Today in Supreme Court History: January 26, 1832

1/26/1832: Justice George Shiras Jr.'s birthday.

Justice George Shiras Jr.

Comments

[Dan Schiavetta]

Crawford v. Nashville, 555 U.S. 271 (decided January 26, 2009): Title VII of the Civil Rights Act of 1964 forbids retaliation against an employee who makes an accusation of sexual harassment. Here the Court holds that it also protects an employee who reports sexual harassment only after being asked about it by the employer’s agent as part of an investigation into the alleged harasser. (That’s right: at a presumably confidential investigative interview she was asked if she’d heard about this guy harassing anyone, she said yes, and she got fired for it.)

Arizona v. Johnson, 555 U.S. 323 (decided January 26, 2009): Warrantless patdown of passenger justified during Terry stop (expired registration) when answers and clothing gave indicia of gang membership (Crips) and defendant had a police scanner in his pocket (handy for a getaway car). The opinion contains a good, brief summary of traffic stop law that began with Terry.

United States v. Watson, 423 U.S. 411 (decided January 26, 1976): Postal inspectors can arrest you if you have stolen mail (or even for any felony, evidently even if unconnected with mail, 18 U.S.C. §3061(a)(2)). Here, the Court holds that an arrest in a restaurant did not need a warrant, after a “reliable informant” told the inspector that defendant possessed stolen credit cards. (My old girlfriend worked for the county Weights and Measures Bureau, going around in her uniform testing meat scales in stores, etc., and learned that technically she had the power to arrest people. She never did, of course, but it would have been fun to do her last day on the job.)

Draper v. United States, 358 U.S. 307 (decided January 26, 1959): warrantless arrest allowed where informant had described what train defendant would be stepping off of, what he would be wearing, the color of his satchel (which contained heroin), and that he would be walking fast

Shapiro v. Doe, 396 U.S. 488 (decided January 26, 1970): Court dismisses appeal of decision invalidating requirement that mother of non-marital children receiving welfare reveal name of man she was living with, because appeal deadline missed by one day; Black and Douglas dissent, arguing that the Constitutional issues are important enough to invoke Court’s power to overlook deadline in the interest of justice (I don’t think the Court ever got another chance to address this question)

[A Japanese Student]

Before the privatization of Postal Service in Japan, they also had postal inspectors. I'm not familiar with pre-privatization postal law, however apparently they were only allowed to request warrants, not execute them.

Under the Constitution of Japan, arrests must be made with warrant except "in flagrante delicto". Subject to petty offense exceptions, those suspects can be arrested by any person (citizens' arrest). Code of Criminal Procedure establishes another, constitutionally questionable category of arrest for exigent circumstances - where the police can get a warrant after arrest.

[Dan Schiavetta]

Thanks. Interesting to see how Japanese law eventually diverged from American. How much of this difference was preexisting?

[A Japanese Student]

Meiji Constitution had no warrant requirement. There was a brief period between the Constitution becoming effective (May 3, 1947) and the present Code of Criminal Procedure becoming effective (1949). During that period, old Code was applied with slight modifications under the Temporary Measures Act. The exigent-circumstance arrest was part of that Act.

Japan hasn't adopted many of the Warren Court's protections against criminal defendants. Prosecutors are allowed to withhold exculpatory evidence. Miranda isn't a thing. Until recently, defendants were not provided public defenders until they were indicted - at which point the suspect had already given confessions in a room where attorneys still cannot enter. And exclusionary rule, although not absent, is rarely applied.

[The Margrave of Azilia]

Who does the indicting?

[A Japanese Student]

Usually the Government (prosecutors). There is no grand jury whose approval is necessary for indictment. However, there are two, rare but noteworthy exceptions...

1) When the prosecutor refuses to bring charges on color-of-law offenses (such as "abuse of authority", see yesterday's entry, or police violence), that can be appealed to a district court, which may issue an order equivalent to an indictment.

2) Denial of prosecution can also be appealed to Prosecutorial Review Commission, which is structured like a grand jury. It can deny the appeal, request reconsideration by the prosecutors, or (by supermajority) recommend prosecution. When the Commission recommends prosecution but the Government again refuses to do so, the Commission can again vote (again with supermajority requirement), this time to bring charges by themselves.

[The Margrave of Azilia]

This is very interesting.

[With Trump in, "now Lord you can let your servant go in peace"]

Japan needs Christianity and its best modern fruit : all men are created equal, that they are endowed by their Creator with certain unalienable Rights..and government exists to protect these rights.

Which has 3 things that Libertarians have to disguise hating: A Creator, rights from that Creator, and government [rightly ] exists to protect those rights.

[The Margrave of Azilia]

The quote about "let your servant go in peace" is from Christianity, but it's not about Trump.

[SRG2]

If you're going to make that argument, you have to prove the existence of a creator, and that they endowed rights.

[With Trump in, "now Lord you can let your servant go in peace"]

NO, SRGT2, YOU DO, because I am simply accepting the Founding Principles of my country. You are rejecting them and pretending to be American.

[Dan Schiavetta]

Thanks!

[Noscitur a sociis]

Under the Constitution of Japan, arrests must be made with warrant except "in flagrante delicto".

Obviously that’s not the literal rule—what’s the actual standard?

[A Japanese Student]

Article 212 sets the standard. https://www.japaneselawtranslation.go.jp/en/laws/view/3739#je_pt2ch1at25

[Noscitur a sociis]

Thanks!

[Dr. Ed 2]

The Postal Inspectors existed, like the Railroad Police, in a place & time where there were no other police. Until 1967, there were railroad post offices and the end of these is what really killed passenger rail as the RPO essentially subsidized passenger trains.

See: https://en.wikipedia.org/wiki/Railway_post_office

Remember too that a lot of cash was routinely sent through the mail.

[John F. Carr]

In the absence of legislation, the common law of my state says an arrest without warrant may be made for a "breach of the peace."

A common American rule allows a citizen's arrest for anybody who has in fact committed a felony. Sometimes the felony must be committed in the presence of the citizen making the arrest.

There was a case in the news several years ago where workers at a car impound lot detained a man who was walking around trying car doors. He said he was looking for unlocked cars and locking them, not trying to steal from them. The workers didn't believe his story. When police arrived and reviewed surveillance video they found he was telling the truth. Workers reasonably suspected a crime. There was no felony. It is not clear whether there was a sort of shopkeeper's privilege to detain the man, or whether he was arrested illegally. This was in Connecticut if I recall correctly.

[JoeFromtheBronx]

Sherlock was quite disappointed that his former colleague had fallen into a life of crime.

[ducksalad]

No one made you do that.

[Krayt]

Here, the Court holds that an arrest in a restaurant did not need a warrant

"It's alimentary, my good man."

[A Japanese Student]

Yoon Su-gil Case (Second Petty Bench, decided January 26, 1976): Prohibition of extradition of political offenders is not an established international customary law (Yoon, an undocumented immigrant from dictatorship-era South Korea, was an advocate for political prisoners; at that time Japan did not recognize asylum claims)

Tort Claims Case (Third Petty Bench, decided January 26, 1988): Filing a lawsuit can be tortious if and only if the plaintiff knew or should have easily known that it is factually or legally baseless, or is otherwise markedly inappropriate given the purpose of judicial system

Noncitizen Administrative Position Denial Case (Grand Bench, decided January 26, 2005): Local government (here, Tokyo Metropolitan Government) may bar noncitizens from applying to administrative positions; 13-2 vote, with the dissenting two arguing it violated the Constitution (Plaintiff was born in Japan to South Korean parents, but lost citizenship due to San Francisco Treaty)

Condominium Cooperation Fee Case (Third Petty Bench, decided January 26, 2010): Imposition of 2,500 yen fee for ghost unit owners (who purchased units of a condominium without residing there) did not "have a special influence on the rights of some unit owners" such that they could veto (fun fact: in Japan condominiums are known as "mansion")

[Mr. Bumble]

"n British English, a mansion block refers to a block of flats or apartments designed for the appearance of grandeur.[1][2] In many parts of Asia, including Hong Kong and Japan, the word mansion also refers to a block of apartments. In modern Japan, a "manshon" (Japanese: マンション), stemming from the English word "mansion", is used to refer to a multi-unit apartment complex or condominium."
Looks like they took the British English usage.

[John F. Carr]

The French word appartement came into English as apartment with the meaning we know. It went into Turkish as apartıman with the meaning "apartment building", not an individual apartment.

[Dan Schiavetta]

Does Turkish ever put a dot over an "i"?

[John F. Carr]

There are two letters i in Turkish. The dotted i sounds like eee. The undotted ı is a sound we don't have in English. Compare Russian ы. Traditionally you get dotted i around consonants that are made in the front of the mouth and undotted i around consonants that are made in the back of the mouth. Foreign borrowings upset the scheme.

[JoeFromtheBronx]

Shiras was appointed by President Benjamin Harrison even though he did not have previous political or judicial experience.

Shiras decided to retire at age seventy so as not to serve past his sell date and didn't change his mind. He was on the Supreme Court for about a decade and lived twenty years after his retirement.

People thought he changed his vote in the Income Tax Case, resulting in some controversy. Charles Evan Hughes later suggested someone else was actually the switchee. Sounds like prime JB inside gossip pontificating material.

Shiras was generally a moderate and is now mostly remembered for his facial hair.

[JoeFromtheBronx]

Justice Thomas swore in Kristi Noem, the new Secretary of Homeland Security. VP James David Vance had a scheduling conflict.

https://www.cnn.com/2025/01/25/politics/kristi-noem-confirmed-homeland-security-immigration/index.html

[David Nieporent]

Since some have asked here in other threads: Noem is an example of someone who I wouldn't have chosen, but who is a bog-standard type of appointee for a job like this, and who I'd have voted yes on as a senator, on the theory that there should be some deference to the president for his cabinet picks.

Unlike Hegseth, who is utterly unqualified in addition to any personal flaws.

[The Margrave of Azilia]

Plus, Hegseth stands credibly accused of not wanting women in combat.

[Alpheus W Drinkwater]

His outspoken defense of convicted war criminals is another big problem for me.

[The Margrave of Azilia]

I hadn't heard of that one - which war criminals?

[Alpheus W Drinkwater]

Eddie Gallagher is the most troubling one, to me. He actually had him on his Fox show and called him a hero. He had others on as well. He also championed Trump's pardons for Clint Lorance and Matt Golsteyn, near the end of his first term. I didn't watch any confirmation hearings, but I believe Hegseth was asked about this during his confirmation.

[The Margrave of Azilia]

I'm sorry to say I don't recognize any of these gentlemen, what were their crimes?

[Noscitur a sociis]

Eddie Gallagher was accused of killing an ISIS fighter that his SEAL unit had captured. He was acquitted of that in a trial that betrayed some less than stellar prosecutorial strategies. (He was convicted of improperly taking a picture with the body.)

Clint Lorance directed his platoon to fire on three unarmed men while on patrol if Afghanistan: they obeyed and killed two of them. He was convicted of murder in a court martial and pardoned by Trump.

Golsteyn came under investigation by the army after he admitted on Fox News that he had assassinated a Taliban bombmaker. Trump preemptively pardoned him.

[The Margrave of Azilia]

Lorance and Golsteyn, if these summaries are correct, sound like war criminals (note to their attorneys: I'm not saying the summaries are correct, I'm just saying nas' version of events makes them sound guilty).

As to Gallagher, his case was weighed by a tribunal - a court-martial, I suppose? - which looked at the evidence and found him not guilty. I'm not going to assume he woulda been convicted if only the prosecution had done this or that differently.

Yet the acquitted guy is "the troubling one"?

And what were the bases of the pardons? Innocence?

[Purple Martin]

Eddie Gallagher was a Navy SEAL who was accused by several of his fellows SEALS of war crimes for attacking an unarmed ISIS fighter who was in custody. He was convicted of one acknowledged war crime: taking a trophy photo of himself with body of the captured, wounded 15-year-old Afghan boy (and yes, likely enemy fighter) he was charged with murdering. With a knife.

During the trial, another SEAL—one of several who had been granted unconditional immunity by prosecutors for their testimony—changed his story and claimed that after Gallagher stabbed the wounded 15-year-old captive in the throat, he, and not Gallagher, had completed the killing by covering an air tube the boy had received during initial medical treatment, which he said was an act of mercy because the boy would have died anyway. (He was not charged because, immunity.)

Several of the witnesses testified to seeing Gallagher pull the hunting knife from his BDU pocket and stab the boy, but none recalled a subsequent breathing tube act (granted, a much less obvious act).

The court did not convict either SEAL of the murder but did find Gallagher guilty of the highest charge they could. Either Gallagher or his buddy literally got away with murder. Trump approves.

I'm career military—SMSgt (Ret) USAF—and I fully understand the psyche of some of my fellow SNCOs who would never do a thing like this, but still support Gallagher. I would (and did) trust them with my life, but would not trust them, or Trump, with command (and I would trust them as warfighters, but Trump? Not in a million years).

With his pardons of Gallagher and other convicted war criminals, Trump equates military service to the dishonorable behavior of violent criminals, reinforcing the world’s perception that under Trump we have become a nation where what’s-in-it-for-me greed and might-makes-right despotism are valued over decency, integrity, and honor (and with personal blind loyalty to the despot valued over everything).

When our President actively encourages members of our military to ignore their own rules of engagement and international law in non-combat killings of foreign civilians, he gives other countries an excuse to do the same to us. The actions and behavior of this President eroded rule the rule of law, an erosion that is only accelerating. Because of this, all of us are less safe.

[The Margrave of Azilia]

I thought Gallagher was acquitted by a military tribunal, not pardoned by Trump?

"Either Gallagher or his buddy literally got away with murder."

If only one of them was guilty, isn't it possible Gallagher was the one who wasn't guilty?

I mean, I'm only reading summaries on a comment board, but the tribunal - not Trump or me - are the ones who seem to have voted to acquit. Maybe there was a reasonable doubt?

Or did Trump wield improper command influence to get Gallagher acquitted?

[Noscitur a sociis]

I thought Gallagher was acquitted by a military tribunal, not pardoned by Trump?

Trump did not pardon Gallagher. He did intervene to eliminate the punishment that the court martial imposed on him.

[The Margrave of Azilia]

On the corpse-disrespect charge?

[Mr. Bumble]

Your opinion is duly noted and is worth a bucket of warm piss (H/t John Nance Garner). Get back to us when you are the US Senator from Whitelandia.

[David Nieporent]

Ankle biter bites ankles again!

[Noscitur a sociis]

Your opinion is duly noted and is worth a bucket of warm piss (H/t John Nance Garner via Volokh Conspiracy poster Mr. Bumble).

[With Trump in, "now Lord you can let your servant go in peace"]

South Dakota’s Noem defends forgoing masks as virus surges

BUt she was right and 49 governors were wrong. That counts for a lot with me.