Today in Supreme Court History: January 28, 1916

1/28/1916: President Wilson nominates Louis Brandeis to the Supreme Court. He would be confirmed on June 1, 1916.

Justice Louis Brandeis

Comments

[Dan Schiavetta]

Gold v. United States, 352 U.S. 985 (decided January 28, 1957): defendant on trial for filing false affidavit stating he was not a Communist Party member (such affidavits had to be submitted by union officials under the Taft-Hartley Act); conviction vacated because FBI unintentionally intruded into the jury (while investigating another false-affidavit case, called three jurors to see if they had received any “propaganda literature” — which I suppose would be tampering in itself)

Briggs v. Elliott, 342 U.S. 350 (decided January 28, 1952): desegregation case was not ripe for review when trial court had not yet evaluated the report ordered from school officials on progress of equalization

Hillsborough Township v. Cromwell, 326 U.S. 620 (decided January 28, 1946): Suit brought by the heiress Doris Duke who felt she was being taxed more than others in her class. New Jersey case law held that her remedy was not to seek equalization but to sue other members of her class so that their taxes were brought up to her level. Not surprisingly, the Court holds this scheme to amount to a denial of Equal Protection.

Greer v. United States, 245 U.S. 559 (decided January 28, 1918): where evidence of character is not introduced in criminal trial, judge properly refused to instruct jury that defendant is presumed to be of good character (charge was whiskey running)

O’Connell v. Kirchner, 513 U.S. 1303 (decided January 28, 1995): Guardian ad litem and adoptive parents seek stay of Illinois Supreme Court’s order to hand “Baby Boy Richard” back to his biological father. Stevens denies, on the grounds that the Court can’t review the Illinois court’s disposition of the procedural defect claimed. Stevens mentions the “erroneous adoption decree” issued in 1992 by the Illinois court which “has had such unfortunate effects on innocent parties”. From the lower court opinions it appears that adoption had been ordered by the trial court on the basis of the father not showing interest in the baby for the first 30 days after birth, but the mother admitted that she had told him the baby had died.

[Dr. Ed 2]

"conviction vacated because FBI unintentionally intruded into the jury (while investigating another false-affidavit case, called three jurors to see if they had received any “propaganda literature” — which I suppose would be tampering in itself)"

Would it be tampering if they weren't bright enough to know they were doing it?

This is what I think happened on Jan 6th, and the FBI itself may not know all the things it was doing that day.

[Magister]

Even if the FBI were responsible for everything on January 6th (which of course it was not), it would not absolve the president of his obligation to defend the Constitution by acting to end the attack on the Capitol.

[Jerry B.]

So, sorta like the President spending funds not allocated by legislation to pay off student loan debt?

[Magister]

No; how would a differing interpretation of legislation that was passed fail to defend the Constitution? (Is anyone in the Biden administration asking to be on the pardon list?)

[Dr. Ed 2]

"the president of his obligation to defend the Constitution by acting to end the attack on the Capitol."

The President has no authority over the Capitol -- Capitol Hill is the exclusive fiefdom of Congress, much as the SCOTUS is the exclusive fiefdom of SCOTUS. The President has no more authority over Capitol Hill than YOU do....

Do you have any idea what would have happened had he tweeted "please stop rioting in the Capitol"?

All the people who weren't at the Capitol -- the majority of the people who got the tweet -- would all have GONE THERE to see what was going on and what would that have done to crowd control?

[David Nieporent]

The President has no authority over the Capitol — Capitol Hill is the exclusive fiefdom of Congress, much as the SCOTUS is the exclusive fiefdom of SCOTUS. The President has no more authority over Capitol Hill than YOU do….

None of that, of course, is true.

[Mr. Bumble]

Don't leave us hanging. Tell us what authority he has.

[David Nieporent]

He is both CinC (with respect to the National Guard) and ultimate authority over the FBI and every other federal law enforcement agency other than the Capitol Police and the Supreme Court Police. Neither the Capitol nor the Supreme Court are like the medieval church; they aren't sanctuaries from executive authority. The president can't boss around the USCP or the SCP, but that doesn't mean that the agencies he does control somehow don't have law enforcement jurisdiction over those places.

[Dr. Ed 2]

Bullshyte -- have you ever heard of "separation of powers" or (perhaps) read the First Article of the Constitution? Or, while we are at it, ever heard of the Posse Comitatus Act of 1878?!?

While the President can "Federalize" National Guard units, and then even use them for domestic law enforcement (as Eisenhower did), there are rules about doing this. Extensive rules including the need for an *existing* insurrection -- not an anticipated one. Otherwise it's the DC Mayor who is the CIC of the DC Guard and while Trump tried to talk her into accepting his offer to pay the expenses of activating the DC Guard, she refused.

Second -- and people forget this, folks in the National Guard are RESERVISTS -- they have day jobs. They are police officers, school teachers, butchers, bakers, & candlestick makers. It takes 24-72 hours to get them because you have to contact each individually and tell them to go home, change into their uniforms, and then show up where you need them. Many are single parents and have to make arrangements for child care. And in some cases, e.g. police officers & firefighters, they can't just walk away from their day job until someone else comes in to replace them -- nor would you want them to...

" Neither the Capitol nor the Supreme Court are like the medieval church; they aren’t sanctuaries from executive authority. The president can’t boss around the USCP or the SCP, but that doesn’t mean that the agencies he does control somehow don’t have law enforcement jurisdiction over those places."

Bullshyte -- they ARE sanctuaries from executive authority and that perk is very strictly guarded. Now they are professionals and not stupid which means that (usually) they will ask for help when they think they will need it -- and the USCP *did* ask for help from the DC Metro PD on Jan 6th -- but technically the Sgt at Arms has to invite them in.

Even if the building is on fire, the DC Fire Dept has to technically be given permission to come in and put out the fire. Again, neither the USCP or SCP are stupid, particularly post-911, but technically even the fire department is asking permission from the USCP or SCP to enter. No executive agency has jurisdiction unless granted it -- and I suspect that you would find somewhere that Nancy Pelosi granted the FBI authority to prosecute the trespasses.

If Trump had ignored this, he not only would have been impeached for it but also convicted -- Senators aren't going to tolerate it either.

[David Nieporent]

Bullshyte — have you ever heard of “separation of powers” or (perhaps) read the First Article of the Constitution? Or, while we are at it, ever heard of the Posse Comitatus Act of 1878?!?

Have you ever heard of shutting up when you don't know the first fucking thing about what you're talking about? For example:

Otherwise it’s the DC Mayor who is the CIC of the DC Guard

Wrong, you fucking moron. The DC mayor has no control over the DC National Guard. None. Zero. Zilch. POTUS is the CinC of the DC National Guard.

Second — and people forget this, folks in the National Guard are RESERVISTS — they have day jobs. They are police officers, school teachers, butchers, bakers, & candlestick makers.

Yeah, that's wrong too. Some members of the NG are part time; others are full time soldiers.

Bullshyte — they ARE sanctuaries from executive authority

Yeah, that's wrong too. By the way, why is it that you have no trouble calling for the mass murder of civilians or sneering at the murder of sex workers, but you're too squeamish to write "bullshit"?

No executive agency has jurisdiction unless granted it

Complete fiction.

I suspect that you would find somewhere that Nancy Pelosi granted the FBI authority to prosecute the trespasses.

The FBI doesn't prosecute anyone, and Nancy Pelosi has no power to grant or withhold any such authority.

[Jason Cavanaugh]

The DC National Guard is in fact unique in that regard. They are the only National Guard unit which reports directly to the President.

https://dc.ng.mil/About-Us/

[Noscitur a sociis]

.

and I suspect that you would find somewhere that Nancy Pelosi granted the FBI authority to prosecute the trespasses.

The FBI doesn’t have the authority to prosecute anything. But its agents do have the authority to make arrests arrests for any federal crime, and the Department of Justice has the exclusive authority to prosecute all federal crimes—not because of any special dispensation granted by Nancy Pelosi, but because the statutes enacted by congress say so.

[David Nieporent]

Dr. Ed has the IQ of arugula, but I think he and his MAGA buddies need this to be true so that they can tell themselves 1/6 was Pelosi's fault rather than Trump's. (It's also why they keep pretending Pelosi controlled the USCP.)

[Dr. Ed 2]

The US Capitol Police are controlled by the two Sgts at Arms and the Architect of the Capitol.

And those three people serve at the pleasure of the speaker & senate pres pro tem. QED Pelosi DID control them.

[David Nieporent]

And those three people serve at the pleasure of the speaker & senate pres pro tem. QED Pelosi DID control them.

None of them serve at the pleasure of the Speaker. The House Sergeant at Arms serves at the pleasure of the House. (They delegate that to the Speaker, but they can overrule her, just as they can on anything else.) But even if we pretend that the Speaker has unilateral control over the House Sergeant at Arms, the Speaker has zero control over the Senate Sergeant at Arms or the Architect. Which means, QED, Pelosi doesn't control the USCP.

[Noscitur a sociis]

.

The President has no more authority over Capitol Hill than YOU do…

Even you can’t be this dumb.

Who do you think is prosecuting the January 6th cases? The executive branch, or Congress?

[Dr. Ed 2]

How do you think the FBI got the footage from the USCP's cameras?

The USCP can ASK the executive branch to prosecute crimes, but that doesn't mean that the executive branch has the right to do it on its own. And even then, prosecuting Federal offenses is different from having jurisdiction over the Capitol building -- although that might make an interesting appeal for some of the Jan 6 defendants.

Meritless Garland doesn't have the right to send the FBI into SCOTUS and find out who leaked the Dobbs decision. He has to be invited -- and in that case wasn't.

[Noscitur a sociis]

I stand corrected—apparently you can be that dumb.

The constitution empowers and requires the president to “take care that the laws be faithfully executed”. That includes enforcing the laws against unlawfully entering the Capitol and committing crimes there: an attempt by Congress to grant itself that authority (which, to be clear, it hasn’t undertaken) would itself violate separation of powers.

[David Nieporent]

I stand corrected—apparently you can be that dumb.

Never ever ever bet against Dr. Ed's stupidity. (Or mendaciousness, for that matter.)

[Magister]

Trump eventually relented and sent such a tweet, and there were none of the things you said would happen. I expect almost everyone was already watching the same news reports Trump was, and most of them were too far away to go to the insurrection before the Capitol was secured. Much better just to authorize the National Guard when multiple members of Congress had asked. (Predicting a wave of misinformation about National Guard deployment on or around January 6th, all of which will have been previously debunked in comments a long time ago.)

[Dr. Ed 2]

I doubt those who had been assembled to hear his speech even had cell reception (at all) as the USSS usually jams it to prevent phone-detonated bombs.

[Magister]

Trump called Mike Lee on his cell phone in order to speak with Tuberville, and various other people made calls (like Mike Pence), so apparently there was cell phone reception. Many insurrectionists were tracked via cell phone data. The Secret Service can jam cell phones but does so only if there is an imminent threat, but don't usually do so; cutting off communications then seems a bad idea, and any bombs could as easily be on timers.

[David Nieporent]

as the USSS usually jams it to prevent phone-detonated bombs.

Let's guess what Dr. Ed's source for this fiction is: (1) a Tom Clancy movie?
(2) Some campus cop in Amherst, Massachusetts told him that?
(3) His ass?

[Brett Bellmore]

Presidents have affirmatively acted in ways contrary to the Constitution, not just sat on their hand for a few hours, and gotten less grief than this over it.

[David Nieporent]

It's almost like trying to overthrow the U.S. government is worse than those other things!

[Dr. Ed 2]

Overthrow the US Government with a spear and a sheep pelt?

If they'd had a battery of 155 mm Howitzers set up and were shelling the building, that would be a different story -- but I don't seem to remember any artillery damage to the building. Do you?

[bernard11]

Overthrow the US Government with a spear and a sheep pelt?

Stupidity and utter incompetence are no excuse.

[Dr. Ed 2]

And Lyndon Johnson was personally approving bombing targets in Vietnam. How'd that work out?

True leadership involves sitting on your hands and letting the people in the field deal with the situation. Firing them later if you don't like how they did, but letting them do it because you're not there...

A good example is Jimmy Carter and Three Mile Island. Carter was a nuke engineer (USN) and probably could have given press conferences from the start, but to his credit knew that he would make things worse if he did.

Now he WENT there after realizing that the authorities on the scene were incompetent, but didn't say anything until he was there on the scene.

Damn, I never thought I would ever praise Jimmy Carter for leadership...

[F.D. Wolf]

In Greer v. United States (1918), the Court for the first time addressed the question of whether a defendant in a criminal case enjoys a "presumption of good character." In an 8-1 decision, per Justice Holmes, the Court held that he does not. (Justice McKenna dissented without opinion.) And while Holmes, in his brief opinion, writes as if he is perturbed for having to state such an obvious principle, there was plenty of contrary authority, not only among lower federal and state courts, but also among treatises on evidence.

One such lower case cited by the Court was Mullen v. United States, 106 F. 892 (6th Cir. 1901). In Mullen, the court had concluded that the defendant was entitled to a jury instruction that he enjoyed a presumption of good character. The opinion in Mullen had been written by future Supreme Court Justice William Day (who apparently would change his mind in the intervening 17 years, joining Holmes' majority opinion in Greer). The Sixth Circuit panel in Mullen had also included future Supreme Court Justice Horace Lurton (who died in 1914, before the Greer decision.) (The third member of the panel was Judge Henry Franklin Severns, who had succeeded Judge William Howard Taft upon his resignation in 1900).

The Mullen court cited Joel Prentiss Bishop's treatise New Criminal Procedure for the proposition that, "The doctrine is that the defendant is presumed to be innocent, and his character to be at least of ordinary goodness." Bishop was a prolific and respected writer of legal treatises. The Yale Biographical Dictionary of American Law calls Bishop "the foremost legal writer of the age."

[Dan Schiavetta]

thanks much!

[Dr. Ed 2]

Wilson, the racist bigot, nominated him?
That does surprise me.

[Magister]

Brandeis had been an influential advisor, political confidante, and friend of Wilson since Wilson's 1912 campaign and had shaped Wilson's "The New Freedom" agenda. When he took office in 1913, Wilson had considered appointing Brandeis as his U.S. attorney general.

From Wikipedia.

Wilson's racism doesn't necessarily imply the same degree of antisemitism.

[Sarcastr0]

Wiki also says he chose Wilson over Teddy because Wilson was gonna eliminate the trusts, not just regulate them.

Hah.

[F.D. Wolf]

Actual racists are not caricatures, but as complex as any individual might be. Some hate Jews; some have no problem with Jews.

For example, Confederate President Jefferson Davis appointed Judah Benjamin, a Jew, to the position of Attorney General. This made Benjamin the first Jew in the Western Hemisphere to serve in such a high executive position in government. (The United States, in contrast, would not have a Jewish member of the Cabinet until 1906, when President Theodore Roosevelt would appoint Oscar Strauss as his Secretary of Commerce and Labor. Who knew the Confederacy was so progressive?) Of course, not everyone in the South was supportive of Benjamin, who was often referred to as "Davis' pet Jew". (Benjamin would escape to England after the Civil War, where he would establish a successful law practice.)

[The Margrave of Azilia]

He got some anti-semitism from the North, too. A Republican politician said in paraphrase that Benjamin was a Hebrew with Egyptian principles.

Since Benjamin helped supervise the Confederate dirty-tricks squad, he was a suspect in the Lincoln assassination. He didn't think that, as a Jew, he would get a fair trial in an angry North which might be inclined to scapegoat him. So it was off to England and a new legal career.

Before the war, a client, an insurance company, didn't want to pay a slaver for the costs of a slave mutiny. So Benjamin wrote a brief about the oppressions of the coastal slave trade - though he was expressing his client's views and not his own, his brief was quoted by the abolitionists.

[Dr. Ed 2]

I don't think that ANYONE would have gotten a fair trial in the Lincoln Assassination -- Dr. Mudd comes to immediate mind.

All Mudd did was set Booth's broken leg -- to render medical aid to an injured man, something that MDs are sworn to do regardless of who they are, and look how that worked out for him.

I always considered the Lincoln assassination to be the ultimate tragedy because only Lincoln had the ability to restrain the Radical Republicans and Reconstruction would have been very different had he bee able to serve until 1889. Maybe longer as he could have served a 3rd term if desired.

[David Nieporent]

A Republican politician said in paraphrase that Benjamin was a Hebrew with Egyptian principles.

Every year at Passover, Jews read the Hagaddah, which tells the story of the exodus — the Israelites' liberation from slavery. Many of us have wondered over the years how confederate Jews could have actually done that. But cognitive dissonance is a thing.

[Dr. Ed 2]

Slavery was complicated, and there are the WPA recordings of folk in the 1930s saying things had been better under slavery. They exist on the LOC website -- that's a fact.

But look at the industrial north -- HALF of all telegraph linemen died on the job from electrocution. Railroad workers were routinely burnt to death by steam when a train derailed, and lost fingers/hands before automatic couplers were mandated. (Some say more to prevent the cost of stolen coupling pins than safety.)

Factories and mines weren't much better, I've heard horror stories from the granite quarries and that was in the 1930s...

Yes, slaves were treated as farm animals -- but a farm animal had value and there was a financial loss when a farm animal died. Not so in the North where one could simply hire another immigrant to replace the one who had died on the job.

History is complicated -- and there was no OSHA back then....

[David Nieporent]

What you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

[bernard11]

of folk in the 1930s saying things had been better under slavery.

Those people were seventy years removed from slavery.

[F.D. Wolf]

a Hebrew with Egyptian principles

That's a good one.

[SRG2]

Re: Benjamin’s law practice

About Benjamin’s Sale of Goods

[Sarcastr0]

Brandeis, hell yeah.

[Dr. Ed 2]

A good justice -- not always right but better than many.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

That sounds like the good cop who refuses to turn in bad cops, thus showing he is no better than the bad cops.

[Dr. Ed 2]

A (good) police officer explained it to me one night.

It's 2 AM, the bleep is hitting the fan, and you put in an "officer in trouble" call. You don't want people to "not hear" your call....

It can be a dangerous job, and you're depending on the bad cops to back you up if you get into trouble. That's why I honestly don't think that reform can come from within the ranks. Read Serpico's book...