Today in Supreme Court History: January 12, 1932

1/12/1932: Justice Oliver Wendell Holmes resigns from the Supreme Court.

Justice Oliver Wendell Holmes

Comments

[Dan Schiavetta]

United States v. Booker, 543 U.S. 220 (decided January 12, 2005): invalidating part of Federal Sentencing Act that empowers judge to find aggravating factors; making increased sentencing dependent on finding of fact means jury must find those facts, and beyond reasonable doubt (here, sentencing judge found facts of greater amount of cocaine than was presented to convicting jury)

Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631 (decided January 12, 1948): It’s a denial of Equal Protection for state-run law school to refuse admission to qualified applicant on account of race. Short per curiam opinion, but in my view this case marks the beginning of the civil rights era.

United States v. Windom, 137 U.S. 636 (decided January 12, 1891): federal government can’t stiff contractor to whom it had certified payment by bringing up past claims against him

Illinois v. Wardlow, 528 U.S. 119 (decided January 12, 2000): police could stop and search man who had run upon seeing them in area known for heavy narcotics trafficking (This reminded me of a case that arose near where I was living at the time, United States v. Bayless, 913 F. Supp. 232, 1996, where the judge invalidated the stop: “Residents in this neighborhood tended to regard police officers as corrupt, abusive and violent. Had the men not run when the cops began to stare at them, it would have been unusual.” The judge also pointed out that three supposedly suspicious facts -- out-of-state plates, double parking, and being about late at night -- are common in that part of Manhattan, something I can testify to.)

El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (decided January 12, 1999): person improperly searched prior to boarding foreign airline has no claim against the foreign airline, either under local law or Warsaw Convention

[A Japanese Student]

I believe the actual remedy in Booker, however, was to make the guidelines advisory - which is constitutional as Apprendi only applies to mandatory minimum (or enhanced maximum).

[David Nieporent]

This reminded me of a case that arose near where I was living at the time, United States v. Bayless, 913 F. Supp. 232, 1996, where the judge invalidated the stop: “Residents in this neighborhood tended to regard police officers as corrupt, abusive and violent. Had the men not run when the cops began to stare at them, it would have been unusual.”

I remember the case well. You neglect to mention that Judge Baer walked into a hailstorm of criticism for the decision — "How dare you insinuate that our police might be less than upstanding and that anyone could ever have any legitimate fear of cops?!?!?!??" — and caved to political pressure, reconsidering and reversing his decision a couple of monhs later.

[Dan Schiavetta]

Yes. I deliberately left that part out.

[Dan Schiavetta]

NB, though this was a federal judge, in for life, there was a real possibility of impeachment if he didn't change his mind (this was a period of near-hysteria over urban crime). His father had also been a long-time judge (in state court) so one would think he would know what judicial independence was.

[Noscitur a sociis]

United States v. Booker, 543 U.S. 220 (decided January 12, 2005): invalidating part of Federal Sentencing Act that empowers judge to find aggravating factors; making increased sentencing dependent on finding of fact means jury must find those facts, and beyond reasonable doubt (here, sentencing judge found facts of greater amount of cocaine than was presented to convicting jury)

That is not correct: Booker instead invalidated the portion of the Act that required judges to impose a sentence within the Sentencing Guidelines range.

[Dan Schiavetta]

Thanks. Will look at it again and rephrase.

[SRG2]

More on Sipuel:
https://en.wikipedia.org/wiki/Ada_Lois_Sipuel_Fisher

In order to comply, the state of Oklahoma created the Langston University School of Law, located at the state capital. Further litigation was necessary to prove that this law school was inferior to the University of Oklahoma College of Law. Finally, on June 18, 1949, Sipuel was the first African-American admitted to the University of Oklahoma's law school.[6][7] By this time, she was married and pregnant with the first of her two children.[8] The law school gave her a chair marked "colored," and roped it off from the rest of the class. Despite this, her classmates and teachers welcomed her, shared their notes and studied with her, helping her to catch up on the materials she had missed.

Sipuel had to dine in a separate chained-off guarded area of the law school cafeteria. She recalled that years later some white students would crawl under the chain and eat with her when the guards were not around. Her lawsuit and tuition were supported by hundreds of small donations, and she believed she owed it to those donors to make it.

Thurgood Marshall argued her case at the SC.

[Dan Schiavetta]

thanks

[Syd Henderson]

I think by that time her name was Fisher since she'd gotten married, but the case is still under Sipuel. The University of Oklahoma wasn't really integrated until the late 1960s or early 1970s, several years before I came here. (The football team was probably integrated before that.) In 1992 she was appointed to the Board of Regents of the University of Oklahoma. She only got to serve for three years. As I mentioned before, there is or was a garden dedicated to her. I think it still, and is just being landscaped.

[The Margrave of Azilia]

I think the Supreme Court rang the death knell of Jim Crow in 1938, when it struck down an out-of-state scholarship offered to a black law-school applicant. Out-of-state was not equivalent to in-state.

This marked the point when the Supreme Court began going over the "equal" part of "separate but equal" with a fine-toothed comb. In the real world of Jim Crow, at least where education was concerned, such a careful analysis was bound to uncover inequalities, and the NAACP made sure this was called to the courts' attention again and again.

In an alternate universe with a better Supreme Court, the high tribunal would have finally said, "these cases illustrate that there is no 'equal' in separate but equal, and therefore Plessy v. Ferguson was retarded when it was handed down, and is herewith belatedly overruled. Oh, and the remedy for segregated facilities is to order the segregation to end."

It would still have sparked opposition, but it would have tackled the bad precedent head-on without any doll studies or similar foolishness.

[David Nieporent]

I think the Supreme Court rang the death knell of Jim Crow in 1938, when it struck down an out-of-state scholarship offered to a black law-school applicant. Out-of-state was not equivalent to in-state.

Missouri ex rel Gaines v. Canada. But Canada disappeared and never actually enrolled, so his case didn't have the same impact as Sipuel.

These cases were all part of a decades-long strategy by the NAACP — devised and executed in significant part by Thurgood Marshall — that today's activists could learn from. They didn't demand 100% all at once and stomp their feet and have a tantrum. Instead, they said, "We're going to work to undermine Plessy, and only after it's fatally weakened will we challenge it head on." (Marshall was a lousy Justice but a great litigator.)

[The Margrave of Azilia]

"(Marshall was a lousy Justice but a great litigator.)"

Agreed, and I seem to recall saying similar things myself.

On the less creditable end of that spectrum, we can think of RBG's salami tactics, taking a piece at a time until we've reached, and even exceeded, a Supreme-Court endorsed unisex world, with both sexes equal and women just a bit more equal than men (once we figure out what a woman is).

And this all started when she asked just for social security benefits for a widower on the same terms as for a widow.

If she'd started off by saying, "Your Honors, I look forward to the day when women are admitted to our military schools, when men can marry men and women marry women, and transgender people have rights..." the judges would be like, "what's all this you want us to do? We're having none of it!" But she sliced off one piece of salami after another, and here we are.

The RBG movie (yes, there is one and, yes, I watched it) ignores this and has her a fearless fighter who never makes any compromises, even tactical or rhetorical ones. Thus missing the secret to her success.

[The Margrave of Azilia]

(She would have been depressed at the overruling of Roe, poor dear.)

[A Japanese Student]

Today's Japanese Supreme Court case is boring.

Counterfeiting of Official Documents Case (Third Petty Bench, decided January 12, 1960): Penal Code defines the crimes of "altering official documents" and "counterfeiting official documents", both punishable by up to 10 years in prison. Court holds that replacing photo in a driver license and altering the date of birth is "counterfeiting" and not "altering", as photo and DOB constitute critical parts of the document

[Stupid Government Tricks]

If they have the same punishment, why does the distinction matter?

[Drewski]

I presume he was charged with both but acquitted for one.

[Dan Schiavetta]

Do not let the dullness of a case stop you from posting one every day. It never stopped me!

[Stupid Government Tricks]

Also ... I'd love to see more of these, and could you post a link to a decision, PDF or web page? Google translate could probably do well enough.

[A Japanese Student]

Here is the PDF: https://www.courts.go.jp/app/files/hanrei_jp/657/051657_hanrei.pdf

The opinion is very short. It first notes that the statute does not recognize the purported grounds of appeal. (量刑不当 is "unfair sentence", and 法令違反 is "legal error"; under Article 405 of the Code of Criminal Procedure, the only recognized grounds of appeal are Constitutional error and violation of appellate court precedents.) However, Article 411 allows the Court to grant relief from legal, factual, or sentencing errors "when it deems that not doing so would clearly be contrary to justice".

Because the holding of the lower court was correct, it was summarily affirmed.

[Mr. Bumble]

Language, the ability that supposedly raised us out of the muck, still seems to have us trapped in the muck when it comes to the law.

[Paladin_44]

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

[The Margrave of Azilia]

Even when Holmes was right (which wasn't as often as his admirers said), he was right for the wrong reason, as witness his dissent in Gitlow v. New York (where he defended free speech for communists):

"If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."

https://supreme.justia.com/cases/federal/us/268/652/

He was expressing his true Nietzschean belief in a value-free struggle among worldviews. Freedom versus communism, meh, it's all a matter of power.

[Ridgeway]

I always saw Holmes more as a pessimistic nihilist than as a Nietzschean po-mo type. I have not really researched it, but I got the feeling that his worldview got severely warped by his experience in the Civil War.

[The Margrave of Azilia]

That's my understanding - he took the lesson that life is a continual contention of opposing forces, under "the good old rule, the simple plan, that they should take, who have the power, and they should keep, who can."

For all I know, he may have come to this view without Nietzsche, so if I was unfair to the philosopher by linking his name to Holmes', I apologize.

An actual Nietzschean, H. L. Mencken, saw through the cult of Holmes and pointed out (I wish there was a complete transcript I could access) that Holmes was basically an unidealistic soldier, which would of course get us back to the Civil War.

[The Margrave of Azilia]

"We demonstrate here that Holmes was familiar with Nietzsche's writings and that the two thinkers turned away from Christian ethics and glorified the life struggle in distinctly evolutionary terms. Both men celebrated the individual capacity to exercise the will for purposes of personal autonomy, greatness, and creative or aesthetic achievement. Nietzsche, however, did not share Holmes's belief in the pragmatic potential of meliorism, which marks the distinction between their notions of fate. The thinking of Nietzsche and Holmes converges in the person of Ralph Waldo Emerson, who was a manifest influence on both Holmes and Nietzsche and whose thinking on fate and power, inflected as it is by aesthetic pragmatism, shapes our understanding not only of Holmes and Nietzsche in isolation but also of Holmes and Nietzsche as paired, ambitious philosophers concerned about the role of fate and power in human activity."

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2908187