Today in Supreme Court History: January 27, 1955

1/27/1955: Chief Justice John Roberts's birthday.

Chief Justice John Roberts

 

Comments

[Commenter_XY]

I know that Chief Justice Roberts has many detractors, as does the man who appointed him, POTUS Bush. All I will say as an American is I think John Roberts being Chief Justice at this juncture of history has been a blessing to our country. What a consequential run as Chief Justice for ~20 years.

Happy Birthday, Chief Justice Roberts. May there be many more happy birthdays ahead. And thank you, from this citizen.

[Dan Schiavetta]

He is trying to preserve the institutional integrity of the Court, not an easy task, and the attack is not from outside, but from within. Rarely has the Court been so out of step with the wider legal world, not to mention the American public.

“The Court eventually catches up in the long run, and it has to be a not very long run.”

An example of this is the first case I'm summarizing today.

[Brett Bellmore]

The problem with that is that the best way to preserve the institutional integrity of the court is to just ignore all political considerations and rule on the basis of the law.

You know, actually exhibit that institutional integrity, instead of play acting it?

[Dan Schiavetta]

The problem is not only a Court which is way more conservative than the American public, but also the almost gleeful willingness to accept bad faith Republican arguments. Bush v. Gore did a lot of damage. Roberts bent over backward to avoid a similar result in Sebelius. But he just did not have the votes in Bruen and Dobbs.

It's as if we were sitting here today with child labor (because there was no overruling of Hammer v. Dagenhart), whites-only restaurants and schools (because there was no overruling Plessy), etc., etc.

[Brett Bellmore]

YET AGAIN, I will point out to you that Bush v Gore was 7-2 on the merits. It was only 5-4 on the remedy. Two, and ONLY two, of the Justices thought that Florida could conduct a constitutional recount if they blew off the safe harbor deadline. Seven of them agreed that what the Florida supreme court was doing was unconstitutional.

[Magister]

That seems backward. Bush v Gore was 5-4 on the question of whether the differing standards violated equal protection (when different counties already used different voting methods, beyond the butterfly ballot); it was 7-2 on the question of whether the conservatives had successfully run out the clock, with only two arguing to remand it to Florida for a uniform recount. That would have favored Gore, as a subsequent recount demonstrated.

[Brett Bellmore]

That seems backwards because you're literally remembering it backwards.

Britannica Bush v Gore

"In a per curiam ruling issued the following day, the Court found (7–2) that, owing to inconsistencies in manual recounting methods and standards between Florida counties, the Florida court’s order of a manual recount amounted to a violation of the equal protection clause of the Fourteenth Amendment. By a smaller majority (5–4), the Court also ruled that no new recount could take place, because none could be finished by the “safe harbor” deadline"

So, 7-2 on the merits, 5-4 on the remedy.

[Dilan Esper]

The big reason everyone dumps on Bush v. Gore is the reasoning. There wasn't an equal protection violation there, especially under the standards that the conservatives use for equal protection in other contexts. And then they put the "good for one ride only" footnote in there, which almost screams "we are adopting reasoning we do not believe in to get to the result we want".

[Sam Bankman-Fried]

It wasn’t really consequential other than leading to a lost economic decade and 7000 combat deaths in the GWOT…it simply delayed liberal policies like Obamacare and same sex marriage.

[Magister]

Wikipedia seems confusing, or perhaps confused:

In a 5–4 per curiam decision, the Court ruled, strictly on equal protection grounds, that the recount be stopped. Specifically, it held that the use of different standards of counting in different counties violated the Equal Protection Clause of the U.S. Constitution; the case had also been argued on Article II jurisdictional grounds, which found favor with only Justices Antonin Scalia, Clarence Thomas, and William Rehnquist. The Court then ruled as to a remedy, deciding against the remedy proposed by Justices Stephen Breyer and David Souter to send the case back to Florida to complete the recount using a uniform statewide standard before the scheduled December 18 meeting of Florida's electors in Tallahassee.

The only merit judged was that conservative justices wanted a Republican victory (O'Connor in particular wanted to retire with a Republican president), and ran out the clock to get it. Despite this garbage decision, Gore supporters did not attack any government proceeding; it was the Republican staffers at the Brooks Brothers riot who did that.

[Sam Bankman-Fried]

Which is why the Kavanaugh hearings were so stupid—Democrats should have voted no on the grounds he was involved in the Brooks Brothers riot and didn’t need any other excuses not to vote for him.

[Brett Bellmore]

You seem to be a bit obsessive about this.

The finding of the EPC violation WAS the merits decision, and, again, it was 7-2. The decision that there wasn't time to fix the EPC violation was a remedies decision.

And, yes, Dilan, there was an EPC violation. Not only were different voters' ballots being counted according to differing standards, even in the same location, this was by a deliberate decision of the state supreme court, they'd been asked to mandate a consistent standard, ANY consistent standard, and refused. It was a decision of 7 Supreme court justices that his violated the EPC. Only two of them thought it was tolerable.

[Magister]

Differing methods of recount violate equal protection, but differing methods of voting do not? Motivated reasoning for the win.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

But bad faith Democrat arguments are OK?

bad faith Republican arguments

Your partisanslip is showing.

[Dan Schiavetta]

It was bad faith for those with a very restricted view of Equal Protection and Due Process to suddenly argue for a very expanded interpretation in Bush v. Gore.

It was bad faith for the political party which had originally pushed for the individual mandate to argue that it was unconstitutional in Sebelius.

Can you find such cynical flip flops by Democrats?

[David Nieporent]

No political party ever pushed for the individual mandate.

[Dan Schiavetta]

https://www.nytimes.com/2012/02/15/health/policy/health-care-mandate-was-first-backed-by-conservatives.html

It says it was backed by Republicans in the Senate. IIRC they proposed it as an alternative to Hillary Clinton’s plan

[Sam Bankman-Fried]

Who cares?? Republicans defend a health care system crafted by the UAW and New Deal Democrats because health insurance companies became Fortune 500 companies!?! And the Rust Belt rusted because of employer provided insurance because it was cheaper for manufacturers to pay overtime than to hire new employees which led to a domino effect as good jobs decreased even while more cars were built which meant fewer people to buy the cars they were making!?! Totally nutz!

[Magister]

Get back to us with that argument when the court has more justices appointed by Democrats, let alone more that are liberal.

[Dr. Ed 2]

The American people are more conservative than you realize -- and the Court isn't.

I could see RBG voting for the Dobbs decision -- she gave speeches that it should have been left with the states, where it could become a political issue.

And I want to know who is blackmailing Roberts.

[Sarcastr0]

Ed continuing to invent new ways to be wrong. What an innovator!

[Dr. Ed 2]

Ever read what she said on the topic?

[David Nieporent]

Yes. Ever see her vote against constitutional protections for abortion at any point?

[Sarcastr0]

Yes, you are misinterpreting what she said.

Wanting an approach that *included* state legislation does not mean she thinks that there was no constitutional right.
She was actually very clear on this point, if you actually read a word she says not not the latest turd the NYP opinion page says about what she said.

You can see why she was prescient right about these days.

She was right about it being EPC not SDP as well.

[Magister]

And I want to know who is blackmailing Roberts.

According to Lin Wood, "Lizard Squad". The Google results on this question are disturbing, both in number and content.

[Alpheus W Drinkwater]

Commenter_XY I wholeheartedly agree. Although I disagree with a good deal of his jurisprudence, I think it is clear he is a man of deep integrity and respect for the constitution. He's a good man, and well worthy of his position.

[Dan Schiavetta]

Adair v. United States, 208 U.S. 161 (decided January 27, 1908): Congress cannot criminalize sacking an interstate carrier employee for being a union member because membership in a union is not interstate commerce (overruled by Phelps Dodge Corp. v. NLRB, 1941)

Daniel v. Louisiana, 420 U.S. 31 (decided January 27, 1975): holding of Taylor v. Louisiana, 1975, that excluding women from jury violates Sixth Amendment guarantee of fair and impartial jury, does not retroactively apply to other prosecutions (as Douglas points out in dissent, this way of thinking makes no sense, and it was eventually overruled, see discussion in Griffith v. Kentucky, 1987)

Wallace v. United States, 133 U.S. 180 (decided January 27, 1890): dismissing Gen. Lew Wallace’s attempt to get paid $10,000 instead of $7,500 as ambassador to Turkey (this is the man who wrote “Ben-Hur”, which according to Wikipedia was earning him $11,000 a year by 1886, $290,000 in today’s dollars)

Clarke v. Haberle Crystal Springs Brewing Co., 280 U.S. 384 (decided January 27, 1930): brewer can’t write off financial collapse due to Prohibition as a business loss

Sandifer v. United States Steel Corp., 571 U.S. 220 (decided January 27, 2014): steelworkers get paid for time spent changing into and out of their furnace clothes (I suppose this would have made the shower scenes in “The Deer Hunter” less frantic)

[Brett Bellmore]

"Sandifer v. United States Steel Corp"

Fair enough: I worked in a foundry once, and even 50 feet from the furnace my hair would literally curl when they opened it. The protective gear the guys working at it wore was part of the job, not even remotely optional.

Only job I ever had where having your shoes catch fire was routine.

[Mr. Bumble]

"... (this is the man who wrote “Ben-Hur”, which according to Wikipedia was earning him $11,000 a year by 1886, $290,000 in today’s dollars)"

...and the point is?

[Brett Bellmore]

That trivia is trivial?

[bernard11]

So in today's money he was asking for $264K, rather than 198K, a non-trivial difference of $66K.

But why did he think he was entitled to that?

[Mr. Bumble]

Check your math.

[Magister]

Math looks right rounded to nearest thousand. If 11,000 then is worth 290,000 today, the ratio is 26.36... and 7,500 becomes 197,727.27... and 10,000 becomes 263,636.36... with a difference of 65,909.09... which round as bernard11 posted.

His argument was that a law in 1875 set the pay at 10,000 but it was qualified with "unless where a different compensation is prescribed by law" and the 1882 creation of the post specified 7,500.

[F.D. Wolf]

Yes, that seems to be the crux of it.

The 1875 law fixed the salaries of certain ministers plenipotentiary at $17,500, certain others at $12,000, and for those of “all other countries” at $10,000. However, in 1875, the position of minister plenipotentiary to Turkey, the position to which Wallace would be appointed, did not yet exist. When the position was created in 1882, the salary was fixed at $7,500.

Wallace had argued that he was entitled to the $10,000 under the Court’s holding in United States v. Langston (1886). Langston was the minister to Haiti, a position whose salary was fixed by statute at $7,500. However, for fiscal years 1883-1885, the Congressional appropriations bill only appropriated $5,000 for the position, resulting in Langston only being paid $5,000 for those years. The Court ruled that the yearly appropriations bills had not explicitly or implicitly repealed the law setting the salary at $7,500, so Langston was entitled to the difference.

[Dan Schiavetta]

Thanks!

[Krayt]

…and the point is?

I dunno, that he was a prize celebrity choice for an ambassadorship which are often political rewards, so why not try to stick it to the politicians, who are in it for the corruption anyway, to make it worth his while to even bother getting out of bed?

[Dr. Ed 2]

“Adair v. United States, 208 U.S. 161 (decided January 27, 1908): Congress cannot criminalize sacking an interstate carrier employee for being a union member because membership in a union is not interstate commerce.”

That was correct at the time, but not for the reason you might think — there were no interstate trucks in 1908, nor really any cross-country roads. When the fledgling Teamsters went from Philadelphia to San Francisco in 1912 with 3 tons of soap, it took them 91 days!

When states started licensing vehicles and drivers, these were STATE licenses which the Federal government initially left to the states. The standard license plate of today was decided upon via a compact of *states* who all agreed that their plates would be the same size, with the holes in the same places. (Memory is that this was a conference in Detroit, likely funded by guess who…)

Well into the 1960s trucks had to have a separate license plate for each state they drove in, and the Teamsters didn’t get a *national* contract until 1964.

Back in 1908, goods moving more than 50 miles usually went most of the way by rail, unless there weren’t any local railroads. And it often was much shorter than that: The term "milk train" was an early morning train that stopped at all of the suburban towns to haul milk into the city, and apples would be shipped 5-20 miles into Boston via rail -- they destroyed the industry by co-mingling the empty containers and thus spreading diseases.

[David Nieporent]

ambassador to Turkey

Not in 1890!

[F.D. Wolf]

"Turkey" (comparable to "Araby") was a colloquial term for the Ottoman Empire, and it is the term the Court used in its opinion.

[Dan Schiavetta]

I should have put that in as a parenthetical

[Sam Bankman-Fried]

I love Arby’s.

[Dr. Ed 2]

Didn't the Ottomans identify as "Turks"?

[John F. Carr]

The Ottoman Empire was multicultural. Its rulers were Turks.

It is unfortunately difficult to search Ottoman books and newspapers. They have been digitized less than Western publications. They are written in the Arabic script, and I mean literally written by hand in a style that provokes OCR errors. Reproduced by machine in late Ottoman times, but first written by hand.

The name Türkçe for the language was in use prior to WWI. The suffix -çe forms language names. I have not seen the word Türk from before WWI except in a dictionary. It is more common after WWI when Ataturk was promoting the Turkish identity distinct from the Ottoman identity.

The Ottomans talking about their empire referred to "the Ottoman state". Not even "empire" until quite late in their history.

[Mr. Bumble]

Surprised at you for not knowing something about Wallace.
FWIW Ben Hur, the movie, has been remastered and will be available on Blu-ray.

[Syd Henderson]

In his "Personal Memoirs", Ulysses S. Grant was critical of Lew Wallace for taking too long to arrive at Antietam but as near as I can tell, the screw-up was Grant getting caught with his pants down and looking for an excuse. He also was too critical of Thomas before Nashville and missed that Thomas was building up a deliberate plan to destroy one of the South's remaining armies.

[Rev. Arthur L. Kirkland]

When an advocate is flailing and inept, you will have this.

[bernard11]

Not to mention threatening violence, not for the first time, over decisions he disagrees with.