Today in Supreme Court History: December 22, 1789

12/22/1789: Justice Levi Woodbury born.

Justice Levi Woodbury

Comments

[Mr. Bumble]

Return with us now to those thrilling days of yesteryear when Woodbury was nominated for associate justice on December 23, 1845 and confirmed by the Senate on January 3, 1846.

[Area Man]

In the early days, some people were nominated one day and confirmed the next without even knowing they were nominated, and who then declined the position.

[F.D. Wolf]

It was also a time when the Senators tended to take the "advice" part of "advice and consent" more seriously. They expected to be consulted about nominations BEFORE they were made, not just afterwards. When you see a nomination being approved by the Senate the same day or a few days after it was made, it had been most likely preceded by a period of discussion between the President and the Senate.

[Mr. Bumble]

I assume part of it was due to the fact that many of the candidates and their positions on the law were well know since they served in multiple capacities in state and federal government prior to nomination.

[Dan Schiavetta]

Memphis & L. R.R. Co. v. Berry, 112 U.S. 609 (decided December 22, 1884): tax break given to railroad company formed by act of legislature does not survive such that company which purchased it can benefit from it

Blumenthal v. United States, 332 U.S. 539 (decided December 22, 1947): conspiracy prosecution doesn’t have to identify all conspirators (conspiracy here was to sell whiskey at prices above ceiling set under Emergency Price Control Act of 1942); “secrecy and concealment are essential features of successful conspiracy”

New York Belting & Packing Co. v. New Jersey Car-Spring & Rubber Co., 137 U.S. 445 (decided December 22, 1890): design of corrugated mat was not “novel” enough to warrant a patent (the opinion has a drawing of the mat which does not do justice to its properties as described -- corrugated sections juxtaposed such that as one passes over it one sees “moiré patterns” and “mosaic” effects) (“If the person changes his position continuously the effects are kaleidoscopic”) (the kaleidoscope was patented, as well as various improvements to it -- why not this mat?)

[Drewski]

In New York Belting, the Court agreed with the circuit that Belting could not patent parallel lines generally, but remanded the question of whether the kaleidoscopic effect was patentable. Some other claims were remanded, with what I read as a gentle admonishment to the lower courts for improperly taking judicial notice of a fact best left to a jury:

"We think that the judge was right in holding that the first claim of the patent is altogether too broad to be sustained, and for the reasons stated in the opinion. But as the other claims may fairly be regarded as confining the patentee to the specific design exhibited in his patent and shown in the drawing, we think that the demurrer should have been overruled and that the defendants should have been put to answer the bill. Whether or not the design is new is a question of fact which, whatever our impressions may be, we do not think it proper to determine by taking judicial notice of the various designs which may have come under our observation. It is a question which may and should be raised by answer and settled by proper proofs.

"There is one feature of this patent which presents an interesting, if not a novel, aspect. We are in the habit of regarding a design as a thing of distinct and fixed individuality of appearance -- a representation, a picture, a delineation, a device. A design of such a character, of course, addresses itself to the senses and the taste, and produces pleasure or admiration in its contemplation. But in the patent before us, the alleged invention is claimed to be something more than such a design. It is claimed to have an active power of producing a physical effect upon the rays of light, so as to produce different shades and colors according to the direction in which the various corrugated lines are viewed -- a sort of kaleidoscope effect. It is possible that such a peculiar effect, produced by such a particular design impressed upon the substance of India rubber, may constitute a quality of excellence which will give to the design a specific character and value, and distinguish it from other similar designs that have not such an effect. As this is a question which it is not necessary now to decide, we express no opinion upon it."

[Dan Schiavetta]

Thanks. I'll look at the decision again and rephrase.

[JoeFromtheBronx]

The United States Archivist released a joint statement with the deputy archivist about the ratification of the ERA. It in part noted:

"The OLC concluded that extending or removing the deadline requires new action by Congress or the courts."

A link to a 2022 statement notes the Biden OLC "acknowledges and does not modify this conclusion" [interesting phrasing] of the Trump OLC that the ERA is done (the deadline is final) but that:

"as a co-equal branch of government, Congress is entitled to take a different view of these complex and unsettled questions” and that therefore “the 2020 OLC Opinion is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions.”

The earlier OLC had the authority to conclude the deadline was final, but the evidence is mixed. The Biden OLC statement noted: "We think, however, that the issues addressed in Part III were closer and more difficult than the opinion suggested." [that is, the deadline is complete argument].

It ultimately left the matter up to Congress and the courts. Biden seems to agree. I think that's correct.

https://apnews.com/article/biden-equal-rights-amendment-women-sex-discrimination-a6ee48bd6e8199839f5a44adb483d59d

https://www.archives.gov/press/press-releases/2025/nr25-004

[Mr. Bumble]

"Biden seems to agree."
Biden hasn't a clue.

[Mr. Bumble]

I doubt Biden could pass the Turing Test.

[Drewski]

You messed up switching accounts before posting a validating reply.

[Frank Drackman]

Mr Bumble "Bumbled"?

[Mr. Bumble]

Hardly, especially since there is only one Mr. Bumble.
Stupid Polack started drinking early.

[Noscitur a sociis]

I suppose it’s “up to” congress and the courts in the sense that if one of those bodies decided to treat it as ratified, we’d have to figure out what to do about it. But that’s true for the executive too.

More substantively, though, the pro-ratification arguments strike me as incredibly weak, and pretty transparently the product of wishful thinking and motivated reasoning. (Is there even a single opponent of the amendment who thinks it was even arguably ratified?) indeed, it’s really only because the arguments are so pathetically weak that they’re not more of a threat worth worrying about.

[Area Man]

It’s hard to see how the Necessary & Proper Clause doesn’t give Congress the power to make ratification contingent upon a time limit, or how the 10th Amendment doesn’t give the states the power to rescind their approval of a not-yet-ratified amendment. In either scenario, the 1972 ERA is dead.

[Dan Schiavetta]

As often happens, liberals did the hard work but did not get the credit. The fact is: the 1972 ERA did succeed, in fact and in law. Nobody today would agree with the opposition to it.

[Area Man]

That depends, I guess. If, as many of the people pushing to ratify it today claim, it protects abortion rights, then I'd imagine a lot of people today "would agree with the opposition to it." Also, I think a lot of people would be against strict scrutiny of gender classifications because they recognize that sometimes there are non-stereotypical differences between men and women and a lower tier of scrutiny needs to apply. And if it protected transgender people as a class, a la Bostock, that would probably make people oppose it.

But, frankly, one of the problems with the ERA has always been that it's not clear what it covers. Some things would be pretty straight forward, e.g., the government couldn't stop someone from serving on a jury because of their sex.

But does it require women to sign up for the draft? I've honestly never met a woman who thinks women should be required to register just like men do (which has always surprised me since it seems like I'd have met at least one by now). If the ERA serves as a type of equal-protection clause--and I'm not even sure that's really it's function--then a lot of women will probably have to register (or, more preferably, we just end all draft registration). Does it require equal funding for battered-partners shelters, or can a government recognize that women are much more likely to be victims of abuse and therefore spend more money for women-only facilities. Are women-only facilities even allowed? Restrooms? Locker rooms? Are equal outcomes required or just equal opportunities? Again, none of that is clear, which is exactly why many people opposed its ratification to begin with, and why, if we really had the discussion again about the Amendment's scope, they would do so today.

[JoeFromtheBronx]

Levi Woodbury replaced Joseph Story.

Woodbury is now more forgotten and not only because a Supreme Court justice never played him in a movie. Like many forgotten justices, his bio was pretty impressive. He served in each branch of the federal government plus was a governor.

His daughter married Montogomery Blair, who was one of Dred Scott's lawyers in front of the Supreme Court and later became President Lincoln's Postmaster General.

One of his most notable opinions was Jones v. Van Zandt, which involved an abolitionist who aided the Underground Railroad. His lawyers included Samuel Chase (future Chief Justice) and William Seward (future Secretary of State).

Chase made a variety of arguments, arguing the law and the Constitution overall should be narrowly interpreted regarding recognizing slavery.

Woodbury continued the norm of applying a slavery-friendly version, which is put out as obvious and any other view benighted:

"this Court has no alternative, while they exist, but to stand by the Constitution and laws with fidelity to their duties and their oaths... to go where that Constitution and the laws lead, and not to break both."

People sometimes used such an assured tone when the evidence is much cloudier.

[Mr. Bumble]

"People sometimes used such an assured tone when the evidence is much cloudier."
...or when they believe in fidelity to the Constitution and laws as written.

[Purple Martin]

People sometimes used such an assured tone when they believe in fidelity to the Constitution and laws as written...even where the evidence for such fidelity is much cloudier than such assurance would seemingly allow.

[Mr. Bumble]

Perception is such a bitch.

[David Nieporent]

Or, as I frequently post: Area Man Passionate Defender Of What He Imagines Constitution To Be.

[Dan Schiavetta]

Indeed.

This points to the explanation for the recent election: the massive amount of disinformation incorporated by voters. And it's now infiltrated the nonwhite electorate.

No, inflation is not out of control.

No, the economy is not doing badly.

No, migrants are not criminals.

No, Trump will not fix the border situation. (He's the reason it didn't get fixed -- remember??)

No, the transgender left wing has not taken over the Democratic Party.

No, we are not taken advantage of by our NATO allies.

No, man-made global warming is not a hoax.

No, Covid was not a scare tactic devised by Dr. Fauci et al. in order to tyrannize the public.

No, vaccines do not cause autism.

Etc. . . .

[The Margrave of Azilia]

Prosperity is just around the corner!