Today in Supreme Court History: May 31, 1860

5/31/1860: Justice Peter Daniel's death.

Justice Peter Daniel

 

Comments

[Dan Schiavetta]

Maul v. United States, 274 U.S. 501 (decided May 31, 1927): vessel without proper registration properly seized by Coast Guard 34 miles offshore because statute restricting jurisdiction to 4 leagues (about 14 miles) applied only to searches, not seizures (does this mean the Coast Guard can seize a ship off the coast of Zanzibar as well as Connecticut?)

United States v. Louisiana, 363 U.S. 1 (decided May 31, 1960): United States sued the Gulf states under the Court’s original jurisdiction claiming ownership of (and oil rights to) offshore submerged lands. The opinion is one hell of a long and complicated treatise dealing with three miles v. three leagues offshore, boundaries of the states as specified when admitted to the Union, and the Submerged Lands Act of 1953. Also long are the dissents by Black and Douglas. The decision: Texas was allowed three leagues, the other states three miles; and the U.S. owned everything past that up to the edge of the continental shelf.

Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (decided May 31, 1977): union’s seniority system in allocating jobs did not violate Title VII in discriminating against blacks and Hispanics even though it had that effect (§703(h) of Title VII protects “bona fide seniority systems”)

Edwards v. United States, 286 U.S. 482 (decided May 31, 1932): signature of President on private bill was valid to make it law even though Congressional session had ended because it was still within ten days of presentation (art. I, §7); no one disputed this (no case or controversy?) but Court wanted to correct “views strongly held in the past”

Waters v. Churchill, 511 U.S. 661 (decided May 31, 1994): though Government can control speech of its employees far more than it can of its citizens (Connick v. Myers, 1983), issue of fact as to whether nurse at public hospital really did bad-mouth her boss (even if true, hard to see why this would be a firing offense)

Arthur Andersen LLP v. United States, 544 U.S. 696 (decided May 31, 2005): conviction for obstruction of justice (destroying Enron documents) overturned because jury not instructed (per language of applicable statute) that destruction must have corrupt intent, even though while following normal procedures as to purging old documents they were aware of being investigated

New Energy Co. v. Limbach, 486 U.S. 269 (decided May 31, 1988): Ohio sales tax on ethanol produced out of state regulated interstate commerce in violation of Dormant Commerce Clause despite exception for states offering reciprocity

Ashcroft v. al-Kidd, 563 U.S. 731 (decided May 31, 2011): While boarding a plane to Saudi Arabia, al-Kidd was detained per a “material witness” warrant (18 U.S.C. §1344) issued after judge was told his testimony was “crucial” in connection with a terrorism trial. He was held for 16 days, but never called to testify. Was this just a pretext for detaining and investigating him? The Court recognizes this new type of Bivens claim, but affirms dismissal because here there was “objectively reasonable” suspicion. (Suspicion of what? As Ginsburg points out in her limited concurrence, Scalia’s majority opinion refuses to say.)

Moore v. East Cleveland, 431 U.S. 494 (decided May 31, 1977): zoning ordinance limiting occupancy to immediate family (and not allowing, here, grandmother to live with grandchildren) was violation of Due Process as to liberty

McCray v. United States, 195 U.S. 27 (decided May 31, 1904): tax on margarine artificially colored to look like butter was not deprivation of property without due process (and even though Congress was being irrational because butter often was also artificially colored) (one could call this an offbeat application of Plessy)

[The Margrave of Azilia]

"(one could call this an offbeat application of Plessy)"

Oh, a comedian, eh?

[ReaderY]

Margarine of the day came out white when not artificially colored.

So I think the idea is that treating white and colored margine differently doesn’t violate the Due Process Clause.

Definitely an offbeat application.

[Noscitur a sociis]

material witness” warrant (18 U.S.C. §1344)

3144. 1344 is bank fraud.

[Dan Schiavetta]

Thanks. Will correct.

[The Margrave of Azilia]

Daniel supported the Dred Scott decision, so he was definitely a bad guy.

But I'll note that he suffered quite a tragedy when his wife burned to death after her clothes were accidentally set on fire by a candle. Damn.

[Dan Schiavetta]

Indeed.

For a horrible, tragic life, look up Franklin Pierce. Yes, he was a bad President, but I'm surprised he could even get out of bed in the morning.

[Mr. Bumble]

...and of course Theodore Roosevelt who lost both his wife and mother on the same day.

[Magister]

To lose one may be regarded as a misfortune; to lose both looks like carelessness.

(I think that's a line from a Jim Varney movie, so within the broader range of SCOTUS History movie commentary.)

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The Importance of Being Earnest.

To lose one parent, Mr Worthing, may be regarded as a misfortune; to lose both looks like carelessness.

[CJColucci]

I can't speak to the Jim Varney movie, but it was also in Oscar Wilde's The Importance of Being Earnest. (Since, traditionally, male actor have played Lady Bracknell, would it be considered a drag show?)

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

One second difference!

[Magister]

Well, I was thinking of The Importance of Being Ernest. KnowwhatImean, Vern?

[Bob from Ohio]

"surprised he could even get out of bed in the morning"

Pre-20th century, early deaths plagued even the upper classes.

Chief Justice Chase had 3 wives die in their 20s/early 30s, one after child birth [very common] and 2! from TB. Plus a couple of dead children.

[Dr. Ed 2]

Women burning to death was remarkedly common back then, usually set on fire cooking over an open hearth.

[SRG2]

There is this peculiar comment by Scalia in Al Kidd:

Ashcroft deserves neither label [of "plainly incompetent or those who knowingly violate the law"], not least because eight Court of Appeals judges agreed with his judgment in a case of first impression

IOW if some judges - not a majority - think QI applies owing to constitutional uncertainty, that proves the uncertainty, and hence QI applies. despite what the majority thinks. Logically, it is true that a disagreement proves uncertainty, but as a matter of jurisprudence this argument cannot stand.

[Dan Schiavetta]

Scalia is bowing to the opinions of Circuit Court judges. That is, to put it diplomatically, unusual.

[Rev. Arthur L. Kirkland]

Not when striving to find for a Republican against a guy named al-Kidd.

Scalia was reliably partisan and was bigoted to his core. No amount of whitewashing with Leo-directed dark money can change history's verdict concerning Antonin Scalia.

[Frank Drackman]

and yet he never left a young woman to asphyxiate (not drowned, there's a difference) like the even more partisan and equally bigoted former Tax-a-chusetts Senator Edward Moore Kennedy. Whenever I'm at Arlington I try and empty my piss bottle over his grave.

Frank "But Officer, it's Mountain Dew!!"

[bernard11]

Scalia never, to my knowledge, beat anyone to death with a baseball bat either. So what?

[Rev. Arthur L. Kirkland]

You helped bigot-talk Mr. Volokh off the UCLA campus, Drackman. Which Volokh Conspirator will you help expand employment and locational horizons next?

I sense a couple of candidates.

[Krayt]

How is a police officer or official (or local government lawyer for that matter) supposed to magically know the cosmic correctness of a small majority saying its clear, and not unwisely think like the large minority of judges who are confused?

[SRG2]

Apply that more broadly. Think of a criminal case in, say, NJ, where the defendant wins an appeal (e.g. based on lack of clarity of the law) 5-0, wins at the state supreme court 7-0 and then loses 5-4 at the Supreme Court - where 5 justices say the law is clear. Should he not be acquitted?

There are other related hypotheticals.

Or do you just want to restrict this general argument to cases of QI?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL and don't appreciate those split decisions. There's something deeply immoral about expecting ordinary people to know the law at all times, require juries to be unanimous, and then allow appeals courts to dither for a year to come up with a split decision, which further appeals dithering further with more split decisions, reversing and reversing, sending matters back down and up again ... and 10 years later, the guy has been out of prison already when the final decision clears him.

[Commenter_XY]

BTW, who was the prosecutor for the Arthur Andersen case?

Thousands of people lost their jobs; wrongly, as it turns out.

[apedad]

The issue was with the judge's instructions, not the prosecutor.

Chief Justice Rehnquist delivered the opinion of the Court.

As Enron Corporation’s financial difficulties became public in 2001, petitioner Arthur Andersen LLP, Enron’s auditor, instructed its employees to destroy documents pursuant to its document retention policy. A jury found that this action made petitioner guilty of violating 18 U.S.C. § 1512(b)(2)(A) and (B). These sections make it a crime to “knowingly us[e] intimidation or physical force, threate[n], or corruptly persuad[e] another person … with intent to … cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.”1 The Court of Appeals for the Fifth Circuit affirmed. We hold that the jury instructions failed to convey properly the elements of a “corrup[t] persuas[ion]” conviction under §1512(b), and therefore reverse.

[Bob from Ohio]

The prosecutor has no input in the jury instructions of course.

[Commenter_XY]

And....who was that prosecutor?

[Bob from Ohio]

Jack Smith

[Noscitur a sociis]

What

[bernard11]

Does the defense attorney?

[bernard11]

First of all, the conviction did not make Andersen’s clients disappear off the earth. Probably some reasonable number of Andersen employees found work with competitors. Indeed, per Wiki,

[Andersen] had already started winding down its American operations after the indictment, and many of its accountants joined other firms. The firm sold the majority of its American operations to other accounting firms such as KPMG, Ernst & Young, Deloitte & Touche and Grant Thornton International. At this time, Arthur Andersen had lost most of its business and two-thirds of its 28,000 employees.

Note: after the indictment, not the trial. So maybe your implied criticism of Smith for throwing thousands out of work unfairly could be toned down a bit.

Second, a company can be put out of business by a valid conviction as well, and there will also be some job losses among innocent employees. Should companies be immune?

[apedad]

In Moore v. East Cleveland (5 - 4), from the decision:

In today's (1977) America, the "nuclear family" is the pattern so often found in much of white suburbia. J. Vander Zanden, Sociology: A Systematic Approach 322 (3d ed.1975). The Constitution cannot be interpreted, however, to tolerate the imposition by government upon the rest of us of white suburbia's preference in patterns of family living. The "extended family" that provided generations of early Americans with social services and economic and emotional support in times of hardship, and was the beachhead for successive waves of immigrants who populated our cities, remains not merely still a pervasive living pattern, but, under the goad of brutal economic necessity, a prominent pattern -- virtually a means of survival -- for large numbers of the poor and deprived minorities of our society. For them, compelled pooling of scant resources requires compelled sharing of a household.

So don't impose the white privilege on others.

Got it.

[Dr. Ed 2]

What would this do to college town ordinances prohibiting more than four "unrelated" persons from residing in the same unit?

[apedad]

Not sure but we might find out soon since College Station, TX, just passed an ordinance banning that very thing (prohibiting more than four unrelated people from renting a single-family unit together).

https://www.timesunion.com/news/article/push-to-enforce-occupancy-rule-in-college-station-19468187.php

[Dr. Ed 2]

The Mass SJC upheld it:
http://masscases.com/cases/sjc/465/465mass134.html

[JoeFromtheBronx]

Village of Belle Terre v. Boraas upheld such an ordinance.

Moore v. City of East Cleveland cited cases involving family and child-rearing to differentiate to two. Justice Marshall dissented in the first case (Brennan on procedural grounds), seeing a connection.

The quote above is from Brennan's concurrence, not the Moore plurality. Stevens concurred as the fifth vote on a form of property rights argument.

[Rev. Arthur L. Kirkland]

Nothing the Volokh Conspirators find interesting or noteworthy in today's legal world?

The list of subjects this blog's right-wing operators will not discuss:

1) the everyday stream of bigotry precipitated and published by this blog

2) anything that would upset Leonard Leo, Donald Trump, the Alitos, the Thomases, the Federalist Society, or a politically active conservative billionaire

Please add any subject I missed.

What a pack of paltry, partisan cowards.

[apedad]

How about....

A disciplinary board in Washington on Friday recommended that Rudy Giuliani, a former lawyer and ally to Donald Trump, should be disbarred for frivolously arguing the 2020 presidential election was stolen.

The Board on Professional Responsibility concluded that Giuliani, the former New York City mayor, made unsupported claims as he unsuccessfully argued that election officials in Pennsylvania had failed to protect against voter fraud.

“He urged a federal judge to disenfranchise hundreds of thousands of Pennsylvania voters even though he had no objectively reliable evidence that any such scheme existed, or even that any illegal mail-in ballots had been counted,” wrote the board, which acts as the disciplinary arm of the DC Court of Appeals.

“We conclude that disbarment is the only sanction that will protect the public, the courts, and the integrity of the legal profession, and deter other lawyers from launching similarly baseless claims in the pursuit of such wide-ranging yet completely unjustified relief,” the panel wrote.

This is the second-to-last step toward Giuliani’s official disbarment in Washington. The case now goes to the DC Court of Appeals for a final ruling.

https://news.bloomberglaw.com/bankruptcy-law/rudy-giuliani-should-lose-dc-law-license-legal-panel-recommends

[Bob from Ohio]

Unexpected!

Enjoy this, the worm will turn sooner or later.

[apedad]

The worm hasn't "turned" in 250+ years (although it has peeked its head out many times).

But the century-long trends are undeniable.

And what are you guys going to do once Trump leaves the scene (either in five months or 53 months)?

How ever long it is, it's still just the worm peeking his head out.

[Bob from Ohio]

What are you babbling about?

The worm is use of legal institutions to punish political opponents.

Your side is doing it but eventually my side will wise up.

"And what are you guys going to do once Trump leaves the scene"

Marius failed but Caesar did not.

[Rev. Arthur L. Kirkland]

Your side consists of half-educated, bigoted, superstition-addled, worthless, can't-keep-up yokels. It is silly to expect those right-wing write-offs to wise up.

[Rev. Arthur L. Kirkland]

There is no worm to be turned, you bigoted hick.

Tom Barrack was acquitted by a New York jury.

Hunter Biden is being prosecuted.

Right-wing hero George Zimmerman was acquitted.

Sen. Menendez is being prosecuted.

Right-wing asshole Kyle Rittenhouse was acquitted.

Rep. Cuellar is being prosecuted.

Trump is not above the law. That is the American way. And the culture war has been settled; you lose. The right's bigoted, superstitious half-wits should be accustomed to this by now.

By all means, though, keep praying for a return to old-timey Republican values (racism, gay-bashing, superstition, ignorance, backwater failure, misogyny, antisemitism, hatred of immigrants, Islamophobia, nonsense-based education, etc.)

[bernard11]

Do you have a defense of Giuliani, or are you just looking for revenge because he's a fellow cultist, who should never be held accountable for anything?

[Rev. Arthur L. Kirkland]

Does anyone know the screen name that bigoted asshole Jane Walker of Virginia Beach uses at the Volokh Conspiracy?

I sense she is a huge fan of Mr. Volokh's work.

Until replacement. Which can't occur too soon. 84 years of bigotry seems more than enough. Bye Bye, Jane!

[Frank Drackman]

I've heard it's Mrs. Jerry Sandusky. Now you're handing out death sentences? I bet yesterday would have given you a great hard on if you were still able to have them.

Frank

[Rev. Arthur L. Kirkland]

The natural course will take that worthless culture war casualty out, in two ways.

First, she will expire in the natural course. Second, American progress and the natural order will arrange her replacement, making our electorate and population younger, less bigoted, more diverse, less conservative, and better.

I guess you could say that her stale, ugly, right-wing thinking has been sentenced to death by the modern American marketplace of ideas.

Replacement -- the American way!

[The Margrave of Azilia]

"younger, less bigoted, more diverse, less conservative, and better"

You used to say "less white" and "less rural"; what happened? Why did you drop those talking points?