a colored school. If it were otherwise, the petition should have contained an allegation showing it. Had the petition alleged specifically that there was no colored school in Martha Lum's neighborhood to which she could conveniently go, a different question would have been presented, and this without regard to the state supreme court's construction of the state constitution as limiting the white schools provided for the education of children of the white or Caucasian race. But we do not find the petition to present such a situation.
The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry, born in this country and a citizen of the United States, the equal protection of the laws by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow, or black races. (...)
The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow, or black. Were this a new question, it would call for very full argument and consideration; but we think that it is the same question which has been many times decided to be within the constitutional power of the state legislature to settle, without intervention of the federal courts under the federal Constitution. Roberts v. City of Boston, 5 Cush. 198, 206, 208, 209; State ex rel. Garnes v. McCann, 21 Ohio St.198, 210; People ex rel. King v. Gallagher, 93 N.Y. 438; People ex rel. Cisco v. School Board, 161 N.Y. 598; Ward v. Flood, 48 Cal. 36; Wysinger v. Crookshank, 82 Cal. 588, 590; Reynolds v. Board of Education, 66 Kan. 672; McMillan v. School Committee, 107 N.C. 609; Cory v. Carter, 48 Ind. 327; Lehew v. Brummell, 103 Mo. 546; Dameron v. Bayless, 14 Ariz. 180; State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 348, 355; Bertonneau v. Board, 3 Woods, 177, 3 Fed.Cas. 294, Case No. 1,361; United States v. Buntin, 10 F. 730, 735; Wong Him v. Callahan, 119 F. 381. (...)
Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils, but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races. The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment.

Gong Lum v. Rice, 275 U.S. 78 (1927)

[Mr. Bumble]

"MR. CHIEF JUSTICE TAFT delivered the opinion of the Court."
which was unanimous.

[Martinned]

That makes it more shameful, not less.

There's a reason I left that long list of precedents in my quote. (Though I omitted the discussion of Plessy.) There's lots of shame to go around.

[Mr. Bumble]

Shameful? By today's standards it is; however, I only made my comment to add context, not to judge.

[Martinned]

I made my comment to judge, but not specifically Taft, CJ.

I'm the first person to agree that judging historical figures by today's standards is stupid. But Plessy was wrong when it was decided, as a simple matter of law. And because of that no subsequent Supreme Court should have upheld it.

[Mr. Bumble]

Again, I think you are judging by today's standards. While today most will agree Plessy was wrongly decided I doubt that was the case in 1896 and the 7-1 decision (only Harlan dissenting) supports that.

[Martinned]

Are you an originalist or not?

Regardless, Plessy was wrong regardless of whether you look at the text of the 14th amendment ("equal protection"), the history of the 14th amendment ("we just fought a war to stop the confederacy oppressing black people"), the mischief rule (likewise), etc. If the equal protection clause doesn't forbid the state from putting black pupils in a different school, it's effectively meaningless. (Meaning that that interpretation offends against the rule against reading clauses out of the constitution.)

[taqmcg]

Even today in the US, it is legal to provide public 'separate but equal' education distinguishing the sexes, so I think there was a colorable argument after our Civil War that such an approach distinguishing race was legal. My understanding of the legal strategy that culminated in Brown was that it was to show time after time that the nominally equal education provided blacks was always markedly inferior demonstrating the 'equal' was just a pretext to allow the 'separate'. Not saying that this couldn't have been inferred in Plessy, but the historical record built by the 1950's refuted any argument that might have been possible in the 1880's.

[Nige]

What's wrong with judging people by today's standards? They are, after all, our standards, and in many cases quite hard come by. Of course, even noting the difference in standards is a judgement in itself. The dead don't care if you judge them harshly.

[Frank Drackman]

Great, so take JFK/RFK/s names off everything for all the shee-ot they gave Martin Lucifer Jr. Funny with all the coverage of the anniversary of the March on Washington, and where was JFK? why didn't he speak on the mall?, He was up in frigging Nantucket.

Frank

[Martinned]

It depends on what you do with that judgment.

For example, if you're deciding whether to put up a statue of some historical figure, judging that person by today's standards seems entirely sensible.

The rest of the time, judging the dead at all is a bit pointless, although it might be a way to judge the living by extension. Given that we just celebrated the death of systemic racism in yesterday's open thread, you're right that a bit of judgement wouldn't be amiss here. (Hence my original comment.)

[Nige]

I would say judging them by your standards is automatic, even if it's unstated. Understanding their standards provides context, but that doesn't mean judgement has to be supended.

[The Margrave of Azilia]

"But Plessy was wrong when it was decided, as a simple matter of law. And because of that no subsequent Supreme Court should have upheld it."

Indeed, that is true. Taft, of course, was speaking for his colleagues, including Oliver Wendell "at least he had a cool moustache" Holmes.

[Mr. Bumble]

The reasoning appears to be that separate BUT equal satisfied the 14th. As taqmcg posits above by the time of Brown it had become plainly apparent that that was not the case.

[The Margrave of Azilia]

The Brown court confined itself to education - later summary judgments applied the principle outside education.

Instead of sociology and doll studies, the Court could simply have said, "separate but equal is an abomination and was always unconstitutional - has been since 1868 - so Plessy is overruled."

[Mark Regan]

And Justices Brandeis and Stone.

[Dr. Ed 2]

You have got to remember that 1927 was in the midst of the Eugenics movement, when people honestly believed that there were inherent differences between races of people -- not shared aptitudes which we sorta believe today, but that races were inherently different.

[Martinned]

I know, but where does it say in the 14th amendment that that's relevant for anything?

(Not to mention that eugenics-logic would have implied that you can't just rely on a precedent about black pupils to decide a case about a Chinese-American pupil, which is exactly what Taft, CJ does here.)

[Frank Drackman]

So sort of like today, when people honestly believe that there are inherent differences between Humans who've been born, and those who haven't, and that you can legally murder one group but not the other.

[apedad]

" . . . Humans who’ve been born, and those who haven’t . . . . "

Um, yeah, I see a YUGE difference.

As in one is a Human and one isn't.

[Frank Drackman]

I thought this was supposed to be a legal blog, and where you been since June 2022? Freeze Dried or doing Hard Time, you see, there was this little court case called "Dobbs" that does recognize a difference, dumb ass,
oh jeez, that wasn't kind or gentle
Oh, and even in a "Blue" State, go kick a woman in the stomach, kill her unborn baby, and see if you don't get some "Consequences"
actually now a days, you probably won't (in a Blue State)

Frank

[apedad]

" . . . there was this little court case called 'Dobbs' that does recognize a difference, dumb ass . . . . "

(Ace Venture voice) Reeeeaaaalllllyyyyyy . . . . NOPE!

[Frank Drackman]

Hmm, the Baby Killing side sure seems to think there is a (difference) that's what the whole bullshit over Coach Tuberville holding up military promotions is about.
Maybe learn to play checkers first.
Or with yourself, if you can find it.

Frank. "I'll be kind and gentle later"

[apedad]

Goal posts → moved!

[Krychek_2]

Dobbs said nothing about when life begins. It said, in its entirety, that there is no federal right to an abortion, thus (at least for now) leaving it up to the states to determine.

[Noscitur a sociis]

I don’t think anyone has any trouble remembering that the racist opinion came out when there was a lot of racism going around.

[Bob from Ohio]

Did Dutch kids go to the same schools as "colored " natives in the Dutch East Indies?

You constantly ignore the beam in your own eye.

[Martinned]

#MovingGoalposts

[Martinned]

Also, I'm intrigued that you seem to think that Mississippi is some kind of colony.

[Bob from Ohio]

Racial discrimination is bad even if its only colonists, no?

[Nige]

There's a whole load of cultural and historical insecurity built into that sentence.

[Martinned]

Not at all, but unless Mississippi is a colony, it's a bit of a non sequitur for you to have brought up the Dutch East Indies.

[Martinned]

Not to mention that you're complaining about the beam in my eye without even checking what the Dutch constitution says about discrimination and/or schooling. (Or what it said about those topics in 1927.)

I'll leave the historic research to you, but here is today's constitution:

Article 1
All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.

Article 23
1. Education shall be the constant concern of the Government.
2. All persons shall be free to provide education, without prejudice to the authorities’ right of supervision and, with regard to forms of education designated by law, their right to examine the competence and moral integrity of teachers, to be regulated by Act of Parliament.
3. Education provided by public authorities shall be regulated by Act of Parliament, paying due respect to everyone’s religion or belief.
4. The authorities shall ensure that primary education is provided in a sufficient number of public-authority schools in every municipality and in each of the public bodies referred to in Article 132a. Deviations from this provision may be permitted under rules to be established by Act of Parliament on condition that there is opportunity to receive the said form of education, whether in a public-authority school or otherwise.
5. The standards required of schools financed either in part or in full from public funds shall be regulated by Act of Parliament, with due regard, in the case of private schools, to the freedom to provide education according to religious or other belief.
6. The requirements for primary education shall be such that the standards both of private schools fully financed from public funds and of public-authority schools are fully guaranteed. The relevant provisions shall respect in particular the freedom of private schools to choose their teaching aids and to appoint teachers as they see fit.
7. Private primary schools that satisfy the conditions laid down by Act of Parliament shall be financed from public funds according to the same standards as public-authority schools. The conditions under which private secondary education and pre-university education shall receive contributions from public funds shall be laid down by Act of Parliament.

Article 23 was a massive political fight in the second half of the 19th century, between christian-democrats who wanted their schools funded with tax money, and liberals who insisted on the separation of church and state. This is what they came up with.

(Article 132a defines the status of Bonaire, Saba, and St. Eustatius in the Carribean, following the reform of the Kingdom in 2010.)

[Bob from Ohio]

"what the Dutch constitution says about discrimination"

Why would I care about the what the Dutch constitution says about anything? I don't care about A level minor league baseball either.

Its laughable though that you think the natives in your colonies were given these rights.

[Martinned]

1. You brought up the Dutch constitution, not me. All I ask is that you actually read it before spouting off about it.

2. I in no way think the Dutch constitution applied to the colonies. Unlike you, I know enough about Dutch constitutional law to be able to know that for sure, instead of having to speculate based on nothing but wanting to change the topic of conversation.

[Bob from Ohio]

"You brought up the Dutch constitution"

I did? News to me.

[Michael P]

News to the rest of us, too. I assumed he brought it up while accusing you of not checking the Dutch constitution because he thought that their constitution was relevant to the Dutch East Indies.

[Martinned]

You're right. I withdraw my comment.

[Frank Drackman]

"A Level Minor League Baseball"??
I don't know, I know alot of Ohioans who follow the Reds and Indians (not gonna call them that "Other" name)
hey, Indians only 12.5 out of the last wildcard spot, Reds 7 back, but there's still alot of season left!

Frank

[Dilan Esper]

That case is Taft at his worst (although he is obviously following precedent).

For Taft at his best, see his dissent in Adkins v. Children's Hospital. Especially given the political tradition he came out of, his take on Lochner is refreshing and rather astonishing.

[Martinned]

By the way, President Taft made a record number of appointments to the Supreme Court for a single term, except of course President Washington:

- Horace H. Lurton in 1909,
- Charles Evans Hughes in 1910,
- Willis Van Devanter in 1910,
- Joseph R. Lamar in 1910, and
- Mahlon Pitney in 1912.

Taft also elevated Associate Justice Edward Douglass White to chief justice in 1910.

White, of course, was a Confederate soldier and Klansman who sided with the majority in Plessy. So maybe not an ideal choice for chief justice. But Hughes is not a bad appointment.

[Mr. Bumble]

White’s participation as a Confederate soldier and Klansman is not clear but in any event he turned out to be a capable administrator and generally admired CJ (per his Wiki biography).

[apedad]

Looks like White did regret his service during the Civil War: https://academic.oup.com/ajlh/article-abstract/56/2/209/2195550?redirectedFrom=fulltext&login=true

Link from the wiki page.

[Martinned]

Fair enough. I guess Taft could have chosen worse.

[Frank Drackman]

Senator Robert KKK Bird (D, WVA) was a Klansman and was considered for the Court at various times, Barry Hussein Osama even sang at his funeral (Not sure if Al Green's "Lets stay together" was appropriate)

Frank

[Krychek_2]

Robert Byrd matured over the course of his lifetime. Pity you don't appear to have done the same.

[Frank Drackman]

Yes, he realized White Peoples could be Niggers to.
Lets see, how did the Gentleman from West Virginny put it?
"There are white niggers. I've seen a lot of white niggers in my time -- I'm going to use that word." Robert KKK Bird 3-5-2001
https://www.washingtonpost.com/archive/politics/2001/03/05/sen-byrd-apologizes-for-racial-remarks/6dd86f94-c452-4548-815b-acf320b01c24/
Frank "Don't Taze me Bro! that's what he said. "

[Krychek_2]

Pity you don't appear to have done the same.

[Frank Drackman]

Know any White Niggers? I dont, don't know any Black, Brown, or Yellow Niggers either, but then again, I wasn't a former Grand Klaggle or whatever he was.

Frank

[Krychek_2]

Frank, I hold out hope for you that some day with a little more maturity you will look back with deep shame at your posts here. Maybe I overestimate you.

[Dr. Ed 2]

1910 was 45 years after the war ended -- Saigon fell in 1975 so we are talking 2020 as being 45 years later.

At some point, if we were to exist as a nation, we had to put the Civil War behind us as best we could and that meant welcoming the rebels back into the nation. Much like we welcomed the draft dodgers back after Vietnam.

As to his being in the Klan, evidence is sketchy at best.

[apedad]

" . . . we had to put the Civil War behind us as best we could . . . . "

Can you tell that to current-day Cleetus and Scarlett in Tennessippi?

[Frank Drackman]

Sure, if you'll tell Andre and Lafonda in Mississippi

[bernard11]

Given the behavior of Cleetus and Scarlett, Andre and Lafonda have good reason for their doubts.

Explain it to C and S and all will be well.

[bernard11]

Tell it to ML and a few others around here as well.

[Martinned]

I don't disagree, although I can't help but wonder whether you took that approach in 2004 too.

https://en.wikipedia.org/wiki/Swiftboating

But elevating someone who voted with the majority in Plessy to the chief's seat seems like a different matter.

[Mr. Bumble]

"But elevating someone who voted with the majority in Plessy to the chief’s seat seems like a different matter."
"Fair enough. I guess Taft could have chosen worse."
Make up your mind.

[Martinned]

I'm not sure I see the contradiction. There are many evil idiots who could have been appointed as chief who would have been worse than White.

It is true, by 1910 there was no one around who had also voted with the majority in Plessy. (The only other member of the Plessy court who was still around by 1910 was Harlan, J., the dissenter.) But President Taft wasn't required to choose a sitting associate justice for the job, last I checked.

[Mr. Bumble]

Would’ve, should’ve, could’ve. No he wasn’t required to choose a sitting associate to be chief, but he did (even if we don’t know why) and White turned out to be a pretty good chief.

[Martinned]

He also could've and possibly should've made Charles Evans Hughes chief. He turned out to be an even better chief when he finally got the job.

[Magister]

It wasn't the side that welcomed rebels back that needed to put it behind them. The southern states have been unAmerican, not in their racism which is sadly a common American trait, but in preserving grievances for a century and a half.

America, like angels, has little memory. E.g., George W. Bush in 2002: "for a century and a half now, America and Japan have formed one of the great and enduring alliances of modern times."

[Frank Drackman]

Who are the ones knocking over statues of Robert E. Lee?? Renaming Military Bases? Like I could give a fuck if something's named after Sherman.
Frank

[Nige]

'we had to put the Civil War behind us as best we could'

Jim Crow.

[Frank Drackman]

Don’t want to blow my own Shofar, but anyone note the Irony of “Rice” in a case involving a Chinese child? Just shows Jay-Hey has a sense of Humor.

Frank !שנה טובה ומתוקה‎

[Dan Schiavetta]

Matter of Disbarment of Peter T. Roman, 487 U.S. 1261 (decided September 15, 1988): Stole client funds, forged signatures, lied to the court about funds being distributed, 526 So. 2d 60. From his website we see he’s been back in action, though Westlaw has no reported cases from him since the disbarment date. His bio talks more about his life as a globe-trotting martial arts master than it does about his legal experience, which I suppose is understandable. http://www.romanromanlaw.com/firm-overview/peter-t-roman

[Krychek_2]

According to the Florida Bar's Web site, he was readmitted in 1995. I would think that someone who was disbarred for theft of client funds and fraud on the court would have a hard time finding clients, especially when the market is oversaturated with lawyers, but maybe not.

At one time, Florida was one of the more lax states in terms of readmitting disbarred lawyers, and there were lawyers disbarred in other states who were able to get admitted in Florida. I don't think that's still true, and I'm not sure he would be readmitted if he were applying today. We even had a disbarred lawyer run for judge once as Florida does not require bar membership for all judges; he lost the election but the Bar Association was mortified that he ran in the first place.

[Syd Henderson]

Being a martial artist master brings new meaning to "defense attorney."

[Frank Drackman]

Everyone should, if criminal pieces of shit like Floyd George's lives "matter" surely an unborn Floyd George's life should matter. What if Martin Lucifer's mom could have gotten an abortion in 1928? how long would it have been till someone else had a dream??? But you're not gonna get on my last nerve today Queenie, if you'd been "Chosen" I'd even offer you some
"תפוח בדבש".

Frank

[The Margrave of Azilia]

Paraphrased, but I think you knew that.

Are you determined to contradict everything I say?

[The Margrave of Azilia]

Why do you argue with my attacks on Plessy v. Ferguson – do you deny that it was wrong when handed down?

From its text and context, it was Plessy which used sociology – e. g., putting the badness of segregation as having solely to do with the f-f-f-feeeelings of the victims. At the same period, not for legal reasons but because they were tired of enforcing black people’s rights, the justices came up with excuses for ignoring voting rights, too.

You can overrule a bad decision by pointing to its badness. The Court often does that to its own decisions without necessarily drawing on sociological findings. Sociological discourse limited to education did nothing about, say, railway segregation, the very evil which was challenged in Plessy.

[The Margrave of Azilia]

"how was the social science limited to education?"

Are you kidding me?

"We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

https://www.law.cornell.edu/supremecourt/text/347/483/USSC_PRO_347_483_1

[The Margrave of Azilia]

True, the Supreme Court doesn't explain itself. They should simply have overruled the Plessy precedent root and branch, and they don't explain why they didn't.

[David Nieporent]

True, the Supreme Court doesn’t explain itself. They should simply have overruled the Plessy precedent root and branch, and they don’t explain why they didn’t.

I mean, obviously the legal answer is because that wasn't the question presented to it.

The realist answer is that the country wasn't ready for it; SCOTUS thought it was better to proceed deliberately.

[The Margrave of Azilia]

By your logic, the only question presented in the Plessy case was the constitutionality of *railroad* segregation. Yet they commented on segregation more generally - they even discussed school segregation and segregation in "theatres."

[Frank Drackman]

OK, I guess to a race who's greatest contribution to technology was Peanut Butter and the Jheri Curl a Statue of Robert E. Lee is an "Elaborate Memorial"
Most White Southerners wouldn't know Hood, Stewart, Benning, or Bragg from Toby Keith.

Frank

[Frank Drackman]

Well, OK, maybe if Barry Hussein Osama-Sperm had ended up in the tip of a Trojan I wouldn't have cried.

[Frank Drackman]

Fun-ny, I still think my "Emmet Till Takeout Box" joke is better.

[apedad]

"Most White Southerners wouldn’t know Hood, Stewart, Benning, or Bragg from Toby Keith."

HEY! Frankie Boy actually (mistakenly) got something right!

[Frank Drackman]

Man, they need to teach Chess in elementary school, because Apedad, my comment was what in the Chess game we call, a "Sucker Move" where I distract you with something that looks stupid, just before I kick you in the balls,
so here's the Kick (might want to take a breath first)
"Most Black Southerners wouldn't know "Malcolm X" from "Malcolm X, Y, or Z"
OK, the "Emmet Till takeout Box" joke is still better

Frank

[Frank Drackman]

OK, so we're down to "Yo Mama So Fat" jokes, if it wasn't the High Hole-y days you'd make me break out my Kobe Bryant material. (tale about Edgy)

[Magister]

A controversial Muslim civil rights activist who was assassinated almost 60 years ago by Nation of Islam members? More of a stubbed toe than a kick.

A few cities have Malcolm X holidays, but the obvious comparison to Confederate leaders would be Martin Luther King, Jr. Some states still have holidays for Lee and Davis (and Tennessee has a holiday for Nathan Bedford Forrest), and for Confederates in general, and it took a hundred years to remove Lee's name from Fort Gregg-Adams. That generals on the wrong and losing side would be commemorated well into this century is not really salvaged by observing that they're now barely known.