Today in Supreme Court History: December 1, 1897

12/1/1897: Justice Stephen Field resigns.

Justice Stephen Field

Comments

[Dan Schiavetta]

Moore v. Illinois, 55 U.S. 13 (decided December 1, 1852): upholding Illinois statute criminalizing hiding an out-of-state slave (not preempted by Const. art. IV, §2, which speaks only of delivery to owner upon demand)

McAfee v. Crofford, 54 U.S. 447 (decided December 1, 1851): recovery in trespass (invading property and carrying off slaves) includes consequential damages such as property lost due to not having slaves to watch over things (logs allowed to float away on river, invading cattle destroying corn crop) and also merits punitive damages

Clay v. Field, 138 U.S. 464 (decided December 1, 1891): complicated case involving the valuation of a plantation before, during, and after the Civil War, counting in the value added by being worked by slaves (pre-manumission) but not the value of the slaves themselves

[The Margrave of Azilia]

What is this, Slavery Day on the Supreme Court?

[Dan Schiavetta]

I try to find slave cases, but all three on the same day is a coincidence.

I was in law school in the pre-digital era (1989) and was surprised to find, in the recesses of the library, the Key Number topic "Slaves" in the older West digests. West didn't go into business until 1883, but they digested earlier cases. My girlfriend at the time was the great-granddaughter of slaves, and it was odd to think of her ancestors as the subjects of this area of the law, which seemed mostly a straightforward application of common law as to ownership and use of horses, except that Constitutional provisions were involved and sometimes the horses went to court to win their freedom.

[JoeFromtheBronx]

Moore v. Illinois raised the issue of dual sovereignty, an exception to the principle of double jeopardy.

The case followed earlier precedent on the point. Justice McLean, foreshadowing Gorsuch and Ginsburg in Gamble v. U.S. perhaps, dissented. He argued that the crime was already punished by federal law and that was a problem:

The exercise of such a power by the States would, in effect, be a violation of the Constitution of the United States, and the Constitution of the respective States. They all provide against a second punishment for the same act. It is no satisfactory answer to this, to say that the States and Federal Government constitute different sovereignties, and, consequently, may each punish offenders under its own laws.

[Dan Schiavetta]

thanks!

[jdgalt1]

Good on McLean, and I hope his view prevails someday.

[JoeFromtheBronx]

Field's niece (Anita Whitney) was a litigant in a significant free speech case decided by the Court in 1927.

By then, he was "pining for the fjords" for quite some time.

[JoeFromtheBronx]

On Dec. 1, 1955, Rosa Parks, a Black seamstress, was arrested after refusing to give up her seat to a white man on a Montgomery, Alabama, city bus; the incident sparked a yearlong boycott of the buses and helped fuel the U.S. civil rights movement.

A separate civil lawsuit, avoiding using a criminal case, led to bus segregation being struck down in Gayle v. Browder.

[The Margrave of Azilia]

Let's have consistent capitalization - either "black" and "white" or "Black" and "White."

[Dan Schiavetta]

Agree

[CJColucci]

Various publications have different rules on this point in their stylebooks. It's their call. Use whatever style you prefer in your own writing and leave the same right to others.

[JoeFromtheBronx]

Write a letter to the NY Daily News. Quoted it from there.

[The Margrave of Azilia]

If the NY Daily News jumped off a bridge, would you do it, too?

[JoeFromtheBronx]

Depends on the reason.

[The Margrave of Azilia]

What if it simply amused them to do it?

[JoeFromtheBronx]

If it was a short drop, a jump might be amusing to some people. On a hot day, it might be nice. But, "advocates of typographical discrimination" seems bad, so you know, maybe I wouldn't.

To be specific, they used an AP feature so maybe AP is the one doing the jumping. Or advocating.

[The Margrave of Azilia]

See below; the AP claims that people who use consistent capitalization could be promoting white supremacism.

They're saving the world from racism, one lowercase letter at a time.

[Malika]

Again, you misunderstand (to be charitable): the AP doesn't claim people who use "consistent capitalization" could be promoting white supremacism, they claim that white supremacists promote capitalization of White.

[The Margrave of Azilia]

Here's the actual quote:

"capitalizing the term white, as is done by white supremacists, risks subtly conveying legitimacy to such beliefs"

https://www.ap.org/the-definitive-source/announcements/why-we-will-lowercase-white/

Which part of that vile insinuation did I fail to understand?

How about: "Inconsistent capitalization, as is done by Communists, risks subtly conveying legitimacy to Communist tactics and double standards."

See how maybe you wouldn't like it if it was turned against you?

[Malika]

Lol, am I supposed to be a communist here? I guess if I were a member of a weirdo group I'd assume people who disagree with me were too!

So, your argument by analogy compares "capitalizing the term white" to ""Inconsistent capitalization." Specific vs. generalization fail.

[The Margrave of Azilia]

I don't actually believe in the AP's insinuation tactics, I'm simply showing these tactics can be used against you.

Talk about reading comprehension fails.

And I underestimated the comrades, even they aren't stupid enough to swallow your nonsense.

[Malika]

Again, so easily triggered! He's merely saying the quote he used came from the NY Daily News, not that he thinks it must be right and will always use it himself.

[The Margrave of Azilia]

That's fine and everything, but any confusion on this point could have been avoided by citing the source to begin with.

[Malika]

He pointed this out to you way back in your inquisition.

[The Margrave of Azilia]

Nobody expects the Woke Inquisition!

Wait, everybody *does* expect it.

[Malika]

That's cute. But you castigated him for his use of that historical quote from that source.

Would you like to apologize? I mean, you're the kind of guy who would usually criticize someone for failing to use the correct historical quote language, right?

[The Margrave of Azilia]

Gobbledegook and gaslighting in defense of woke bullshit.

Yeah, I'm sorry...that you're subtly using language employed by Communist enemies of the United States. (Applying your own guilt-by-association logic).

[Malika]

"Gobbledegook and gaslighting in defense of woke bullshit."

Lol, stomp your feet louder!

He used a quote from an old newspaper.

You got all upset over it. Like a snowflake. And now you're trying to act like that didn't happen. Lol.

[The Margrave of Azilia]

No, it seems your Marxist fellow-travellers capitalize White.

https://journals.sagepub.com/doi/full/10.1177/17577438211020769

You're out on a limb.

[The Margrave of Azilia]

Upset? I'm having *fun* shooting fish in your rancid woke barrel. Even the Marxists distance themselves from your foolishness.

[Malika the Maiz]

lol, ya goof, the point here is you’re (still) railing against this old newspaper quote. Go get them wokesters!

[The Margrave of Azilia]

I'm giving them the Wedgie of Justice. (notice the capitalization)

[Malika the Maiz]

According to Google AI here are arguments for capitalizing one but not the other:

Capitalizing "Black"
The American Psychological Association (APA) and the Associated Press (AP) capitalize "Black" because it refers to a racial and ethnic group with a shared history, identity, and community. The lowercase "black" refers to the color, not a person

The AP does not capitalize "white" because white people do not share the same history, culture, or experience of discrimination as Black people. The AP also notes that capitalizing "white" could be seen as subtly conveying legitimacy to white supremacist beliefs.

Other racial and ethnic groups that are capitalized include:
Native American, Hispanic, African American, Asian American, European American, First Nations

[Dan Schiavetta]

""Black" because it refers to a racial and ethnic group with a shared history, identity, and community"

This is not true.

A native of Zimbabwe (black) does not share the same history, identity or community as a Chicagoan (black) whose ancestors were in slave ships from Ivory Coast. Unless you're the kind of white person who thinks "they're all alike".

[Malika]

Well, nobody shares the *same* history as anyone else, the idea is probably akin to the concept of "Hispanics" applying to the very varied people who have in common a descent from cultures heavily impacted by the Iberian empires.

[Dan Schiavetta]

Hispanics are creations of the Spanish Empire, so they do have a shared tradition. Not so the 2 billion or so people on this planet with black skin, on various continents, speaking different languages, with different histories and traditions.

[Malika]

I think "Black" in this context is supposed to stand for what we often now refer to as "African-American." Do you object to the latter term?

[The Margrave of Azilia]

I should have known that advocates of typographical discrimination would have characterized their opponents as white supremacists.

Consistent capitalization is white supremacist, apparently, like punctuality and the work ethic. At least according to avowed anti-racists. And if that's what the *anti*-racists are like, I shudder to contemplate how bad the racists must be.

[Malika]

Wow, that triggered a nice pat anti-woke diatribe, but I think it's based on a faulty reading. The selection doesn't say the AP "have characterized their opponents as white supremacists." Rather, it says "the AP also notes that capitalizing "white" could be seen as subtly conveying legitimacy to white supremacist beliefs". This doesn't necessarily (or even naturally) mean that it's consistency in capitalization that is white supremacist by the AP but rather that white supremacists like to use a capitalized White (White Power! and such) so using the capitalization they (supremacists) like to use "could be seen as subtly conveying legitimacy to white supremacist beliefs".

[The Margrave of Azilia]

The AP threw out its white-supremacist insinuation against anyone who dared have the same capitalization for "Black" and "White."

The AP deserves mockery, not white-knighting from you.

This shows the funhouse-mirror universe in which the AP lives, where it's the people who practice nondicrimination who face insinuations of racism, while the actual practitioners of discrimination rub one out at the thought of their own righteousness.

[Malika]

So, you didn't understand the point of the comment you replied to or you, with no sense of irony, are just determined to charge the woke windmill in your oh-so-knightly fashion?

[The Margrave of Azilia]

How could *nondiscriminatory* practices on capitalization convey legitimacy to white supremacist beliefs? And why are you so hung up on their use of insinuation (could be seen, subtly) that you think it makes their accusation less false and offensive?

The AP (like you) is so used to crying "racism" that it descends into self-parody. Take your "White Power!" demagoguery and put it where the sun never shines.

[Malika]

The AP didn't mention "non-discriminatory practices on capitalization," they mentioned that capitalization of White was done by white supremacists. They are not claiming the general "non-discriminatory practices on capitalization" are common white/White supremacist, but rather that the use of capitalization of white/White are.

This is a nuance that doesn't warrant your diatribe. Is that why you cannot see it?

[The Margrave of Azilia]

From the AP's very first paragraph:

"AP style will continue to lowercase the term white in racial, ethnic and cultural senses. This decision follows our move last month to capitalize Black in such uses."

That was the context in which they mentioned (W)white supremacy and capitalization.

[Malika]

Uh, the "first paragraph" is the abstract. A summary.

So, please explain after knowing that your point.

[The Margrave of Azilia]

https://retronewser.com/2017/02/07/americas-first-public-gas-street-lamp-lighted-in-baltimore-200-years-ago-onthisday-otd-feb-7-1817/

[Malika]

Aw, you've got nothing!

[David Nieporent]

It's not a nuance; it's stupid. White supremacists also wear pants; that does not mean that wearing pants could be seen as subtly conveying legitimacy to white supremacist beliefs.

[Dr. Ed 2]

APA style manual says capitalize.

[F.D. Wolf]

Justice Field was appointed to the Court by President Lincoln and retired under President McKinley. He was the last sitting justice to have served with both Chief Justice Taney and Chief Justice Chase. He served on the Court for 34 years and 195 days, which, at the time of his retirement, was the longest tenure in Court history, surpassing Justice John Marshall's by 43 days. (He has since been surpassed by Justice William O. Douglas, who served for 36 years and 209 days between 1939 and 1975).

Field remained on the Court for several years after he was really no longer physically or mentally capable of performing all his duties (which included riding circuit on the West Coast). Several reasons, both personal and political, contributed to his hesitancy to step down. For one, his wife was very fond of the Washington, D.C. social scene and the status accorded a wife of a Supreme Court justice, and she encouraged her husband to remain on the Court. Field had discussed imminent retirement in the early 1880s, but quarreled with President Grover Cleveland who had been elected in 1884 and did not want Cleveland to name his replacement. When Cleveland was defeated for re-election in 1888, Field decided he did not much care for the new President Benjamin Harrison and did not want him to name to his replacement either. Then, of course, Cleveland was returned to office in the election of 1892. Also, at some time during this period, Field became intent on surpassing John Marshall's record tenure, which, as noted, he did.

President Harrison did appoint Field's nephew, David Brewer, to the Court in 1890, and they would serve together during Field's last eight years on the Court. When William McKinley was elected President in 1896, he appointed Joseph McKenna as his Attorney General, with the understanding that he would succeed Field on the Court. Field was privy to this arrangement, which was brokered largely by Brewer.

[JoeFromtheBronx]

Joseph McKenna also remained on the Court for several years after he was no longer capable of performing all his duties.

[Noscitur a sociis]

Field was from California, and was assigned to ride circuit there while a justice. He had previously replaced David Terry on the California Supreme Court when the latter had to resign after killing a sensor in a duel. In 1889, Terry tried to assassinate him while he was traveling in California, but was killed first by the U.S. marshal protecting Field. The marshal was arrested by state authorities, leading the habeas corpus case In re Nagle, 135 U.S. 1 (1890), a somewhat important supremacy clause decision.

[The Margrave of Azilia]

David Terry was a piece of work. He killed Senator David Broderick (D-CA) in a duel in 1859 (resigning from the state Supreme Court just before doing so). Broderick was an ally of Stephen Douglas, with a stiffer spine than Douglas (and unlike Douglas, with a few egalitarian-seeming inclinations). The ultra-slavers hated Broderick (I somewhat suspect Terry was egged on to duel Broderick so as to put Broderick out of the way).

Terry drew a favorable judge who wouldn't wait for the witnesses to arrive and contrived Terry's acquittal on the murder charge.

Back in private practice, Terry married a client and formed the view that Justice Field was being unjust to Terry's wife - the result is known to history and jurisprudence.

[David Nieporent]

Clarence Thomas is a little under a year from the top 5, but of course would need to stay on 3½ years to take the top slot. I imagine that depending on how the next few years seem to be going, there may be intense pressure on him to resign in time to be replaced before the 2028 election, which would be enough for him to get the record.