Today in Supreme Court History: March 6, 1857

3/6/1857: Dred Scott v. Sandford decided.

Comments

[Dan Schiavetta]

Dred Scott v. Sandford, 60 U.S. 393 (decided March 6, 1857): once-free slave had no claim to freedom in slave state because he was black (probably the most-abrogated case in Court history, by the Civil War, by the Thirteenth, Fourteenth and Fifteenth Amendments, and more) (for some reason Taney did not like Nelson’s original “hands-off” affirmance on narrow grounds and took quill in hand to write a sweeping holding that he imagined would settle the slave issue once and for all — he was 79 and maybe getting feeble) (we all know about the political effect of this disaster, but what about the legal effect? the Court held that black people had no rights — was every lawsuit brought by a black plaintiff then dismissed for lack of capacity to sue? was every black voter thrown off the rolls?)

McCulloch v. Maryland, 17 U.S. 316 (decided March 6, 1819): Congress can establish a national bank, and the states cannot tax it

Virginia v. West Virginia, 220 U.S. 1 (decided March 6, 1911): In 1861 West Virginia broke away from Virginia because it didn’t want to secede and also it wanted to abolish slavery; years later Virginia goes after West Virginia for its share of Virginia’s public debt (public projects in those areas). No statute of limitations on suits between states, evidently; suit wasn’t brought until 1906. Holmes here holds mostly for Virginia but adjusts the amount based on post-Civil War developments and refuses to let the states further nickel-and-dime things in front of the Special aMaster. “This case is one that calls for forbearance upon both sides. Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end.”

Peña-Rodriguez v. Colorado, 580 U.S. 206 (decided March 6, 2017): Remember “12 Angry Men”, and Juror #10’s (Ed Begley) racist diatribe? Courts in general hate to undo a verdict based on juror misconduct, but here, where a juror made statements during deliberations showing racial bias, the Court sends the case back to the trial court to see if Sixth Amendment fair trial right was violated. (I’m one of those trial lawyers who asks the jurors after the verdict whether they want to stay behind and give me their impressions. The trial attorney did that here, found this out from one of the other jurors.)

Portuondo v. Agard, 529 U.S. 61 (decided March 6, 2000): Most criminal defense attorneys don’t let their clients testify. This case shows one reason why. The prosecutor told the jury that sitting there day by day, hearing witnesses, allowed defendant to tailor his testimony when he got to the stand. The Court says this is o.k.; it did not violate his right to confrontation, or his right to an impartial trial, or his right to testify on his own behalf.

Barnard v. Thorstenn, 489 U.S. 546 (decided March 6, 1989): striking down on Fourteenth Amendment grounds Virgin Islands rule that admits attorneys to its bar only if they’ve lived there a year and promise to stay there (“no, I’d rather freeze half the year in the Chicago, stuck in traffic jams!”)

Adams v. Illinois, 405 U.S. 278 (decided March 6, 1972): rule of Coleman v. Alabama, 1970 (there must be a preliminary hearing and counsel must be present at it) is not retroactive

Silverman v. United States, 365 U.S. 505 (decided March 6, 1961): police in adjacent consenting house bored “spike mike” into shared wall until it hit defendant’s vent, which acted as a megaphone, and clearly heard conversations of gambling; this was “search” needing warrant (in 1985 our new crisis center moved into a basement space needing ventilation; I was about to put in a duct leading to the outside until someone pointed out it would broadcast our clients’ secrets out into the street)

Bay v. Merrill & Ring Logging Co., 243 U.S. 40 (decided March 6, 1917): railroad employee could not sue under Federal Employers’ Liability Act; railroad’s in-state logging (Puget Sound) not involved in interstate commerce even though logs later sold to customer in California

Bond v. Hume, 243 U.S. 15 (decided March 6, 1917): cotton futures contract made in New York could be sued on in Texas federal court; Texas statute prohibiting such contracts on its terms applied only to contracts made in-state

[Dilan Esper]

Is Silverman the first post-Olmstead case where SCOTUS holds that eavesdropping is a search?

[John F. Carr]

I did not see a requirement for a preliminary hearing in Coleman v. Alabama. Under state law the preliminary hearing is optional. If the prosecutor takes the case directly to a grand jury the defendant has no right to be present. The Supreme Court said if there is a preliminary hearing the defendant has the right to bring Perry Mason along. I gather the purpose of the preliminary hearing is to detain a defendant pending indictment.

[Dan Schiavetta]

Will rephrase. (I was misled by the Court’s emphasis on the importance of preliminary hearings; it stopped short of saying they were required.) Thanks!

[John F. Carr]

In the context of post-conviction review, the Georgia preliminary hearing does not seem important at all. Evidence presented at a preliminary hearing is not admissible at trial. If a defendant is erroneously detained awaiting trial, that error does not affect the conviction. If the defendant's lawyer is sure to discover the fatal flaw in the prosecution's case, the prosecutor could have gone to a grand jury instead. You can't challenge the grand jury's decision once the petit jury has returned a guilty verdict.

A formalistic decision from the court that gave us the formalistic In re Winship. At least the court allowed a harmless error standard of review. I would think the error is always harmless from the point of view of a process that cares more about a one dollar fine than being held without bail awaiting trial.

[SRG2]

Pena-Rodriguez won 5-4. No guesses needed on the split.

[The Margrave of Azilia]

“was every black voter thrown off the rolls?”

There weren’t a lot of free black voters in 1857. The New England states, minus Connecticut, had equal suffrage. New York allowed blacks to vote if they passed a property qualification not required of whites (and most blacks in NY didn’t have that kind of property). (Even this limited amount of black suffrage in NY was enough to prompt attacks on President Martin Van Buren, who had approved the arrangement. Critics included some Whig leaders in Illinois including a certain Springfield attorney).

In 1857, the Maine high court decided that black voters in Maine could still vote despite Dred Scott. But this applied only to a small number of voters.

Like in the story of the princess and the pea, even this limited amount of voting was too much for the slaveholders and doughfaces.

In its declaration of secession, South Carolina said:

“This sectional [i. e. Northern] combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety.”

So those states which, exercising their states rights, chose to allow (a small number of) blacks to vote, were violating federal supremacy, which appalled the supposed states-rights zealots of South Carolina.

Stephen Douglas, in one of the failed compromise proposals to deal with the secession crisis, proposed to add an amendment to the U. S. Constitution forbidding free blacks from voting.

So in sum, while the small number of black voters don’t seem to have been disenfranchised by Dred Scott, many Southern leaders and doughfaces thought the decision *should* have had such an effect.

[Dan Schiavetta]

From what little I can glean online, the Dred Scott holding, insofar as its legal effect, was ignored in the North (the South, of course, was perfectly happy with it).

[SRG2]

The South didn't need Dred Scott to act as though blacks had no rights.

[Dan Schiavetta]

There were free blacks in the South (not many of course).

[The Margrave of Azilia]

Indeed, and in the antebellum era the Southern trend was to turn free blacks from second-class citizens into noncitizens subject to enslavement. It was what the political leadership considered progress.

As the war approached, some Southern states required free blacks to choose between enslavement and banishment.

[SRG2]

IIRC there were instances of free blacks being seized and enslaved, and being unable to secure their freedom because - contrary to regular principles of jurisprudence - as slaves they were unable to testify.

[The Margrave of Azilia]

I forget which historian it was who pointed this out, but for plenty of Northern white voters it was a matter of what we call framing. If they saw the issue as the Slave Power versus freedom, then they were more likely to take the antislavery position. If they saw the issue as black rights versus white supremacy, they were more likely to take the proslavery or doughface position.

So people like Douglas tried to "defend" Dred Scott as being all about white supremacy, while opponents focused on the proslavery implications.

[Edmund Burke's Hastings spy]

I think you missed Taney's case against Taney

he once called slavery “a blot on our national character.”
As a young man Taney was “a moderately antislavery lawyer” because of this defense and the few slaves he freed.

HIs historical thinking was profoundly wrong (a sorta Sotomayor or Ketanji of his day)

https://teachingamericanhistory.org/document/dred-scott-v-sandford-4/
The two dissenting opinions, by Justices John McLean (1785–1861) and Benjamin R. Curtis (1809–1874), short excerpts of which are included below, criticized Taney’s contention that “persons of color” were not citizens when the Constitution was adopted, pointing out that at that time five states allowed African Americans to vote. This made them citizens of those states and thus of the United States. Both Curtis and McLean also argued that slavery was unjust and against nature. Curtis cited evidence to show that slavery had legal standing only in state law. Abraham Lincoln, who accused Judge Taney of being the first person to ever claim that the Founders did not mean to include the black man in the Declaration of Independence, also criticized the Supreme Court’s ruling.

[Brett Bellmore]

I think he was more the Roberts of his day. Dred Scott is the penaltax of it's time; The Justice writing a decision contrary to his own views and any sensible reading of the law, in an effort to 'preserve the Court's reputation'. Only it's such obvious BS as to have the opposite result.

[I woke up when Hillary talked about Reconstruction]

From memory, he was a Catholic, right. So it was worse than you say. Can't explain people like him, Stephen Douglas is another.

Saw a picture the other day of the Clintons signing some official help document about Haiti. Article said they stole,misdirected $3 Billion that never went to any help. Reminded me of Douglas ranting about slavery but knowing that his investment in the railroad was (probably) his biggest 'concern'

[Dr. Ed 2]

remember why the mass sjc tossed slavery -- the 1800 state constitution said all men are free.

[I woke up when Hillary talked about Reconstruction]

Aaah, but that was John Adams with the same views as he had on the Federal Constitution.

[Dilan Esper]

Portuondo v. Agard really confirms why the Doyle and Griffin rules are so important. Prosecutors would absolutely be saying that every defendant who doesn't talk to the police or doesn't take the stand is therefore guilty. (It's what a lot of them and cops believe, anyway.) You have to allow the defense at least one option that the prosecutor cannot comment on-- we've held that the right to remain silent is that option.

[Dan Schiavetta]

Thanks, and thanks for pointing me to Griffin and Doyle.

[Noscitur a sociis]

You have to allow the defense at least one option that the prosecutor cannot comment on

Why?

[Dan Schiavetta]

Forced confessions are not reliable. That’s why the Fifth Amendment privilege. Maybe silence is equally unreliable ?

[Dilan Esper]

Yep. And the Fifth Amendment privilege exists. Saying you can exercise it, but your silence can be used to secure your conviction completely defeats the right.

But also, there's a notion of fundamental fairness here. This is an imperfect comparison, but there's a tendency in Fourth Amendment law to deem whatever the person being searched to have been doing as "suspicious". "It's suspicious they ran. It's suspicious they didn't run. It's suspicious they talked. It's suspicious they stayed silent. It's suspicious they were loquacious. It's suspicious they were taciturn. Etc."

The notion can't be that whatever the defendant does proves they are guilty. You need at least one option that is considered innocent conduct, that must be treated as innocent conduct, and that the prosecution cannot use to convict you. One option that forces the prosecution to actually prove you did it.

We've decided that remaining silent is that option. Seems like a good rule to me.

[SRG2]

Another case where it's easy to guess who the majority was and who the minority was.

[The Margrave of Azilia]

Some trial judge (sorry if I forgot details) suggested that before being able to see the discovery information, a criminal defendant should write up his account of what happened and submit that account, sealed, to the court. If the defendant chose to testify (and only then), his written account would be unsealed so the jury could see whether his version of events changed as he learned what the prosecution could prove against him.

[Dilan Esper]

That would be a clear 5th Amendment violation, forcing the defendant to testify against himself.

[The Margrave of Azilia]

Eh, he was just a trial judge.

Maybe, if the defendant chooses to testify, have him be the first witness in the trial, even ahead of the prosecution witnesses?

Of course, that could cause the opposite problem of the defendant tailoring his testimony to the other witnesses: the other witnesses could tailor their testimony to the defendant’s.

[Noscitur a sociis]

I don’t think this is a particularly good idea and it’s obviously never going to happen, but I’m not sure it would be unconstitutional. There’s no constitutional right to criminal discovery (except Brady material), so a court (or a rule) can impose conditions on accessing it.

[Dilan Esper]

Not that one.

[Dan Schiavetta]

For reasons I vaguely remember and having something to do with either Galileo or Michelangelo, March 6 was the day our computers were supposed to go kerflooey. This was in the pre-internet days.

[SRG2]

This: https://en.wikipedia.org/wiki/Michelangelo_(computer_virus)

[Dan Schiavetta]

Thanks.

I remember sitting at my x286 computer (good old DOS) on the morning of March 6, 1992, wondering what my computer would do if I turned it on or either whether I should turn it on (instead, wait until March 7). But I did and nothing happened.

I was in my co-op room in California and on the TV was a rerun of an old TV show called “Bold Venture” and an episode involving Hawaiian dancers throwing flowers which contained secret messages. The hero caught one, intending to give it to his girlfrield, and got suspicious when a guy next to him offered him $50 for it.

I also had on my desk a cutout from a newspaper review of one of the two Lambada movies that came out that year (the Lambada was a dance craze). The reviewer, talking about the heroine, called her "a character which has long ago been abandoned as a stereotype -- sexually free, in touch with nature, deep, wise and forgiving". WTF!

Funny how one retains such clear memories of such a long-gone day.

[NvEric]

And, next year's entry will contain the case of an invasion into Mexico, like Pershing before, to settle border issues.

Bandits, attacking illegal aliens on US soil, return to Mexico

https://twitter.com/USBPChief/status/1762251265659035971

[Edmund Burke's Hastings spy]

Only by a trickefry of words...for women could vote in NJ on the same basis as free Blacks, namely PROPERTY. IT is actually a stricter standard than today. Someone with rootedness and property would care about what happens.Today, you want yourl handout and you might own very little and hope that any gain you make will come from Biden and the likes of him