Today in Supreme Court History: December 25, 2009

12/25/2009: Justice Elena Kagan "was probably at a Chinese restaurant."

Comments

[Dan Schiavetta]

Liverpool & London & Globe Ins. Co. v. Gunther, 116 U.S. 113 (decided December 25, 1885) (was this case really “filed” on December 25, as Westlaw has it?): No, this case did not concern the raise given by Scrooge to Bob Cratchit being in violation of some wage and price control (actually that was on December 26), but is a boring matter dealing with expenses of a suit and trustees of a railroad. Sorry, it was the only December 25 case I could find!

[The Margrave of Azilia]

It's one more than I *thought* you'd find.

[JoeFromtheBronx]

Decided December 21, 1885

https://supreme.justia.com/cases/federal/us/116/113/

[Dan Schiavetta]

Westlaw has it decided on Dec. 25.

[Noscitur a sociis]

The U.S. Reports says 11/21:

http://scotuslink.com/116/113

And the case after it in the Supreme Court Reporter is also dated 12/21, so I’m guessing this is just a 140 year old typo from West.

[Noscitur a sociis]

*12/21, obviously.

[The Margrave of Azilia]

This technically could be said to have a Christmas angle, since it involves mercy:

I've been thinking about the claim that Presidential commutations aren't pardons, Which would cast a shadow over the President's power to grant commutations.

But I see there's a couple of Supreme Court decisions which seem to treat commutations as a subset of pardons.

There's this remark from Schick v. Reed, 419 U.S. 256, at 264 (1974): "the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not, in themselves, offend the Constitution, but which are not specifically provided for by statute."

[The Margrave of Azilia]

And for dessert, there's the case of Ex Parte Wells, 59 U.S. 307 (1855), which (based on my newspaper research) started when Wells, a soldier, was touring Washington with some other soldiers and some teenage boys attached to the military. Wells shot and killed one of the boys, for which Wells got a death sentence.

On the day on which the sentence was scheduled to be carried out, President Millard Fillmore changed the death sentence to life imprisonment, conditional on Wells' consent. Wells consented quite readily, but then he went to court and sought release because he claimed the pardon was unconstitutional.

The Supreme Court upheld the pardon, saying that, at least if the beneficiary consented, the President could change a death sentence to life in prison, based on the pardon power. "...the power to pardon conditionally is not one of inference at all, but one conferred in terms." (p. 315)

[Dan Schiavetta]

Fillmore could have withdrawn the pardon as soon as Wills went to court to fight it. Weird case.

[SRG2]

I assume that a pardon or commutation is irrevocable - though it would not surprise me if Trump had asked lawyers whether that's true.

[Dr. Ed 2]

If a pardon is irrevocable, then why isn't also a resignation, i.e. a judge saying he is going to retire on "Date X"?

And as we have all seen, the latter *is* revocable when the wrong person gets elected President.

[santamonica811]

A resignation IS irrevocable, in the sense you mean, once the judge has ACTUALLY effected the resignation. In other words, actually retired. You seem to be struggling with what literally every other VC poster gets...that talking about resigning, and even saying, "I'm gonna resigned on X date in the future.", are not actual resignations.

Consider this "easy answers to silly questions" response to be my Christmas gift to you.

You're welcome. 🙂

[Dan Schiavetta]

SRG:

I don’t think Trump will ask his lawyers anything this time around. They have a history of telling him, “no, you can’t do that”.

[ReaderY]

The pardon power fidn’t come from a vacuum. The Framers disn’t just make it up out of nothing. The King of England had it. And this historical pardon power long included commutations and other reductions in punishment without complete exoneration. Presidents commuted sentences as well as issuing complete pardons from the beginning

[The Margrave of Azilia]

That's the best case for commutations being pardons. I'd also add that the greater power (full pardon) should include the less (partial pardon).

[The Margrave of Azilia]

What I disagree with is the claim that (a) commutations are constitutional but (b) they're not based on the pardon power.

It's interesting how many claims to this effect I found with an Internet search. Not to mention by consulting an impeccably-accurate artificial intelligence program. But give the program some credit - it backtracked when I quoted the Schick decision.

(I don't think AI has developed the capacity to comment on the Internet. Consider: When you correct it, it doesn't double down, it admits its previous mistake. And apologizes! You can't be an Internet commenter with *that* attitude.)

It's dangerous that so many people would derive the commutation power from a generalized Presidential authority, not from the specific power to pardon. Presidents better have a *specific* Constitutional warrant when they interfere in the justice system.

[The Margrave of Azilia]

Or, rather, I'd say the President needs specific constitutional warrant to exempt people from the operation of the law.

In general, the President *is* supposed to interfere in the justice system, but only for the purpose of making sure the laws are faithfully executed.

[SRG2]

This goes to the position adopted by Rehnquist and Scalia IIRC in Herrera, that there is no constitutional restriction on the execution of an innocent man. It can happen that all the laws are followed and all due process provided yet the defendant is innocent. That is explicitly an occasion for the Executive to interfere.

Herrera was probably innocent and his brother probably guilty. (Such miscarriages are more likely post AEDPA). And one of the most disgustingly immoral responses to appeals for Executive clemency or pardon is for the Executive to say, "well, 20 [or whatever[ judges have heard this case already and decided against the appellant, so who am I to go against them?"

[The Margrave of Azilia]

I'm a bit confused, it sounds like you're linking what I said to a dispute over whether the Constitution allows the execution of innocent people.

The pardon power can keep innocent people from being executed. But there could be other methods, too. One could argue that the constitutional right to introduce evidence in court favorable to one's side can, in emergency circumstances, apply even after conviction, when the failure to reopen a case would be truly unjust.

And that's before we get to *statutory* rights to reopen the question of one's guilt.

[not guilty]

The pardon power is one of the President's core constitutional powers. Under Trump v. United States, 603 U.S. 593, 144 S.Ct. 2312 (2024), the President is answerable to no one for abuse of this power. Even if the recipient of the pardon bribed him, the President cannot be criminally prosecuted, id., at Part II.A., although he could be impeached.

The remedy for an improvidently issued pardon is to vote the offender (or his political party) out of office. After Gerald Ford's pardon of Prick Nixon, the Democrats gained four senators and 45 House members in the 1974 Congressional elections, and Ford himself lost the presidency in 1976.

[Dan Schiavetta]

As I recall the pardon was not the main reason Ford lost.

[not guilty]

The 1976 election was quite close. Whether the pardon was or was not the main reason Ford lost, it likely constitutes a "but for" reason.

[JoeFromtheBronx]

abuse of power can also be addressed by impeachment

Granted, this is basically academic, but other than a pardon as large as Nixon's (and even then, maybe not—the election in 1976 was really close), it is doubtful it will turn an election.

So, realistically, an election is a limited check too.

[David Nieporent]

Granted, this is basically academic, but other than a pardon as large as Nixon's (and even then, maybe not—the election in 1976 was really close), it is doubtful it will turn an election.

Well, I mean presidents pretty much make sure it won't by waiting until after the elections to issue such pardons.

[Noscitur a sociis]

Even if the recipient of the pardon bribed him, the President cannot be criminally prosecuted, id., at Part II.A., although he could be impeached.

That’s what Sotomayor claimed in her dissent, but I don’t think that’s right. My reading of the majority is that while the issuing of the pardon can’t be criminalized, the acceptance of the bribe itself could be (which is how the federal officer bribery statute frames the offense anyway).

[SRG2]

Town of Bethlehem v. Lion Inn. (filed 25 December 753 AUC)

Whether a defence of necessity is permitted against a charge of breaching town occupancy laws. By a unanimous vote of 2-0, the town duovirs ruled that the inn itself, having received no payment or other benefit for the unlawful occupancy of a barn attached to the inn, the innkeeper could not be said to have intentionally broken local occupancy laws, and hence they decided sua sponte that the defence of necessity did not need to be considered.

(It was later revealed that the inn had received a nominal amount of gold and spices from the barn occupants but there is no further record of the case.)

[Dan Schiavetta]

Between the angels, the shepherds, three visiting monarchs, Jeannette & Isabella, and the little drummer boy, all that cramming in to a space not zoned for that purpose was properly regarded by the owner as a public nuisance. The tipoff was when he saw the delivery of a dozen boxes of pizza (evidently ordered by Joseph to accommodate the many guests, paid for by one of the monarchs).

[SRG2]

None of the pizzas, of course, were pepperoni.

[Dan Schiavetta]

Possibly beef pepperoni.

Or maybe not? There’s one clear piece of evidence that Jews were not following Mosaic Law. Jesus transfers a man’s evil spirit into a herd of pigs and they run into the sea, the herdsmen running away. Matt 8:28-34. Why were pigs being herded in Judaea? Certainly not for the minuscule number of Greek or Roman expats.

[Dan Schiavetta]

I don’t know why I’m mentioning this, but one of the skits in the Woody Allen movie “Everything You Ever Wanted to Know About Sex” (1973) was a game show called “What’s My Perversion”, a take off on “What’s My Line?” The winner gets to have his perversion enacted. It’s a rabbi, who gets whipped by a tall blonde dominatrix, while his wife sits off to the side — eating pork.

[The Margrave of Azilia]

If Allen were Gentile, would he have been able to get away with that scene?

[Dan Schiavetta]

No.

Some of his jokes flew over my Gentile head. For example, the blintz joke from “Love and Death”, because I didn’t know what blintzes were or how they’re made. Years later a Jewish friend enlightened me.

Probably other examples, where I didn’t even detect that a joke was being made.

[Frank Drackman]

Wow, that sounds pretty good

[SRG2]

There were plenty of non-Jewish residents in the region, and of course some Jews would have indulged as well.

FWIW archeological evidence suggests that the laws of kasrut post-dated the First Temple: https://www.haaretz.com/archaeology/2021-07-19/ty-article-magazine/what-does-a-pig-skeleton-discovered-in-jerusalem-say-about-first-temple-era-jews/0000017f-ef19-d0f7-a9ff-efddd5390000

[ReaderY]

Only religous scholars would make sweeping generalizations about whole cultures based on a single pig skeleton, and presume to say they engage in the scientific study of religion.

It looks like this pig skeleton is being regarded as a game-changing celebrity artifact, suggesting something like this hadn’t been found before. One wonders how many cow and sheep skeletons have been found over the years. Perhaps too many to be worth mentioning. Scholars, after all, don’t get tenure from publishing findings that have already been found before. This may lead to an overemphasis on rarities.

Of course, since the Biblical account says at least some of them at least occassionally worshiped idols, it probably isn’t too inconsistent with that account to suggest that somme of them at least occassionally ate pork.

[Don Nico]

And remember there was no tomato sauce on that pizza

[Dan Schiavetta]

Tomatoes were considered poisonous, because they are closely related to deadly nightshade, a poisonous plant. This only changed in the 18th Century.

[Don Nico]

True, but tomatoes are native to the New World. They did not exist in the Old World before the time of Columbus.

[Dan Schiavetta]

Sorry -- forgot that part!

[bernard11]

Don't forget Round John Virgin, who accounted for two of the pizzas by himself.

[Dan Schiavetta]

"I love my anchovies above anything." (his lyrics)

[Krayt]

Then a sheep and goat told the official to fuck off, and they backed off for a week, but by then everyone had hit the road.

[Dr. Ed 2]

What I never understood is why there were no JEWISH restaurants in NYC. Or why some enterprising synagogue didn't have some sort of church supper to raise funds for either the synagogue or some charity it wanted to support (e.g. Boy Scouts, academic scholarships, whatever).

At the risk of resorting to stereotypes, Jews have good food (and a lot of it) at events such as weddings, there are competent Jewish businessmen, and there is capital available in the Jewish community. That's really all you need to start a successful restaurant -- a good product, competent management, and enough funding to make it until you have built a customer base.

Or the enterprising synagogue -- perhaps needing to fund a new roof or new heating system for the synagogue -- hosts a synagogue supper.

Kagan's free to go to Chinese restaurants, but I never understood why there was such a vacuum of trade when there were people like her with money she was willing to spend. I've worked on Christmas before -- at a nursing home where the entire maintenance staff came in for a couple of hours because there was work that had to be done, Christmas or not.

[SRG2]

There are some Jewish restaurants - there are just far more Chinese restaurants. After all, the rest of the year you're catering for all sorts, and a specifically Jewish restaurant as opposed to a deli wouldn't have the same non-Xmas volume of customers that a Chinese restaurant had. A restaurant can't be profitable just on the basis of a single day.

[Michael P]

20 or 30 years ago, when I lived there during my college years, there was a kosher Chinese restaurant in the Squirrel Hill neighborhood of Pittsburgh -- on the west side of Murray Ave, south of Forbes Ave. Google Maps suggests it has closed since then, but it always seemed to do good business.

[SRG2]

The punchline of the joke I'm reminded of is "funny, you don't look Jewish"

[Don Nico]

Still, I love the Kagan quote, We all know that tref is okay to eat if it is cut up small and covered with soy sauce.

[bernard11]

You have the exemption wrong, Don.

It doesn't have to be cut up or anything. As long as you're in a Chinese restaurant pork and shellfish are fine. The grapevine tells me there is an argument being made, by a small but growing group of rabbis, that the exemption should be extended to Thai places as well, but amending little known Talmudic rules is even harder than amending the Constitution, so it will be awhile.

[SRG2]

In Mishnah Yeshu we read:

When is it permitted [to eat] treyf? Rabbi Shammai says, it is never permitted except for [someone suffering from] boulimos. Rabbi Hillel says, if it is the custom [of the local community] to eat treyf on the day [of Christmas] it is permitted out but not in [the home]. Rabbi Jochanan says, only if the restaurant is not owned by Jews, as it is said, "do not oppress the stranger". Rabbi Elazar says, that applies only to a gentile owned restaurant within the eruv. Rabbi Elisha says, it is permitted if [the restaurant] is cash only lest the credit card companies break the laws against usury, but Rabbi Jacob says, it is permiited provided the APR [on the card] not exceed 24.9%.

Rabban Gamaliel says, it is permitted provided that there are no arguments during the meal, as it is said, "How good and how pleasant it is when brothers dwell in unity". And the Sages agree, provided the restaurant provides enough pancakes for the Peking duck.

[Don Nico]

A brilliant exposition. Mazel tov!

[Krayt]

Rabban Gamaliel says, it is permitted provided that there are no arguments during the meal, as it is said, "How good and how pleasant it is when brothers dwell in unity"

Well, so much for getting away with it at a hypothetical Volokh meet-and-greet.

[bernard11]

Well done, SRG2.

[Don Nico]

Bernard, thank you for the correction. These matters are important.
My son-in-law does not eat pork except for pepperoni on pizza.

[bernard11]

Glad to help. I'll let your son-in-law slide on the meat and mozzarella business, but tell him to be careful. Lots of busybodies around.

BTW, why are we discussing boiled meat and vegetables when we have an Italian(?) to talk food with?

I make a mean veal piccata.

[hobie]

The worst cuisine I know of is Russian/Slavic. Also they are terrible cooks. A close second is Jewish. Which is not surprising since most of today's Jews came out of Russia (not Israel)

[Don Nico]

But the cuisine has improved since it has moved to the Middle East

[hobie]

Israeli Jews picked up some good habits from the locals, true

[Commenter_XY]

hobie....you have not eaten sephardi or mizrahi (who were and remain the majority of Jews in Israel today) dishes, have you? You might be very surprised.

I know eastern european food is...well, it is edible. I understand what you're saying on slavic cuisine (an oxymoron of sorts).

I can do a lot with a brisket, just saying. 😉

Merry Christmas to you.

[bernard11]

And other sources of Ashkenazi cooking - Polish and German cuisine for example - make use of lots of pork products, so the Jewish version is somewhat limited.

[SRG2]

The major problem is that their preferred method of cooking is boiling, and the only permitted seasoning is salt.

[Krayt]

That's American moms, too. Hint: green vegetables should be cooked long enough to take the raw crunch off it, but still be a vibrant green.

Olive green mush is a plague. 2 and a half minutes and out for asparagus, even just 2 or 1.5 for thin ones. And they all you need is salted butter pats on it, no Bearnaise or other crime covers needed!

[bernard11]

Not true for Ashkenazi cooking, which makes liberal use of garlic and black pepper. Onions are big also, though whether to consider them seasoning or a part of the main dish varies, IMO, according to the dish.

[Dan Schiavetta]

I'm reminded of a Rugrats episode where Tommy's Jewish grandparents are over for Hannukah. The grandfather remarks on the greasiness of latkes -- "and we survived eating these for four thousand years -- that's the real miracle!"

[bernard11]

Zero Mostel once commented, while eating at Sammy's Roumanian that Romanian food killed more Jews than Hitler.

Tasteless and offensive, but funny.

[Dan Schiavetta]

Possibly true. After all, Hitler had only 12 years to work with.

[Vryedni]

The deadliness is the heart-stopping quantity of salt and fat, not the flavor. Having consumed many a meal at Sammy's, I assure you it's delicious. My only complaint is, it should come with a defibrillator.

[Commenter_XY]

No problem, Dr. Ed 2...Got you covered. Hop on a bus and come to Philly. We have Michael Solomonov, an Israeli treasure. He runs several restaurants in Philly. Zahav, in particular, is quite good.

https://cooknsolo.com/zahav.html

Laser Wolf in Brooklyn is terrific.

[ReaderY]

justice Kagan does not keep kosher. There are quite a few kosher restaurants in New York, including some kosher Chinese ones.

That said, there are far more “Jewish” restaurants than kosher ones. Most people interested in what Anericans call “Jewish” food are really just interested in general Eastern European cuisine and don’t want the extra expense and strictures kosher entails. And imcreasing numbers of people who want kosher food don’t particularly care about Eastern European cuisine. While most American Jews came from Eastern Europe and their immigrant ancestors were used to it so this type of cuisine became known as “Jewish” in America, there’s nothing any more inherently Jewish about it than what the Jews of Persia ate (hint: Persian cuisine). Or the Jews of Morocco, Georgia (the ex-Soviet Republic), or any other place.

[Lennyk78]

Because Jewish food sucks. People eat it on holidays for nostalgia purposes, but no one loves it, including most Jews.

[santamonica811]

Just about all your posts turn out to be trolls. But I gotta admit that, when you're right, you're right. Literally the only two dishes I really enjoy from my culture's cuisine are blintzes (when not fried in butter) and latkes (when made without onions, due to my allergic reaction). Thank God my parents were only culturally Jewish, and didn't force me to eat in delis other than the rare times we saw my grandparents.

[Vryedni]

Speak for yourself. I love the Eastern European Jewish cuisine of my childhood. Chopped liver, gefilte fish, pastrami, corned beef, brisket, stuffed cabbage, tzimis, latkes, blintzes.... I love all of it. Heart-stoppingly heavy, but delicious.

[David Nieporent]

I love almost all of it. Not pickles — my wife thinks I'm not Jewish because I don't — or borscht, but pretty much all the rest.

[Vryedni]

I agree with you on the borscht, at least the bottled, pink Manischewitz stuff my dad used to eat cold with sour cream. My Russian-born wife uses "borscht" to describe a variety of beet and/or cabbage-based soups, most of which are pretty good, but which I suspect are regional but not Ashkenazi (though my wife is both).

Your wife is right about the pickles.

[tuphat]

"I recall, Lindsey, you were at the same restaurant, dining with Sum Young Gai. I think you had cream of something?"

[The Margrave of Azilia]

Party on!

[Dan Schiavetta]

LOL

[The Margrave of Azilia]

Listening to some Chanukkah songs. I don't think the Hallmark corporation wrote them.

There was one about the sons of Hannah, killed in front of their mother for not eating pork - she urged them to die rather than disobey God, and so they died. Then the pagans killed Hannah last. For details, consult the book of Maccabees, which *some* religions, at least, still include in the canon of Scripture.

[The Margrave of Azilia]

Now they're doing excerpts from Handel's "Judas Maccabeus."

[bernard11]

Here's one you might like, especially for our Santa Monica friend.

[The Margrave of Azilia]

I knew most of his songs, but hadn't heard that one. It's pretty good, but that's usually the case with Tom Lehrer's songs. Thank you!

[Dan Schiavetta]

He had a good gift for rhyme. Note “The Wild West Is Where I Want to Be”.

[SRG2]

Recently I heard a couple of Tom Lehrer songs for the first time since the mid80s and I amazed myself how well I remembered them.

I think my favourite rhyme of his is,
"You will all go to your respective Valhallas
"Go directly, do not pass Go, do not collect two hundred dollars"

[Dan Schiavetta]

Margrave:

“Since Nicanor’s doings ended in this way, with the city remaining in the possession of the Hebrews from that time on, I will bring my story to an end here too.
If it is well written and to the point, that is what I wanted; if it is poorly done and mediocre, that is the best I could do.
Just as it is unpleasant to drink wine by itself or just water, whereas wine mixed with water makes a delightful and pleasing drink, so a skillfully composed story delights the ears of those who read the work. Let this, then, be the end.”
The end of 2 Maccabees (15 37:39)
Doesn’t sound divinely inspired but it does make you want to sit down and get to know the guy.

[SRG2]

Halachically, it would be permitted to eat pork under such a threat. Arguably, it would be impermissible not to eat pork under such circumstances. There are only three commandments you must not violate even under the threat of death, and eating treyf isn't one of them,

[The Margrave of Azilia]

With that attitude, it's no wonder the rabbis removed the books of Maccabees from the canon of Jewish scripture. But certain other religions include the books of Maccabees in *their* canon of Scripture.

[SRG2]

As we're on food, the culinary tradition here may be some of the best kosher food going.

https://www.wral.com/story/a-seder-feast-in-provence-with-roots-in-ancient-rome/17431012/

They are not Ashkenazi nor Sephardi, because they established a presence in the region before the Ashkenazi and Sephardi split. (The composer Darius Milhaud's father's side came from here.)

[bernard11]

As we're on food, the culinary tradition here may be some of the best kosher food going.

Given that we're talking Provence, that would hardly be surprising. What a place.

[JoeFromtheBronx]

Hanukkah is referenced once in the gospels:

John 10:22 says, “And it was at Jerusalem the feast of the dedication, and it was winter.”