Today in Supreme Court History: March 6, 1857

3/6/1857: Dred Scott v. Sandford decided.

Comments

[Dan Schiavetta]

Dred Scott v. Sandford, 60 U.S. 393 (decided March 6, 1857): once-free slave had no claim to freedom in slave state because he was black (probably the most-abrogated case in Court history, by the Civil War, by the Thirteenth, Fourteenth and Fifteenth Amendments, and more) (for some reason Taney did not like Nelson’s original “hands-off” affirmance on narrow grounds and took quill in hand to write a sweeping holding that he imagined would settle the slavery issue once and for all -- he was 79 and likely getting feeble) (we all know about the political effect of this disaster, but what about the legal effect? the Court held that black people had no rights -- was every lawsuit brought by a black plaintiff then dismissed for lack of capacity to sue? was every black voter thrown off the rolls?)

McCulloch v. Maryland, 17 U.S. 316 (decided March 6, 1819): Congress can establish a national bank, and states cannot tax it

Virginia v. West Virginia, 220 U.S. 1 (decided March 6, 1911): In 1861 West Virginia broke away from Virginia because it didn’t want to secede and also it wanted to abolish slavery; years later Virginia goes after West Virginia for its share of Virginia’s public debt (public projects in those areas). No statute of limitations on suits between states, evidently; suit wasn’t brought until 1906. Holmes here holds mostly for Virginia but adjusts the amount based on post-Civil War developments and refuses to let the states further nickel-and-dime things in front of the Special Master. “This case is one that calls for forbearance upon both sides. Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end.”

Peña-Rodriguez v. Colorado, 580 U.S. 206 (decided March 6, 2017): Remember “12 Angry Men”, and Juror #10’s (Ed Begley) racist diatribe? Courts in general hate to undo a verdict based on juror misconduct, but here, where a juror made statements during deliberations showing racial bias, the Court sends the case back to the trial court to see if Sixth Amendment fair trial right was violated. (I’m one of those trial lawyers who asks the jurors after the verdict whether they want to stay behind and give me their impressions. The trial attorney did that here, found this out from one of the other jurors.)

Portuondo v. Agard, 529 U.S. 61 (decided March 6, 2000): Most criminal defense attorneys don’t let their clients testify. This case shows one reason why. The prosecutor told the jury that sitting there day after day, hearing witnesses, allowed defendant to tailor his testimony when he got to the stand. The Court says this is o.k.; it did not violate his right to confrontation, or his right to an impartial trial, or his right to testify on his own behalf.

Barnard v. Thorstenn, 489 U.S. 546 (decided March 6, 1989): striking down on Fourteenth Amendment grounds Virgin Islands rule that admits attorneys to its bar only if they’ve lived there a year and promise to stay there (“no, I’d rather freeze half the year in Chicago, stuck in traffic jams!”)

Adams v. Illinois, 405 U.S. 278 (decided March 6, 1972): rule of Coleman v. Alabama, 1970 (counsel must be present at preliminary hearings) is not retroactive

Silverman v. United States, 365 U.S. 505 (decided March 6, 1961): police in adjacent consenting house bored “spike mike” into shared wall until it hit defendant’s vent, which acted as a megaphone, and clearly heard conversations of gambling; this was “search” needing warrant (in 1985 our crisis center moved into a basement needing ventilation; I was about to put in a duct leading to the outside until someone pointed out it would broadcast our clients’ secrets out into the street)

Bay v. Merrill & Ring Logging Co., 243 U.S. 40 (decided March 6, 1917): railroad employee could not sue under Federal Employers’ Liability Act; railroad’s in-state logging (Puget Sound) not involved in interstate commerce even though logs later sold to customer in California

Bond v. Hume, 243 U.S. 15 (decided March 6, 1917): cotton futures contract made in New York was legal and could be sued on in Texas federal court; Texas statute prohibiting such contracts on its terms applied only to contracts made in-state

[apedad]

Peña-Rodriguez was about Colorado's rule and I was curious if there was a federal rule which prohibits juror testimony on any matter occurring during the jury deliberations.

Rule 606. Juror’s Competency as a Witness
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions . A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.

[SRG2]

This seems to be one of those issues where process matters more than law. If the Constitution guarantees a right to an impartial jury, and a juror hides his bias until deliberations, it seems odd, at the very least, to exclude evidence of that bias.

I note that in Peña-Rodriguez, Thomas said this: "The Sixth Amendment’s protection of the right, “[i]n all criminal prosecutions,” to a “trial, by an impartial jury,” is limited to the protections that existed at common law". So much for textualism. The text said that Peña-Rodriguez is entitled to an impartial jury and he didn't get one.

[JoeFromtheBronx]

Barnard v. Thorstenn rests on the Privileges and Immunities Clause of Art. IV.

[Dan Schiavetta]

Thanks. V.I. isn't a "state" so the 14A doesn't apply to it. Neither does art. IV, cl. 2, but as the Court notes, that clause was made applicable to the V.I. by statute. Will make the correction.

[David Nieporent]

the Court held that black people had no rights

"No rights which the white man was bound to respect." A snappy turn of phrase, if an abominable one (both legally, historically, and morally).

[Dan Schiavetta]

I suppose, then, Chinese Americans had to respect those rights. What about people who were half-black? Who has to respect whom? Such a complicated pecking order!

[JoeFromtheBronx]

Too many people take Taney's interpretation as the "unfortunate" truth of the matter.

[The Margrave of Azilia]

In the sense that any nonzero number is too many, yes.

[A Japanese Student]

I watched 12 Angry Men once (though I don't remember which version). My brain was focused on constitutional implications - when did NY abolish death penalty? what if it happened in Oregon - did it require unanimous verdicts in capital cases? Mandatory death sentence violates Gregg now, right? How did they get an all-male jury (perhaps peremptory challenges in violation of J.E.B.?) What was the constitutional implication for jurors doing experiments without permission?

[Dan Schiavetta]

Women were excused from jury duty in those days. The death penalty was abolished in 1962 (or so) and attempts to reinstitute it were always vetoed by Gov. Mario Cuomo (much to his credit) until Gov. Pataki succeeded him in 1995.

I'd might as well reprint my review of the movie, posted here on July 21, 2023:

today’s movie review: Twelve Angry Men, 1957

This movie is justly praised as the greatest jury movie ever made (though that is a small genre). I don’t have to remind you of the great performances by great actors who I won’t name here.

Some extra notes.

The only noticeable flaw in the plot is Juror #8 going to the crime scene neighborhood and buying another of the supposedly unique knife that was used in the murder. A juror is not supposed to do his own investigation. At a later point he dramatically jabs it into the table next to the exhibit knife. Why didn’t he do this at the beginning, when he expressed only vague doubts?

This incident does illustrate (perhaps overly broadly) something I’ve noticed in listening to jurors after a verdict, that each juror brings his own experience to bear on the evidence. It’s the short man (Juror #2) who wonders how the defendant could have stabbed his much taller father with a downward thrust of the knife. It’s the product of gang culture (Juror #5) who notes that a switchblade is always jabbed upwards, not downwards. It’s the painter (Juror #6) who has worked next to an el who notes that the trains are so loud when they pass by (I can testify to this also!) that the boy’s supposed shout could not have been heard. Finally it’s the old man who has never worn glasses (and probably has seen his friends have to put them on over the years) (Juror #9) who notices the dent marks on the witness’s nose.

Also notable is the staging. As the film proceeds and tension mounts, the camera lowers and closes in, and finally is looking up at full-screen faces. This was a problem during production because film sets never have ceilings, but one had to be visible toward the end.

Juror #1 is not a very good foreman. Eventually it’s Juror #4 and Juror #8 who control the proceedings. They are on opposite sides but seem to respect each other.

We are made to assume that the bigot (Juror #10), being rejected by everyone else, is having some kind of epiphany while sitting at that desk in the corner, and finally votes not guilty. I’m not sure I can buy that.

It’s been argued that, even if each piece of evidence is called into doubt, the combination of all those almost certain events makes the boy guilty beyond a reasonable doubt. A scientist would not accept this. He would call a guilty verdict a “conjecture” — something that seems to be true but has not been proven. I don’t if anyone here has been the victim of a number of circumstantial (but not true) appearances, but I have.

In high school English class I saw a neglected paperback on the windowsill, “Twelve Television Plays”, which included this one. The “Dramatis Personae” description of Juror #9 was “an old man, defeated by life”. The film, in the brief ending tag, where he shakes hands with Juror #8 and they exchange names, shows that his faith in humanity has been restored. In the background one can see Lee J. Cobb trudging down the courthouse steps. (The earlier TV version play was on TV before it was on film, and is inferior to the film because it is less subtle. For example, two of the jurors actually get into a fistfight.)

The beginning and ending exterior shots are of 60 Centre Street, the New York county trial (“Supreme”) court, where I’ve spent a good part of my career. My best experiences were not in courtrooms but in the Motion Support Office (Room 119). Those guys knew everything, and were courteous and helpful. A world of perversity existed in the Ex Parte Office (Room 315), where after you submitted your Order to Show Cause (a motion for something to be done quick) they sat on your papers, doing nothing with them, and you personally had to come back the next day and submit it to the assigned judge’s clerk for signature.

The common sense point that Juror #9 makes at the beginning when he’s the first to side with Juror #8 — that it’s not easy for one person to stand alone — was ignored by the Supreme Court in Williams v. Florida, 1970, where it said a six-person jury was o.k. instead of twelve. In a six person jury it is more likely that there will be one person against the others; in a twelve person jury it’s equally probable that there would be two, and each would support the other.

Juror #11, the watchmaker from an unspecified (probably Eastern European) country, gives a little speech about how he is impressed by the American jury system. He is as appreciative of our trial by jury as Juror #7 is apathetic about it. By now I know a lot of people who are from other countries (mostly from what we used to call the Third World), and they would applaud what Juror #11 has to say. They are glad to be here and have the rights we enjoy here.

Finally, I’m most impressed by Juror #4, his calm objectivity. When he’s just one of 3 in favor, he states his case, beginning by admitting to Juror #8, “you’ve made some excellent points”. And when the old man points out the dents in the witness’s nose, the camera focuses on his face for a long time. He knows exactly what that means and it means game over for the pro-guilty argument. But he’s not disappointed. He calmly says, “I have a reasonable doubt now”, and switches his vote.

[JoeFromtheBronx]

I recall Henry Fonda leaving the knife behind. Not a good idea. These days, of course, you would be searched at the door. I had to give up my little pocketknife that was on my key chain.

The film had a great cast. Jack Klugman (quiet juror from the slums) and Martin Balsam (the foreman) were two who later were on t.v. sitcoms. I think the racist and the guy with issues regarding his son were somewhat overdone characters. Came off as too unhinged.

[Alpheus W Drinkwater]

The racist was Lee J. Cobb, one of the great character actors of all time. I think the other guy you referenced was Ed Begley. One of my favorite actors of all time, Jack Warden, was the guy who would agree to anything to finish because he had baseball tickets.

[Syd Henderson]

I hope they weren't Dodger tickets because then he'd be doomed.

[Mr. Bumble]

Several iterations of this story.
First a teleplay, then a movie, several stage versions and another movie.
Not withstanding Capt.Dan's review here is a link to the wiki page for the 1957 movie including some legal analysis:
https://en.wikipedia.org/wiki/12_Angry_Men_(1957_film)

[ReaderY]

What an old-fashioned concept of greatness, and particularly of temper! Under the current concept of greatess, great states require leaders with a temper so great that it results in regular tantrums. Currently, greatness requires not mutual consideration but eternal vigilance to avoid getting stiffed by the other guy, and the genius and guts to stiff the other guy oneself first.

By current standards, what Holmes advocates is not greatness at all. And if that’s what people back then thought greatness was, it seems so off the mark compared to what greatness means today that perhaps America never was great by current standards until just recently.

[Dan Schiavetta]

You speak in generalities but let's not both-sides this. You're talking about Trump.

Except for Trump, most Presidents (and most of our leaders) have at least been mature people, and usually rise above the petty, the juvenile, the impetuous, the spiteful. It must have seemed strange to us to hear someone say this pre-Trump, but nowadays one looks back and sees that it was true. Everything's relative.

[JoeFromtheBronx]

Dred Scott could have been narrowly decided.

He and his family still would have lost 7-2, but there would have been less drama. The limited ruling would be that state law would determine if a slave taken into a free territory but returned to a slave state would be forever free.

(The Missouri precedent supported freedom but was changed here by the state supreme court in response to antislavery developments. The dissent cited the former state judicial rulings.)

The justices wanted to settle bigger game. Not just them. Congress separately provided an accelerated route to settle the question of slavery in the territories. Members who didn't want to go on the record repeatedly said "that is a judicial question." President Buchanan (newly inaugurated) also welcomed a judicial solution.

Taney, from a border state with a large free black population, was also particularly concerned about black citizenship. There was, in many states, an artificial exception of birthright citizenship when it came to blacks. Note: Justice Curtis, in dissent, argued that federal citizenship arose from state citizenship. The 14A clarified things.

Taney took things to a whole new level, however, by blocking access to the federal courts and providing a particularly anti-black rule now deemed to be the national constitutional standard.

Taney also argued that people carried constitutional rights with them into federal territories, including such things as carrying firearms. Ironically, this would lead to liberal implications in some cases later on when the we obtained overseas territories.

Since this had "troublingly" racial implications and limited control of overseas territories, the Supreme Court later created some new lines. The "Insular Cases" were weakened over the years but still have some remaining bite.

[CJColucci]

This is the first thing I thought of when Justice Gorsuch said during the presidential immunity case argument that the Court should write "an opinion for the ages."

[A Japanese Student]

Tort Claims Case (First Petty Bench, decided March 6, 1969): Courts can, in tort cases, include reasonable attorneys' fees in damages to be awarded (this isn't an ordinary tort case, however - this was filed under State Redress Act for negligently imposing property tax, and it appears that the only "damages" claimed is the attorneys' fees incurred in another proceeding challenging taxation)

Revocation of Administrative Disposition Case (Third Petty Bench, decided March 6, 1973): Lawsuit challenging demolition order (for violating building code) mooted by demolition of the building; also rejects plaintiff's argument that courts can still determine who bears the cost of demolition and asks them to challenge the order requiring them to pay costs instead

Juki Network Case (First Petty Bench, decided March 6, 2008): Reversing high court, held that "Juki Network" (national registry of residents) does not violate right to privacy; although the Constitution recognizes the freedom from disclosure of personal information to the public. no such disclosure has occurred (see also MyNumber Injunction Case, decided March 9, 2023, for the successor system)

[ReaderY]

Does a petty bench come with a low bar?

Do they try to transfer the drug cases to high court?

[A Japanese Student]

Haha. No, not that "high court".

(To answer the actual question: Japan's 15-justice Supreme Court almost never hears a case en banc. Most appeals are resolved by a "petty bench" of at most 5 justices; there are three, with membership being fixed at the time of appointment. In four situations an en banc hearing - "Grand Bench" - is convened: to rule on a constitutional question of first impression, to invalidate a law as unconstitutional, to overrule its precedents (whether set by petty or grand bench), and when the petty bench is tied. At present they only hear one or two Grand Bench cases per year - usually malapportionment disputes filed after every general election.)

[The Margrave of Azilia]

"malapportionment disputes filed after every general election"

Those crafty Republicans, up to their gerrymandering tricks again!

[Krayt]

Second lunar lander in as many weeks, shortly. Nice! Good luck, lads!

[Krayt]

And lasses! Oh no, dammit!

[Frank Drackman]

and "them", don't forget "them" (Loved that part in "Patton" where his Aide d' Camp tells him "the Russians, don't forget the Russians.." when Patton is going on about how the Americans and British will rule Post-WW2 Europe (Patton missed on that one)
Do love how the 2d photo from the one that landed a few days ago was of the Earth, 1: sort of a "Proof of Life" for any of those Idiot conspiracy dolts, and 2: it's a cool Pic, there's only a few photos of the Earth as seen from the surface from our Apollo missions (OK, it is hard to capture the beauty of a small object in a black sky, that's why we spent bullions and bullions (HT C. Sagan) of $$)

Frank

[The Margrave of Azilia]

"But you promised me the moon!"