Today in Supreme Court History: November 25, 1757

11/25/1757: Henry Brockholst Livingston's birthday. He dissented in the property law classic, Pierson v. Post (NY 1805).

Justice Henry Brockholst Livingston

Comments

[Dan Schiavetta]

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (decided November 25, 2020): in a 5 – 4 vote, Court grants stay on Free Exercise grounds of Covid-19 executive order limiting church attendance to ten persons in red zones or 25 persons in orange zones; less restrictive alternatives available

Yates v. United States, 355 U.S. 66 (decided November 25, 1957): refusal to give names of Communist Party members results in only one conviction for contempt even though question was asked and refusal to answer ten times (in the more important decision in this case, the Court held that the First Amendment restricts Smith Act convictions to advocacy of specific overthrow actions, not overthrow as a general principle, 354 U.S. 298)

Saxbe v. Bustos, 419 U.S. 65 (decided November 25, 1974): ruling against Farmworkers Union and holding that INS regulations permit aliens to cross border for daily work with only a green card and without need of certification from the Secretary of Labor

[SRG2]

Is there a bright line for where the free exercise of religion may be curtailed? It's evidently somewhere between ritual slaughter of chickens and ritual slaughter of people, but where is it?

[Dan Schiavetta]

The objections to Cuomo’s policy were bogus, a result of the American Church’s dalliance with the Republican Party and its proud Trumpian anti-science ignorance. As was the result, from a majority right-wing Catholic Court. Historically the Church has had no objection to closing churches for public health reasons.

[Krayt]

I'll bet not when casinos and other state moneymakers and endeavors of friends of the powerful, depending on state, were still left open.

[Dan Schiavetta]

not in New York

The real problem was that so many Catholics and (orthodox) Jews simply did not believe Covid was happening and did not believe that it was spread in the ways the CDC said. (IOW, Trump supporters.) They were aggressively flouting the rule. This was particularly disastrous with Orthodox Jews many of whom died after attending services in crowded synagogues unmasked and without regard to symptoms.

[Sam Bankman-Fried]

I remember when you couldn’t buy toys on Sunday because of the Church.

[Dr. Ed 2]

That was not necessarily a bad law -- it was reflective of an earlier era when stores kept banker's hours and hence had mostly full-time employees.

Without getting into either politics or what should be done about it, it is a fact that part-time retail work (and the related demand that the employee be available for all the hours the store is open, but never sure which hours/days will be working) *has* a negative impact on both the employee's life and the life of the employee's family.

[Michael P]

Indeed, historically churches have had no compunctions about knuckling under when ordered about by the government. This is why so many have been banned and exterminated in other countries.

[Sarcastr0]

Considerations for holding a debate amongst Conspirators on the VC:

*Setting: A set of lemmas to be worked out beforehand. Alternate who is the arguer and who will be providing rebuttal.
*Format: Argument, reply, rebuttal.
*Timeline: These folks have other job, no need to be restrictive or make this blogging hobby act like homework; if 2 weeks elapse before a reply, then perhaps ask for an explanation.
*Length: prevent filibusters, keep things on topic, 1500 words for argument, 1200 for reply, 700 for rebuttal.
*Finish: A conclusion from each, including what they saw as the most formattable argument from the other side.

-There are legit concerns that engaging with nonsense elevates it. I don't know the culture in academia these days, but peering in via this blog, I think nonsense with a beneficial outcome for one party or another is elevated already these days.

[Dan Schiavetta]

"what they saw as the most formattable argument from the other side."

I assume you meant "formidable".

The psychologist Carl Rogers, when doing couples therapy, would have each express the other's position in their own words, to that person's satisfaction, before continuing. He recommended that nations use this method in negotiating their own differences. When asked why they don't, he said, "It takes courage, a quality which is not widespread."

[Lee Moore]

I cannot advise on couples therapy, but for diplomacy this seems alarmingly naive. Almost as if Rogers imagined that one nation stands in relation to another, as spouses to each other.

If you are wise and articulate it can do no harm at all to formulate the best argument for the other side's position that you can, on paper and in private. But blurting it out, out loud, not so much.

If the other side can't make their case as well as you can, helping them to find their best argument is liable to make them feel stronger in their position. Better would be to present them with superficially attractive arguments for their position, rope 'em into supporting them, and then slyly revealing the implications which they won't like at all. Their retreat from your bait may be of great advantage to you.

A foreign land is not a wife. And he who treats it as if it were should be kept as far away from the negotiations as possible. Preferably in a backroom preparing good arguments for the other side's position, so that your negotiators are prepared to counter them.

[Dan Schiavetta]

You are correct that it is important to understand the other side’s position. In American politics this is considered weakness. We like politicians who stupidly charge ahead and don’t listen.

However this is not formulating arguments for the other side. This is simply restating the arguments that the other side is making (even if they are weak arguments) to the other side’s satisfaction.

[The Margrave of Azilia]

So you're saying...that Hitler had some good ideas?

/sarc

[John F. Carr]

He can't be all bad. After all, he did kill Hitler.

[The Margrave of Azilia]

Excellent point!

[David Nieporent]

+1

[Dr. Ed 2]

Hitler DID have some good ideas, and some of them (e.g. using public works to reduce unemployment) were the same as those of Franklin Roosevelt.

Actually, a LOT of his ideas were the same as FDR's -- there are still some "National Recovery Eagles" around on the fronts of buildings built during the 1930s, and the resemblance to the Nazi Eagle is chilling. Likewise the Bellamy Flag Salute and some other things.

Hitler built the Berlin Subway (essentially the one in use today), he invented what became the VW Bug and the Interstate Highway. (His major mistake with divided highways was not understanding the aerodynamic wake of a moving motor vehicle and having overpass abutments right up to the travel lanes, which caused drivers to lose control -- our designs have places for the wave to go.)

I'm not saying he was a nice guy, nor that he was good for Germany, but one needs to remember that he DID have SOME good ideas -- and that he was WELCOMED into Austria. Those are facts we forget at our peril....

[David Nieporent]

.

Hitler built the Berlin Subway (essentially the one in use today), he invented what became the VW Bug and the Interstate Highway.

You've fabricated these claims before. And have been called on it before. All of these things predate Hitler (who was not an automotive engineer and did not "invent" anything).

https://twitter.com/dril/status/831805955402776576?lang=en

[SRG2]

that he was WELCOMED into Austria.

FWIW my great aunt Rosa, who lived in Germany and Austria post WWI, always claimed that the Austrians were more anti-Semitic than the Germans.

[bernard11]

I’ve heard that said about both the Austrians and the Poles, by people with experience in the matter.

German occupiers of Poland during WWI were sometimes thought to have treated Jews better than the Poles did.Certainly it was benign relative to Russian behavior. That was one reason for this attitude about Poland, and may have led some, early on, to minimize the threat of Nazism.

[TwelveInchPianist]

"Actually, a LOT of his ideas were the same as FDR’s"

Sending people to concentration camps, for example.

[Krayt]

The highways were to move equipment and troops quickly without having to rely on notoriously fussy and breakable train schedules. The VW Bug was a lie to The People to justify the investment in highways for war.

For another tact, Mussolini famously "made the trains run on time." Hint, it wasn't to make The People less irritated.

[Sarcastr0]

Great point. Except that Mussolini did not, in fact, make the trains run on time.

[Dan Schiavetta]

My grandmother, who grew up in Italy, remembered Mussolini as a good man. But when she left for America he had only been in power a couple of years.

[Krayt]

Yeah, I meant to note that 🙂

[Krayt]

That’s pretty close to the best learning technique for school. There are little ways to optimize this, but when you can explain the new concept in your own words without rote recital, as if to explain it to someone else, then you have learned it.

[Dr. Ed 2]

" He recommended that nations use this method in negotiating their own differences."

I don't think this is a good idea.

Gaza: "From the River to the Sea, Palestine will be Jew Free"
Israel: "If someone is going to kill you, get up very early in the morning and kill him first." (Im ba l'hargekha, hashkem l'hargo)

Soviets (Khrushchev) "We will bury you."
USA (Nixon, McCarthy) "Better dead than Red."

Success in diplomacy has come about from countries recognizing what they have in common -- be it Jimmy Carter and the Egypt/Israel peace treaty, or the more recent "Abraham Accords" -- all three major religions recognizing the same guy (Abraham) in their holy texts.

If there is going to be a solution other than Nuking Gaza, it well may come out of a place like Qutar that doesn't particularly like either the Israelis or the Palestinians, but definitely doesn't want a war (bad for business) and can point out that neither of them really want one either.

OTOH, (NATO) Exercise Able Archer 83 showed us how paranoid the Soviets really were, notwithstanding their bluster -- and the extent to which misunderstanding real intentions almost incinerated the planet.

[SRG2]

I note that Khrushchev's "we will bury you" was an idiom meaning, "we will outlast you" and not, as often claimed, "we will kill you".

[Zarniwoop]

It helps to think of the idiom in terms of a related one: "no parent should have to bury their child". That's pretty universally understood as "outlive" (truly sad) not "kill" (extremely fuckered up).

[Krayt]

I always thought it was a claim they would vastly outclass the west and freedom-based capitalism, which was a hollow claim, but few realized it back then -- "they might actually do it!"

[Sam Bankman-Fried]

I must break you.

Ivan Drago

[Michael P]

He later elaborated, clarifying that your interpretation is wrong, "Of course we will not bury you with a shovel. Your own working class will bury you."

[Sarcastr0]

That clarification seems to very much support SRG2's interpretation, actually.
The USSR will outlast the US because the US's workers will rise up yada yada.

[Michael P]

Yes, they were also trying to foment internal rebellion within their enemies. They were definitely trying to instigate that burying process.

[Frank Drackman]

Anyone get the Irony of Derek Chauvin getting stabbed on..
wait for it..........

"Black Friday"
and why the fuck is he in jail in Arizona?
gonna really stick in your craw when "47" has him as his "Special Guest" at the Inauguration in 2025

Frank

[defaultdotxbe]

In addition to the state charges he was also convicted on federal charges, so he's in federal prison, and they just put you wherever they have room.

[Magister]

He's in prison because he committed a murder. And civil rights violations. And tax evasion.

Since Chauvin is serving a federal prison sentence, he could presumably be serving it at any federal prison. It is unfortunate when prisoners are far from people who might visit them (which usually decreases recidivism after eventual release), but states also send prisoners to private prisons in other states.

I guess Donald Trump would admire the civil rights violations and the tax evasion, and in the same way he boasts that shooting someone on Fifth Avenue wouldn't cost him votes, celebrating a notorious murderer probably wouldn't alienate any of his supporters. With the concurrent state sentence, Donald Trump wouldn't be able to pardon Chauvin completely. Anyway, since Donald Trump didn't attend Biden's first inauguration, there's no reason to think he'd attend the second one.

[Rev. Arthur L. Kirkland]

gonna really stick in your craw when “47” has him as his “Special Guest” at the Inauguration in 2025

I can understand why Trump would love an authoritarian asshole like Chauvin, and why Frank Drackman (and plenty of Volokh Conspirators and their fans) would cheer at Trump's middle-finger wave at better Americans, but even if Trump wins he couldn't pardon Chauvin with respect to the state murder conviction.

Chauvin did not deserve to be stabbed in prison (although his record indicates he is an asshole who might have provoked someone, prisons should have better control of even deplorable inmates). But he deserves to spend most or all of the rest of his life in prison.

Maybe Chauvin and Trump can watch the 2025 inauguration together if they are assigned to the same prison.

[Frank Drackman]

don't know about the "Tax Evasion/Civil Rights Violations" (my admittedly I-ANAL experience tells me those are what they charge when they can't get you on anything else)
"Murder"?
Fucking Floyd George murdered himself when he took that fucking fentanyl, if anything Chauvin helped him survive a little longer by putting him in the "rescue" position.
And even if he did "Murder" FG, he should have gotten a friggin medal for getting that POS off the streets.
Speaking of dead criminals, Parkinsonian Joe's got as much chance being alive in 2025 as JFK/JFK Jr (No assassinations/plane crashes, just the natural course of Parkinson's disease)
and thought it was a rerun, but Joe's telling the "I was recruited to play football at Navy" story again.

Frank

[Dan Schiavetta]

Courageous lady!

[Voize]

Yates made it to the Supreme Court a third time (356 US 363 (1958)) after the District Court, on remand after the reversal captcrisis cited, refused to reduce her sentence despite the Court having provided "gentle intimations of the necessity for such action". As a result the Court abandoned subtlety and remanded once more but with explicit instructions to reduce the sentence to time served.

[Dr. Ed 2]

STUPID lady.

The Soviets were worse than the Nazis, they just didn’t keep the records the Nazis did — the Soviets murdered more civilians (and I argue more Jews) than the Nazis did. How many Jews died in the Holdomur alone?

The CPUSA was every bit as Soviet as the German-American Bund had been Nazi.

[David Nieporent]

.

Yates made it to the Supreme Court a third time

And then a fourth time when she threw a fish in the water (574 U.S. 528 (2015)).
​
​​
​​
(Yes, I know. I'm not Dr. Ed.)

[Dan Schiavetta]

Yes exactly

[TwelveInchPianist]

Lol nice try. You think detaining illegal immigrants is comparable to detaining innocent Japanese or Jews?

[NOVA Lawyer]

Michael P,

Are you claiming FDR was genocidal, just not actively so?

The partisan hatred is strong in this one.

[bernard11]

Yes, at least as far as the Japanese go.

Just think about the practical issues involved, not to mention the morality.

[Michael P]

Shirley, even you can understand that limiting illegal immigration is fundamentally different than sending citizens to concentration camps.

[Michael P]

The latest and apparently strongest defense of FDR: At least he wasn't actively genocidal like the Nazis!

[Krayt]

Communism, like Nazis, are a seductive patter to get the masses behind you more easily, so you can seize power, kill your enemies, and take over as the Kleptocrat-in-Chief from whoever you replaced.

[Dr. Ed 2]

As one who comes from a commercial fishing background, I thought I recognized the case -- but I checked.

"Petitioner John L. Yates, a commercial fisherman, was operating in the Gulf of Mexico when a federal agent conducted an offshore inspection and found that the ship's catch had undersized red grouper, in violation of United States federal conservation regulations. The federal agent instructed Captain Yates to keep the undersized fish segregated; Yates instructed his crew to throw the undersized fish overboard, resulting in Yates being charged under 18 United States Code §1519. "

I think it was decided correctly, but what the FiretrUCK does this have to do with the Communist Party?!?

Or Ms. Yates?!?

Besides changing her gender, would a good communist become a capitalist and exploit the proletariat as only the captain of a fishing boat can?!? Ever been a crew member on a fishing boat?!?

[Noscitur a sociis]

David Nieporent was making what’s known a joke, because there’s another famous case called “Yates v. United States”.

Edit: and yes, the point of the joke is that it is indeed improbable that a woman old enough to be involved in investigations into communism in the 1950s who is reported to have “died rather young” would have been commercial fishing in the early 21st century.