Today in Supreme Court History: January 20, 1953

1/20/1953: President Eisenhower takes the inaugural oath on January 20. He would make five appointments to the Supreme Court: Chief Justice Earl Warren, and Justices John Marshall Harlan II, William J. Brennan, Charles Evans Whittaker, and Potter Stewart.

President Dwight D. Eisenhower made five appointments to the Supreme Court

 

Comments

[Dan Schiavetta]

Nashville Milk Co. v. Carnation Co., 355 U.S. 373 (decided January 20, 1958): Robinson-Patman Act (prohibiting underselling to destroy competition by use of means unavailable to competition) does not provide private right of action; it’s not an “antitrust” statute as defined by the Clayton Act and therefore Clayton remedy of treble damages is not available (plaintiff restricted to Clayton Act claim)

Hunter v. Erickson, 393 U.S. 385 (decided January 20, 1969): Akron, O. ordinance allowing housing discrimination based on race is not saved from Fourteenth Amendment attack by the fact that by its terms it wouldn’t take effect until the voters approve it (which they did)

Beal v. Missouri Pacific R.R. Corp., 312 U.S. 45 (decided January 20, 1941): civil lawsuit can’t stop criminal prosecutions (here, railroads facing prosecution under Nebraska’s Full Train Crew Law claimed that it would have been financially ruinous to comply with it) (statute had been in force since 1929; from the opinion it appears that railroads were hiring dual-role black workers at lower wages than white)

Kansas v. Carr, 577 U.S. 108 (decided January 20, 2016): jury considering death penalty doesn’t have to be instructed that mitigating factors don’t have to be proved beyond reasonable doubt (then how they hell are they supposed to know that???)

Department of the Army v. Blue Fox, Inc., 525 U.S. 255 (decided January 20, 1999): subcontractor barred by sovereign immunity from asserting lien as to proceeds that were never paid to it by general contractor and still held by Army

[F.D. Wolf]

In Hunter v. Erickson, the Akron city council, in 1964, had passed a fair housing ordinance, which created a commission and legal process through which individuals could address complaints about racial discrimination in housing. In response, through the petition process, an amendment to the city charter was placed on the ballot which required any city ordinances dealing with racial discrimination in housing, including those currently in effect, would require approval by the voters. This amendment passed, essentially suspending/repealing the fair housing ordinance. The question before the court was whether that charter amendment violated the Equal Protection Clause. It held, 8-1, that it did.

[Dan Schiavetta]

thanks!

[Dr. Ed 2]

Beal v. Missouri Pacific RR is what did in the railroads.

"The statute makes it unlawful for any railroad in Nebraska to operate any passenger train of more than five cars "with a crew, consisting of less than one engineer, one fireman, one conductor, one brakeman and one flagman."

One fireman to shovel coal -- into a Diesel engine that didn't burn coal.
One brakeman to apply brakes -- that were automatically applied via air pressure.
One flagman to tell approaching trains not to run the red light -- by 1940, most railroad main lines had gone to block signaling where electricity goes through the train from one rail to the other, turning the traffic light behind it red, and the one behind that yellow.

What the railroad did was train its porters to also be brakemen and flagmen so if they ever needed one of those obsolete jobs performed, these guys could do it. The union wanted WHITE brakemen and flagmen so that they could have those jobs, which paid more than porter jobs did.

What I don't understand is where Nebraska got jurisdiction -- I thought RR law was all Federal.

[Dilan Esper]

Can't you post the January 10 cases instead?

[Dan Schiavetta]

Ha!

OK here they are again:

United States v. Georgia, 546 U.S. 151 (decided January 10, 2006): protections of ADA extend to those in state prison (prisoner could not get proper medical care or proper mobility because of lack of ramps, space to move his wheelchair, or accessible toilets)

United States v. Philbrick, 120 U.S. 52 (decided January 10, 1887): Navy carpenter entitled to discretionary living allowances; 1835 statute prohibiting such allowances (and setting a fixed schedule) had been repealed in 1866 without any replacement language, so prior practice was permitted

Owens v. Okure, 488 U.S. 235 (decided January 10, 1989): §1983 claim (beaten by police) subject to state’s residual 3-year statute of limitations as opposed to state’s 1-year statute for intentional torts such as assault

Gonzalez v. Thaler, 565 U.S. 134 (decided January 10, 2012): appeal of conviction under Antiterrorism and Effective Death Penalty Act of 1996 did not require certificate as to which Constitutional violations are alleged; one-year habeas statute of limitations began to run when deadline for seeking cert. in highest state court expired (contention on habeas was that 10-year delay between indictment and trial violated Sixth Amendment speedy trial requirement; Court holds that habeas is time-barred, which is ironic)

Goldberg v. Sweet, 488 U.S. 252 (decided January 10, 1989): Illinois tax on calls only from or to in-state addresses did not violate Dormant Commerce Clause (in effect overruled by Comptroller of Treasury of Maryland v. Wynne, 2015, and by the march of technology)

[F.D. Wolf]

It is a bit odd to single out President Eisenhower's taking of the inaugural oath on January 20, as every president since Franklin Roosevelt (with the exception of Gerald Ford) has taken an inaugural oath on January 20. President Roosevelt's first term began on March 4, but the Twentieth Amendment moved the start of the presidential term to January 20, so his next three terms began on January 20. (The Amendment had been submitted to the states on March 2, 1932. Had it been ratified before October 15 of that year, Roosevelt's first term would have begun on January 20, but it was not ratified until January 23, 1933.)

Presidents Truman and Johnson, of course, took their first inaugural oaths on different dates, due to the deaths in office, of their predecessors, but both were subsequently elected in their own rights, taking their second oath on January 20. When January 20 falls on a Sunday, the public swearing-in ceremony occurs on Monday, January 21, but the President still privately takes the oath on January 20. This has occurred three times: Eisenhower's second inauguration in 1957, Reagan's second inauguration in 1985, and Obama's second inauguration in 2013. January 20 will next fall on a Sunday in a presidential inauguration year in 2041.

[Mr. Bumble]

You forgot Gerald Ford.

[Longtobefree]

Everybody forgot Gerald Ford.
(except those who collect WIN buttons)

[Magister]

I see a mention of Gerald Ford in the first paragraph; he never took the oath of office at the start of a presidential term, only when taking the office after Nixon resigned, so never on January 20th.

Roosevelt, Truman and Johnson all took the oath on January 20th subsequent to first taking it on a different date.

[BrotherMovesOn]

"... as every president since Franklin Roosevelt (with the exception of Gerald Ford) has taken an inaugural oath on January 20."

[Dan Schiavetta]

The country was in crisis during the long months between FDR's election on November 8, 1932 and when Hoover finally left office on March 4, 1933. It was the worst part of the depression. Banks were failing. Fascist movements were developing. Hoover kept asking for FDR's help (or at least public approval) for the steps he was taking. It was wise for FDR to refuse his overtures, so that he could start totally fresh on March 4, but he was taking a big risk.

I was under the impression that this was the impetus for moving the inauguration up to January 20 starting in 1937, but as you point out the amendment had already been submitted in March 1932.

[Mr. Bumble]

" It was wise for FDR to refuse his overtures, so that he could start totally fresh on March 4,..."

...and we all know how well that worked out.

[Magister]

Yes; wealthy businessmen plotted a fascist coup which failed, but then the New Deal demonstrated how to deal with the economic crisis, a lesson that prevented the 2008 Republican-caused crash turning into another Great Depression.

[Dr. Ed 2]

I think it was the railroads that did that -- by 1930 there were trains most everywhere and trains had snow plows and steam heat.

Before that it was stagecoach and you wanted to travel after the snow melted but before mud season.

[Dr. Ed 2]

Don't they ALL take the oath privately first just in case something happens, eg Soviet nuke attack?

[Magister]

Very brilliant of Roosevelt to anticipate a Soviet nuclear attack, but this does not seem to be reported for any president. Why would it make a difference, as the new term would not begin until noon anyway, and something happening would at most cause the oath to be taken privately (or for someone else to assume the office if the president-elect could not do so)?

[Dan Schiavetta]

Zachary Taylor did not take the oath until March 5, 1849. Who was Acting President on March 4? (We know it wasn't Atchison.)

[F.D. Wolf]

I think the text of the Constitution (since superseded by the Twenty-Fifth Amendment) suggests it was Vice President Millard Fillmore.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.

A president-elect who does not take the oath when his term is set to begin still becomes the President, albeit a President who is unable to discharge presidential powers. We might imagine a president-elect who falls into a coma before January 20. On January 20, he will still become President, even if he’s lying comatose in a hospital bed. In such a situation, the Vice President would presumably invoke the 25th Amendment and serve as Acting President. If the President were to awaken from his coma before his term expired, he would still have to take the oath before executing any presidential powers.

(Before the 25th Amendment, the process for dealing with presidential disability was uncertain. Presumably, the Vice President would have simply declared the President disabled, and he would proceed as Acting President. After President Woodrow Wilson’s stroke, some advised Vice President Thomas Marshall to do precisely that, but Marshall was not a paritcularly bold character.)

[Dan Schiavetta]

Any action by V.P. Marshall (“what this country needs is a good five cent cigar!”) would seem self-serving, so it was up to others. He was hoping that a visit by Senator Fall would clear things up. Unfortunately for the country, Wilson was having one of his “good” days that day and was on the ball except for his left hand being pretty useless. Also they probably didn’t know that Edith Wilson was really acting as President. Still, the Senate should have been more involved. And even more so Wilson’s Cabinet, particularly Secretary of State Lansing.

As for Fillmore, he hadn’t taken the oath of office either. He (like Taylor) took the oath on March 5.

[F.D. Wolf]

That is an interesting story about Wilson which I had not heard. Thank you. I do like reading biographies, but, I must confess, I lean toward those of people I like, Woodrow Wilson not really being one of them.

As for Zachary Taylor's day off, perhaps no one wielded the power of the President on March 4 (though Taylor did have the title). Of course, even in ordinary circumstances, there will always be a period of time between the clock striking twelve and the taking of the oath, even if just a few minutes or seconds. I don't think anyone wonders about who was Acting President between 12:00 and 12:02. And, of course, in extraordinary circumstances, the lapse of time might be greater. President Kennedy died at about 1:00 PM CST. Lyndon Johnson did not take the presidential oath until 2:38. I've never heard anyone suggest that Speaker of the House McCormack was Acting President for that one hour and 38 minutes.

[Dan Schiavetta]

A readable account of the Fall visit (and of how things were carried on or not carried on after the stroke) is in “When the Cheering Stopped” by Gene Smith.

[David Nieporent]

No. This has been yet another episode of Simple Answers to Stupid Questions.

[Rev. Arthur L. Kirkland]

.

It is a bit odd to single out President Eisenhower’s taking of the inaugural oath on January 20,

Barnett and Blackman originally claimed former Pres. Eisenhower was the first president to be inaugurated on January 20. After readers noted the mistake, the professors corrected their work -- and revised the botched entries from previous years, too -- without noting the changes or the errors, of course.

[Rev. Arthur L. Kirkland]

Cal Cetin earned a Noble Prize for achievement in indentifying error in this sloppy series in 2021:

.

“President Eisenhower is the first President to take the inaugural oath on January 20, following the ratification of the 20th Amendment.”

*Sigh*…like shooting fish in a barrel.

https://www.cbsnews.com/news/harry-truman-inaugural-address-1949/

Congratulations, Cal Cetin.

Condolences, South Texas and Georgetown.

Carry on, clingers.

[Sandra (formerly OBL)]

Do they award a Nobel Prize for achievement in identifying error to anyone who points out your hilariously failed prediction there would be a 7 - 6 liberal Supreme Court majority before August 1, 2021?

[Rev. Arthur L. Kirkland]

It's Noble Prize, my faux libertarian friend.

When better Americans enlarge the Court, all you (and the other culture war casualties) will have left is clinging to your bigotry and superstition and waiting for replacement. So enjoy this while you can, clinger.

[Commenter_XY]

Arthur, don't say I didn't warn you, LOL.

[Rev. Arthur L. Kirkland]

Remember that sentiment when the American mainstream decides to stop subsidizing Israel's right-wing belligerence, requiring Netanyahu, Likud, the settlers, and those who elected Netanyahu to try to fend for themselves.

That Israelis would choose to make support for immoral, violent, superstition-laced, right-wing policies a left-right divider in American politics -- and then make the existential error of aligning with America's culture war losers -- is inexplicable, but I support Israel's right to choose the course it wishes.

After all, it's their funeral.

LOL

[Commenter_XY]

Arthur, Israel is busy killing every Hamas Member they can find. A Judeocidal terror group that has American hostages and killed American citizens. I am proud as an American that we are supporting the right side, not just with words, but with bombs, bullets and occasional bombast.

If you want to take the side of Judeocidal terrorists, and their supporters; feel free, Arthur. You also then support the slaughter of homosexuals and trannies, which is done routinely by the bloodthirsty Hamas savages by tossing them off roofs, and hanging their dead bodies from cranes so that the birds eat their dead, decaying flesh. Plenty of YT videos of throngs of Hamas supporters (e.g. most of palestinian society) wildly cheering it on, like a bunch of hyenas.

Am Yisrael Chai. 🙂

[Rev. Arthur L. Kirkland]

Right-wing assholes are among my favorite casualties of the American culture war.

Including Israel's right-wing assholes.

As I said, it's their funeral.

[Frank Drackman]

Coach Sandusky is an expert on Assholes

[Rev. Arthur L. Kirkland]

.

Coach Sandusky is an expert on assholes.

Jerry Sandusky was (or perhaps is) a registered Republican, committed conservative, and devout Christian.

Jerry Sandusky was a celebrity in a poorly educated, roundly bigoted, downscale, rural section of Pennsylvania, closely connected to many Republican elected officials and important conservative donors (some of whom tried to protect Sandusky, Joe Paterno (another registered Republican, committed conservative, and devout Christian), and Penn State (more than once) when better Americans tried to impose accountability for the disgusting crimes and longstanding, energetic coverup.

Not surprisingly, not much has improved in conservative, Republican, religious central Pennsylvania. Jerry Sandusky’s son has been convicted of sex crimes. The Paterno family (Republicans, conservatives, and Christians, naturally) has never stopped lying about the crimes, coverup, or (lack of) character among Sandusky, Paterno, and their enablers.

Jerry Sandusky was associated with enough assholes to become expert.

Consider the lack of character and decency among those who are still Republican, Catholic Penn State fans these days. (See also: Baylor, Liberty, etc.)

Carry on, clingers.

[Nige]

‘you also then support the slaughter of homosexuals and trannies, which is done routinely by the bloodthirsty Hamas savages’

You support their slaughter by Israelis, which is much better. Also thousands and thousands of other innocent men, women and children.

[Rev. Arthur L. Kirkland]

He's a deplorable, obsolete right-wing write-off . . . and this white, male, bigot-hugging blog's target audience.

[Jason Cavanaugh]

Today I learned that, for some mentally-defective people, failing to accurately predict the future is the exact same thing as making factual errors regarding the past.

[ObviouslyNotSpam]

When all you've got's a hammer...

[Life of Brian]

Oh, failing to predict the future on one particular date isn't the funny part at all -- it's the fact that, years later, Artie's still beating the exact sad little drum and pretending to be uber-confident that an enlarged SCOTUS is just around the corner.

It's like his own personal variant of peak oil, ice-free Himalayas, and other perpetually Real Soon Now boogeymen.

[Rev. Arthur L. Kirkland]

I am confident that better Americans will continue to shape our national progress against the wishes and works of right-wing culture war casualties.

I am confident that reason, education, inclusiveness, modernity, and science will continue to prevail against superstition, ignorance, bigotry, backwardness, and dogma at the marketplace of ideas.

I am confident that America's vestigial clingers will continue to be painted into increasingly small, desolate, bigoted, economically inadequate, superstitious corners of our nation.

I am confident that religion, rural communities, and right-wing bigotry will continue to recede in America. I expect those who aligned with the losing side of the culture war and the wrong side of history -- gun nuts, anti-abortion absolutists, Israel, religious kooks, and others -- will experience a severe and perhaps existential penalty for siding with losers and bigots.

I expect to enjoy the sifting and reckoning. Clingers hardest hit.

[ObviouslyNotSpam]

You'd think Artie might have learned that Biden's reluctance to do so (as he had expressed at the time) was real?

[Rev. Arthur L. Kirkland]

If others (or perhaps events) do not persuade Pres. Biden out of his reluctance, there will be another Democratic president soon enough to deal with Supreme Court enlargement, admission of new states, Israel's right-wing jackasses, House of Representatives enlargement, and other issues.

As America continues to improve -- less religious, less rural, less bigoted, less backward, and more diverse -- my optimism concerning our future and the continuing trajectory of our progress intensifies.

[Life of Brian]

You’d think Artie might have learned

I have my doubts that’s even on the menu at this point. As Artie likes to remind us (and remind us and remind us and remind us), superstitious wishful thinking about how one’s chosen gods are — any day now for sure — going to smite one’s enemies and make the world rainbows and puppy dogs tends to trump more boring pursuits like logic and reason.

[Jerry B.]

Cal Cetin earned a Noble Prize for achievement in indentifying error in this sloppy series in 2021:”

“Indentifying”?

Did he make a formatting error?

[Rev. Arthur L. Kirkland]

Who?

[Life of Brian]

The guy on first.

[Nameless But Highly Opinionated]

Sent yesterday. Thoughts?

Dear Professor Ramsey:

I am a frequent reader of Originalism Blog who has an interest in the Trump disqualification case. I have read your posts on the matter, and would like to express thoughts (and ask yours) on a particular point that you mentioned in passing. Namely, I believe that states may add qualifications for their share of the presidential vote.

As a preliminary note, I use the term “state” as Madison and Roane would, and not as Marshall. A state simply is its people, organized as a sovereign body politic. Thus when I refer to a state doing or deciding something, I refer to its people doing or deciding such a thing, without necessarily specifying the mechanism by which it is done or the institution or power that does it. For example, to say the states ratified the Constitution and to say the people did is the same thing.

Although I came to these conclusions before doing so, I recently read Jud Campbell’s essay “Originalism and the Nature of Rights”, and saw video of a talk he gave at Stanford on the same topic. His discussion is geared towards different issues, but reflection on his discussion of the social compact reinforces my conviction that Thornton was wrong both as to its specific holding and more generally as to what causes a state to have or lack a particular power.

Here is my argument:

The Union is essentially a compact of compacts. Parties to any compact retain all of the freedom that they naturally have absent the compact, save what they have collectively surrendered in entering into it. I do not question the permanency of the Union, or that it is possible to amend the constitution so as to take away any of the electoral discretion that is being discussed. But just as private individuals may do anything they may naturally until the social compact is altered to remove the right, states likewise enjoy freedom to add qualifications for Congress - or for their share of the presidential vote – until that discretion is properly ended by their common consent.

Now, I am aware of dicta in both the majority and dissents in Thornton stating that states may not add qualifications for the presidency. Here, I would suggest a distinction between adding qualifications for the presidency and adding qualifications for one’s vote:

Surely if a state only wants 45 year olds, it cannot pretend the President is not really President because the Electoral College just elected a 35 year old! But saying that a state may not control qualifications for the office itself is not the same as saying that it may not control its own voting power.

The Governorship of Ohio has no minimum age. However, if I privately determine to allow no one under 50 to have my vote, I am free to do so. The qualifications for my vote are what I say they are. I would suggest that the same principle pertains to the states.

If a state legislature is free to hold an internal vote, it is presumably free to write its own balloting rules so as to limit itself to the consideration of candidates who have, say, never served before (a one-term limit). It would appear to me that nothing prohibits it from referring the matter to the people under the same rules. I know you expressed disagreement as to this in a recent post “The Supreme Court Doesn’t Need to Decide (for now) Whether Trump is Disqualified”, asserting that if a public election were held, qualifications could not be added. I wonder if you could elaborate on why that is so. Neither the people collectively nor individually could claim that they are being denied something they necessarily must have. It’s not like a congressional election where a popular vote must be held, something that in Thomas’ view still did not prevent the people from adding qualifications. Indeed, what if the people themselves want a particular restriction, or even use their state constitution to order that the legislature refer the election to the people with such restrictions? To quote Professor McGinnis, “…the states reserve the power […] because nowhere in the Constitution did they surrender that power.”*

By way of a normative objection, one might say that the people can simply not vote for that person, but then we encounter the same problem that motivated the term limits movement in the case of Congressional elections. The structure of elections can often create an artificial bias in favor of incumbents despite unpopularity. Trump v Biden is a case in point. But whatever can be said about what ought or ought not be law, nothing appears to me to stand in the way of a state imposing such limits.

I believe the law requires the Supreme Court to affirm the Colorado decision, but I think very highly of your scholarship, and would like to hear your opinion.

Respectfully,
Michael Resanovic

* (link to "Original Thomas Conventional Souter" at Hoover Institute) Volokh/Reason doesn't let me post links, for whatever reason.

[Nameless But Highly Opinionated]

Yes. Nameless has a name 🙂

[Commenter_XY]

I would suggest a distinction between adding qualifications for the presidency and adding qualifications for one’s vote

This feels like a distinction without a real, substantive difference. Can you elaborate?

[Alpheus W Drinkwater]

Sounds correct to me. I'd be interested to read Prof. Ramsey's response.

[Life of Brian]

Isn't this predicated on the same notion ReaderY (and I'm sure others) periodically raise, that states/electors can just do whatever they think is right despite any intentions/desires of pesky individual voters?

As I said the other day, that may well be the case in the most technical of senses, but after ~200 years of settled expectations to the contrary doesn't seem particularly useful to explore unless we're just ready to blow up the current system and start over.

[Dan Schiavetta]

Patman was one of several elderly Congressmen who was booted from his committee chairmanship in 1975. So many of those guys were "past it" that the younger members finally revolted. I wish I could find it now, but there was an article at the time about how Patman (or one of the other geezers), addressing his colleagues, mumbled the language of a proposed bill, and when someone asked him a question about it, he got pissed off and said, "the bill speaks for itself!", which evoked derisive laughter.

[Jerry B.]

Too bad that can't happen now. The gerontocracy is too firmly embedded.

[Dan Schiavetta]

I don't think I've seen that before. Thanks!