Today in Supreme Court History: February 8, 1941

2/8/1941: Justice Willis Van Devanter dies.

Justice Willis Van Devanter

Comments

[Mr. Bumble]

the double posting continues.

[Frank Drackman]

The Judge so nice we remember his death twice

[Dan Schiavetta]

Irvine v. California, 347 U.S. 128 (decided February 8, 1953): state (though not federal government) can use illegal means to obtain evidence; defendant still has remedy of suing officers under 42 U.S.C. §1983 (police had locksmith make extra key for door, installed hidden microphone, ran wire through roof, and recorded conversations as to gambling) (though never explicitly overruled this case can’t still be good law)

Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89 (decided February 8, 1954): Attorney General wins Sherman Act antitrust case against distributor/theater owner/franchisor (Paramount). Paramount sues the theater operator/tenant/ franchisee (Partmar) to void the lease due to illegality and to evict. Partmar counterclaims for conspiracy in violation of antitrust laws. Then the AG’s victory gets overturned on appeal, 334 U.S. 131, the Court holding that the franchise agreement was not per se illegal. So in arguing for eviction Paramount now has to argue that its conduct, notwithstanding the reversal, still violated antitrust, and Partmar argues that even if no antitrust violation there was still a conspiracy in intrastate commerce (outside the scope of the Sherman Act) and that no attempt to disprove conspiracy was made in the AG suit. Still with me? The trial court holds both that there was no reason to terminate the lease and also, as a matter of law, no conspiracy. Partmar appeals as to the dismissal of the counterclaims without a trial; it still wanted disgorgement of excessive rents, etc. The Court here holds that the finding as to the lease being legal (which was not appealed) necessarily included a finding of no conspiracy, and therefore that the counterclaims are precluded. But as this article points out, it’s not clear that the elements of the counterclaims had been fully and fairly litigated. “Collateral Estoppel and the Right to Appeal”, 7 Stanford L. Rev. 114 - 120 (1954).

C.J. Hendry Co. v. Moore, 318 U.S. 133 (decided February 8, 1943): California courts could affirm seizure of “purse net” (absurdly large net, nuisance to other fishers) in navigable waters; did not fall within federal courts’ exclusive admiralty jurisdiction because seizure is a common law remedy (preserved by the Jones Act “saving to suitors” clause, 28 U.S.C. §1333)

Williams v. Peyton’s Lessee, 17 U.S. 77 (decided February 8, 1819): invalidating tax sale of property because purchaser could not show it had been properly advertised

Owens v. Hanney, 13 U.S. 180 (decided February 8, 1815): breakout of war does not invalidate judgment citizen of enemy has already obtained against a United States citizen

Murray v. UBS Securities, 601 U.S. 23 (decided February 8, 2024): whistleblower statute (18 U.S.C. §1514A(a)) requires showing only that reporting corporate misdeeds was a “contributing factor” to an “unfavorable personnel action”, not that there was specific retaliatory intent; defendant must show that it would have done the same thing to the employee even if he’d kept his mouth shut

Dept. of Agriculture v. Kirtz, 601 U.S. 42 (decided February 8, 2024): Fair Credit Reporting Act waives sovereign immunity and therefore DOA can be sued for FCRA violation when it told TransUnion that Kirtz hadn’t paid off housing loan when in fact he had

[Noscitur a sociis]

(though never explicitly overruled this case can’t still be good law)

It was pretty explicitly overruled in Mapp v. Ohio, 367 U.S. 643 (1961).

[Dan Schiavetta]

Not explicitly. Mostly the Mapp Court overruled Wolf v. Colorado, 1949. It barely mentioned Irvine.

[Noscitur a sociis]

Because Irvine was itself simply a straightforward application of Wolf. And they did mention, explained that it applied the same doctrine, and overruled it. I’m not sure how much more explicit you want them to be.

[David Nieporent]

Williams v. Peyton’s Lessee, 17 U.S. 77 (decided February 8, 1819): invalidating tax sale of property because purchaser could not show it had been properly advertised

The Supreme Court just doesn't take many cases with "Lessee" in the caption any more.

[JoeFromtheBronx]

I tried to find the last time there was a "Lessee" case & Murray's Lessee v. Hoboken Land & Improvement Company (1856) came up. It's a significant due process case. They probably were already in decline by then. I wonder how many occurred after that.

[John F. Carr]

The lead opinion in Irvine v. California concludes with two members of the court calling on the Attorney General to prosecute the police officers who planted a microphone in the defendant's house. See 18 USC 242. There was no majority opinion. 4 "we already decided this" to 1 "Wolf was wrong but stare decisis" to 2 "police state!" Was the court shorthanded that day?

[JoeFromtheBronx]

William Van Devanter was an up and comer in the Wyoming Territory. He was chief justice of the territorial court by age 30.

He had "pen paralysis," having troubling writing opinions. But he was great behind the scenes. Chief Justice Taft signed him up to help with the Judges Bill that modernized the federal courts.

He retired when the federal judges were given a pay raise. Did he not have billionaires to give him perks?

Irvine v. California was an impetus to developing constitutional privacy protections, including applying the exclusionary rule to the states. Some of the concurring justices were appalled by the result that seemed necessary per precedent.

Justice Clark (a former prosecutor) hoped it might force reform: "Perhaps strict adherence to the tenor of that decision may produce needed converts for its extinction." And he was the one to do it, writing Mapp v. Ohio a few years later.

[JoeFromtheBronx]

Borrowing from Justice Felix Frankfurter, Jackson predicted how presidential immunity would cascade downward, replacing a system of laws over men with rule by lawless men: “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” We seem to be in the chaos phase now—no one knows exactly what is happening, agencies are in turmoil, civil servants don’t know if they will lose their jobs, and every hour new revelations come to light. She continued, “If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” To the extent that this lawbreaking extends into violation of criminal laws, Trump’s pardon power can ensure that following the law is not only unnecessary but impractical for his supporters.

https://www.motherjones.com/politics/2025/02/what-justice-jackson-warned-about-in-the-trump-immunity-case-is-coming-true/

[Dan Schiavetta]

Well put.

[Mr. Bumble]

Next up; end DEI in appointing judges and justices.

[Malika the Maiz]

Yeah, Barrett, Thomas and Scalia were bad choices.

[Ama Valde Intellectum]

Yes and Sotomayor and Ketanji and Kagan are not stupid as hell.

{ Yes, they are...don't want to go along with utter nonsense like dissing Thomas and Scalia. ]

[Noscitur a sociis]

The point
.
.
.
.
.
.
.
.
.
.
.
.
Your head

[Armchair]

PAUL A. ENGELMAYER, District Judge, has just issued a fairly shocking injunction against the Trump administration in regards to DOGE evaluation of the Treasury Department.

https://storage.courtlistener.com/recap/gov.uscourts.nysd.636609/gov.uscourts.nysd.636609.6.0.pdf

The injunction is so broad, that as I read it, neither the Treasury Secretary, nor Trump himself have authority to access the Treasury Department's payment systems. That strikes me as absurd overreach.

"the defendants are (i) restrained from granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees, other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations; (ii) restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any
other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees"

[David Nieporent]

PAUL A. ENGELMAYER, District Judge, has just issued a fairly shocking injunction against the Trump administration in regards to DOGE evaluation of the Treasury Department.

He did not. This was a TRO, not an injunction.

[Armchair]

Sigh...OK Mr. Technical.

However....

"An injunction is a court order requiring a person to do or cease doing a specific action. There are three types of injunctions: Permanent injunctions , Temporary restraining orders and preliminary injunctions . Temporary restraining orders (TRO) and preliminary injunctions are equitable in nature."

As a temporary restraining order is a subclass of injunction, technically speaking...I was correct.

https://www.law.cornell.edu/wex/injunction#:~:text=There%20are%20three%20types%20of,injunctions%20are%20equitable%20in%20nature.

Try not to be tedious in the future.

[Dan Schiavetta]

There is a great difference. A TRO is in effect only until the motion for injunctive relief is argued and decided. An injunction can be for years, or forever.

[Armchair]

"An injunction can be for years, or forever."
A permanent injunction can be an example of that. Another type of injunction.

If we're being technical...we might as well be correct when we're being technical. Type...subtype.

[Dan Schiavetta]

It’s a lot easier to get a TRO than an injunction. Here it was practically guaranteed. And hs very little predictive value as to how the court would ultimately rule.

[Armchair]

Once again...a TRO is a type of injunction.

[David Nieporent]

Try not to be tedious in the future.

Try to understand what the topic is. A TRO is meant to freeze the status quo for just a few days, often on an ex parte basis, until a hearing can be held. So it's very hard for a TRO — as opposed to an injunction — to be "fairly shocking," as you characterized it.

[Armchair]

It is "fairly shocking" as I characterize it, because it presumes to ban the President of the United States and the Secretary of the Treasury from being able to access a database under control of the United States Treasury department.

Even temporarily, it is absurd overreach by this judge. It does not "freeze the status quo".

[A Japanese Student]

Recent debates about Humphrey's Executor led me to revisit how that doctrine evolved in Japan, which imported several independent agencies from the US and established new ones. The constitutionality debate once prominent in the 1950s is long gone, and nobody seriously argues that they are unconstitutional. Yet it appears there is no single, concrete theory. Nor is there any case law, aside from one district court opinion that is unpublished.

Those agencies - known as "independent administrative commissions" or "Article 3 commissions" - have members that require confirmation by both Houses and enjoy removal protection. There is also a party balance requirement, which is practically meaningless given most people are not formally registered with any parties. The Cabinet still gets to determine the budgets, submit bills drafted by them, and nominate members.

FTC and Central Labor Relations Commission are the only commissions from the occupation era that have identical twins in the US (although FTC does not enforce consumer protection laws here). Other commissions include NPA (OPM), NPSC (supervises police), PSEC (approves surveillance of "subversive" entities, these days the remains of Aum Shinrikyo), NRA (NRC), JTSB (NTSB), EDCC (arbitrates pollution-related matters), PPC (enforces privacy laws), and JCRC (regulates casinos).

Most theories focus on Article 65 (the vesting clause), which unlike Article 41 or 76 does not specify that the "whole" executive power is vested in a Cabinet.

[F.D. Wolf]

Willis Van Devanter was a central figure in the episode of legendary Wild West lore known as the Johnson County War. He has been an invaluable source to scholars of the topic, because so many others involved in the events destroyed all their papers concerning them.

Van Devanter moved to Wyoming Territory as a youth in his twenties. He served as a member of the territorial legislature and city attorney of Cheyenne. At the age of 30, he was appointed Chief Justice of the Territorial Supreme Court by President Harrison. When Wyoming became a state in 1890, Van Devanter continued on as the new state's first chief justice, but he resigned the position after four days to go into private practice.

The Johnson County War was a conflict between huge ranchers who favored open range for their massive herds and small homesteaders, who naturally favored good water sources and fencing, which obstructed the herds from the best grazing land. The large ranchers were represented by the Wyoming Stock Growers' Association (which still exists today). The vast majority of Wyoming land was public (48% still is today). The members of the WSGA would release their massive herds which would migrate north, then head back south as the weather worsened, aggregated by thousands of calves. Naturally, the new "maverick" calves did not have brands like the adult cattle, which made them more susceptible to pilfering, a problem that increased as the number of homesteaders in the north increased. It is fair to say the large ranchers controlled Wyoming politics (and politicians). (Some would tell you this hasn't changed much).

The "War" culminated in 1892 with an ill-conceived expedition of WSGA men and hired Texas gunmen to clear out "rustlers" in Johnson County in the north. These men were known as either the "Regulators" or "Invaders", depending on one's point of view. Their first target was Nate Champion at the KC Ranch. After a shootout that lasted several hours, Champion and one of his associates were killed. Reports vary, but up to four Regulators may have been killed as well.

A sheriff's posse had been desperately riding to relieve Champion. They caught up to the WSGA men, and another gun battle ensued. The WSGA men ended up fleeing to the TA Ranch where they were besieged for three days, before the US Cavalry, sent by President Harrison, arrived to rescue them.

Willis Van Devanter was the chair of the Wyoming GOP as well as the attorney for the WSGA. He had been fervently communicating with Washington during all this, including with President Harrison and Wyoming's two GOP Senators. It was Van Devanter who got the President to send the Cavalry to rescue the WSGA men.

Now, what was to be done with the Regulators/Invaders? The Cavalry held them in custody for months while state and national officials wrangled over their fate. Johnson County officials demanded they be turned over to them, but the WSGA knew that would mean certain conviction and hanging (if they even made it to trial before being hanged).

Finally, in January 1893, 23 defendants were brought to trial in Cheyenne, where Van Devanter had won a change of venue. Van Devanter had secured twelve peremptory challenges per defendant, so, after several weeks of jury selection, the jury pool was exhausted, and a 12-member jury could not be secured. Frustrated and facing mounting costs, the county and Van Devanter agreed to seat a jury, jeopardy attached, the case was dismissed, and all the Invaders were set free.

[A Japanese Student]

Engineer Examination Case (Third Petty Bench, decided February 8, 1966): Disputes about results of engineer examination are not legal disputes that courts can hear

Non-fiction "Gyakuten" Case (Third Petty Bench, decided February 8, 1994): Naming a person and describing their criminal history may constitute tort if the identity of the offender is not relevant; the book "Gyakuten" advocated for the plaintiff's innocence and right to jury trial, but was published without the plaintiff's consent 12 years after the crime