Today in Supreme Court History: January 23, 1915

1/23/1915: Justice Potter Stewart born.

Justice Potter Stewart

 

Comments

[Commenter_XY]

"I know it when I see it" - The Potter Stewart test

How many parents have used the same test with their children, lol. I confess, I have. 🙂

[SRG2]

"Mrs, Stewart, will your baby be a boy or a girl?"

>>>

[Syd Henderson]

"It probably will. I'll know when I see it."

[Dan Schiavetta]

United States v. Jones, 565 U.S. 400 (decided January 23, 2012): attaching a GPS device to suspected drug dealer’s vehicle (actually his wife’s) is a “search” of “effects” and therefore warrant needed

Ryburn v. Huff, 565 U.S. 469 (decided January 23, 2012): police entitled to qualified immunity for warrantless search when they went to house of student who had threatened to “shoot up” the school and when mother answered door and was asked if they had any guns she ran back inside

National Meat Ass’n v. Harris, 565 U.S. 452 (decided January 23, 2012): Federal Meat Inspection Act preempted California Penal Code as to slaughter and sale of “nonambulatory” animals (federal regulations allow sale of suitable parts after post-mortem inspection) (I am the son of a butcher and this nauseated even me)

Reynolds v. United States, 565 U.S. 432 (decided January 23, 2012): requirements of Sex Offender Registration and Notification Act do not apply to those convicted before the Act became law (July 27, 2006) unless (under the terms of the Act) the Attorney General so specifies (which he did on February 28, 2007); A.G. had been given discretion because of the plethora of pre-Act sex offenders to whom 50 different state registration laws applied

Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (decided January 23, 2006): Fed. R. Civ. Pro. 50 ties not just the trial court’s hands but also the appellate court’s: if, after motion for directed verdict (50(a)) no motion is made postverdict for judgment NOV and new trial (50(b)), then appellate court can’t enter judgment NOV nor order a new trial (issue at trial was allegedly fraudulently obtained patent, and the Tenth Circuit, whose procedural law applied, had previously ruled that a 50(b) motion did not have to be made)

[Brett Bellmore]

"(I am the son of a butcher and this nauseated even me)"

It really does matter why they're nonambulatory. I've eaten enough road kill to know that.

[Dan Schiavetta]

My dad would not have hired you.

[David Nieporent]

It really does matter why they're nonambulatory.

Not if you're Jewish! Doesn't matter whether sick or injured; either renders them non kosher.

(I suppose, "They're nonambulatory because I just slit their throats" would be an exception to the statement I just made.)

[SRG2]

The animals in the case were pigs...

[JoeFromtheBronx]

U.S. v. Jones is partially interesting for the various ways the justices split on how to explain their vote. Sotomayor voiced her support for both wings.

[A Japanese Student]

When the Supreme Court of Japan took the case, I believe it acknowledged both theories. As translated by me:

GPS investigations ... allow thoroughly tracking the locations and movements of the vehicle and its users. This method, which necessarily tracks one's activities continuously and exhaustively, can infringe upon an individual's privacy. And by attaching a device enabling such infringement to one's effects secretly, it constitutes an intrusion into a private area by Governmental authority, unlike tracking locations on public highway by eyesight or photography.
Although Article 35 defines the rights 'to be secure in their homes, papers and effects against entries, searches and seizures', we find it reasonable to interpret this as including the freedom from 'entries' not only to 'homes, papers and effects' but also to private areas equivalent thereto.

[F.D. Wolf]

On this day, January 23, 1893, Justice Lucius Q.C. Lamar died, after only five years on the Court.

Incumbent President Bemjamin Harrison, a Republican, had lost in the election the previous November to Grover Cleveland, who would begin his second (non-consecutive) term on March 4. While the Republicans controlled the Senate, Harrison realized that if he nominated a Republican, the Senate Democrats would filibuster the nomination until Cleveland took office in six weeks. So, on the recommendation of Justice Henry Billings Brown, whom Harrison had appointed to the Court two years earlier, Harrison, on February 2, nominated Howell Edmunds Jackson, a judge on the Sixth Circuit who had been appointed to that position by Cleveland. The Senate would confirm Jackson by acclamation on February 16.

To replace Jackson on the Sixth Circuit, President Cleveland would appoint Horace Harmon Lurton, who himself would later be elevated to the Supreme Court by President Taft. Jackson's tenure would be brief, as he died after serving only 2 years and 157 days on the Court.

[JoeFromtheBronx]

Lamar was cited as a "profile in courage" in the John F. Kennedy book. Lamar might have had his moments but was also a firm opponent of Reconstruction and black rights, and worked in various ways to undermine them both. This is not surprising given his significant role in secession and the Confederacy.

[JoeFromtheBronx]

Justice Potter Stewart, whose father was a judge, was a judicial moderate on the Warren and Burger Courts.

His first name, we saw this with Bushrod Washington, is his mother's maiden name. On the court appeals, Stewart replaced the classically named "Xenophon Hicks."

Potter Stewart is most famous for "I know it when I see it," which is an honest accounting of determining close questions. The specific case involved a film that was clearly not obscene. The dissent largely relied on how it was advertised (pandering). Stewart later cited specific standards he used to determine "hard-core porn."

Stewart dissented in Griswold v. Connecticut, but later accepted it as precedent. He concurred in Roe v. Wade, noting in a short concurrence that it was an application of substantive due process. He went along when the Court did not strike down the Hyde Amendment as to abortion funding.

Stewart resigned at about the age of 65 and was followed by Justice O'Connor. He died a few years later. He did write a notable defense of the exclusionary rule during the years. Stewart did not join Mapp v. Ohio when it was handed down, relying at the time on a First Amendment ground (mere possession of obscenity).

Stewart was not a big fan of Warren Burger. He was later determined to be a major source for The Brethren, the gossipy inside look at the Burger Court.

Just to toss it in, John Paul Stevens in his "Five Chiefs" book provides a generally positive view of Burger though he grants (acknowledges) that Burger had problems presiding over conferences and related administrative tasks.

[David Nieporent]

Stewart dissented in Griswold v. Connecticut, but later accepted it as precedent.

Stewart called the law "uncommonly silly," but sad that this didn't give him authority to ban it. (You get the sense that he found the emanations and penumbras in Douglas's opinion also uncommonly silly, though he was too polite to use that exact phrase for his colleague.) Clarence Thomas borrowed that formulation for his dissent in Lawrence v. Texas, adding that if he were a legislator he would vote to repeal the law.

[JoeFromtheBronx]

Thomas does not reference O'Connor's concurring opinion, which cites an enumerated provision of the Constitution.

[David Nieporent]

*said, not sad.

[JoeFromtheBronx]

Jacobellis v. Ohio is the "I know it when I see it" case.

There were two dissents, to be clear, one by Warren/Cark and one by Harlan. Warren references the "use to which various materials are put." Harlan in effect says "I would provide states more discretion. When they act irrationally I will know it when I see it. They acted rationally here." He doesn't provide details.

Stewart provided more details on his test of obscenity in his dissent in Ginzburg v. United States. You get the idea that he was a bit embarrassed from the reaction to his earlier quip:

"In order to prevent any possible misunderstanding, I have set out in the margin a description, borrowed from the Solicitor General's brief, of the kind of thing to which I have reference."

[Dan Schiavetta]

Stewart waited until 1981 to retire because he wanted a Republican President to nominate his successor. Though he also publicly criticized Nixon for his hackish nominees who didn't make it (Carswell and Haynesworth). As I recall he called it "blatant politicization of the Court".

One of the early clues that my law school girlfriend (I was a 1L and she was a 3L) had a shallow understanding of the law was when I mentioned Potter Stewart and she didn't know who he was -- even though her specialty was Civil Rights. This was in 1989.

[A Japanese Student]

Georgia Coffee Case (First Petty Bench, decided January 23, 1986): Coca-Cola could not trademark "Georgia" (coffee brand) because it is a geographic name, even though it does not identify the actual place of manufacture (Coca-Cola later obtained trademark after showing continuous use necessary to overcome presumption)

Gender Identification Change Sterilization Requirement Case (Second Petty Bench, decided January 23, 2019): Held constitutional a provision of Gender Identity Disorder Act requiring those seeking gender changes to be sterilized; overruled unanimously in 2023 (see upcoming Oct. 25 entry)

Fraud, Theft, Attempted Fraud Case (First Petty Bench, decided January 23, 2020): Appellate court reversed acquittal and convicted defendant without appellate-level factual inquiries, contrary to Supreme Court precedents (because it thought they should be overruled); in reversing, Supreme Court upholds the precedents as consistent with Article 400 of Code of Criminal Procedure

[Dan Schiavetta]

Your case summaries are fascinating, being from a "tradition" of 1946-imposed American law, yet interpreted from a Japanese sensibility. I wonder about the extent of pre-Showa influence. What is your opinion?

[A Japanese Student]

Japan got the opportunity to import legal theories from all over the world - Civil Code is influenced by Germany and France, and I recently discovered that one provision in the Penal Code likely had its origin in Spain. And of course, constitutional laws are heavily influenced by the US constitution.

There are many interesting case laws pre-Showa, and some do still get cited. It's not as influential as, say, Blackstone's - simply because Japan is a civil law jurisdiction. Statutes matter a lot more than old precedents (even more so when they don't directly apply), and they get amended very frequently.

[JoeFromtheBronx]

see upcoming Oct. 25 entry

ah. A tease. BTW these are again much appreciated and it would be great if other websites provide a similar service for other nations.

For instance, a Trump EO dropped that advanced the cause of recognition of the Lumbee Tribe of North Carolina. I read about them in the recent book The Indian Card and checked out their official website. There is a page that provides Lumbee Supreme Court opinions.