Today in Supreme Court History: May 8, 1884

5/8/1884: President Harry S. Truman's birthday. He would make four appointments to the Supreme Court: Chief Justice Vinson, and Justices Burton, Clark, and Minton.

Comments

[JesusHadBlondeHairBlueEyes]

I can't wait for today's post on Judge Cannon laying the smackdown on that no good cheater Jack Smith.

[Rev. Arthur L. Kirkland]

You might need to. We are getting close enough to departure day that Prof. Volokh might be unable to resist the temptation to focus on racial slurs today, just to flash one final middle finger at the UCLA law dean.

[Mr. Bumble]

You sound like someone whose pecker is always caught in his zipper.

[Rev. Arthur L. Kirkland]

Did someone testify under oath that Trump's pecker is too small to get caught in a zipper?

It's too bad the "family values" crowd is too dumb, insincere, and hypocritical to find fault with their god-sent hero, whose pillow talk involves telling the woman he's cheating with that he no longer sleeps with the mother of his child, at that time nursing an infant. (Although would anyone doubt that Melania's version of child care involved nannies, wet nurses, and a 'don't bother me unless the brat stops breathing' instruction?)

[JesusHadBlondeHairBlueEyes]

You sound like you grew up in a fatherless household.

lol

[Rev. Arthur L. Kirkland]

What inclines right-wingers to think and say (publicly) things like that? You figure my assessment of the dysfunctional Trumps indicates something negative about me?

[JesusHadBlondeHairBlueEyes]

Your obvious emotional problems point to being raised by a single female.

If you were black, it would be crime, but since you're white it manifests as mental illness.

[Rev. Arthur L. Kirkland]

.

If you were black, it would be crime, but since you’re white it manifests as mental illness.

Anybody need any more pointers on how a right-winger can blog his way off a legitimate law school faculty?

[TwelveInchPianist]

That's a terrible thing to say. Kirkland's made clear that his father did his very best to discipline him. To no avail, unfortunately.

[Rev. Arthur L. Kirkland]

My father died when I was young. It was one of the best things that every happened to me.

I imagine I would have disappointed severely him by becoming educated, skilled, financially secure, credentialed, sober, a BMW driver, and a resident of a strong community.

[Life of Brian]

a BMW driver

And with that rather thoughtless admission, the picture is now complete.

[Rev. Arthur L. Kirkland]

Where I grew up, the hayseeds called Japanese cars "rice burners" (and made them park in far-away lots at some factories) and keyed German cars because they hated both Germans and people with good incomes. I saw them make a teacher at my school cry when she purchased a Celica. In that town it was Chevrolet, Ford, and, for the swanky types, Buicks and Oldsmobiles. Of course, it was a town heavy on uneducated bigots and low-skill drunks.

Come to think of it, most of those losers probably didn't know what a BMW was. VW and Mercedes might have been the only German cars they had ever seen or heard of. My car might have cost more than any house in that town, although I am not certain with respect to that point.

[Life of Brian]

It's hard to fathom a response that would more effectively punctuate my point. Well done, Artie -- well done.

[Rev. Arthur L. Kirkland]

You should continue to associate with and revere the ignorant and bigoted conservative write-offs of can’t-keep-up America. It suits you.

Also, Artie was banned from this right-wing blog because he made fun of (or was it criticized?) conservatives a bit too deftly for the proprietor's taste. I am Arthur.

(Soon-to-be-former) Prof. Volokh is entitled to impose viewpoint-driven censorship at his blog. Bigot-hugging hypocrites and authoritarian clingers have rights, too.

[Krayt]

Is Trump the one you want...

https://youtu.be/rYzc_H9cgqM?t=183

[Frank Drackman]

Mister we could use a man like Harry Truman again. Didn't need no Welfare State, everybody pulled their weight, gee, our Chevy Impala ran like shit....arguably HST's picks were better than Ike's or Milhouses. Same with JFK.

Frank

[Syd Henderson]

We could use a man like Herbert Hoover again, just not as president. Though I would have voted for him not knowing what would happen a year later.

[Mr. Bumble]

Better yet Cool Cal.

[Bob from Ohio]

"arguably HST’s picks were better than Ike’s "

Ike picked 2 of the 5 worst justices in history so low bar.

But Harlan was better than all of Truman's picks.

[Kazinski]

You got to give Eisenhower some credit for at least realizing it:

"Eisenhower purportedly said, “I have made two mistakes, and they are both sitting on the Supreme Court.” Or that Warren’s nomination was “the biggest damn-fool mistake I ever made,” or that his biggest mistake was “the appointment of that dumb son-of-a-bitch Earl Warren.” Historians argue whether or not Eisenhower ever said any of the above. But the statements reflect how Eisenhower and many others felt. "
https://www.lawweekly.org/col/2018/10/17/ikes-mistake-the-accidental-creation-of-the-warren-court

[Dan Schiavetta]

United States v. Ju Toy, 198 U.S. 253 (decided May 8, 1905): person of Chinese descent contesting deportation not entitled to judicial trial (under Chinese Exclusion Act)

Anders v. California, 386 U.S. 738 (decided May 8, 1967): sets up a procedure (including what is now called an “Anders brief”) for a criminal defense attorney who wishes to withdraw from a case because he doesn’t believe there’s meritorious ground for appeal; purpose is to protect the rights of the defendant

Redrup v. New York, 386 U.S. 767 (decided May 8, 1967): First and Fourteenth Amendment precluded convictions for sale of dirty books, because no claim that they harmed juveniles, were “obtrusive” on the newsstand, or were “pandering” (i.e., “purveying of publications openly advertised to appeal to the customers’ erotic interest”). If anyone can tell me what this means in today’s terms, let me know!

Teamsters Union v. Hanke, 339 U.S. 470 (decided May 8, 1950): State could forbid union picketing of car dealership run by owner with no employees (the dealer’s main business was in after-hours sales and the union was trying to get him to restrict to union hours)

Mintz v. Baldwin, 289 U.S. 346 (decided May 8, 1933): a State, despite the interstate commerce clause, may require any cattle being transported into the state to be accompanied by a certificate showing free of disease; also not preempted by federal regulation

American Communications Ass’n v. Douds, 339 U.S. 382 (decided May 8, 1950): upholds statute requiring any union going to the NLRB to certify that their officers are not Communists and don’t advocate overthrowing government

[Dilan Esper]

The important aspect of Redrup is it started the practice of SCOTUS reading or viewing the obscene materials at issue. This is what led to Bob Woodward's stories about "movie nights" at the Court, with Justice Marshall describing the action to the more sight-impaired justices.

This ended when Miller and Paris Adult Theater were decided. Burger wasn't a big fan of obscenity, but he wanted a test that was speech protective because he thought the dignity of the Court suffered from doing Redrup reviews.

[SRG2]

I've mentioned this before, but I was reminded...when Cronenberg's film "Crash" came out in Britain, some individual councils considered banning it in their borough, as they had the right to. One of the councils was the Royal Borough of Kensington and Chelsea. But according to regulations, in order to ban it, the relevant committee had to view it, and some members were concerned that the committee chair a woman of fragile disposition, might not be able to handle ot...so they ended up not banning it. (Not one of Cronenberg's better films, IMO, but it did have Rosanna Arquette and Deborah Kara Unger.)

[Martinned2]

when Cronenberg’s film “Crash” came out in Britain, some individual councils considered banning it in their borough, as they had the right to.

They still do.

https://www.legislation.gov.uk/ukpga/2003/17/contents

(Subject, obviously, to the statutory limits on that power and the limits imposed by the Human Rights Act.)

[Dilan Esper]

It's a terrible film. I was encouraged to take a date to go see it by a friend with rather weird tastes. It was an awful date movie.

[Magister]

I'm trying to recall if there is a David Cronenberg film that would be a good date movie. (Other than one where the projector breaks down, you make out with your date in the back row for a while and then leave before they fix it. That would probably be OK.)

[SRG2]

It depends on the date, of course. Probably not a first date movie.

[Dan Schiavetta]

I had the same experience with “The Cook, the Thief, His Wife and her Lover”, another film which ran into obscenity prosecutions. It was impossible to sit through and we walked out. As one critic put it, “The film’s success is a ghastly joke. Critics, flashing their First Amendment credentials, declared it ‘art’ while the film seems to make the point that art films must be unbearable.”

[Michael P]

At my university, the film group would have Sunday movies that were always "to be announced" because they weren't allowed to advertise they they would show explicit or X-rated movies. "The Cook, The Thief, His Wife and Her Lover" was one of those movies, and it was appalling. The finale was particularly excessive.

[Dan Schiavetta]

In a Southern small town where I lived the local cinema showed “adult” movies on Sunday nights.

My idea was to sit in the front row and then turn around with our flash cameras (this was 1980) and the escape through the side door. No doubt we would have photographic evidence of some “pillars of society”. Their eyes would be blinded by the flash and we would be quite far away before they called in the police and for what exactly?

[Area Man]

I don't know about anyone else's jurisdiction, but in mine Anders has basically backfired because, if you're going to have to scour the entire record anyway, it's a lot easier to simply appeal some minor issue or sufficiency of the evidence, no matter how frivolous, rather than do an Anders brief on a lot of issues. Not to say no Anders briefs are filed, but most defense attorneys find it easier to just appeal minor (usually harmless) things.

[Dan Schiavetta]

Thanks. Interesting and I can see how what you say might become the CYA strategy for lawyers.

[Syd Henderson]

Ju Toy was born in the US and was an American citizen under the 14th Amendment. How on Earth could he deported even under the Chinese Exclusion Act? The dissent seems corrert:

“Justice Brewer with Justice Peckham dissented. Justice Day also dissented. The dissent argued that Ju Toy had been judicially determined to be a “free-born American citizen” and has been guilty of no crime since returning to one’s native land is not a crime for citizens.[8] Brewer contested that allowing a citizen, guilty of no crime, to be deported without a trial by jury, and without judicial examination, strips him of all his rights which are given to a citizen”

Another Holmes opinion. I think the law should have been struck down or at least limited to people who were not citizens under the 14th Amendment.

[Martinned2]

Easy:

The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate. If, for the purpose of argument, we assume that the 5th Amendment applies to him, and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial.

(Add that to the list of things that wouldn't normally be OK, but that somehow magically become OK if the government says the word "immigration".)

[Dilan Esper]

The entry fiction is still applied today in immigration law.

[SRG2]

Do we suppose that had Ju Toy committed a crime under US law, the courts would have ruled that the US lacked jurisdiction? Or would he have been subject to Schroedinger's Jurisdiction?

[Martinned2]

We can ask Shamima Begum.

The dissent has some things to say as well:

23. It will be borne in mind that the petitioner has been judicially determined to be a free-born American citizen, and the contention of the government, sustained by the judgment of this court, is that a citizen, guilty of no crime—for it is no crime for a citizen to come back to his native land—must, by the action of a ministerial officer, be punished by deportation and banishment, without trial by jury and without judicial examination.

24. Such a decision is, to my mind, appalling. By all the authorities the banishment of a citizen is punishment, and punishment of the severest kind.

[SRG2]

UK would be different from the US, though.

[SMP0328]

This is another case showing how Oliver Wendell Holmes was a disgusting individual who as a Justice did his best to destroy the very concept of individual rights.

If it hasn't already, SCOTUS should overrule United States v. Ju Toy at its first opportunity.

[Martinned2]

Sure, but then they might not be able to put US citizens on indefinite detention in GITMO. https://theintercept.com/2019/06/21/guantanamo-bay-indefinite-detention/

[Bob from Ohio]

The argument may come in handy next year.

[Dan Schiavetta]

Not a serious response.

[Syd Henderson]

It also seems to contradict "United States v. Wong Kim Ark"

[Dan Schiavetta]

Wong Kim Ark involved a child born in this country and was a straightforward construction of the 14A Citizenship Clause (at least it’s straightforward except to day’s Republicans). Ju Toy involved enforcement (nor not) of the Chinese Exclusion Act and the Scott Act. Supposedly. But you're correct -- Ju Toy was also born in the U.S.

[Mr. Bumble]

Has anyone been deported since the ChiComs took over?

[apedad]

On Teamsters, what's the difference between picketing and demonstrating?

And this case was decided on 14A issues and not 1A:

"The question is this: does the Fourteenth Amendment of the Constitution bar a State from use of the injunction to prohibit the picketing of a business conducted by the owner himself without employees in order to secure compliance by him with a demand to become a union shop?"

[Tempe Jeff]

If he agreed to allow them in, who would the Union represent?

[Bob from Ohio]

Georgia court of appeals authorized the appeal of the disqualification order in the Trump case.

Fani Wills or "not guilty" hardest hit?

[Kazinski]

I'd go with Lathrop.

[NvEric]

Again, for next year's post - one of the days where the criminal conspiracy against both a sitting president and a former president comes before the Supreme court which involves a large portion of the current regime of the illegal Joe Biden and his gang of misfits.

This bullshit should never have happened in the first place; there's no joy in having to discuss this disgusting period in our history, but it MUST take place nonetheless as a warning to future fringe fanatical foes of our Republic and our Citizens.

To continually go after Trump is reprehensible in the least and highlights the gross immaturity of those bent on his distress !

[Krayt]

Going after Trump using the legal system in innumerable initiatives, one after the other, for the better part of a decade now, because he is a political opponent, is reprehensible.

Trump is reprehensible, though, and should not be president, no matter how grand the shadenfreude when he punches the Democrats. We don't need him waving a checkered flag as Putin's tanks zoom up somewhere west of Poland.

[Mr. Bumble]

...and yet it was under Obama that Russia took Crimea and under Biden that they invaded Ukraine.

[Rev. Arthur L. Kirkland]

These are your fans, Volokh Conspirators . . . and the reason the smarter among you are wondering who will be the next Conspirator departing a mainstream campus.

[Bob from Ohio]

"Putin’s tanks zoom up somewhere west of Poland."

If he attacks Poland, it will be Polish tanks zooming to Moscow.

[Frank Drackman]

Might as well, there won’t be anything left of Warsaw

[SRG2]

Is it your position that Trump is guilty of no crimes?

[Mr. Bumble]

You mean as in show me the man and I'll show you the crime?

[SRG2]

Is there no point so stupid you're unwilling to make it?

[Frank Drackman]

Is being “Best POTUS of the 21st Century” a crime?

[Michael P]

Only to Democrats.

[mulched]

There's no "." after the "S" in Harry S Truman. "S" was his middle name not an initial.

[Magister]

Truman himself signed his name with a period.
https://www.trumanlibrary.gov/education/trivia/use-of-period-after-s-truman-name

[mulched]

And the Chicago Manual of Style. Good to know.

[ducksalad]

What's so hard about this?

If you want to write out his full middle name, it's "S"
If you want to just put the middle initial, it's "S."

[Dan Schiavetta]

Undignified though the Chicago Manual (and HST himself) might think it to be, the “S” should be without a period.

[Rev. Arthur L. Kirkland]

A Noble Prize for Achievement in Identifying Error in Today in Supreme Court History was awarded to Mark Galus with respect to May 8. As I recall, Profs. Barnett and Blackman corrected the error (former Justice Clark's name), without acknowledging the error or the correction, after two or three years.

[Dan Schiavetta]

My main experience has been with Clarke — namely Horace — as a Yankee fan during those dry years of 1966-1973 (a/k/a the thankless “Mel Stottlemyre years”.

[Rev. Arthur L. Kirkland]

I vaguely recall the baseball card. He looked studious, maybe consequent to glasses.