Today in Supreme Court History: February 11, 1803

2/11/1803: Marbury v. Madison is argued.

Comments

[Frank Drackman]

Sounds like a pretty trivial issue at stake, surprised it got cert

[Dan Schiavetta]

Jaffree v. Board of School Comm’rs of Mobile County, 459 U.S. 1314 (decided February 11, 1983): staying District Court order allowing reciting of Lord’s Prayer as part of morning school activities; District Court judge has to follow Supreme Court precedent even if he disagrees with it (the District Court decision, 554 F.Supp. 1104, reads like a manifesto attacking Supreme Court case law, citing invocations of God by the Founding Fathers, the Pledge of Allegiance, etc.) (the judge, Brevard (not Learned) Hand, was known for displaying the Confederate flag in his office) (the full Court eventually reversed the District Court, 472 U.S. 38)

Conners v. United States, 180 U.S. 271 (decided February 11, 1901): Indian tribe not liable for livestock taken and destroyed when they were fired upon by United States troops while peacefully going to reservation and had to “go on the warpath” (Court cites “ghastly facts of this case” but holds the United States not liable either)

Mabee v. White Plains Publishing Co., 327 U.S. 178 (decided February 11, 1946): newspaper had to comply with Fair Labor Standards Act even though only 0.5% of its daily circulation was out of state (i.e., interstate commerce)

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (decided February 11, 1946): subpoena on newspaper for wage and hour records does not violate Fourth Amendment even though no charges specified; need only probable cause (for what?)

Strong v. United States, 154 U.S. 632 (decided February 11, 1878): owner of vessel sunk after hitting “trees and snags” in river is liable for loss because consented to charterer which operated vessel

[A Japanese Student]

As I read it, Oklahoma Press holds that (criminal or civil) liability is not necessary for searches or seizures in noncriminal cases. Instead, the Government needed probable cause that the things to be searched are subject to FLSA's inspection provision.

[Noscitur a sociis]

That is not remotely what the holding is.

[A Japanese Student]

Whoops - I re-read the opinion and it appears you are correct.

[SMP0328]

Jaffree v. Board of School Comm’rs of Mobile County, 459 U.S. 1314 (decided February 11, 1983): staying District Court order allowing reciting of Lord’s Prayer as part of morning school activities; District Court judge has to follow Supreme Court precedent even if he disagrees with it (the District Court decision, 554 F.Supp. 1104, reads like a manifesto attacking Supreme Court case law, citing invocations of God by the Founding Fathers, the Pledge of Allegiance, etc.) (the judge, Brevard (not Learned) Hand, was known for displaying the Confederate flag in his office) (the full Court eventually reversed the District Court, 472 U.S. 38)

Wallace v. Jaffree (1985). It was based on the now repudiated Lemon Test. The District Court judge's opinion reads like something Justice Alito might write in an opinion overruling Wallace v. Jaffree.

[JoeFromtheBronx]

The ultimate Supreme Court ruling in Jaffree addressed a much narrower issue but what came before it underlines why in context the result was correct.

The opinion is by Justice Stevens and includes a bunch of footnotes and background material on the Establishment Clause. Justice Powell, who handed down the stay, wrote a concurring opinion. He also agreed with Justice O'Connor's concurrence that moment of silence laws could be constitutional.

The usage of prayers is a lot more problematic, including in legislative halls.

[Noscitur a sociis]

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (decided February 11, 1946): subpoena on newspaper for wage and hour records does not violate Fourth Amendment even though no charges specified; need only probable cause (for what?)

It does not say you need probable cause: it says that the request is valid if the materials are relevant to a legitimate subject of investigation.

[Dan Schiavetta]

That’s not the language of the 4A.

[Noscitur a sociis]

Tell it to Wiley Rutledge. I just read the cases, I don’t write them.

[Ama Valde Intellectum]

This --- in decades of looking --- is covered best by Brent Bozell

[apedad]

Re: Oklahoma, need only probable cause (for what?)

"The subpoenas sought the production of specified records to determine whether petitioners were violating the Fair Labor Standards Act, including records relating to coverage. . . .

The short answer to the Fourth Amendment objections is that the records in these cases present no question of actual search and seizure, but raise only the question whether orders of court for the production of specified records have been validly made; and no sufficient showing appears to justify setting them aside. [Footnote 13] No officer or other person has sought to enter petitioners' premises against their will, to search them, or to seize or examine their books, records or papers without their assent, otherwise than pursuant to orders of court authorized by law and made after adequate opportunity to present objections, which in fact were made. [Footnote 14] Nor has any objection been taken to the breadth of the subpoenas or to any other specific defect which would invalidate them. . . .

Moreover, the statute's language leaves no room to doubt that Congress intended to authorize just what the Administrator did and sought to have the courts do. [Footnote 22] Section 11(a) expressly authorizes the Administrator to 'enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as he may deem appropriate to determine whether any person has violated any provision of this Act, or which may aid in the enforcement of the provisions of this Act.'"

Seems like the law authorizes a fishing expedition and is still current: https://www.law.cornell.edu/uscode/text/29/211

[John F. Carr]

Part of the constitutional test for allowing fishing expeditions – searches without reason to suspect a violation of law – is whether the target is a "closely regulated industry." The Fourth Amendment offers less protection to a member of closely regulated industry. What is a closely regulated industry? A closely regulated industry is one where the Fourth Amendment offers less protection.

[apedad]

And 4A allows for unannounced safety inspections and things like that.

[Noscitur a sociis]

I’ve asked ton this before, but what do you think investigatory subpoenas are?

[A Japanese Student]

Today is a public holiday in Japan since 1967; depending on who you ask, it either celebrates the accession of the first Emperor, the fact that at some time Japan was founded, or the proclamation of the Meiji Constitution. Fortunately, we still have two decades worth of cases decided on this date.

Village Assembly Resolution Case (First Petty Bench, decided February 11, 1954): Validity of budget is not a "legal dispute" that courts can hear because it does not affect the rights and obligations of parties (there is a statutory taxpayer standing against unlawful expenditures by municipalities, but it doesn't appear that this was involved here)

Alien Registration Act Case (Third Petty Bench, decided February 11, 1958): Vacated and remanded because the appellate court did not conduct factual inquiries and reversed acquittal with briefing only (see also Jan. 23)

Extortion, Injury, Assault Case (Third Petty Bench, decided February 11, 1959): Under Japanese law, the indictment can only include the charges, not background information or evidence (as it could prejudice the judge). Court rules that describing the defendant as a gang leader in the indictment does not violate this rule (obviously this rule does not exist in the US; federal indictments in high-profile cases are filled with "introductions" spanning dozens of pages, along with photos and text messages)

[Frank Drackman]

and you guys make such great radios!

[JoeFromtheBronx]

Marbury v. Madison, written by the person originally in charge of delivering Marbury's commission, reached out to decide the constitutional issue. It could have avoided them, but the Marbury Court established precedents and drew lines.

You can see some internal deliberations here:

https://www.youtube.com/watch?v=uLRO5iCWpps

There has been much confusion not only about judicial review not being in the Constitution but how this ruling invented it. Judicial review was well recognized, by both political parties of the day, by this point. Madison and Jefferson argued the Bill of Rights would be a tool for independent tribunals to protect our rights.

There was some dissent, I acknowledge, about the power of the courts to practice judicial review. See, e.g., the book Lest We Be Marshalled: Judicial Powers and Politics in Ohio, 1806-1812 though even that dissent died out by the 1820s.

Jefferson's concern was that judicial review here was wrongly applied to invade his executive discretion. He also opposed the practice of one opinion of the court, arguing it suppressed dissent.

[JoeFromtheBronx]

Obviously, this topic can be discussed in depth, and there are multiple good books about the case.

The biggest debate is over the details.