Today in Supreme Court History: March 5, 1934

3/5/1934: Nebbia v. New York decided.

Comments

[Dan Schiavetta]

Nebbia v. New York, 291 U.S. 502 (decided March 5, 1934): a pre-“switch” case where Roberts, writing the opinion, sides against the “Four Horsemen”, upholding the New York Milk Board’s setting of maximum and minimum prices, being that milk prices were important to public welfare, no violation of Due Process (maybe OT, but look up the bio of Bronx native Jimmy Savo, a mime popular with Italian Americans of my grandparents’ generation; his family was too poor to afford Grade B milk, used powdered instead, and as a result he didn’t die in the typhus epidemic, and that was just the first example in his life — “hard luck made him a star”)

Ewing v. California, 538 U.S. 11 (decided March 5, 2003): Upholding California’s 1993 “three strikes” law (two previous “serious” felonies results in indeterminate life sentence) against Eighth Amendment attack (this was one of several such laws nationwide at the time; Mark Alan Stamaty did a cartoon “debate” where the candidates try to outdo each other — “TWO strikes and you’re out” — “ONE strike and you’re out” — “NO strikes” — the other candidate is nonplussed and says, “NO strikes?” and she loses the election) (in another debate, the two candidates keep jumping up and down saying “Death Penalty! Death Penalty! Death Penalty!” — and the one who pauses momentarily to take a breath, loses the election)

The Merino, 22 U.S. 391 (decided March 5, 1824): deals with forfeiture of several ships holding slaves; interesting because as to two of the ships the Court seems to be saying that the 1800 Act prohibiting overseas slave trade doesn’t apply to a ship carrying slaves who were already sold, they being at that point merely passengers being transported to their owners (I bet they didn't even get free peanuts and the choice of movies was really lousy)

Lance v. Coffman, 549 U.S. 437 (decided March 5, 2007): individual citizens have no standing to contest state supreme court’s revision of redistricting plan

Smith v. Doe, 538 U.S. 84 (decided March 5, 2003): statute requiring registration of convicted sex offenders was not punitive (technically) and therefore was not ex post facto

Anders v. Floyd, 440 U.S. 445 (decided March 5, 1979): District Court should not have stayed state court prosecution for murder after abortion of 25-week-old fetus; remanded to see how state court proceeding turned out and what kind of instructions are given as to “viability”

Ohio v. Kentucky, 410 U.S. 641 (decided March 5, 1973): Ohio precluded, by its long acquiescence, from contesting Kentucky’s claim that its border extended to the far side of the Ohio river; Court notes that its original jurisdiction is basically equitable, not legal (i.e., it can fashion whatever remedy or use any common law theory it wants to)

Harris v. United States, 390 U.S. 234 (decided March 5, 1968): no warrant needed for search of robbery defendant’s impounded vehicle (while closing windows, found registration card showing car belonged to victim)

McKoy v. North Carolina, 494 U.S. 433 (decided March 5, 1990): Eighth Amendment violated by requirement that jurors find mitigating factors precluding death penalty only beyond a reasonable doubt (Marshall writes opinion for a 6 - 3 Court)

Lynch v. Donnelly, 465 U.S. 668 (decided March 5, 1984): Pawtucket, R.I. nativity scene did not violate Establishment Clause; was part of city display with secular elements such as Santa and his sleigh (this case was the birth of the “reindeer rule”)

[Krayt]

Ewing v. California, 538 U.S. 11 (decided March 5, 2003): Upholding California’s 1993 “three strikes” law (two previous “serious” felonies results in indeterminate life sentence) against Eighth Amendment attack (this was one of several such laws nationwide at the time; Mark Alan Stamaty did a cartoon “debate” where the candidates try to outdo each other — “TWO strikes and you’re out” — “ONE strike and you’re out” — “NO strikes” — the other candidate is nonplussed and says, “NO strikes?” and she loses the election) (in another debate, the two candidates keep jumping up and down saying “Death Penalty! Death Penalty! Death Penalty!” — and the one who pauses momentarily to take a breath, loses the election)

Compare vs. 25 years later, and again 5 years after that. The only constant are pandering politicians wanting to look like they’re doing something.

[F.D. Wolf]

[John F. Carr]

There is a soft on crime trend recently compared to decades past. I don’t think there is any articulable principle guiding it. I try to follow “only make laws you are willing to enforce uniformly as written.”

[The Margrave of Azilia]

[comment relocated]

[F.D. Wolf]

The New York Milk Control Board had set a minimum price of nine cents for a quart of milk. Leo Nebbia sold two quarts for 18 cents, but became a criminal under New York law when he threw in a free five-cent loaf of bread. For this transgression, he was fined $25.

[Dan Schiavetta]

Odd. I assume he was "ratted on" by the person who was sent to buy milk from him? And then begged for the bread? Entrapment?

[F.D. Wolf]

As I understand it, and I could certainly be wrong, Nebbia was essentially openly advertising, "Buy two quarts of milk and get a free loaf of bread."

[The Margrave of Azilia]

The monster! Think of the dairy farmers!

[F.D. Wolf]

The loaf of bread and two bottles of milk that Leo Nebbia sold to his Rochester (N. Y.) customer last April at the bargain price of 18 cents. in defiance of a new State law off a legal barrage that went on until last week. Almost 11 months after he had sold his bread and milk, the Supreme Court of the United States handed down a 5 to 4 decision that turned out to be a milestone in the history of constitutional law, one of the biggest decisions of all time. It was last April 10 that New York's law gave a control board power to regulate the entire milk industry. It was just nine days later that Leo Nebbia devised his neat plan of getting around the rule that milk must not sell for less than 9 cents a quart. After all, he figured, the loaf of bread that went with the two quarts of milk for 18 cents, was merely a gift, a premium.

In effect the Supreme Court held that much of the New Deal program can be reconciled with protective clauses of the Constitution, so long as the laws passed have a reasonable relation to proper legislative purpose and are neither arbitrary nor discriminatory. Although the decision is limited to the validity of a state statute, yet it eliminated any question as to the validity of recent Federal laws, so far as they involve due process, interference with liberty of contract, and deprivation of private property.

"Historic Decision on State Price-Fixing: Supreme Court's Ruling in Support of 'New Deal' Powers", United States News 12 (March 12, 1934).

The impact of the decision was already appreciated at the time.

[Edmund Burke's Hastings spy]

But he had to be getting the milk from dairy farmers so what are you saying ????

[John F. Carr]

Sex offender laws are sometimes retroactive and sometimes not, depending as far as I can see on the whim of the appeals court panel that reviews the law.

The Supreme Judicial Court did Massachusetts a service by ruling that municipal regulation of sex offenders was preempted by state law. Towns were voting on whether to have de facto bans.

[The Margrave of Azilia]

Of course forcing a convict to register is a criminal punishment. The reason to pretend otherwise is to make it easier to do it to convicts, based on the Bad Person Exception to the Constitution.

[SRG2]

Re: McKoy

Not difficult to guess who two of the dissenters were. Rehnquist and Scalia just loved the death penalty. I wonder how often they found for an appellant versus against, purely on the issue of imposition of the DP.

[Edmund Burke's Hastings spy]

Neither loved the death penalty, a disgusting unfounded allegation on your part

SCALIA
''The Constitution,'' the court says, ''contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'' (The unexpressed reason for this unexpressed ''contemplation'' of the Constitution is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one's breath away

REHNQUIST
I agree with Justice Scalia that the court's assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority's subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency.

==============
So you are laughably out of your depth

[SRG2]

Re: Smith

Roberts was the attorney for the state.

The dissent argued that, historically, this kind of registration was intentionally punitive.