Today in Supreme Court History: February 17, 1801

2/17/1801: House of Representatives breaks tie in Electoral College, and selects Thomas Jefferson as President.

Thomas Jefferson

Comments

[Dan Schiavetta]

Brown v. Mississippi, 297 U.S. 278 (decided February 17, 1936): confessions “extorted by brutality and violence” violated Due Process under Fourteenth Amendment (illiterate black men accused of killing white planter were “pre-hanged” to extort confessions; rope marks on their necks were visible at trial)

Wesberry v. Sanders, 376 U.S. 1 (decided February 17, 1964): applies “one person, one vote” Equal Protection rule to House of Representatives and invalidates redistricting in Georgia where one Congressional district had three times as many people as neighboring districts; in dissent Harlan points out that several one-district states have far less people than any one Georgia district and argues that Court cannot tell Congress how to constitute itself

United States v. Healy, 376 U.S. 75 (decided February 17, 1964): Federal Kidnapping Act applies to air travel and does not require monetary motive (defendants hijacked private plane to Cuba, in effect kidnapping pilot)

Walling v. Portland Terminal Co., 330 U.S. 148 (decided February 17, 1947): trainees alleging inadequate wages (they were given only an allowance for expenses) were not “employees” so as to bring Fair Labor Standards Act suit; railroad did not have obligation to hire them at end of two-week training and they were free to go work for another railroad

Smith v. O’Grady, 312 U.S. 329 (decided February 17, 1941): habeas granted to prisoner denied counsel who agreed to plead guilty without ever being told what the charges were

[SRG2]

https://en.wikipedia.org/wiki/Brown_v._Mississippi Upon remand from the United States Supreme Court, the three defendants pleaded nolo contendere to manslaughter rather than risk a retrial. They were however sentenced to six months, two and one-half years, and seven and one-half years in prison, respectively.

The prosecutor at the trial level, John Stennis, later served forty-two years as a United States Senator, including two years as President pro tempore. He ran for office in Mississippi thirteen times and never lost.

I would have thought that a retrial would constitute double jeopardy but IANAL. But given that there was going to be a retrial, from my knowledge of the justice system down there, they’d have been convicted at retrial anyway, if not actually lynched.

FWIW I don’t think people outside the US fully appreciate the nature of US racism, the depth of the hatred evinced by these trials,

[Mr. Bumble]

Hatred of the "other" whether based on race, religion or any number of other factors is not exclusive to the US.

[SRG2]

The issue is not the fact of hatred but the depth of it.

In "Devil in the Grove", Thurgood Marshall tells his young attorneys that if they're defending an African-American accused of rape and the jury convicts him and sentences him to life, they've won the case, because if the jury had thought he was guilty, they'd have gone for the death penalty.

I can think of no comparable racism in Western countries outside the US where juries would consistently and knowingly convict innocent men like this.

Or where a city would close down all public pools so "those people" couldn't use them. Or public schools, likewise.

[The Margrave of Azilia]

Other Western European countries? Think of a word which rhymes with "news."

[defaultdotxbe]

Also one that rhymes with "tipsy."

[Jonathan Affleck]

Dreyfus was eventually exonerated in France while Beilis was vindicated by a jury of Ukrainian peasants. In contrast, Frank was lynched in the USA.

[Dan Schiavetta]

Dreyfus had also been allowed to become an officer in the French Army with command over non-Jews.

[Mr. Bumble]

Token.

[Nige]

They took inspiration for their system of racial oppression from the US. There really was nothing else like it.

[Mr. Bumble]

Guess you never heard of Haiti.

[Nige]

They had Jim Crow in Haiti?

[SRG2]

Oh, I am well aware of our history in the West, blood libels, pogroms, etc. and the final expression of John Chrysostom's and Luther's writings, the Holocaust.

But there was no pretence. In the US there was the pretence of trials and appeals, of elections, etc.

[Mr. Bumble]

Who needed juries when from Russia west to England and south to Spain and Italy Jews were just expelled from the country leading up to the Final Solution.

[Dr. Ed 2]

To this day, Massachusetts law states that certain individuals will be executed "without benefit of clergy" if ever found in Massachusetts again. This is the 1774 Act Naming certain notorious Tories.

We were expelled too.

And while it was in Virginia, look up the actual origin of "Lynching", "Lynch's Mob" and "Lynch Law" -- it won't be what you think it is, instead it will be a century earlier and involve a different group of people.

[Noscitur a sociis]

To this day, Massachusetts law states that certain individuals will be executed “without benefit of clergy” if ever found in Massachusetts again. This is the 1774 Act Naming certain notorious Tories.

I am prepared to reveal what the discerning and disillusioned reader will probably have guessed already: Dr. Ed is lying.

[Dr. Ed 2]

OK, it was 1778, not 1774 (although there may also have been a 1774 law) -- see https://en.wikipedia.org/wiki/Massachusetts_Banishment_Act

[Dr. Ed 2]

See also https://www.revolutionary-war.net/tories-loyalists-to-the-king/

[Magister]

To this day, Massachusetts law states that certain individuals will be executed “without benefit of clergy” if ever found in Massachusetts again.

Is the 1778 act still part of Massachusetts law? it would seem to be an unconstitutional bill of attainder, which could not be enforced after ratification of the federal constitution only a few years later; did anyone named in it challenge it after that?

We were expelled too.

Is Dr. Ed 2 a Torie? And 200+ years old?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

@Magister --
Perhaps you don't know that Massachusetts used to include Maine.

[Dr. Ed 2]

IANAA but I do know that a few British Colonial statutes are still on the books. But the question I have is if a law isn't repealed, isn't it still valid?

[Magister]

I did not know that Maine was part of Massachusetts; that is interesting. Perhaps parts of larger states can become separate states in the same way in order to get greater representation in the Senate.

But Maine became a separate state because people in Maine wanted it, not because Massachusetts expelled them, so while that may have been Dr. Ed 2's intended meaning, it does not appear to be accurate.

With respect to laws that remain on the books but cannot be enforced because of constitutionality, there are examples of abortion bans that went back into effect after the Dobbs decision, but were previously not valid after Roe. So I suppose if specific centuries-old Tories showed up in Massachusetts after a constitutional amendment to allow bills of attainder, it would be legal to execute them; maybe even burn them as witches, given their unnatural lifespan.

[Dr. Ed 2]

"I did not know that Maine was part of Massachusetts"

Ever hear of the 1820 "Missouri Compromise"?
Where do you think they got the free state from?

What's not said is that Maine was vehemently abolitionist while Massachusetts wasn't so much -- where do you think the southern cotton was going to be woven into cloth?

[Dr. Ed 2]

And never forget that the Final Solution started in AMERICA with the Progressives and Abortion. It was American intellectuals such as Margaret Sanger (who founded Planned Parenthood) who championed the use of abortion to "exterminate inferior races."

It was just the German National Socialists who extended this to postpartum abortions -- and never forget that (a) they started with the disabled and (b) they could have been stopped had people spoken up then.

But the ideas behind the Holocaust started in America with the Progressive movement and its idea of selective breeding of humans.

[not guilty]

In the United States, the crime rate dropped significantly a generation after abortion became legal nationwide. I doubt that was a coincidence.

[Nige]

Access to birth control and abortion reduced poverty rates.

[Dr. Ed 2]

"In the United States, the crime rate dropped significantly a generation after abortion became legal nationwide. I doubt that was a coincidence."

It was.

Violent crime is usually committed by young men aged 15-30. And the fallacy you fell into is believing that the population of that cohort remained constant -- and it didn't. 1974 was the peak of the Baby Boomer's Criminal years -- 1974-30=1944.

Gen X was a much smaller generation, hence fewer criminals.

You also neglect to account for all the advances in criminal science we made, ranging from cameras and security systems to computers in cruisers and how much harder it is to *be* a criminal today.

For example, there was a man working at an Ohio bank who walked out with $215,000 from the vault in 1970 ($1.6M today) who changed his name and quietly lived in Massachusetts for 50 years without anyone ever knowing.
https://www.wcvb.com/article/massachusetts-family-man-kept-50-year-secret-bank-heist-fugitive/38634789

That couldn't happen today -- for starters, (a) you can't buy plane tickets under an assumed name and without ID, and (b) we have all kinds of airport security that they didn't have back then.

[Magister]

The Boomer generation started in 1946, and all of them would be younger than 30 in 1974, with a significant number not yet 15. And crime rates rose again after that, despite smaller cohorts in the range of 15 to 30 years old.

I doubt that flying around the country was crucial to Ted Conrad/Thomas Randele evading capture; little indication that he couldn't have driven anywhere in the country before the theft was discovered. It would be harder to get away with now, as requirements for ID and tracking of cash has become more stringent with the War on Drugs and post-9/11 laws.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Correlation is not causation.

[not guilty]

I agree that correlation is not causation, but women most likely to abort come disproportionately from social classes where criminal behavior is rampant, single motherhood is the norm, and parents are significantly better able to afford few offspring than many.

OTOH, children in those classes are likely to grow up to vote Democratic (if they vote at all), so restricting the availability of abortion is not all bad.

[Nige]

Eugenics began in the UK and was well established in Europe long before Sanger came along, and while she may have been progessive, conservatives all over the world were big fans. Sanger wasn’t even the central figure in US eugenics. Winston bloody Churchill was keen on eugenics. The Great Replacement Theory is eugenics redux. The Nazis were keen on the US sterilisation programmes, not abortion. Ignoramus.

[Dr. Ed 2]

The ad hominem fallacy shows your argument for what it is -- wrong.

During the Populist/Progressive Era, the Populists were what you could call "Conservatives" (and remarkedly close to MAGA today) while the Progressives were the LIBERALS -- who are again calling themselves "Progressives."

The Populists have enough to answer for -- the Know Nothing movement and the rest, but they were OPPOSED to the urban intellectuals, aka Progressives.

Eugenics may have started with the Ancient Greeks -- but it really took root here in America. Ever hear of _Beck v. Bell_? Or the anti-miscegenation laws? Etc....

[Nige]

Yes, it took root in a very specific form in the US, but it had already been flourishing elsewhere.

Now you're sounding woke. Isn't this CRT?

[David Nieporent]

I am a lawyer, and yet I have never heard of Beck v. Bell. Perhaps that's because Dr. Ed can't get anything right.

[Mr. Bumble]

You are such a dick, since you know very well what he meant.

[David Nieporent]

Oh, look: my stalker is back.

[Noscitur a sociis]

And never forget that the Final Solution started in AMERICA with the Progressives and Abortion. It was American intellectuals such as Margaret Sanger (who founded Planned Parenthood) who championed the use of abortion to “exterminate inferior races.”

What is it you’re quoting from?

[Nige]

Ptobably a stab at Conrad.

[Dan Schiavetta]

Someone has to point out that Sanger later modified her views.

[Dr. Ed 2]

They ALL did once the horrors of the Holocaust became known.

It was one of the three things that generation never spoke about, the others being the Flu of 1918 and the Klan. (I'm not saying that the Populists were innocent, only that they weren't involved in the Eugenics Movement.)

They never spoke about this and people of younger generations didn't start hearing about it until the 1990s when they were largely gone.

[Dr. Ed 2]

That actually was HG Wells but there are priceless Sanger quotes from her "Negro Project."

I just don't have time to find them right now.

[Magister]

It was American intellectuals such as Margaret Sanger (who founded Planned Parenthood) who championed the use of abortion to “exterminate inferior races.”

What is it you’re quoting from?

Pro-life false attacks on Sanger as founder of Planned Parenthood, most likely, as described on page 7 of https://www.plannedparenthood.org/uploads/filer_public/cc/2e/cc2e84f2-126f-41a5-a24b-43e093c47b2c/210414-sanger-opposition-claims-p01.pdf

[Dan Schiavetta]

It is, of course, possible for a person to be correct about some things and wrong about other things.

It is a mistake for PP to "disown" Sanger. She bravely fought on the right side of just about every other issue (except abortion, I suppose -- like all early feminists she was pro-life). And spent time in jail for some of her correct beliefs.

[Magister]

I thought the Planned Parenthood document about Sanger embraced both the things they like and the things they don't like. I didn't take it as disowning Sanger. But I really brought it up as evidence for the likely source of Dr. Ed 2's quote.

[David Nieporent]

And never forget that the Final Solution started in AMERICA with the Progressives and Abortion. It was American intellectuals such as Margaret Sanger (who founded Planned Parenthood) who championed the use of abortion to “exterminate inferior races.”

Since you're not a scholar or journalist or lawyer, you may not be aware that quotation marks are supposed to be used for things someone actually said.

[Mr. Bumble]

Dick!

[David Nieporent]

You're signing your posts, now. Good for you.

[bernard11]

the Final Solution started in AMERICA with the Progressives and Abortion. It was American intellectuals such as Margaret Sanger (who founded Planned Parenthood) who championed the use of abortion to “exterminate inferior races.”

Utter horseshit. Sanger never said anything remotely like this, and in fact generally opposed abortion.

[Theendoftheleft]

Perhaps no Western one was; but no other Western country ever really had a large imported slave class LIVING within its midst that was then emancipated, let alone kept in the country thereafter. (There were serfs, but those were the domestic population which was emancipated.)

As a further consideration outside the West, sharia is, and has always been, a genocidal apartheid normative order. Forget even just the Quran and the four schools of jurisprudence for a moment. Read about the Pact of Omar (and where it was legally in force, and for how long). Look at the enshrined racial and religious hierarchies therein. And yet you wish to normalize it now, claiming that all criticism thereof is strictly a function of a ‘phobia’ predicated upon ignorance.

[Dan Schiavetta]

Indeed.

I didn’t know that was Stennis. I remember when someone shot him.

My wife is from the Dominican Republic where there has been racism but not the “de jure” separation of the races that we had here. When I told her about the regimen of Jim Crow, from lynchings right down to the separate bathrooms, she thought I was joking. And this in the country which pioneered the idea of “all men are created equal”.

[Dr. Ed 2]

OTOH, someone murdered Raymond Stewart.

I don't have the forensic evidence, or what passed for that in 1938, but I presume they had a dead body and reason to presume he'd been murdered.

And racist as they might have been, they'd still want to get the *right* ******* -- i.e. the ones who actually did it. And they very well may have been guilty.

That's the problem with cases like this -- we legitimately focus on the reprehensible conduct of the prosecution while ignoring the fact that the prosecution (a) had *some* reason to believe guilt and (b) might have been right. There would have been at least a million Black men in Mississippi at the time -- why these three?

Yes there was racism beyond our comprehension, but why did they select these three men? Why these three and not three others?

Like I said, *someone* murdered Raymond Stewart...

[Dan Schiavetta]

If those three men really did do it, it was odd that the prosecution felt like they had to stack the deck by torturing confessions out of them. (Maybe there was nothing else to go on but somehow they “knew” they did it? That’s not a basis for conviction — you need evidence.)

[Dr. Ed 2]

It was felt back then that a confession was needed for trial.

Remember that Miranda was guilty -- after the SCOTUS ruling, the cops did their jobs and convicted him the second time with evidence.

[SRG2]

And absent confession there was no evidence at all. So they were no more likely to be guilty than any random man pulled off the street, black or white.

[Dr. Ed 2]

IF there were no evidence AT ALL, wouldn't that be grounds for dismissal of the complaint? I know I am talking now and not 80+ years ago, but wouldn't the DA be kinda embarrassed to bring a case with NO evidence? Not even circumstantial?

[bernard11]

wouldn’t the DA be kinda embarrassed to bring a case with NO evidence? Not even circumstantial?

In Mississippi, in 1936? Are you fucking kidding?

[Rev. Arthur L. Kirkland]

Nope. These losers are that dumb, that uninformed, and that bigoted. Just the way the Volokh Conspirators seem to want them.

How many Volokh Conspiracy fans ordered their Trump gym shoes today? How many Volokh Conspirators?

Carry on, clingers. So far as your betters permit . . . and not a step beyond, not even in your $400 Trump gym shoes.

[Dr. Ed 2]

I'm totally serious.

Even in the case of the Scottsboro Boys, there were two girls saying they'd been raped. That was evidence.

[SRG2]

And racist as they might have been, they’d still want to get the *right* ******* — i.e. the ones who actually did it

That doesn't follow. They may well have thought that the larger view was that it was necessary for the preservation of order and to intimidate African-Americans to convict someone and one black man was as good as another. If they thought that all black males were potential murderers - obvious projection - then they wouldn't necessarily care whether they had the right one for an individual case.

[Dr. Ed 2]

You don't know many racists, do you?

The MORE racist someone was, the more it would bother them that the GUILTY ****** got away with it. They wouldn't mind convicting (and executing) a few innocent ones, but what would really bother them is that a guilty one got away.

[bernard11]

Why are you so sure the murderer wasn't white?

As for evidence, you can read the decision here, if you have a strong stomach.

From the second paragraph:

Aside from the confessions, there was no evidence sufficient to warrant the submission of the case to the jury. After a preliminary inquiry, testimony as to the confessions was received over the objection of defendants' counsel.

[Dr. Ed 2]

" no evidence sufficient to warrant the submission of the case to the jury."

That's not the same thing as no evidence at all.

And the gristly details of the cops misconduct does not address the probable cause they may have had to suspect these individuals. Sure a White man may have done it -- but something directed them to these three men.

Remember that the fact that the cops didn't have evidence against Miranda at his first trial did NOT mean he was innocent...

[not guilty]

When a criminal conviction is set aside at the behest of the defendant, on grounds other than insufficiency of evidence for any rational trier of fact to find guilt beyond a reasonable doubt, the original jeopardy is vacated and a retrial is not prohibited. In the case of a coerced confession, the remedy is a retrial at which the confession is inadmissible for any purpose.

[SRG2]

Thank you, though it strikes me as illogical – because the Supreme Court is, in effect, saying, “you may have thought you were in jeopardy of life or limb, but psych! you weren’t”. and it creates a prosecutor’s option – bring in inadmissible evidence at the first trial so you get an option on a second if the first verdict is overturned. which even today is by no means assured.

[not guilty]

The accused was indeed in jeopardy. If he had been acquitted, he could not have been tried again. If his conviction had been affirmed, he could not have been tried again. But when the conviction was vacated on the defendant's application, the slate was wiped clean and the prior attachment of jeopardy was vacated.

[Magister]

It would seem to encourage bad prosecutorial tactics, if they are confident they will get a second chance at it. But viewing it as the same jeopardy doesn't seem unreasonable.

[Dr. Ed 2]

Doesn't a prosecutor look bad when his conviction gets thrown out?

The two things I have noticed about attorneys is that (a) they have incredible egos and (b) don't like to look bad in public.

For example, when Trump's NY decision gets reversed, as it inevitably will, Letetia Jones is going to loose face...

[Magister]

Clearly Dr. Ed 2 is not among those who mind looking bad in public; it would take mere seconds to look up Letitia James' actual name. The prediction of inevitability is probably of equal quality, but I wouldn't mind hearing informed predictions on that appeal.

[Michael Resanovic (still highly opinionated)]

Does anyone know if there are any recent (since the 1960s) SCOTUS cases involving the scope of powers of federal agents, decided with reference to federal statute law or federal common/general law? (Not con law)