Today in Supreme Court History: January 18, 1873

1/18/1873: Bradwell v. Illinois argued.

Comments

[Dan Schiavetta]

Mistretta v. United States, 488 U.S. 361 (decided January 18, 1989): The Sentencing Reform Act of 1984 created the Sentencing Commission (appointed by the President w/Senate approval, three of seven members being federal judges) which sets binding guidelines. Here the Court holds that this arrangement does not violate separation of powers nor is an excessive delegation of authority by Congress. (I’m puzzled by the phrase, “Congress decided to locate this Commission in the Judicial Branch”, which is also what the official site says, http://www.ussc.gov. What does that mean exactly? The Chief Justice is the head of the Judicial Branch and the Commission doesn’t report to him. It seems to be Executive Branch, no matter what anyone says.)

Golan v. Harper, 565 U.S. 302 (decided January 18, 2012): Copyright Clause allows Congress to give copyright protection to works formerly in public domain (as part of a reciprocity arrangement; these works enjoyed copyright protection in their countries of origin) (suit was brought by conductors, orchestras, publishers) (my cash-poor amateur orchestra is forced to play only old works because only they can be downloaded free)

Missouri v. Iowa, 165 U.S. 118 (decided January 18, 1897): Boundary between Iowa and Missouri had to be redrawn because the original markers couldn’t be located. One had been described as being between two trees (an oak and an elm) which had fallen. A long report from the special master showing efforts to find markers from 1850 and interpret mysterious “blaze” marks left on trees, which are reprinted in the decision. (Someone mischievously inclined could have put in false markers misleading the field investigators so that the border, instead of being a straight line, formed a profile of a naked woman lying on her back, with breasts extending north to Bloomfield, Iowa and knees poking up to Mt. Ayr, butt curving down to Mercer, Mo.; depicting a naked man would be a little simpler.)

Moyer v. Peabody, 212 U.S. 78 (decided January 18, 1909): In 1903 the Governor of Colorado called out the National Guard to break a miner’s strike and arrested Moyer on the basis of “military necessity”. Here the Court affirms dismissal of Moyer’s suit, holding that that the Governor’s claim of “insurrection” cannot be questioned and Moyer had no redress in the judicial system against a use of police powers. (In other words, Moyer would have to resort to violence . . . )

Maples v. Thomas, 565 U.S. 266 (decided January 18, 2012): habeas allowed despite blowing deadline on state court appeal where attorney flew the coop without informing defendant

[F.D. Wolf]

I think you made a slight typo in the case name Golan v. Holder, which had begun its eight-year journey as Golan v. Ashcroft, then Golan v. Gonzales.

It was a 6-2 decision (with Justice Kagan recused due to her previous involvement in the case as Solicitor General.) Justice Ginsburg wrote the majority opinion. Justice Breyer, joined by Justice Alito (an interesting pairing) wrote the dissent. The Court had previously held in Eldred v. Ashcroft (2003) that Congress did not violate its Constitutional power to grant copyrights for a “limited time” by extending the copyrights of works still under copyright, but about to enter the public domain. Golan extended that principle to works already in the public domain whose copyrights had previously expired.

The Constitution, under the Copyright Clause, gives Congress the power:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Modern copyright law dates to the Statute of Anne (1710), which gave authors a 14-year copyright in their works, extendable another 14 years if the author was still alive. (Previously, copyright had been vested in publishers, not authors, licensed by Parliament, and was treated as private, rather than public law). Compare that “limited time” to current U.S. copyright law, which extends to the lifetime of the author plus 70 years.

Long copyrights do not “promote progress in the useful arts”. They do the precise opposite. The purpose of the Copyright Clause was not to enrich authors, but to encourage new works. As Justice Breyer wrote in his dissent in Golan:

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works—works that have already been created and already are in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books—books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world. In my view, the Copyright Clause does not authorize Congress to enact this statute.

565 U.S. 302, 325 (Breyer, J., dissenting) (citation omitted).

[Dan Schiavetta]

Thanks!

[Magister]

Putting the Sentencing Commission in the judicial branch may be to get around mixing the branches of government: it is required to have three of its seven members be federal judges, who probably should not be serving in the executive branch without giving up being judges. Or maybe it was to flatter the Supreme Court into upholding it as constitutional; maybe to reduce the influence of the executive branch on it, even if only in appearance (the president appoints them, but at most four can be from his political party).

[Dan Schiavetta]

The very idea of a Sentencing Commission is at war with the idea of separation of powers. You simply cannot tell judges (or even "nudge" them as to) what sentences to impose, so long as it's within the maximum set by statute for that offense. If the sentence is out of whack, it's for the appellate court to fix.

[Magister]

Can the judicial branch tell its judges nothing, except by overruling them on appeal? Your objection would seem to explain the fig leaf of being in the judicial branch, so that judges are more likely to accept it. (Since SCOTUS found it constitutional, apparently they can tell judges what sentences to impose, simply or otherwise.)

If the sentencing commission simply issued recommendations which became law, that would surely be OK; Congress set the possible punishments and could narrow them or make them more specific. So is the problem that Congress gave the commission some (too much?) of its legislative power (and/or bypassed some of the other process to make changes to the law)?

[Dilan Esper]

Absolutely. I don't say these words very often, but Scalia's dissent was exactly correct. It's a junior varsity legislature.

I think the separation of powers arguments that conservatives care a lot about are particularly important in malum in se criminal cases (i.e., not regulatory crimes but traditional crimes like murder, burglary, fraud, etc.). There really are supposed to be defined roles here. Congress makes the laws that make stuff illegal. Cops arrest you for violating them. Prosecutors prosecute you. Juries decide whether you are guilty or not. And judges sentence you within the limits set by Congress. When you blur those lines, it really can create an unfair process-- and the Sentencing Commission was an attempt to give legislative power to judges. (The other example I have in mind of a separation of powers case that should have come out the other way was Gundy v. United States, where Congress clearly punted on an issue that adds years to a person's sentence, and SCOTUS let an executive branch bureaucrat impose the punishment.)

[Dan Schiavetta]

"the Sentencing Commission was an attempt to give legislative power to judges."

Quite the opposite. Judges are only 3 of the 7 members. It was really an encroachment by the other branches onto the judicial branch.

[Dilan Esper]

It was both.

The point is, only Congress can pass binding sentencing guidelines. (The Court, by the way, got to this conclusion in a different way later in Booker and Fanfan. But Scalia was correct in Mistretta.)

[Noscitur a sociis]

.

SCOTUS let an executive branch bureaucrat impose the punishment.

How do you figure? The decision upheld the Attorney General's prerogative to impose the registration requirement: sex offenders still had to be indicted by a grand jury, convicted by a petit jury on proof beyond a reasonable doubt, and sentenced by an Article III judge before they could be punished at all.

[Dilan Esper]

The Attorney General is a prosecutor, and prosecutors should be constitutionally barred from passing a law that increases the maximum sentence of an offender. Prosecutors will ALWAYS go for the maximum, and Congress had punted on the issue (which should mean, in the criminal law context, no additional punishment).

[Noscitur a sociis]

.

The Attorney General is a prosecutor, and prosecutors should be constitutionally barred from passing a law that increases the maximum sentence of an offender.

The attorney general is also an adminstrator, and the law in question gave them the authority, in that capacity, to implement a regulatory requirement. And describing this as "increas[ing] the maximum sentence of an offender" is, at best, very strange: the purpose of the regulation to define a legal duty, disobeying which is a criminal offense.

Prosecutors will ALWAYS go for the maximum

You're aware that the current attorney general has expressly directed his prosecutors not to seek the maximum (and, in many cases, the minimum) penalty prescribed by Congress, right?

[Dilan Esper]

The law purportedly granted that legislative power to the AG because Congress did not have the votes to put it in. That was unconstitutional- the AG is a prosecutor which has an inherent conflict of interest when legislating criminal sentences.

And no, the current AG has not repealed the regulation upheld in Gundy, because like all prosecutors, he wants maximum authority.

[Noscitur a sociis]

It seems to be Executive Branch, no matter what anyone says.

Why? They don’t report to the president…

[Dan Schiavetta]

It resembles semi-independent agencies like the FCC or the NLRB, indisputably Executive Branch, appointed by the President upon consent of the Senate, with a minority of the Board consisting of federal judges.

[Magister]

Could a federal judge be on the NLRB and still a judge?

[Dan Schiavetta]

The Chief Justice does a lot of non-judge stuff. He is on the board of the Smithsonian Institution (not part of any branch); he is head of the Judicial Conference (exercising executive authority); he supervises acquisitions for the law library part of the Library of Congress (legislative branch).

So I don’t know about the NLRB, but judges being on the Sentencing Commission and still being judges is not an unheard of kind of thing.

[Magister]

My point is that it would be odd if judges were serving in the executive branch; but it’s not clear why it couldn’t exist outside of any branch, if that’s what the Smithsonian Institution is. To the extent it has authority, it constrains members of the judicial branch, so it would be inappropriate for it to be in the executive branch.

Edit: To the extent that it reduces sentences in some cases, that would be something that politicians in the other branches would prefer to avoid responsibility for; they don't want to be seen as "soft on crime" in their next election.

[Noscitur a sociis]

he is head of the Judicial Conference (exercising executive authority)

What's that now?

[SRG2]

I recall Maples, On the facts, it was entirely obvious that he’d been abandoned by counsel. Utterly predictably, Scalia/Thomas ignore the facts in favour of their preferred result.

From Alito’s concurrence (he wrote separately because he didn’t agree with the majority’s criticism of Alabama’s justice system): :

he was effectively deprived of legal representation due to the combined effect of no fewer than eight unfortunate events: (1) the departure from their law firm of the two young lawyers who appeared as counsel of record in his state postconviction proceeding; (2) the acceptance by these two attorneys of new employment that precluded them from continuing to represent him; (3) their failure to notify petitioner of their new situation; (4) their failure to withdraw as his counsel of record; (5) the apparent failure of the firm that they left to monitor the status of petitioner’s case when these attorneys departed; (6) when notice of the decision denying petitioner’s request for state postconviction relief was received in that firm’s offices, the failure of the firm’s mail room to route that important communication to either another member of the firm or to the departed attorneys’ new addresses; (7) the failure of the clerk’s office to take any action when the envelope containing that notice came back unopened; and (8) local counsel’s very limited conception of the role that he was obligated to play in petitioner’s representation.

[Dan Schiavetta]

Maples’s conviction was overturned in 2022 due to ineffective assistance of counsel in the sentencing phrase, particularly as to mitigating factors. The whole saga is set forth in the District Court’s opinion at

https://dpic-cdn.org/production/documents/Maples-v-Dunn-AL-ND-Habeas-22-01-27.pdf

I somewhat identify with Mark Craig, the lawyer who was thrown into representing Maples, who had never tried a capital case and never been involved in mitigation proceedings. He read what he could from treatises but it's clear that, even if he were to be properly given this assignment, he was not trained by his superiors as to what to do. Early in my career I screwed up some assignments (fortunately not capital crime cases!) because I was thrown into it unprepared.

I wonder if Craig was in the same situation that other new attorneys were, when I was starting out. One thing I learned pretty quickly is: if you don’t know how to do something, the worst thing you can do is ask. If you do that, the partner will know that you don’t know how to do it. (The other new attorneys don’t know it either, but they were smart enough not to ask, and he doesn’t know that they don’t know.)

This is a stupid way to run a law firm, but it was par for the course, at least in New York in those days. When I became managing partner I made sure that new associates could ask me anything, and I would be glad they ask it, instead of me being uneasy about them not knowing how to do things.

[Syd Henderson]

Re Golan: Eric Carmen ran afoul of international copyright when he used the theme from Part 2 of Rachmaninoff's second Piano Concerto for the opening and other parts of "All by Myself". It was in public domain in the US but not in Europe so Rachmaninoff's estate got 12% of the royalty. His followup hit, "Never Gonna Fall in Love Again" borrowed from Rachmaninoff's Symphony #2 and I imagine they had to pay royalties on that as well.

The chorus of "All by Myself" was borrowed from one of his songs with the Raspberries so he didn't have to worry about that.

[Dan Schiavetta]

Thanks.

“All By Myself” played about every 15 minutes in the college dining hall when I was a freshman. When I hear that song now I think of rubbery pizza and oleaginous mac & cheese.

[Syd Henderson]

But unfortunately not Rachmaninoff. It's a favorite of mine, although I tend to sing Carmen's lyrics to it.