Today in Supreme Court History: February 6, 1858

2/6/1858: Justice Mahlon Pitney's birthday.

Justice Mahlon Pittney

Comments

[Dan Schiavetta]

District of Columbia v. Gallaher, 124 U.S. 505 (decided February 6, 1888): District of Columbia is bound by post-contract modifications to sewer project (including increased payment) agreed to by predecessor body which was then legislated out of existence (this was the Board of Public Works, which according to Wikipedia spent D.C. almost into bankruptcy; Congress abolished it in 1874) (project turned the open-sewer Tiber Creek into an underground river, like the River Fleet in London; one of the buildings built over it is the IRS headquarters)

Rocco v. Lehigh Valley R.R. Co., 288 U.S. 275 (decided February 6, 1933): track inspector killed by train collision on blind curve; case could go to jury even though he broke rule about checking ahead

Regents of University of Georgia v. Carroll, 338 U.S. 586 (decided February 6, 1950): FCC can’t force applicant to divest as condition for granting radio license; it can only grant or deny

United States v. Alpers, 338 U.S. 680 (decided February 6, 1950): obscenity statute as to visual materials includes obscene phonograph records (despite rule of “ejusdem generis”) (the government tried to argue in the Circuit Court that statute could not refer to just “visual” material because it would include Braille, but the court couldn’t imagine obscene material in Braille -- “the probability of finding the evil designed to be suppressed in the Braille system of communication is so extremely remote” -- a comment which shows the limits of that court’s imagination) (I couldn’t find the “dirty record” at issue; BTW, my nominee for best obscene track is “Come with Me” by Rare Earth; worst is “Kiss Kiss Kiss” by Yoko Ono)

Fayolle v. Texas Pacific Ry. Co., 124 U.S. 519 (decided February 6, 1888): appeal dismissed because lower court clerk said he would docket the record in time but failed to do so (!)

[JoeFromtheBronx]

Justice Black with Frankfurter and Jackson [Douglas did not take part, perhaps because of his accident] dissented in Alpers, arguing the majority interpreted the statute too broadly, which would be particularly problematic when free speech was involved.

I was amused in another later case involving fetish magazines where the Supreme Court included a long list of materials involved. A sort of reading list. Mishkin v. New York.

To be clear, the lower court did not say Braille materials cannot be obscene. A book without pictures could be obscene. If so, it would be if the print was in Braille. It was concerned with "evil designed to be suppressed" (visual works) by the statute.

A dirty picture can be drawn using Braille. The lower court ultimately left the question open. "Whether or not a book of that character conveying obscene matter would be a violation of the statute we do not decide."

[Dan Schiavetta]

Thanks!

[Dan Schiavetta]

I didn’t know Pitney was “born again”. !

[Dan Schiavetta]

I see it got fixed (the double post).

[F.D. Wolf]

Justice Mahlon Pitney, a man so impressive, we must honor him twice on his birthday (at least momentarily). Richard Epstein, the much-cited and highly influential (and not just on this website) libertarian legal scholar seems to mention Pitney a lot in his work. He has on more than one occasion referred to Pitney as one of, if not the, most underrated Supreme Court justices in history. I would recommend his brief biographical entry on Pitney, for a differing perspective, if nothing else, from which I will reproduce only the first paragraph:

Maholn Pitney was appointed to the United States Supreme Court by President William H. Taft in 1912 and served there for ten and one-half years until his retirement in December 1922. He is generally regarded as a footnote in the annals of American Supreme Court justices. But for the ten years that he was on the Court, he was in my view a powerful intellect who often bested both Justices Holmes and Brandeis on the many occasions when their views clashed.

https://constitutingamerica.org/justice-mahlon-pitney-1858-1924-guest-essayist-richard-epstein/

[Commenter_XY]

From the comment in the linked essay

“For the time is coming when men will not tolerate wholesome teaching. They will want something to tickle their own fancies, and they will collect teachers who will pander to their own desires. They will no longer listen to the truth, but will wander off after man-made fictions. For yourself, stand fast in all that you are doing, meeting whatever suffering this may involve.”

Words for today?

[Dan Schiavetta]

“Politicians lie. They lie because, when they tell the truth, we don’t vote for them.” (Andy Rooney)

[Syd Henderson]

I remember from "The Trial" that Josef K was accused of playing obscene records on his pornograph.

[Dan Schiavetta]

In an early Woody Allen film he talks about his grandmother who was “arrested for selling pornographic connect-the-dots books”.

[JoeFromtheBronx]

Looking it up, Pitney's birthday is cited as February 5th. I just dropped one source. Oyez.com, Federal Judicial Center, etc. have the same date.

https://supremecourthistory.org/associate-justices/mahlon-pitney-1912-1922/

He was born in Morristown, N.J. in 1858. Morristown, New Jersey was the location where General George Washington established two winter encampments during the Revolutionary War.

Valley Forge was famously harsh. The two stays at Morristown were not for timid souls either. Washington labeled one winter stay as "intensely cold and freezing,"

Multiple colleges are nearby, including Drew University, which former governor Tom Kean (who co-chaired the 9/11 Commission) presided over for several years.

[David Nieporent]

Tom Kean was (is) from the moderate wing of the GOP, and is vocally opposed to Trump just like similar Republicans Charlie Baker, Larry Hogan, and Christie Todd Whitman. (MAGA, of course, idiotically labels all such people RINOs, even though they've been lifelong Republicans.) Tom Kean's son is a GOP congressman from NJ, and cowardly lashes himself to Trump.

[A Japanese Student]

Injury to Parent Causing Death Case (Second Petty Bench, decided February 6, 1976): Statute providing enhanced sentence for manslaughter of parents remains constitutional; mandatory-minimum disparity found in parricide statute (the first statute to be declared facially unconstitutional, decided April 4, 1973) not applicable in this case

Special Kokoku-Appeal to Evidentiary Order (Third Petty Bench, decided February 6, 1979): No interlocutory appeal is allowed against orders admitting or excluding evidences (this was the Lockheed "Marubeni" Route case, one of the most significant bribery prosecutions of the century; one of the issues was whether to admit American co-conspirators' testimony obtained in the US under 18 USC 6001; see February 22)

Tort Claims Case (Second Petty Bench, decided February 6, 1987): Public school teacher "exercises the public authority", and the Government must compensate for students' injuries (the teacher instructed middle school students to dive into a pool; one of them hit the bottom of the pool and became quadriplegic)

Brazil Resident Hibakusha Case (Third Petty Bench, decided February 6, 2007): Plaintiff should be relieved from statute of limitations for hibakusha compensation while residing in Brazil; they were denied benefits due to unlawful guidance document purporting to ban payments to expatriates

[Noscitur a sociis]

Is there an English-language source with more info about these cases? (In general I mean, not in particular.) I’ve tried searching for the names you have a couple of times on google and the supreme court’s website and haven’t had much luck.

(To be clear, I’m not accusing you of making them up, but if you were it would be a pretty epic troll.)

[A Japanese Student]

Japan doesn't really name cases. Case captions come from generic causes of action, like "Tort Claims" or "Theft, Fraud". In major cases jurists usually name the case, which gets adopted by major case books.

The actual case citation for the Hibakusha Case would be, 最高裁平成19年2月6日判決民集第61巻1号122頁 (SCOJ Heisei 19, February 6 decision, Minshu No. 61, Issue 1, page 122). Minshu is the official reporter for civil cases in the Supreme Court. (Not all cases go to Minshu; some are unpublished.)

The Court actually does translate some of the decisions (mostly IP-related, I believe) to English, though they are unofficial (and frankly, very hard to read). I did locate that ruling: https://www.courts.go.jp/app/hanrei_en/detail?id=873