Today in Supreme Court History: March 8, 1841

3/8/1841: Justice Oliver Wendell Holmes's birthday.

Justice Oliver Wendell Holmes

Comments

[Stephen Lathrop]

For someone fatally wounded twice during the Civil War, Holmes, Jr. turned out surprisingly influential afterward.

[Mr. Bumble]

How does someone survive being "fatally wounded" once, let alone twice?

[Syd Henderson]

He was such a mighty justice that he wouldn't let a little thing like death stop him. (By the way, he was 86 when Buck v. Bell was decided?)

[Syd Henderson]

Looked it up. Yep. He was 91 when he retired and died two days short of his 94th birthday.

[Dr. Ed 2]

The state of medicine was not what it is now, and this even extended to people being pronounced dead who really weren't -- and the concept of "safety" coffins.

Reagan likely would have died had he been shot in 1961 instead of 1981, and definitely would have died in 1861. Remember that it took nine hours for Lincoln to die, and he had a head wound similar to James Brady, who lived.

And there were no antibiotics so it was presumed that likely fatal infections would develop from certain types of wounds. Often having traveled through someone else first, bullets often were covered with fecal bacteria which then caused things like blood poisoning.

So yes, it was not only possible but actually not unusual for someone to receive a "likely lethal" wound and not die.

Maine's Joshua Chamberlain was promoted because it was thought that he was mortally wounded. He did die of the wound, decades later after having been both Governor and President of Bowdoin College.

People tend to overlook the influence of the Civil War veterans, the Grand Army of the Republic (GAR) which started as their fraternal organization, and then their children. The influence of this cadre lasted up through the 1920s and I have no doubt that Holmes viewed WWI through the lens of a Civil War veteran aware of the NYC draft riots.

[Alpheus W Drinkwater]

To anyone who wants to read a fantastic essay, find Oliver Sr.'s article in the Atlantic about hearing his son was wounded in Maryland and going down there to try and find him. I believe he was wounded in the skirmish on South Mountain, immediately. before Antietam.

[Dan Schiavetta]

When he finally found Jr., Jr. brushed him off. A great deal could be written about that relationship.

[Dan Schiavetta]

Griggs v. Duke Power Co., 401 U.S. 424 (decided March 8, 1971): the first case holding that policies which had a “disparate impact” were racially discriminatory under Civil Rights Act of 1964 (here, requiring intelligence tests which those with high school diplomas were far more likely to pass, where whites were far more likely to be high school graduates and tests were not related to job ability)

Choctaw Nation of Indians v. United States, 318 U.S. 423 (decided March 8, 1943): resolving a dispute as to lands allotted to the Choctaws and Chickasaws in 1866, under an agreement where they agreed to free their slaves and provide them with an allotment; it looks like only with this decision were the freedmen finally given their allotments, after being in a legal limbo for 77 years

Crawford v. United States, 541 U.S. 36 (decided March 8, 2004): the Court returns to traditional evidentiary rules and prohibits out of court statements in criminal trials; assault defendant’s wife’s statement as to defendant stabbing her rapist, taped and played to the jury without opportunity for cross-examination, held inadmissible under Confrontation Clause no matter how “reliable” (overruling Ohio v. Roberts, 1980, where the out-of-court witness had been subjected to questioning that was “the equivalent of cross-examination”)

Building & Constr. Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, 507 U.S. 218 (decided March 8, 1993): National Labor Relations Act does not preempt Massachusetts regulations as to what a collective bargaining agreement has to contain before state awards contract

Smith v. United States, 507 U.S. 197 (decided March 8, 1993): Antarctica was “foreign country” (even though there’s no government there) so outside purview of Federal Tort Claims Act; widow of federal contractor employee who fell into crevasse in snow field can’t sue

Danforth’s Lessee v. Thomas, 14 U.S. 155 (decided March 8, 1816): can’t enter Indian lands to survey for possible partition; strict construction of state statute, leaving aside whether treaties gave Indians right of property or merely use and enjoyment

Pierce v. United States, 252 U.S. 239 (decided March 8, 1920): upholds guilty verdict in Espionage Act/conspiracy case; handing out leaflets protesting war (“The Price We Pay”) could be said to impede war effort and encourage insubordination; the dissent by Brandeis, joined by Holmes, goes through the facts of the case and is pretty convincing, I think

Ortega-Rodriguez v. United States, 507 U.S. 234 (decided March 8, 1993): Court of Appeals should not have dismissed appeal of narcotics conviction due to defendant’s escaping custody; recaptured before appeal went forward and it was up to the trial court to impose any sanctions

Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577 (decided March 8, 1982): trade association and political action committee did not have standing to invoke expedited review of issue of constitutionality of Federal Election Campaign Act of 1971 (currently codified at 52 U.S.C. §30110); statute affords expedited review only to “The Commission, the national committee of any political party, or any individual eligible to vote for President” (plaintiffs, ironically or maybe obviously, were objecting to the part of the Act which limited solicitations by trade associations and political action committees) (the Court has since eviscerated the Act anyway)

Durham v. United States, 401 U.S. 481 (decided March 8, 1971): deadline for filing cert petition is not jurisdictional; cert allowed because defendant (convicted of counterfeiting) was waiting for word from Court of Appeals on rehearing; appeal did not disappear when defendant died, but cert. granted and case remanded to District Court with instructions to dismiss (this part of the case was overruled by Dove v. United States, 1976)

[A Japanese Student]

Crawford is an appeal from Washington state conviction, not federal.

[Dan Schiavetta]

I understand what you’re saying. Will rephrase. Thanks.

[Noscitur a sociis]

The name of the case is Crawford v. Washington, not Crawford v. United States.

[Dan Schiavetta]

Thanks! (another correction)

[John F. Carr]

Several important WW1 and WW2 precedents have been abandoned because we don't take modern wars seriously.

[SRG2]

Would the current court side with Griggs, I wonder?

[Dr. Ed 2]

The current court couldn't -- no court today because the EEOC has essentially overruled it.

SCOTUS held that a man named Griggs had been discriminated against -- this was still pre-affirmative retribution where individuals had a right not to be discriminated against.

Today we say that GROUPS have a right not to be discriminated against, and that individuals only have rights via their groups. Even if the eventual results can be identical, it is a very different mindset.

Griggs is the decision which led to lots of jobs that had never before required a college degree now requiring one. What the EEOC essentially said that you can't use management aptitude exams because they have a disparate impact, but you CAN require a college degree because there are HBCUs and (in 1970) a rapidly increasing percentage of Black men going to college.

(NB: Compare Black men in college circa 1970 to Black men in college circa 1960 -- they thought that dramatic (but still small) percentage would continue increasing at the same dramatic rate into the '80s & '90s and it didn't.)

What Griggs actually did was hurt Black men and help White women, a cadre that *did* increase in college graduate rate in the 1980s -- higher ed's gone from 1/3 female to 2/3 female.

It hurts Black males because they need to have a college degree that they neither want nor have the aptitude/preparation for in order to get a job they don't need the college education to do. (The military is an end run around this, and a lot of men of all races go into the military for this reason.)

And the objection I have to the Griggs decision is it did not recognize that a lot of the older White employees learned to operate boilers in either the US Navy or the Merchant Marine during WWII, often dropping out of high school to join the USN. So when the plant opened in 1950, there were a lot of qualified veterans in their 20s & 30s who would only be in their 40s & 50s in 1970.

I knew a man who had two ships shot out from underneath him in the Battle of the Atlantic. Two ships sunk by German submarines. That's experience you can't get in college...

But as a matter of public policy --- hell, as a matter of helping young Black men get jobs -- Griggs should be reversed because it really isn't helping things...

[David Nieporent]

The current court couldn't -- no court today because the EEOC has essentially overruled it.

The EEOC hasn't overruled anything. I have no idea what this is even supposed to refer to, but of course the EEOC cannot "overrule" Supreme Court cases. The Supreme Court itself narrowed disparate impact in Wards Cove, but then Congress codified the Griggs disparate impact standard in the Civil Rights Act of 1991.

SCOTUS held that a man named Griggs had been discriminated against -- this was still pre-affirmative retribution where individuals had a right not to be discriminated against.

Today we say that GROUPS have a right not to be discriminated against, and that individuals only have rights via their groups.

We do not in fact say that today.

[Dan Schiavetta]

In the Griggs days you could just sue. Now you have to run the gantlet at EEOC and get permission to sue — not easy when Clarence Thomas was running it.

[Noscitur a sociis]

Yeah, that’s not how it works. The EEOC (whether it’s directed by evil Clarence Thomas or not) can’t prevent you from pursuing a case. If they don’t issue a right to sue letter, it’s because they (or DOJ) think your case is so compelling they’re going to litigate it for you. And you have the right to intervene, so they can’t even tank it. (I also think this process was in place at the time of Griggs, so you’re doubly wrong.)

[David Nieporent]

Now you have to run the gantlet at EEOC and get permission to sue

That's not correct, Dan. You do have to exhaust with EEOC first, but EEOC cannot prevent you from suing. (The fact that what you get is called a "right to sue letter" makes it sound like you need permission, but in fact that's automatic if the EEOC hasn't taken action within 180 days of filing your charge.)
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EDIT: Or I could've just scrolled down to Nas's reply and not bothered to comment.

[Noscitur a sociis]

I think it is extremely unlikely that the current court would continue to endorse disparate impact liability, if squarely presented with a case that required it to decide.

[Dan Schiavetta]

I would go farther and say that some of the decisions we consider bedrock unassailable, would be decided differently if adjudicated for the first time in the current Court.

[SRG2]

Like Brown, for exmaple?

[Dan Schiavetta]

Probably.

[David Nieporent]

As I mentioned, it's statutory. (At least in some contexts.) I am aware that some conservatives are itching to challenge the entire concept, contending that disparate impact is actually an unconstitutional standard, and I can imagine at least 3 votes for that. But unless they do rule that way, they have no choice but to endorse it.

[hobie]

Came here to say 'Sam Elliot'

[Dan Schiavetta]

He might look like that if he lives another 10 years or so.

[JoeFromtheBronx]

Happy Birthday, Justice Mustache.

When Chief Justice Fuller, the first CJ he served with, was nominated, there was some debate over Fuller's mustache. Justices had beards. A mustache alone was somewhat concerning.

https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1634&context=wlufac

Margery Sharp was a popular author who had multiple books made into films (including Cluny Brown).

She later was a beloved children's author for her Rescuers series, starring Bianca (an eloquent* and elegant white mouse) and Bernard (a workman-like brown mouse).

One of her works is Miss Bianca in the Antarctic. Two animated films based on the series were later made with the voice talents of Bob Newhart and Eva Gabor.

==

* Bianca was well respected for her tact, speeches, and poetry.

[A Japanese Student]

Distribution of Obscene Drawings Case (Third Petty Bench, decided March 3, 1983): Pornographic book found obscene for insufficient censoring of genitals

Repeta's Case (Grand Bench, decided March 8, 1989): Lawrence Repeta, an American attorney, sued the Government for nominal damages when he was prevented from taking notes in courtroom's gallery. Court holds Public Trial Clause doesn't grant the right of the public to attend (or take notes in) courtrooms, though he prevailed on freedom of press grounds; compensation was denied (courts now allow pen and notepad)

Lipase Case (Second Petty Bench, decided March 8, 1991): Invention to be patented must be determined from the claims, not the description; patent tribunal erred in interpreting "Lipase" (mentioned in claims) as "Rhizopus arrhizus lipase" (mentioned in description only) to save the patent from prior-art rejection

Kobe Kosen Kendo Refusal Case (Second Petty Bench, decided March 8, 1996): Plaintiff, a Jehovah's Witness follower, refused to participate in martial arts, got an F in the (mandatory) P.E. class, and was ultimately expelled; Court says the school abused its discretion and must re-admit the student; also notes that giving religious accommodation does not violate separation of church and state (Kosen is a type of school providing 5-year polytechnic programs)

Tort Claims Case (Second Petty Bench, decided March 8, 1996): Detention of suspect by police is tortious if and only if it was clear, at the time of detention, that no reasonable grounds necessitating detention existed (like many Japanese opinions, the opinion doesn't cite any precedents, legislative history, or provide any reasoning; though worth noting that in this case probable cause is not at issue - the question was whether 48-hour detention for sticking a poster to a fence was excessive)

Dainichido Case (Third Petty Bench, decided March 8, 2022): Requiring businesses to provide data substantiating claims made in advertisement in order to avoid injunctions does not violate freedom of speech (the business, Dainichido, sold supplements and implied it made blurry eyesight clearer)

[Dr. Ed 2]

Distribution of Obscene Drawings Case (Third Petty Bench, decided March 3, 1983): Pornographic book found obscene for insufficient censoring of genitals

Interesting. No "prurient interest" standard.

What about textbooks? Not even medical ones -- I forget if it was my child development or sports medicine class (both required for my teaching certificate) that had a textbook with full color pictures of STDs -- on genitals. (It was thought that this was something that high school teachers needed to know about...)

Conversely, the Movie _Caligula_ was found not to be obscene because it was historically accurate, i.e. Caligula was that depraved.

[A Japanese Student]

There are two standards for obscenity: the legal one and the police one. The legal definition of obscenity - established in the 1957 Lady Chatterley's Lover case (https://www.courts.go.jp/app/hanrei_en/detail?id=11) and clarified in 1980 - does have a prurient interest component. (https://www.courts.go.jp/app/hanrei_en/detail?id=1847)

The police definition of obscenity, which the courts often simply defer to, is that obscenity means uncensored photo of genitals. Definitely easier to understand for ordinary citizens, and given this Court upholds any law against free speech challenges, it might be just as reasonable.

Elementary school textbooks here do have depictions of genitals, along with non-graphic descriptions of STDs. It did not explain, however, how one performs sex.

[Dan Schiavetta]

But what about Lisa Sorenson? "A Trotskyite, who became a Jesus freak, and was arrested for selling pornographic connect-the-dot books."

[John F. Carr]

As I heard it said many years ago, Japanese law prohibits pictures of pubic hair.

[JoeFromtheBronx]

Trivia about Smith v. United States.

The oral argument was less than thirty-six minutes long. The opening argument was about ten minutes long, with another five minutes in rebuttal. These days, if an oral argument is less than an hour, you know the justices are not too interested.

The oral argument was in December 1992 & involved a break for lunch. This is a holdover from when there were many more cases, and they regularly broke off during arguments for lunch or to finish for the day. From what I can tell, that didn't happen much longer.

The Virgin Islands case from the other day also had the VI counsel make the faux pas of calling the justices "judge."

O'Connor only mildly corrected her. Chief Justice Rehnquist was repeatedly annoyed when they did that. Stevens whimsically noted that Art. III also uses "judge" though there is separately a reference to a "Chief Justice."

[A Japanese Student]

Read the 99-page continuing resolution, took about 35 minutes. Unlike ones signed in the past, this one does not simply extend the currently active CR through amendment. It is very clean - there are dollar amount changes, mostly for removing FY2024 earmarks. Has the usual sort of extenders (NFIP borrowing authority, trafficking special assessment, HSA counter-UAS, HHS programs like special diabetes, changes to Medicare sequestration for PAYGO purposes, etc.) Notably absent are judiciary extenders (as temporary judgeships were made permanent last year) and debt-ceiling measures.

One permanent change is proposed: wildfire firefighters' rates of pay. It enacts Secs. 456 and 457 of HR8998 (bill from 118th Congress).