Today in Supreme Court History: December 16, 1936

12/16/1936: West Coast Hotel v. Parrish argued.

Comments

[Dan Schiavetta]

Greene v. Georgia, 519 U.S. 145 (decided December 16, 1996): state Supreme Court on direct appeal does not have to defer to trial judge’s findings as to juror bias (trial judge had excused for cause jurors who had reservations about the death penalty); such deference (set forth in Wainwright v. Witt, 1985) applies only in habeas proceedings (where at issue is matter outside the record -- questions which should have been asked, things that should have been done, evidence which should have been introduced, etc.)

Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99 (decided December 16, 2013): suit on disability benefits plan is time-barred by plan’s own limitations period even though administrative remedies not yet exhausted (ERISA is silent on the issue)

Robertson v. Gerdan, 132 U.S. 454 (decided December 16, 1889): Ivory pieces to be attached to piano keys are subject to “ivory” tariff instead of “musical instrument” tariff. Note: This issue is now inconsequential due to the near-prohibition on ivory in an effort to protect elephant herds. I represented an instrument dealer in getting some vintage items exported. The regulatory scheme is perverse. First, ivory used in musical instruments is solely decorative (e.g., tips of violin bows), and the only instruments with it are vintage instruments for which no elephants have been shot in decades (nowadays plastic is used). The real culprits are dealers selling big items made from entire tusks, whereas ten thousand bow tips would be needed to result in the ruination of one tusk. Secondly, only certain types of ivory are prohibited. Not (for example) wart hog ivory or mammoth/mastodon ivory (!). The type of ivory is supposed to be determined by examining chevron patterns with a special microscope, but customs officials just seize anything they think looks like ivory. Orchestras have had international tours canceled because the bows of the string section were confiscated at the airport. (My client gave me a old bass bow, for free; it has an ivory screwpiece and is therefore unsellable. I am a bassist and it’s a very good bow, but it would be just as good with a plastic screwpiece.)

[apedad]

Postscript on (Daniel) Greene.

He was sentenced to death but then 21 years later (Apr 2012), the Georgia Board of Pardons and Paroles reduced the death sen­tence to life in prison with­out the pos­si­bil­i­ty of parole.

Mark Shelnutt, a Columbus attorney who prosecuted Greene, told the paroles board that a key factor in seeking capital punishment against Greene had been that life without parole was not an option for Georgia juries at the time.

https://www.ledger-enquirer.com/news/local/article29228887.html

[Dan Schiavetta]

Thanks

[not guilty]

I represented a client who was sentenced to death in 1990, before life without possibility of parole became a sentencing option. The state Supreme Court in 1994 affirmed the finding of guilt but vacated the death sentence because of an erroneous jury instruction. On remand the state and the defense agreed to a sentence of life without parole. The defendant later sued in state court for habeas corpus relief because life without parole was not an available sentence at the time of the offense. The state Supreme Court appointed me, and we were successful in getting the sentence vacated and a new jury sentencing hearing ordered.

My client was again sentenced to death by the new jury. I suppose that illustrates the maxim about being careful what you ask for.

[JoeFromtheBronx]

West Coast Hotel Co. v. Parrish involved a minimum wage law. Adkins v. Children's Hospital (1923) struck down a minimum wage law. The argument that women specifically needed protection was rejected partially because the 19th Amendment supposedly showed women largely had equal footing with men.

The 1937 case is the famous "switch in time that saved nine," Justice Owen Roberts supposedly seeing how the wind was blowing after the 1936 elections. Justice Frankfurter later rejected that argument since Roberts was open to overturning the earlier precedent before the election. He did not in an earlier case because of procedural reasons.

OTOH, some scholars have found evidence that the swing justices (Roberts and Hughes) were influenced by political events. The meaning of constitutional terms is influenced by public understanding, including as expressed at the ballot box.

My understanding is that "liberty" in our country does include some freedom of contract. "Free labor, Free Soil, Free Men." Nonetheless, such a liberty can be regulated, including by minimum wage and maximum hour laws. Economic realities, including different levels of power between employer and employee, factors in here.

[F.D. Wolf]

On June 1, 1936, the Court decided Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), a 5-4 decision, in which the Court struck down a New York minimum wage statute as unconstitutional (affirming Children's Hospital v. Adkins (1923)). The majority consisted of the "Four Horsemen" (Van Devanter, McReynolds, Sutherland, and Butler) plus Owen Roberts. Less than a year later, the Court would reverse itself in West Coast Hotel, upholding a Washington minimum wage statute in a 5-4 decision, with Roberts changing sides, the famous "switch in time that saved nine".

The major intervening event between June 1936 and December 1936 was, of course, the landslide re-election of President Roosevelt coupled with huge gains by Democrats in Congress in the November elections, happening in the midst of the debates over Roosevelt's court-packing scheme. Naturally, Roberts did not appreciate the popular narrative that he switched his vote due to political considerations, which he viewed as a smear on his integrity.

Roberts, the sole Republican (Hoover) appointee on the Court, would retire in 1945 and pass away in May 1955. The December 1955 issue of the University of Pennsylvania Law Review (where Roberts had received his undergraduate and law degrees) featured tributes from friends and colleagues. One was from Justice Felix Frankfurter, in which Frankfurter published the contents of a memorandum Roberts had purportedly given him in 1945 after his retirement, leaving its use to Frankfurter's discretion, explaining the reasons for his vote switch (1). I would recommend reading it, as it is fascinating and brief. In sum, Roberts claimed he only joined the majority in Morehead on the grounds that Adkins was established law, and the facts in the two cases were virtually indistinguishable. New York, however, explicitly refused to ask the Court to overrule Adkins, insisting the cases were distinguishable, but Roberts was unwilling to join an opinion suggesting the cases were distinguishable. Roberts states he should have specially concurred on those limited grounds.

Some have suggested this memorandum never existed and was a fabrication by Frankfurter, noting a search of Frankfurter's papers has never turned up the original or a contemporary copy (2), though others have argued that there is no good reason to doubt Frankfurter's veracity in the matter (3).

1. Felix Frankfurter, Mr. Justice Roberts, 104 U. PA. L. REV. 311 (1955). https://scholarship.law.upenn.edu/penn_law_review/vol104/iss3/1/

2. Michael Ariens, A Thrice-Told Tale; or Felix the Cat, 107 HARV. L. REV. 620 (1994). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2890721

3. Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994). https://repository.law.umich.edu/articles/172/

[JoeFromtheBronx]

sole Republican (Hoover) appointee on the Court, would retire in 1945

I suppose this means when he retired he was the sole Republican appointee. Stone was both a Republican (Coolidge/associate justice) and Democratic (FDR/Chief Justice) appointee.

Anyway, I have read the referenced history as well.

It would not by itself negate the possibility that he also was motivated by other factors (which for now, I'll be agnostic about) & if he was I don't think it would necessarily be a "smear on his integrity." I can also see a self-interested failure to be fully honest with oneself about such motivations.

[Mark Regan]

Owen Roberts' memo is probably authentic, but it presents a post hoc rationalization that is probably untrue. Fact is that a lot of the time Owen Roberts didn't know what he was doing.