Today in Supreme Court History: July 27, 1929

7/27/1929: The Geneva Conventions are signed by United States. The Supreme Court would consider the Conventions in Hamdan v. Rumsfeld (2006).

The Roberts Court (2006)

 

Comments

[Dan Schiavetta]

Mahan v. Howell, 404 U.S. 1201 (decided July 27, 1971): in one of his last acts, Hugo Black refuses to stay District Court order changing reapportionment done by Virginia legislature so that there was lesser disparity in population (7.2% vs. 16.4%); because of time pressures, and because the issues were complicated and the lower court judges were unanimous, Black did not believe that cert would be granted (in fact it was, after Black and Harlan retired -- and quickly died -- and were replaced by Powell and Rehnquist, and the Court reversed, letting the legislature’s reapportionment stand, 410 U.S. 315, 1973)

[Dan Schiavetta]

P.S. Also Happy Birthday to my all-time favorite erotic fiction heroine. Who is yours?

[Frank Drackman]

Modesty Blaise of course (wanted to name second Daughter that, Mrs Drackman wouldn’t go for it, Ironic, because she ended up about as “modest” as Al Sharpton.

Frank “ what Dickless piece of shit keyed my Malibu?”

[The Margrave of Azilia]

Victoria Woodhull. From free-love journalist and activist to English banker's wife.

Oh, you said *fiction.* Well, I don't know any fiction which beats that.

[Dan Schiavetta]

Maybe a heroine in some ways, but a hindrance to the women’s movement and a gift to its adversaries. She would have done better service to it to keep her personal arrangements private.

[The Margrave of Azilia]

I was referring to the erotic aspect of going from free-love journalist and demi-mondienne to banker’s wife.

In her day she was a celebrity; today the conventional wisdom goes further and hails her as an actual role model (except her criticism of abortion of course). But the focus seems to be on the U. S. phase of her life, before she went to England, struck it rich, and became the respectable suffragist Victoria Woodhull Martin.

[JoeFromtheBronx]

Declaration of Independence:

as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do

Not “anything they want.”

==

I don’t know whose birthday is today but since this is a Supreme Court-related entry I’ll reference Mishkin v. N.Y. involving fetish-related books. (This is not meant to express a preference.)

Justice Brennan for a 6-3 Court upheld the convictions. Helpfully, an appendix lists 72 books, for those who wish to check things out. Among the titles are “Peggy’s Distress On Planet Venus” and “Fearful Ordeal In Restraintland.”

[RIP Bettie Page.]

Justice Douglas (of course) dissented & in his dissent (written for Ginzsburg v. U.S. but applied here too) he addressed the “social value” to such works. In part:

This group, like those embracing masochism, are anathema to the so-called stable majority. But why is freedom of the press and expression denied them? Are they to be barred from communicating in symbolisms important to them? When the Court today speaks of “social value,” does it mean a “value” to the majority? Why is not a minority “value” cognizable? The masochistic group is one; the deviant group is another. Is it not important that members of those groups communicate with each other? Why is communication by the “written word” forbidden?

“Erotic” fiction comes in all shapes and sizes. Not everything tells the tales of Moll Flanders. But, I find it a tad absurd when so-called obscenity is said to have no “value.” Whatever that means.

[Dan Schiavetta]

I've read Moll Flanders (not easy; it's all in one chapter with no breaks). It struck me as groundbreaking (I had to keep reminding myself that it was written in 1722!), a woman who made her way through the world through means "moral" and not. Though not "erotic fiction" except through insinuation as to the things she did. She's not the character I'm alluding to but she's certainly a heroine.

[JoeFromtheBronx]

Amazon lists it as "erotic fiction" so shrugs.

[Brett Bellmore]

This being a law blog, you'd think he'd have the sense to commemorate the date of ratification, which is the legally significant date. The signing had no legal significance at all.

Yes, I know the Vienna Convention on the Law of Treaties says otherwise. I also know that we never ratified it.

[JoeFromtheBronx]

“The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.”

https://2009-2017.state.gov/s/l/treaty/faqs/70139.htm

So, it would be helpful to know if this is something they accept as customary international law. At any rate, the date of signing would have legal significance generally for those nations that accept the convention.

Anyway, the 7/27 date is cited as the date of “adoption.”

https://ihl-databases.icrc.org/en/ihl-treaties/gc-pow-1929

It did have some “legal significance” including setting forth a process of acceptance by different nations.

These OTDs are not always great dates of legal significance anyhow. What legal significance was the death of Justice William Brennan?

[Brett Bellmore]

It would be a lot more accurate to say that the Executive branch considers the signed but not ratified Vienna Convention to be binding, because it is the executive branch that signs.

But the Senate, responsible for ratification, disagrees with that, officially taking the position that for purposes of US law, nothing short of ratification matters.

[JoeFromtheBronx]

The signing had legal significance.

So, we move on to something else.

The executive has been recognized as the voice of the nation in international affairs since the days of George Washington. It speaks for the "United States" in these matters.

Congress, including the Senate via its treaty power, also has powers to regulate international affairs. But, this doesn't erase the authority of the executive in that area.

The federal courts -- including Hamdan -- also have recognized the legal significance of customary international law.

Whatever "the Senate" now or in the past thinks, it can't handwave CIL as a general concept.

The quoted passage, to be clear, did not say that the "Vienna Convention" is binding by CIL. It is certain aspects are.

==

BTW, the "Today in Supreme Court History" -- including on a "legal blog" -- reasonably can have moments that do not as such have much legal significance.

[Drewski]

Yes, much like Blackman's focus on birthdays, nominations, and such. If he kept it up daily instead of on annual repeat, the occasional insignificant trivia would be fun. When a particular date is going to be "Scalia's birthday" forever, it makes me less curious about the Court's history and more curious about the man who thinks it's important.

But whatever. I'm really down here for capt's roundup.