Today in Supreme Court History: December 18, 1944

12/18/1944: Korematsu v. U.S. decided.

Comments

[Dan Schiavetta]

Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249 (decided December 18, 1972): simply because airplane crashed into navigable water does not create admiralty jurisdiction; claim has to be related to maritime activities (upon takeoff plane ran into flock of seagulls which clogged the engines and plane sank in Lake Erie, though crew survived; allegedly the air traffic controller should not have ok’d the takeoff) (if it was the seagulls’ next of kin bringing suit, would the result have been different?)

Korematsu v. United States, 323 U.S. 214 (decided December 18, 1944): upholding against Equal Protection attack military order clearing those of Japanese ancestry from designated “military area” (here, City of San Leandro, California) (once again good law? see Trump v. Hawaii, June 26)

Illinois Central R.R. Co. v. Perry, 242 U.S. 292 (decided December 18, 1916): railroad employee injured (due to collision) during personal trip between two points within Kentucky can’t sue under Employers’ Liability Act because not involved in interstate commerce, even though train was carrying goods between states

[Brett Bellmore]

"because not involved in interstate commerce, even though train was carrying goods between states"

Back before they reduced the commerce clause to just the first two words.

[apedad]

O/T

Here's the 1,500 page Continuing Resolution bill if anyone wants to review it: https://docs.house.gov/billsthisweek/20241216/CR.pdf

[F.D. Wolf]

Why bother? It's not as if any member of Congress is going to read it.

[apedad]

Oh they'll read it.

Not the entire thing of course; only the sections that include or omit their particular pork barrels.

Examples

Another line item in the stopgap would also transfer administrative jurisdiction over the RFK Memorial Stadium Campus to the District of Columbia in a move that could lead to the return of the Washington Commanders to the nation’s capital.

House Oversight Committee Chair James Comer (R-Ky.), who led a legislative effort along with Washington, D.C., Delegate Eleanor Holmes Norton (D), expressed excitement about language getting tucked into the stopgap to make the move earlier on Tuesday.

If it passes, the legislation unveiled Tuesday would direct the Interior Secretary to transfer administrative jurisdiction to the District, allowing it to use the campus for stadium redevelopment and other purposes.

~~~~~~

Sen. Josh Hawley (R-Mo.) also called out Johnson in a post on X shortly after the package’s release for the absence of a deal on the Radiation Exposure Compensation Act (RECA).

Hawley wrote that Johnson “personally killed a bipartisan, bicameral expansion + spending cap RECA deal.”

“It was him alone. BUT he’s willing to spend BILLIONS on Ukraine and foreign wars and every pork barrel project known to man,” he added.

[apedad]

And Congress did NOT block their automatic pay raise - as they have done since 2009 - so they'll be getting a pay raise too.

[Mr. Bumble]

Well transitory inflation, you know.
Honestly, Congress should have to punch a time clock to get paid.

[F.D. Wolf]

On this day, December 18, 1944, Justice Frank Murphy became the first judge to use the word “racism” in a reported American legal opinion. In fact, he would use the word in three opinions issued that day. (1) He would use the word in two more opinions before his untimely death at the age of 59 in 1949 (2). The word would not appear again in a Supreme Court opinion until 1966 (3).

The three dissenters in Korematsu were Owen Roberts, Frank Murphy, and Robert Jackson. Roberts, a Hoover appointee, was the only member of the Court who had not been appointed by President Roosevelt. Murphy and Jackson had both served as Attorney General under Roosevelt.

1. Steele v. Louisville & N.R. Co., 323 U.S. 192, 209 (1944) (Murphy, J., concurring); Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting); Ex parte Endo, 323 U.S. 283, 307 (1944) (Murphy, J., concurring).

2. Duncan v. Kahanamoku, 327 U.S. 304, 334 (1946) (Murphy, J., concurring); Oyama v. California, 332 U.S. 633, 664 (1948) (Murphy, J., concurring).

3. Brown v. Louisiana, 383 U.S. 131, 142 (1966) (5-4 decision reversing convictions for breach of the peace of five blacks who had staged sit-in at segregated public library).

[Frank Drackman]

The Korematsu Scenario is a no win situation, it's to test how future Starfleet Officers react under stress.

[Estragon]

You need some new material, you posted this one last week

[Frank Drackman]

I post stuff to crack myself up, not you schlubs, but I am working on a “Female School Shooter” bit
“…. Let me tell ya, these teen girls today, I’ve heard of on the rag, but seriously, and might have been a clue when her ring tone is “I don’t like Mondays”,
OK needs some work

Frank

[Estragon]

“I post stuff to crack myself up”

Wow, I never would have guessed your interest in commenting here lies primarily in self-regarding wankery!

Why you feel the need to crack yourself up to the tune of dozens of comments a day on an ostensibly legal blog— and whether & to what extent EV has intentionally cultivated this type of… ahem… engagement— is left as an exercise for the reader.

[JoeFromtheBronx]

I checked and found a few references to Justice Murphy's opinion being the first Supreme Court opinion to mention "racism."

["I dissent, therefore, from this legalization of racism”]

See, e.g., THE RHETORIC OF RACISM IN THE UNITED STATES SUPREME COURT by KATHRYN STANCHI.

FN70 notes that the Oxford English Dictionary recorded the first usage of "racism" in 1903. The word first became well-used in the 1930s. The Supreme Court earlier referenced "white supremacy" in the 1920s in a case involving the KKK.

The articles repeatedly cite "Supreme Court" opinions. If it was the first reported legal opinion overall, I grant it, though I would have to see some study that researched to determine that. That would include the limitations of court reporter databases.

Jackson's dissent is remembered particularly for his concern about the judiciary officially blessing internment.

Justice Roberts' dissenting opinion receives less attention. It warrants respect. He bluntly starts:

"I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights."

He also bluntly speaks of "concentration camps" as compared to the majority who were loathe to do so. He would not use "euphemisms" or deny what truly was happening.

[David Nieporent]

After WWII, the term "concentration camp" became used interchangeably with "extermination camp." But before that, the term — while obviously pejorative — was much less sinister.

[JoeFromtheBronx]

Blackman's interview with Judge Ho, referenced in a previous post, is cited in an article entitled "James Ho’s Post-Election Remarks Fuel Supreme Court Speculation."

https://news.bloomberglaw.com/us-law-week/james-hos-post-election-remarks-fuel-supreme-court-speculation

A judge criticizing Justice Alito was flagged for ethical violations since lower court justices are liable for that sort of thing:

https://www.lawyersgunsmoneyblog.com/2024/12/thou-shalt-not-question-our-platonic-overlords

[Mr. Bumble]

"A judge criticizing Justice Alito was flagged for ethical violations since lower court justices are liable for that sort of thing:"
...and rightly so.

[F.D. Wolf]

The penalty for violating the Canons of the Code of Conduct for United States Judges is a declaration that you have violated the Canons of the Code of Conduct for United States Judges and an admonition to please try to do better in the future.

[JoeFromtheBronx]

The penalty for violating the Canons of the Code of Conduct for United States Judges is a declaration that you have violated the Canons of the Code of Conduct for United States Judges and an admonition to please try to do better in the future.

The letter references Judicial Conduct Rule 11 (d). Looking it up, there is this reference which is not merely "an admonition to please to try to do better in the future."

here a subject judge’s conduct has resulted in identifiable, particularized harm to the complainant, or another individual, appropriate corrective action should include steps taken by that judge to acknowledge and redress the harm, if possible, such as by an apology, recusal from a case, or a pledge to refrain from similar conduct

The memorandum and order determined that a public letter of apology was appropriate corrective action.

If you asked people around here -- or many others -- to provide a public letter granting they breached ethical guidelines, I think many would find it notable.

A public formal apology -- which was supplied when people pled guilty in the Georgia criminal cases arising from the 2020 elections too -- is a useful tool in various cases. The need to publicly apologize and promise you will take more care in the future repeatedly does provide an incentive to change future conduct.

In another case, some other action might be required.

https://prod-i.a.dj.com/public/resources/documents/ponsor-order-2024.pdf

[The Margrave of Azilia]

No, a judge who breaks ethical canons should be impeached and removed from office. Removal is the minimal punishment for high misdemeanors in office, and Congress is the institution deciding on the punishment. They may add future disqualification from office as additional punishment, too.

A judge's colleagues could, as citizens, petition Congress for impeachment proceedings.

Wait, never mind, for a second I was talking about what the actual constitution says, not about procedures under the substitute Constitution imposed by elites without popular consent.

[JoeFromtheBronx]

Removal is the minimal punishment for high misdemeanors in office, and Congress is the institution deciding on the punishment.

Impeachment is a constitutional measure to remove certain people from federal office. The Constitution notes those removed are still liable for "punishment according to the law."

Congress is not obligated to impeach everyone who might technically be liable for impeachment any more than a prosecutor must or should indict everyone who violates a criminal law.

Congress can set forth various penalties for "high misdemeanors" for those offices that Congress itself creates and removal is not necessary. It is not the 'minimal' possible penalty.

Congress has the power to establish lower courts, including judicial procedures and ethical rules. The Constitution sets forth the power to do so. No amendment is necessary.

[F.D. Wolf]

That's just super. As the teachers told us in high school, this will go on your permanent record. I'm sure he's learned a valuable lesson. The system works!