Today in Supreme Court History: April 25, 1938

4/25/1938: United States v. Carolene Products decided.

Comments

[Dan Schiavetta]

United States v. Carolene Products Co., 304 U.S. 144 (decided April 25, 1938): Congress’s Commerce Clause power extends to public safety concerns; upholding statute prohibiting interstate sale of filled milk (sounds gross from the description, but the statute was later repealed and you can still buy it in the supermarket) but the decision is famous for its (unnecessary) footnote 4, where the “presumption of Constitutionality” as to federal statutes is questioned as to laws involving religion or racial minorities -- the beginning of the “strict scrutiny” idea

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (decided April 25, 1938): All lawyers know this one, where the Court finally abandons Swift v. Tyson, 1842, and holds that on a state law claim a federal court must apply the law of the state in which it sits, and not on any federal common law (though there is such a thing as to federal-based law). Younger, I., “What Happened in Erie“, 56 Texas L. Rev. 1011-31 (1978), which we were referred to in Civ Pro class, extols the “genius” of the attorney who argued the winning side. But it was clear that Swift was becoming unworkable (see discussion in Gilmore, “The Death of Contract”, 1974, p. 97), and the product of this “genius” was that poor Harry Tompkins, who was injured due to the railroad’s admitted negligence (state law required “gross negligence”), went through life minus his right arm and, being uneducated, was barely employable. See “The Ballad of Harry James Tompkins”, 52 Akron L. Rev. 531 (2019) (it’s online), which treats his plight with smirking levity but does contain a 1960 photo of the smiling one-armed Tompkins with his wife.

Northern Ins. Co. v. Chatham County, Ga., 547 U.S. 189 (decided April 25, 2006): county was not acting as an “arm of the State” (no, I’m not making a joke about Tompkins) and therefore does not enjoy Eleventh Amendment immunity from suit for injury due to drawbridge it built

Palmore v. Sidoti, 466 U.S. 429 (decided April 25, 1984): the harm of racial bias (a.k.a. the concerns of the Spencer Tracy character in “Guess Who’s Coming to Dinner?”) is not a basis for depriving (white) mother of custody of child after she married a black man

National Society of Professional Engineers v. United States, 435 U.S. 679 (decided April 25, 1978): striking down on antitrust grounds canon of ethics issued by professional association prohibiting competitive bidding; overrides association’s First Amendment Free Speech rights

Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723 (decided April 25, 1977): order remanding diversity action to state court can’t be appealed (there are some exceptions, not noted by the Court but noted by me in my stupefyingly dull CLE on federal court jurisdiction)

Carson v. Dunham, 121 U.S. 421 (decided April 25, 1887): another removal case (a foreclosure action), this one pointing out that the removing party has the burden to show grounds for removal, i.e., he must establish that plaintiff is not from the same state

Huron Portland Cement Co. v. City of Detroit, Mich., 362 U.S. 440 (decided April 25, 1960): Dormant Commerce Clause did not prohibit Detroit smoke abatement ordinance as applied to docked ships (belching steam boiler smoke) even though they are engaged in interstate commerce

California v. Zook, 336 U.S. 725 (decided April 25, 1949): state statute prohibiting unlicensed transport of passengers (these were customers of a travel agency) not preempted by ICC regime (which exempted “casual, occasional, or reciprocal” transportation)

Duignan v. United States, 274 U.S. 195 (decided April 25, 1927): right to jury trial is waived if not demanded (tenant was claiming unconstitutionality of claim for repossession due to Prohibition-era liquor nuisance)

[David Nieporent]

Huh. I didn't realize until now that both Erie and Carolene were the same day. Now that's a really big day. Wonder how obvious it was at the time.

[Dan Schiavetta]

My guess is: Erie made the bigger splash, with Carolene seen as just another post-switch Commerce Clause case, with footnote 4 only becoming important later.

[apedad]

From the Palmore (unanimous) decision that the decisions of the lower courts was an unconstitutional denial of rights under the Fourteenth Amendment.

"It would ignore reality to suggest that racial and ethnic prejudices do not exist, or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.

The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."

It's good to see when a court recognizes its limits.

[Dan Schiavetta]

Thanks. Much to say here, not only about this situation but about transracial adoption, and the reality of the harmful effects of growing up being subjected to racist attitudes, but as you point out it’s not something for the courts to weigh in on.