Today in Supreme Court History: December 6, 1865

12/6/1865: The 13th Amendment is ratified.

Comments

[Dan Schiavetta]

Palko v. Connecticut, 302 U.S. 319 (decided December 6, 1937): Fifth Amendment’s prohibition of double jeopardy did not apply to the states (upholding Connecticut statute allowing prosecution to appeal a lesser-charge conviction so as to get retrial on more serious charge) (overruled by Benton v. Maryland, 1969)

Salman v. United States, 580 U.S. 39 (decided December 6, 2016): in prosecution under §10-b of Securities Exchange Act of 1934, jury could infer that source of information (here, as to potential mergers/acquisitions) received a personal benefit from the tip (this is necessary for conviction under §10-b) because he was brother-in-law of defendant (who made about $1.5 million trading on the information) even though source did not make any $ himself

Reich v. Collins, 513 U.S. 106 (decided December 6, 1994): Georgia Supreme Court can’t retroactively construe its statute allowing refund of illegally collected taxes so as to avoid refunding a tax on federal retirement benefits which had been declared unconstitutional (by Davis v. Michigan Dept. of Treasury, 1989)

[Commenter_XY]

Dan, maybe you know this. I read recently that SCOTUS has overturned roughly 230 of it's own decisions in it's history.

Has the rate of SCOTUS overturning it's own past decisions increased, or decreased under CJ Roberts?

Is that even tracked?

[Dan Schiavetta]

I'm flattered you ask me this, but I don't know.

My impression, from doing these summaries, is that things were pretty stable until the New Deal era, when there was a wave of overrulings. Another wave in the Warren Court era, a series of restrictions on the Warren Court rulings in the Rehnquist era, and some very drastic overrulings recently. But those are only on important cases.

It would be interesting to see if overrulings on unimportant cases more or less follow the trend on important ones.

[Commenter_XY]

I am thinking about that metric as a way to evaluate Chief Justices and their tenures. Does a higher rate of over-ruling past SCOTUS decisions make a CJ and activist? Institutionalist?

When I saw your Palko v CT reference, that is what got me thinking about it.

[Dan Schiavetta]

Good point.

Roberts, obviously, is an institutionalist, though that's hard to do with an increasingly right-leaning, activist team. So was Rehnquist, though in his case the Court was heading the way he wanted it to go. Burger was not up to the job. Warren gave his left-wing judges more or less free rein.

That's my view, but it is necessarily a remote one. To quote the blurb on the back of my book, "Dan Schiavetta has never appeared before the Supreme Court. He tried to visit once, but was thrown back by some kind of force field when he got within 500 feet."

[F.D. Wolf]

I think your view is spot on. I recall a piece many years ago by Linda Greenhouse (former Supreme Court correspondent for the New York Times, and certainly no conservative) that due to his many years serving under Chief Justice Burger, William Rehnquist had received an excellent tutelage in how not to be a Chief and had learned the lessons well.

[JoeFromtheBronx]

I visited once. The force field must have been turned off.

[JasonT20]

Am I correct to think that you mean "hot-button" or "divisive issues" when you say "important cases"? Or, perhaps "important cases" are ones that will have broad implications for a lot of other case law?

[JoeFromtheBronx]

"The Supreme Court’s Mixed Record on Adhering to Precedent" by Adam Liptak discussed this issue.

https://www.nytimes.com/2024/01/29/us/supreme-court-precedent-chevron.html

Various factors are factored in. For instance, past courts tried many more cases, so they had more opportunities. Also, not all precedents are created equal. The overall conclusion is the Roberts Court does not stand out except to the degree they are acting in a more conservative direction.

The famously liberal court led by Chief Justice Earl Warren from 1953 to 1969 overruled an average of 3.1 precedents per term. The number ticked up slightly as the court moved to the right under Chief Justice Warren E. Burger, who led the court from 1969 to 1986, to 3.4 precedents per term. It dropped under Chief Justice William H. Rehnquist, who led the court from 1986 to 2005, to 2.4 precedents per term.

Through the end of the term that ended in June, the Roberts court has overruled precedents at the lowest rate, at 1.6 per term. But it has picked up the pace since the arrival in 2017 of the first of three justices appointed by President Donald J. Trump. Since then, the rate has been 2.2 precedents per term, still the lowest of the four courts.

As to important("salient") cases:

By that measure, the Warren court’s overrulings were especially salient, warranting front-page coverage 61 percent of the time. The corresponding number for the Burger court was just 28 percent. Front-page coverage of overrulings by the Rehnquist and Roberts courts were nearly identical, at 42 and 41 percent.

There was an uptick in recent terms, including regarding big cases such as Roe, Chevron, Lemon (religion), etc.:

nearly a majority of the overrulings occurred in the last six terms, and most came in high-salience cases.”

Overall comment: the law does develop over time and dissenters are upset at change. The debate then comes on the strength of the arguments. Also, repeatedly, overturning precedents arrives in a somewhat slipshod fashion. Which again (often correctly) is flagged as problematic.

[F.D. Wolf]

This table lists 236 Supreme Court cases in chronological order since 1810 as overruling previous cases, 21 decided by the Roberts Court.

https://constitution.congress.gov/resources/decisions-overruled/

[Commenter_XY]

Yeah, I might have stumbled across a table similar to that, prompting my original question.

Is it a fair metric?

[David Nieporent]

It's a legitimate thing to look at, but I think it's both overbroad and underbroad as a metric. It failures to capture many relevant decisions and it includes things that don't really reflect whatever it is you're trying to measure.

[JoeFromtheBronx]

Slavery had basically been abolished in the states by the time of the ratification of the Thirteenth Amendment except in Kentucky. A small number of slaves also were present in Delaware.

Still. As portrayed in the film Lincoln, the passage of the 13A in Congress was a hard fight. The second section is notable. Congress was given the power to enforce the amendment.

There was a split on the nature of freedom. Some "radicals" thought freedom brought a wide breadth of rights, which Congress could enforce. Others disagreed. The Fourteenth Amendment was in part ratified to protect rights some thought the 13A itself protected, including the right to become a citizen.

"Slavery" had traditionally been a word tossed around by white people concerned about their rights being violated. In this sense, the 13A has a possibly revolutionary potential.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115222

The 13A has been used by different groups to promote various causes including opposition to the draft, labor rights, and reproductive liberty. Some also argue it has relevance in the area of domestic violence. Each group has a case.

See, e.g., Andrew Koppelman's article defending abortion rights on 13A grounds. If we think of the 13A as concerned with those acts arising from the evils of slavery, forced breeding and robbing women of their freedom over reproduction fits in.

https://thehill.com/opinion/judiciary/591973-abortion-and-the-13th-amendment/

[ReaderY]

The 13th Amendment didn’t establish that black people had a broad set of rights. It established the much more limited proposition that slavery is an immoral practice. It was a kind of constitutionalized morals legislation, somewhat analogous to the 18th Amendment.

The 14th and 15th Amendments, which came later, addressed the questions of personal rights, citizenship status, and political participation.

[JoeFromtheBronx]

What the 13A "established" was highly debated when it was established. A more moderate Republican such as John Bingham (a "father" of the 14A) thought it gave Congress less power than others. The debate over its reach continues to this day.

For instance, the Civil Rights Act of 1866 declared:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

Senator Trumbull, introducing the law later passed over President Johnson's veto, declared: “abstract truths and principles” of the Thirteenth Amendment meant nothing “unless the persons who are to be affected . . . have some means of availing themselves of their benefits.”

The end of slavery even if interpreted narrowly involves "personal rights." As noted in the Civil Rights Cases, the Thirteenth Amendment involved the "obliteration and prevention of slavery, with all its badges and incidents," even from private action.

The Supreme Court noted the breadth of the enforcement power in Jones v. Alfred H. Mayer (1968). In Jones, the Supreme Court held that Congress had the authority to enact a provision in the Civil Rights Act of 1866 that barred private racial discrimination in the sale or rental of property.

[ReaderY]

Also, the 13th Amendment could easily be used by people on the pro-life side. After all, it explicitly refers to parties, not persons. You don’t have to be a person in the full sense of the word to be covered by it. Indeed, between the 13th and 14th Amendments, one could argue that black people had a status roughly similar to fetuses after Dobbs. So under this argument the 13th Amendment covers fetuses, as “parties,” despite the 14th Amendment not covering them, as not “persons.”

So how does this apply to abortion? One could argue that being the subject of a medical experiment not intended for ones benefit is a kind of slavery. Under this view, the 13th Amendment does not prohibit abortion. Killing is something distinct from enslaving, and the 13th Amendment does not imply a right to life. However, under this view, it does prohibit the kinds of medical experiments that led to the approval of drugs like mifepristone. Being made the subject of a medical experiment not intended for ones benefit is a kind of forced labor and hence a kind of slavery. This would mean the FDA would not have power to approve abortifacients, as the kinds of medical experiments on fetuses required for FDA approval of abortifacients would be prohibited by the 13th Amendment.

[JoeFromtheBronx]

The Eighth Amendment doesn't say "person" either so perhaps it has application to the punishments of animals.

The word "party" in the 13A is used in the context of an exception: "except as a punishment for crime whereof the party shall have been duly convicted."

Anyways, yes, the 13A like some other provisions bans something without explicitly saying it only is banned for "persons."

Your analysis is doing a lot of heavy lifting with the various possible anti-abortion arguments out there. I think the Koppelman-esque argument for reproductive rights is easier to make.

Surely, as I noted, the 13A has various possible uses like other amendments do, including sometimes from competing groups.

[ReaderY]

Far from being the counter-example you took it to be, the 8th Amendment is an excellent example of this point. It totally has application.

Because aliens outside US territory, exactly like fetuses, have no personal rights, then the President can just order a drone strike or CIA agents to kill them, as has happened a fair amount in recent times.

But if you want to find them guilty of a crime, then they have the rights of the “accused” - you have to bring them to a Us court and find them guilty according to law.

And there are cases on this point! Because they don’t count as persons, you don’t need a warrant to search or seize them, you can just spirit them away into the US. But if you want to involve a court in the matter or to punish them for a crime, then they indeed get the rights of the accused. See for example US v. Versugo-Urquidez and US v. Alvarez-Machain.

The concordance between the 13th and 8th Amendment language actually supports the idea that between the 13th and 14th Amendment, African-Americans were constitutionally in a sort of intermediate state between object and person in the full sense of the word, just like fetuses and extraterritorial foreigners today.

[JoeFromtheBronx]

I didn't say the 8A was a "counter-example." I said this:

Anyways, yes the 13A like some other provisions bans something without explicitly saying it only is banned for "persons."

I cited the Eighth Amendment as another amendment that did not only explicitly apply to "persons."

BTW, just to be clear, the 13A does not just apply to "African Americans" or "black people." I figure you know this the repeated limited language leads me to underline the point.

Thus, for instance, the Slaughterhouse Cases majority noted:

While the thirteenth article of amendment was intended primarily to abolish African slavery, it equally forbids Mexican peonage or the Chinese coolie trade when they amount to slavery or involuntary servitude, and the use of the word "servitude" is intended to prohibit all forms of involuntary slavery of whatever class or name.

[JoeFromtheBronx]

One other thing.

The Constitution classified slaves as "persons." Abraham Lincoln noted this in his Cooper Union speech. "Other persons" were counted by 3/5. "Persons" held to service labour. Migration or importations of "such persons."

They were not "objects." Chattel slaves were treated in the law as property in some sense. The humanity of slaves was also recognized. So, it was a mixture of property and person.

Some in antebellum times argued the Constitution further the same principle.

The Constitution explicitly only cites slaves as "persons." The text was carefully crafted not even to say "slave." The idea of property in men, slavery, was intentionally not spoken.

This would make it curious if the 13th Amendment, of all things, furthered the idea that former slaves were "sort of intermediate state between object and person in the full sense of the word."

The term "party" was typically applied to persons. The discourse on aliens doesn't add much to this. A drone attack is still going to attack "persons." Constitutional rights are supplied to a range of people, including citizens. "Full sense of the word" here, especially tossing in "object," adds more confusion than light.

[Hugo S. Cunningham]

13th Amendment "involuntary servitude" should clearly apply to pregnancy caused by rape (and measures to escape it). Elsewhere I do not see a clear application to pregnancy, either way.

[JoeFromtheBronx]

If the government forces a person to stay pregnant, it is literally forcing involuntary labor.

Forced pregnancy was a practice used during slavery to use others, robbing them of control of their bodies, providing a historically based purpose argument too.

The separate comment on the draft shows that "many" disagreed with using a 13A argument. There were disputed opinions on various constitutional provisions as I noted. FWIW, I am not convinced about the draft argument either.

Nonetheless, to have a 13A right, I don't think a full-fledged degraded social status of servitude is necessary. Regardless, a draftee has various aspects of servitude, including the decreased freedoms present in a military context.

[Hugo S. Cunningham]

The 13th Amendment never applied to the draft (military conscription). While military service could be "involuntary", it never had the degraded social status of "servitude".
(2) Many of the same Congresspeople who voted to ratify the Thirteenth Amendment had also voted for the Civil War draft. Similarly, many of the legislators voting to ratify the Constitution (with its power "to raise armies") came from States that conscripted men into militias in time of emergency.

[CJColucci]

One of my crackpot theories is that the 13th Amendment emancipated the commerce power. Much of modern commerce clause law would have been inconceivable when slavery existed. In those days, a number of people explicitly opposed various types of federal regulation of commerce on the theory that if Congress could do X, it could equally abolish slavery. (I'm too lazy/busy to run down sources, but one that I can remember off the top of my head can be found in Chernow's biography of Washington.) Under modern commerce clause theory, it would be child's play to defend legislation that would, if not abolish slavery entirely, destroy its viability as a major economic institution.

[JoeFromtheBronx]

Yes. The concern continued after abolition. The South feared federal regulation would interfere with segregation.

There was a general understanding the federal government had limited power over slavery. The text alone did not compel that.

Sometimes, people argued for limited federal power over slavery from an anti-slavery mindset. Justice McLean, for instance, argued the Commerce Clause did not generally cover commerce in slaves.