Today in Supreme Court History: February 10, 1967

2/10/1967: The 25th Amendment is ratified.

Comments

[Frank Drackman]

Should have been used for Sleepy/Parkinsonian Joe

[SMP0328]

It might have been informally used by the Democrats in getting Biden to withdraw from the race.

[Dan Schiavetta]

Everson v. Board of Education, 330 U.S. 1 (decided February 10, 1947): upholds against Establishment Clause and Due Process attack statute allowing reimbursement of parents for costs of busing to both public and Catholic schools (if you wonder why “bused” and “busing” don’t have double s’s, remember that there is a word “buss” which means to kiss -- in my view any racial segregation situation would have been improved by replacing “busing” with “bussing”)

Borden’s Farm Products v. Ten Eyck, 297 U.S. 251 (decided February 10, 1936): Not denial of Equal Protection for New York to apply minimum milk price rule only to dealers having “a well advertised trade name”. The dissent, by the “Four Horsemen”, seems convincing: “Here appellant differs from favored dealers only in that it possesses a well-advertised brand, while they do not. And solely because of that fact, the Legislature undertook to handicap it and thus enable others profitably to share the trade. There is no question of unfair trade practices or monopoly. By fair advertisement and commendable service, appellant acquired the public’s good will. The purpose is to deprive it of the right to benefit by this and thereby aid competitors to secure the business. This is grossly arbitrary and oppressive.”

Oklahoma v. United States Civil Service Commission, 330 U.S. 127 (decided February 10, 1947): upholding against Tenth Amendment attack United States Civil Service Commission order pursuant to Hatch Act withholding highway funds from Oklahoma because it would not remove member of its highway commission despite admitted violation (he violated it in a big way: he was the chairman of the Democratic State Central Committee)

Milk Wagon Drivers Union of Chicago v. Meadowmoor Dairies, 312 U.S. 287 (decided February 10, 1941): Court could not review state court’s finding of fact as to violence and so sustains injunction against picketing despite Fourteenth Amendment attack (union was protesting dairies outsourcing deliveries to vendors who did not observe workplace standards)

American Federation of Labor v. Swing, 312 U.S. 321 (decided February 10, 1941): decided the same day as Milk Wagon Drivers, but here reversing on First Amendment grounds state court decision that picketing beauty shop for refusal to allow unionization is against common law of state if no direct dispute between employer and employees

[A Japanese Student]

Everson, as far as I'm aware, is more commonly known for incorporating Establishment Clause. One of many cases whose future is uncertain - especially since there's a big Establishment Clause case this term.

[Purple Martin]

Around the middle of the 20th Century, we had approached a decent accommodation balancing the goals of both the Establishment and Freedom clauses—pretty well encompassed by this 1947 Everson and follow-up 1948 McCollum decisions.

In Everson v. Board of Education, the Court said:

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government ...can pass laws which aid one religion, aid all religions, or prefer one religion over another... In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'"

While a win for the Freedom clause, you are correct that this was one of the first clear rulings that the Establishment Clause prohibits government aid directly to religion, not just establishment of religion.

Then in McCollum v. Board of Education, the Court added:

“...in Illinois ex rel. McCollum v. Board of Education, we were urged to repudiate as dicta the above-quoted Everson interpretation of the scope of the First Amendment's coverage. We declined to do this, but instead strongly reaffirmed what had been said in Everson, calling attention to the fact that both the majority and the minority in Everson had agreed on the principles declared in this part of the Everson opinion.

"We are all agreed[*] that the First and Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an 'established church.' ... We renew our conviction that we have staked the very existence of our country on the faith that 'complete separation between the state and religion is best for the state and best for religion.'"

*[A footnote confirmed this was the agreement of all nine Justices.]

Specifically, McCollum provided three guidelines:

• “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
• “No tax in any amount, large or small, can be levied to support any religious activities…”
• “Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups…”

So in addition to the prohibition on establishing its own church, our government couldn't aid, fund, or participate in organized religion. I'd be pretty satisfied with that level of separation of church and state (though others may sense an off-putting hint of certain sour citrus).

But after that high point, starting in the 1950's McCarthyism era (prompting bilious Congressmen to bellow we're not like those Godless Communists!), dozens of salami-slicing decisions slowly pared back many of those points, and that's greatly accelerated in the past decade.

But none of these further opinions have stated the Establishment clause is limited to only direct government establishment of an official State Church (present-day Oklahoma notwithstanding).

I am generally an optimist (less by nature than by policy) and believe there’s evidence that over the centuries, over millennia, human society slowly but demonstrably evolves, matures, improves, and ultimately, advances.

Such progress is not smooth; it happens in fits and starts with considerable backsliding (the Trump Interregnum being one such backslide). But both in America and globally over the last 300+ years, I believe humanity's gradual, continuing disentanglement of religion from government, is evidence of that long slow societal progress.

[JoeFromtheBronx]

I was supplied with public-supplied buses to Catholic High School and free transit passes. Not thanks to Justice Black supplied.

As to "busing" see here:

https://www.merriam-webster.com/grammar/plural-of-bus

[JoeFromtheBronx]

"Differential School Bussing for Parochial School Students Does Not Violate Free Exercise or Equal Protection Clauses"

https://religionclause.blogspot.com/2025/02/differential-school-bussing-for.html

[JoeFromtheBronx]

Senator Bayh talked about his involvement in the framing (yes, he was a "Framer," which is not only someone around 1787-91) of the 25A in an interesting book. "One Heartbeat Away: Presidential Disability and Succession."

His first wife's autobiography, including discussing her (deadly) battle with cancer, is also worthwhile. "Marvella: A Personal Journey."

The third section of the 25A was referenced in January 2021:

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

The "unable to discharge" bit still has implications if you think the insurrection clause of the 14A still matters.

There is also the fourth section, which rivals the 12th Amendment for its verbosity. So far, it is left to law professors and political thriller writers.

[SMP0328]

"One Heartbeat Away: Presidential Disability and Succession."

A fantastic book; I own a copy. I like how it provides a personal touch while describing the evolution of what became the 25th Amendment.

There is also the fourth section, which rivals the 12th Amendment for its verbosity.

That happened because the House took what was Section 5 of the Senate's version and incorporated it into Section 4. The Senate's Section 5 would have applied whether the President declared his own disability (Section 3) or the VP and Cabinet did so (Section 4). The House version made it that the substance of Section 5's dispute resolution provisions would only apply when the VP and Cabinet started the process, while the President would be able recover his powers on his own if he had self-declared.

This was to encourage President's to invoke Section 3 when disabled or about to become disabled. In conference, the Senate agreed to the House's reasoning after a few changes were made.

[A Japanese Student]

Robbery-Murder Case (Second Petty Bench, decided February 10, 1967): Juvenile defendant whose sentence was vacated (for exceeding statutory maximum applicable to juveniles) must be resentenced as a juvenile (the original sentence was 15 years, reduced from life; however the law at that time capped the maximum to 10 years - which has been doubled since then)

Damaging Documents for Government Use Case (First Petty Bench, decided February 10, 1972): Acquits defendant because the prosecutor admitted on the brief to the Court that the offense was committed by another person (whose case was dropped); the defendant was convicted of removing a "public document" (a poster warning employees not to strike) and sentenced to 4 months (suspended), yet multiple witnesses said they haven't seen that poster

Road Traffic Act Case (Second Petty Bench, decided February 10, 1975): Driver has duty to provide aid to victims of car accidents and report it to the police even if the police officers are already at the scene

Petition for Stay of Execution of Judgment (Second Petty Bench, decided February 10, 1984): Guarantee of open courts does not extend to petitions to stay enforcement of judgment

And one case from yesterday since that post was removed:

Voting Rights Suspension Case (Grand Bench, decided February 9, 1955): Upheld suspension of voting rights for those convicted of election-related offenses (most of which would be unconstitutional in the US - reply with guesses!)

[JoeFromtheBronx]

There were duplicate posts for yesterday. He left one up.