Today in Supreme Court History: April 17, 1978

4/17/1978: Penn Central Transportation Corporation v. New York argued.

Comments

[Dan Schiavetta]

Lochner v. New York, 198 U.S. 45 (decided April 17, 1905): striking down New York statute setting maximum work hours for bakery employees as violating freedom of contract and not within police power; in Holmes’s much-overrated dissent he says, “This case is decided upon an economic theory which a large part of the country does not entertain” (?? I don’t see any mention of economic theory in the Court’s decision); the dissent by Harlan (along with White and Day) is the more prescient one, arguing that the statute was indeed within the police power (this case was pretty much overruled by cases beginning with West Coast Hotel Co. v. Parrish, 1937)

Wilson v. Sellers, 584 U.S. --- (decided April 17, 2018): federal court can consult lower state court decision as to why habeas was denied, where higher state courts did not explain why they were affirming (here, an ineffective assistance of counsel claim after a murder conviction)

United States v. Moreland, 258 U.S. 433 (decided April 17, 1922): “Workhouses” still existed post-Dickens! Here, people convicted of failure to pay a debt were required to work there and their “earnings” given to the person owed. Defendant here was sentenced to six months for flouting child support order, with mother the beneficiary. The Court here holds that because defendant could have been sentenced to a year, this was an “infamous” crime under the Fifth Amendment so grand jury indictment required. (The grand jury provision of the Bill of Rights has never been applied to the states via the Fourteenth Amendment, but this was D.C. where the Fifth Amendment applied directly.)

Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (decided April 17, 2013): The Alien Tort Statute Act floats over the United States like a many-tentacled squid, suctioning certain claims into U.S. courts. Who knows what it means? Here, the Court holds that at least it doesn’t encompass claims made by foreigners against foreign entities concerning something that happened overseas (Nigerian nationals suing British, Dutch and Nigerian corporations over atrocities in Nigeria).

Sessions v. Dimaya, 584 U.S. --- (decided April 17, 2018): Is burglary a “crime of violence” so as to allow deportation? Court holds that the statutory phrase is too vague for Due Process purposes and vacates removal order.

Missouri v. McNeely, 569 U.S. 141 (decided April 17, 2013): fact that alcohol metabolizes as the minutes pass can’t serve as excuse for emergency warrantless blood test in every circumstance; case-by-case basis (here, there was time to get a warrant where trucker was apparently drunk and police officer took him to hospital for test)

Pabst Brewing Co. v. Crenshaw, 198 U.S. 17 (decided April 17, 1905): upholding Missouri’s fee on inspection of incoming beer; did not violate Dormant Commerce Clause because Congress had specifically allowed states to impose such fees (i.e., it can regulate interstate commerce by giving some power over it to the states)

Electric Storage Battery Co. v. Shimadzu, 307 U.S. 5 (decided April 17, 1939): Japanese patentee (here, of lead powder used in making batteries) can invoke patent protection by showing date of actual invention, not just date of application for patent in this country; issue of fact as to whether patent was abandoned (by allowing others to use and sell it)

Bond v. United States, 529 U.S. 334 (decided April 17, 2000): bus passengers have reasonable expectation of privacy as to their bags on open overhead racks (Border Control officer squeezed overhead bag and felt hard surface which was a “brick” of meth; evidence suppressed because no warrant)

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (decided April 17, 1991): Warsaw Convention (allowing suits against international air carriers) does not provide for mental distress claim absent physical injury (plaintiff frightened when plane headed for Bahamas almost crashed due to power loss and turned back to Miami)

[Magister]

I think the economic theory Holmes alludes to is pretty clearly laissez faire:

But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.

[Dan Schiavetta]

You're probably right about laissez faire, but my point is it's not stated or even hinted at in the majority opinion.

"It seems apparent to the twentieth century mind, as perhaps it did not to the nineteenth century mind, that a system in which everyone is invited to do his own thing, at whatever cost to his neighbor, must work ultimately to the benefit of the rich and powerful, who are in a position to look after themselves and to act, so to say, as their own self-insurers. -- Grant Gilmore, "The Death of Contract", 1974, at 95.

[Dilan Esper]

It's freedom of contract. The entire Lochner-era SDP analysis is based on the idea that if there are two parties with vastly unequal bargaining power who enter into a "voluntary" contract, the state cannot intervene (at least absent meeting some sort of heightened scrutiny) because it violates the WORKER'S freedom to enter into voluntary agreements.

Holmes is saying that's reading an economic theory (that workers' relations are best treated as fully voluntary contracts) into the Constitution, when the Constitution contains no text and expounds no principles dictating a particular economic theory. If a state wants to do radical freedom of contract, it can; if a state wants to adopt a socialist republic, it also can.

Remember, this is during the rise of the Progressive Era and the tail end of the Guilded Age. Plus you have socialist movements springing up around the world, influenced by Karl Marx. Holmes is saying, correctly, that the Constitution just doesn't say anything about what economic system the states must adopt, and it's crazy to read such a requirement into the due process clause.

It's a justifiably great opinion. (But TBC, Harlan was right too.)

[Dan Schiavetta]

The majority didn't have to resort to or even insinuate any economic theory. Their holding seems like (to them) a straightforward application of art. I, §10 ("No State shall . . . pass any . . . Law impairing the Obligation of Contracts").

[Noscitur a sociis]

It has nothing to do with that clause.

[Dilan Esper]

Right. The Contracts Clause is about impairing the obligations of EXISTING contracts. The New York law prohibited anyone from ENTERING into a contract that required more than a certain number of hours of week at a bakery.

The majority's holding was that the Due Process Clause prohibited that, because the "liberty" in the clause included freedom of contract, and that included the freedom to sign a contract to work extra hours at the bakery. And Holmes is saying the Constitution didn't pick between Herbert Spencer and Karl Marx-- a state can regulate that contract or not regulate it.

You know who agreed with Holmes, by the way? William Howard Taft. Here he is in one of the most underrated dissents in SCOTUS history, in Adkins v. Children's Hospital:

"We must be careful, it seems to me, to follow that line as well as we can and not to depart from it by suggesting a distinction that is formal, rather than real.

Legislatures, in limiting freedom of contract between employee and employer by a minimum wage, proceed on the assumption that employees, in the class receiving least pay, are not upon a full level of equality of choice with their employer, and, in their necessitous circumstances, are prone to accept pretty much anything that is offered. They are peculiarly subject to the overreaching of the harsh and greedy employer. The evils of the sweating system and of the long hours and low wages which are characteristic of it are well known. Now I agree that it is a disputable question in the field of political economy how far a statutory requirement of maximum hours or minimum wages may be a useful remedy for these evils, and whether it may not make the case of the oppressed employee worse than it was before. But it is not the function of this Court to hold congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound."

[Dan Schiavetta]

Yes -- sorry.

I should know better. The Contracts Clause applies only to existing contractual obligations. Ogden v. Saunders/i>, 1827 (which I commented on here on February 19).

[Magister]

They pretty clearly assume it, as in "There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker."

They also don't explicitly mention Mr. Herbert Spencer's Social Statics, but that's still some top shelf snark.

[Dr. Ed 2]

The thing that needs to be understood about Lochner is that it was pre-New Deal and pre-Great Society -- it was before the arrival of the welfare state.

Freedom of contract would make sense now because if the employer were exploitive, the employee could (and likely would) say "bleep you -- I just won't work."

That's actually what we are seeing right now and just don't realize it -- there is no shortage of labor, just a shortage of people willing to work under the "treat them like shit" approach to labor management.

[Noscitur a sociis]

The thing that needs to be understood about Lochner is that it was pre-New Deal and pre-Great Society

Who are some of the people that you think fail to understand that?

[SRG2]

Re: Wilson v Sellers

As usual in a DP case, Thomas and Alito dissent - joining Gorsuch.

As a matter of real-world logic, the dissent is wrong. Consider some debated topic. A provides lots of reasons for adhering to one position. B simply says, I agree with A. Yes, B might have different reasons from A in agreeing with A's position but it's unlikely and pretty much everyone - except Gorsuch - would think that he agrees with A's argument, not just the position. (Alito and Thomas wouldn't care - it's a DP case.)

[Brett Bellmore]

"Pabst Brewing Co. v. Crenshaw, 198 U.S. 17 (decided April 17, 1905): upholding Missouri’s fee on inspection of incoming beer; did not violate Dormant Commerce Clause because Congress had specifically allowed states to impose such fees (i.e., it can regulate interstate commerce by giving some power over it to the states)"

As well, the 21st amendment makes interstate commerce in alcohol, specifically, different from any other product.

"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

This is one product where the states actually have constitutional primacy, dormant commerce clause not withstanding.

[Magister]

But neither 18th nor 21st amendment existed in 1905.

[Brett Bellmore]

Well, you got me there. Should have read more closely.

[Dr. Ed 2]

I would argue that the INTENT was not to give states constitutional primacy, only to permit "dry" areas (states, counties, cities) to remain "dry" and I wonder how much of that was a compromise to expedite passage/ratification of the 21st Amd.

[Magister]

The law that the 1905 case was decided on, the Wilson Act, appears to have been passed in 1890, which would be some very subtle gamesmanship to get either the 18th or 21st amendment passed or ratified. And it fell short as a precursor to Prohibition, because it didn't address importation for personal use.

[Mr. Bumble]

" (The grand jury provision of the Bill of Rights has never been applied to the states via the Fourteenth Amendment, ...)

Why?

[Brett Bellmore]

Because, although the P&I clause was supposed to immediately incorporate Amendments 1-8 per the authors, as well as other unenumerated rights, that got almost immediately spiked by the Slaughterhouse Court.

When the Supreme court was finally in a mood to allow incorporation, they did so selectively, instead, apparently based on which Amendments they did and didn't like.

No principled reason, just the Court treating the Bill of Rights like the proverbial Chinese menu.

[Dr. Ed 2]

For all that is said (correctly) about the Slaughterhouse Cases, every other city had already done the same thing and for pretty much the same reasons -- just not as corruptly as New Orleans did.

The three things to remember about the 19th Century was that (a) drinking water was pumped directly from the source (untreated), (b) waste of all sorts was simply dumped into rivers to go out with the tide, and (c) before Armor & Co, a lot of the byproducts that now have uses (e.g. blood meal fertilizer) were simply discarded as waste.

So the various butchers of the era not only had washdown hoses and open grates draining into the river, but would dump all the offal into the river as well. I suspect (but do not know) that they actually were built out on wharves over the river to facilitate this -- they were elsewhere (e.g. Belfast, Maine).

The problem in New Orleans was that the butchers were located upriver of the city's water intake pipes. So you had this already pathological (fecal, etc) material sitting in the hot sun and sometimes literally clogging the intake pipes. Not surprisingly, the city had repeated outbreaks of Cholera and everything else -- and the rational solution was to move the butcheries downstream of the water intake pipes.

OK, a *better* solution would be to stop dumping in the river and also to build a 20th Century water treatment plant with chlorination and the rest, but still...

[Bob from Ohio]

"P&I clause was supposed to immediately incorporate Amendments 1-8 per the authors"

The "authors" should have written that into the actual amendment. The text does not support incorporation.

[Magister]

Presumably the answer is Hurtado v. California.

https://en.wikipedia.org/wiki/Hurtado_v._California

[SMP0328]

Hurtado seems to me to be an anachronism, reflecting a time when the Supreme Court refused to believe the 14th Amendment applied any of the Bill of Rights to the States. It would be interesting to see the result if the issue came before the current Court.

[Dr. Ed 2]

Are Grand Juries actually required in Massachusetts?

I had a ringside view of the Jason Vassal charade (scream "racism" and you can literally get away with attempted murder) but I remember that he was first charged with stuff by the DA and then subsequently indicted by a Grand Jury.

[John F. Carr]

It is routine for the defendant to appear in court before indictment. As I understand the process, an arrest warrant is enough to get the defendant into District Court and an indictment is required to move the case to Superior Court where felony penalties may be imposed.

Many January 6 defendants were arrested and brought to court on warrants for felonies. They could not be tried until an indictment was obtained or the defendant agreed to proceed without an indictment.

[Syd Henderson]

"The Alien Tort Statute Act floats over the United States like a many-tentacled squid, suctioning certain claims into U.S. courts. Who knows what it means?"

I think it has something to do with recovering damages from alien abductions which include anal probes. American citizens who are abducted can collect damage but foreign nationals have to sue in their own courts.

[Dan Schiavetta]

https://www.nytimes.com/1994/12/11/magazine/endpaper-what-humans-want.html

[Rev. Arthur L. Kirkland]

.

Who knows what it means?

Colleen Rafferty knows.