Today in Supreme Court History: July 12, 1909

7/12/1909: 16th Amendment is submitted to the states.

Comments

[Dan Schiavetta]

New York Times Co. v. Jascalevich, 439 U.S. 1304 (decided July 12, 1978): Marshall denies stay pending certiorari application as to New Jersey subpoena requiring reporter Myron Ferber to hand over documents in murder trial; stay inappropriate while trial was in progress and in camera review pending; Marshall points out if reporter refused to comply he could raise his arguments again in resulting contempt proceeding. The day before, White had denied a stay as to subpoena to testify as witness. The stay was vacated by the Court on October 6, 1978, for unknown reasons, perhaps mootness. No record as to whether cert petition was ever filed. (This was the trial of Mario E. Jascalevich, the “Dr. X” in articles by Ferber which noted patients dying after simple operations and which attracted the attention of prosecutors. Ferber decided to disobey the subpoenas and spent 40 days in jail and the Times was fined $286,000. Jascalevich was acquitted and moved his practice to Argentina. In 1982 Governor Byrne pardoned Ferber and ordered part of the fines returned.)

[apedad]

(From Justice White’s opening statement)

“I have before me an application for stay of an order of the Supreme Court of New Jersey of July 6, 1978, which refused to stay and denied leave to appeal from an order of a state trial court refusing to quash a subpoena issued in the course of an ongoing criminal trial for murder.”

IANAL so it always takes me a few moments to deconstruct the actual chain of events of extended appellate proceedings.

So...

1. There’s a murder trial.
2. There’s a subpoena issued during the trial.
3. There’s a request to squash the subpoena.
4. The trial court denied the request to squash the subpoena.
5. There was an appeal to overturn the denial of the request to squash the subpoena (not sure if that appeal went straight to the NJ SC or if there was an appellate court in between).
6. The NJ SC denied the appeal and also refused to stay the trial court’s decision to deny the request to squash the subpoena.
7. There’s an application to the Supreme Court to stay the order of the NJ SC.
8. Justice White denies the application.

Is that correct?

[Dan Schiavetta]

I think that’s it.

When getting up through several levels of appeal you sometimes lose track. In law school I was in “moot court”, where you pretend to be arguing in front of an appellate tribunal (upperclassmen act as the “judges” and get to interrupt you) with a 5-minute limit. During the “finals” competition I forgot what side I was on and for the last minute I argued the other side. I wondered why the judges suddenly looked surprised and stopped interrupting.

We were supposed to be arguing in front of the United States Supreme Court, and we were arguing to reverse the affirmance of a reversal of an affirmance of . . .

[Drewski]

Yes, but for reference subpoenas are "quashed," not "squashed."

[Dan Schiavetta]

A fitting term, because it sounds like "squashed", i.e., like stepping on a bug.

[Krayt]

I hadda look it up to see if it was related to squash.

Yes! Wait, no! Squash comes from some French word ex + quash, but…

But it’s more complicated than that. Both “quashes” have different origins.

The legal one ultimately comes from Latin “to void”, and the other from Middle English to smash, ultimately from Latin to shake.

And FYI, squash the vegetable, comes from a Rhode Island tribe word, and has nothing to do with looking gross when squashed.

[Dan Schiavetta]

This is an example of what biologists call "convergent evolution".

[Drewski]

Thanks - I'd planned to look that up myself before I got distracted by something shiny.

[apedad]

HA! Thanks.

Now I can't wait for Thanksgiving.

[JoeFromtheBronx]

Marshall personally supported a stay but stated that the rules for a stay were not met in his role as circuit justice.

When the full court vacated the stay, he dissented. Ten days before the full court vacated, Justice Stewart granted a stay, perhaps realizing the full court would lift it in a few days.

https://www.law.cornell.edu/supremecourt/text/439/886

[Dan Schiavetta]

Thanks

[TextFirst]

"7/12/1909: 16th Amendment is submitted to the states."

Don't worry, it's a small tax that only the rich will pay! Go ahead and pass it. Honest, it's fine.

[SMP0328]

The 16th – 19th Amendments were adopted during the Progressive Era, a time in which the People and the States had almost complete trust in the benevolence and intelligence of the federal government. Neither has ever been that naïve again.

[Krayt]

There's an old movie where a rich guy ponders to a politician about why, ethically, he should pay the brand new income tax, then 1%.

Why should I (pay my money to you so you can hand it to people in exchange for votes?)

Politician apologist: Because (we're all in this together and ethical and bs atop bs.)

Rich guy has a warm fuzzy just like the writers wrote.

[JoeFromtheBronx]

Rich guys like the government and the laws they pass when it benefits them. Taxes pay for the government.

I wonder how the rich guy made their money. Many 19th Century rich guys made their money directly from government contracts or from things such as western development where the government played a significant role.

[Mr. Bumble]

"Neither has ever been that naïve again."
Not so sure about that, after all Biden supposedly got 81 million votes in 2020.

[JoeFromtheBronx]

The Supreme Court after the Pollock opinion (5-4) that struck down a certain type of income tax limited its possible reach.

Multiple types of taxes that were “incidents of ownership were upheld against challenge. Some thought the Supreme Court would go all the way and overrule Pollock.

(Brushaber v. Union Pac. R.R., written after the 16A was ratified provided a narrow reading of Pollock, noting many income taxes are indirect, even under the terms of the opinion. As an aside, Brushaber is a trudge to read.)

Conservatives, perhaps partially thinking it would not pass, said an amendment was the appropriate way to clarify the question. The amendment in effect made it more clear — though many thought income taxes were allowed already — Congress had a broad power to tax using income taxes.

Some continue to try to parse the 16A to narrow its reach though I think Justice Jackson was correct in the Moore case to find this misguided.

[apedad]

O/T

‘I just figured I would go to the bank’: Woman makes bizarre admission about taking ‘propped up’ body of dead man to withdraw his cash at bank drive-thru

Two women in Ohio will serve jail time for their ill-fated scheme to prop up the corpse of an 80-year-old man in the passenger seat of his car so they could withdraw hundreds of dollars in cash from his bank account in a drive-thru ATM.

Ashtabula Police Chief Robert Stell reportedly said that the women “propped up” Layman in the passenger seat of his car to ensure the bank tellers saw that he was with them — something Stell said the bank had previously allowed.

Layman’s body was positioned in the passenger seat so the bank teller could see him, allowing for the withdrawal to take place, police said.

After the bank run, the women went to the Ashtabula County Medical Center, where they left Layman’s body and drove off without providing information about the man or themselves to hospital staff, who called the police.

https://lawandcrime.com/crime/i-just-figured-i-would-go-to-the-bank-woman-makes-bizarre-admission-about-taking-propped-up-body-of-dead-man-to-withdraw-his-cash-at-bank-drive-thru/

Enjoy your weekend!

[Dan Schiavetta]

Thanks. The most inspiring story since "El Cid".

[Krayt]

"Propped up...Layman."

Come on, nobody's gonna believe that!

[Mr. Bumble]

Sounds like something Dr. Jill and Hunter might try.

[David Nieporent]

In the bipartisan spirit Mr. Bumble no doubt intended: that's crazy; Trump's the one who cheats banks.

[ducksalad]

Since the bank had been allowing them to withdraw just based on the guy’s presence, it seems there was a lengthy period in which he was alive but more or less totally incapacitated.

Which brings up the question – is there a whole lot of moral and ethical difference between using the not-quite-dead vegetable and the fully-dead corpse to withdraw the money?