Today in Supreme Court History: March 9, 1937

3/9/1937: President Roosevelt delivers a fireside chat on his Court-packing plan.

 

Comments

[JoeFromtheBronx]

I think it's too early to "spring ahead" when it's not even spring yet.

President Franklin Delano Roosevelt (FDR) was the first president to fully take advantage of the power of radio. Many newspapers were run by political rivals. Radio allowed FDR to directly converse with the American public (and potential voters).

FDR knew that radio provided a means to speak one-on-one with the American people. His ability to speak in down-to-earth conversational tones led to his radio broadcasts being called “fireside chats.” Americans symbolically listened to their president at the fireplace, the traditional center of domestic life. It had a calming effect in troubling times.

FDR carefully spaced out his fireside chats. He wanted each one to be a special event. There were only about thirty chats during his twelve years as president.

The chats sounded conversational and unplanned but were carefully scripted. He used language geared to the average person and spoke slowly to allow his points to seep in. The speeches gained the trust of the American public.

They did not always completely work to promote his views. The Supreme Court expansion plan never became the law of the land.

The latest discussion of court expansion never reached the level of FDR's proposal. It also arose from a different context, though in a broad sense, you can find some overlap.

A retirement benefit did pass and helped get the ball rolling for FDR to replace justices the old-fashioned way: retirements and deaths.

[Stupid Government Tricks]

"Converse with" is a little strong for a radio broadcast. Ditto for "speak one-on-one".

[Dr. Ed 2]

Ever see a 1930's radio? It was 3 feet wide, 2 feet deep and 4 feet high -- the one my grandparents had ran on 32 volts DC because they generated their own. It wasn't portable...

The FCC was established in 1934. Knowing Roosevelt, I have no doubt that those broadcasters who wanted (or wanted to keep) a broadcast license were way more supportive of him than most newspaper publishers were.

[David Nieporent]

Wow, you knew Roosevelt?

[Dan Schiavetta]

New York Times v. Sullivan, 376 U.S. 254 (decided March 9, 1964): The foundation of current law on freedom of speech in the media. A public figure can’t sue for libel unless “actual malice”, i.e., knowledge of falsity. Here, an ad in the New York Times from civil rights leaders protesting police brutality provoked Alabama official Sullivan (who was referred to only obliquely) to sue for libel. Court vacates $500,000 verdict.

INS v. Cardoza-Fonseca, 480 U.S. 421 (decided March 9, 1987): alien can on asylum grounds oppose deportation after overstaying visa not for “clear probability” of prosecution in her home country, but just a “well-founded fear” (applicant’s brother had been tortured in their native Nicaragua by those who knew she had escaped) (in my experience, overstaying a visa is the rational thing to do: show up in Federal Plaza in New York for an extension, or for any appointment for that matter, even a citizenship interview, and they take away your cell phone -- back in the pre-cell phone era when my wife applied, there weren’t any pay phones there -- and won’t let anyone accompany you, and you might find yourself put in handcuffs and flown back to Mexico, which is what happened to my neighbor, who had an American husband and three young children born in this country)

United States v. The Amistad, 40 U.S. 518 (decided March 9, 1841): Africans who had taken over Spanish slave ship which ended up off Long Island were freemen; kidnaped into slavery illegally, so Adams-Onís Treaty of 1819, which required return of slaves, did not apply, and were not “property”, so the Pinckney Treaty of 1795, requiring return of property, did not apply (case argued by John Quincy Adams -- as Secretary of State, the “Adams” of the Adams-Onís Treaty -- who could not have been as hammy as Anthony Hopkins in the 1997 movie, nor did he have to shout over any loud, inspiring John Williams music flooding the courtroom)

Wood v. Davis, 11 U.S. 271 (decided March 9, 1812): Marshall reverses a judgment of freedom, holding that just because a mother is free does not mean that her children are free. Ah, good times . . . Francis Scott Key argued for the slaveowner. Gabriel Duvall (later on the Court) argued for those seeking freedom.

Illinois v. Krull, 480 U.S. 340 (decided March 9, 1987): statutorily permitted warrantless search was done in good faith and therefore evidence obtained is admissible even though this type of search was later found unconstitutional (search of autos in junkyard revealed that three were stolen; the next day, the local federal court in another case found the statute violated Due Process, 518 F. Supp. 582)

Department of Transportation v. Ass’n of American Railroads, 575 U.S. 43 (decided March 9, 2015): Amtrak is a governmental entity and therefore has authority (along with Department of Transportation) to set national passenger railroad standards

Vermont v. Brillon, 556 U.S. 81 (decided March 9, 2009): three-year wait did not violate Sixth Amendment “speedy trial” right; delays were due to defendant (who went through six court-appointed attorneys that he either fired or threatened to kill) (I was an intern in the Brooklyn D.A. office and, though I never heard of anything this extreme, I did notice that most defendants did not want a speedy trial, even though like this guy they were in jail the whole time; certainly their attorneys didn’t, delay gave them more time to prepare)

Kansas v. Colorado, 556 U.S. 98 (decided March 9, 2009): Original jurisdiction cases are so idiosyncratic that the Court hates to make up special rules for them. Here, after a dispute over Arkansas River rights was resolved, the Court falls back on the “American rule” as to each side bearing its own attorney’s fees, and adopts the standard modest exception for attendance costs, 18 U.S.C. §1821.

Gray v. Maryland, 523 U.S. 185 (decided March 9, 1998): Confession of a nontestifying defendant is inadmissible if it also implicates the co-defendant (Bruton v. United States, 1968), even if a limiting instruction is given. Here the Court holds this is true even if the co-defendant’s name is redacted. (Evidence has to be adduced, as we trial lawyers say, “subject to connection”, and after the confession was read to the jury with Gray’s name redacted, the police officer testified that after getting the confession, he arrested Gray.)

Lewis v. United States, 523 U.S. 155 (decided March 9, 1998): crimes on Army bases are not subject under the “assimilation” statute (18 U.S.C. §13) to local state law where a federal law specifically applies to same conduct (here, murder of a child, first-degree murder under Louisiana statute but second-degree under parallel federal statute) (!)

United States v. Reynolds, 345 U.S. 1 (decided March 9, 1953): established the “state secrets” privilege; suit brought by widows of civilians on ground killed in crash of B-29 bomber in Georgia; Air Force claimed its investigative report would reveal state secrets, so ordered not produced; remanded to District Court where case settled at a discount (years later the report was declassified and showed nothing more than that the crash was caused by a fire in an engine, so relief was sought via coram nobis, which the Court denied (sub nom In re Herring, 539 U.S. 940 (2003)) and the Court also refused to hear the appeal of the Circuit Court decision holding that there was no “fraud on the court” (cert. denied, 547 U.S. 1123 (2006)) (even though, to me, the government’s assertion that this was a secret mission was irrelevant to the cause of the crash)

[A Japanese Student]

"Here the Court holds this is true even if the co-defendant’s name is redacted."

25 years later, the Court ruled that so long as you don't literally redact (by replacing the name with "redacted"), you can admit co-defendant's confessions. And yes, you guessed the votes correctly. Samia v. United States, 599 U.S. ___ (2023)

[Dan Schiavetta]

thanks

[JoeFromtheBronx]

John Quincy Adams began his oral arguments for the defense on the 24th, speaking for “four hours and a half, with sufficient method and order to witness little flagging of attention, by the judges or the auditory.” Pleased with his performance, he modestly assessed: “I did not I could not answer public expectation—but I have not yet utterly failed.”

https://www.masshist.org/beehiveblog/2022/03/my-conscience-presses-me-on-john-quincy-adams-and-the-amistad-case-1839-1842

He did lay it a bit thick, including in his diary:

"The world, the flesh, and all the devils in hell are arrayed against any man, who now, in this North-American Union, shall dare to join the standard of Almighty God, to put down” the issue of slavery.

[Dan Schiavetta]

so maybe he was indeed as hammy as Anthony Hopkins?

[A Japanese Student]

Defamation law differs so much between US and Japan. Almost all the defenses you can think of in the US - truth, opinion, lack of actual malice, etc - do not negate liability here. There's also criminal defamation and insult, both carrying potential jail time.

[Dan Schiavetta]

I think UK law is like that (Japan's) too. Though I'm not up on that topic.

[SRG2]

IT's been a very long time since I studied British defamation law - and I know it's changed, but the general principle is that truth is a defence, and otherwise, the defendant has the burden of proof.

However, there is a trick available to defendants in Britain that I don't think exists in any form in the US - if you make a settlement offer and pay that amount into court, should the jury find for the plaintiff but award less than the settlement amoujnt, the plaintiff is liable for the defendant's costs ffrom the date of the offer - and those costs can be substantial.

[Dan Schiavetta]

That device exists in federal court, and also in New York State courts. I assume in other states too.

[SRG2]

Thanks!

[Dan Schiavetta]

In federal court it's F.R.C.P. 68. In New York it's CPLR R. 3221.

[Frank Drackman]

Wow, almost like it’s a different Country or something

[Noscitur a sociis]

What are the elements of a defamation claim in Japan?

[A Japanese Student]

Making a statement tending to injure one's reputation (when interpreted by "ordinary readers") in public is the essence. Criminal defamation only includes statements of fact; statements of defamatory opinions instead constitute criminal insult (with lesser penalties). In civil cases, both fact and opinion can be defamatory, and judged under the same standard.

There is an affirmative defense for matters of public interest; in addition to public interest, for statement of facts it must be made for the sole purpose of benefiting the public, and must be either true or the defendant must have had a reasonable basis (grounded in reliable source) for believing it was true. (https://www.courts.go.jp/app/hanrei_en/detail?id=1053; https://www.courts.go.jp/app/hanrei_en/detail?id=32)

For statement of opinions, it must be made for the sole purpose of benefiting the public, the opinion does not involve personal attacks or the like, and the facts underlying such opinion was either true in important part or the defendant had a reasonable basis for believing it was true. Unlike statements of fact reliability of source does not matter. (https://www.courts.go.jp/app/hanrei_en/detail?id=369)

[Dr. Ed 2]

John Quincy Adams had lovely handwriting that is a joy to read.

By contrast, John Adams' is not only nearly illegible, but he then turned the page sideways and wrote in the margin as well.

[Noscitur a sociis]

A public figure can’t sue for libel unless “actual malice”, i.e., knowledge of falsity.

The standard is high but not quite that high. A plaintiff need to show the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

alien can on asylum grounds oppose deportation after overstaying visa not for “clear probability” of prosecution in her home country,

Persecution! (I guess that could potentially take the form of prosecution…)

[Dan Schiavetta]

Thanks

[John F. Carr]

The co-conspirator confession sounds like "Individual-1, a candidate for President of the United States" in an indictment. We're not saying who it was. You know who it was.

[A Japanese Student]

My case book has "A, who was the Emperor". (The "A" was Emperor Showa; the case is the Kichojo Case, which was filed against the next Emperor. There the Court held the Emperor to be immune from civil lawsuit.)

[David Nieporent]

certainly their attorneys didn’t, delay gave them more time to prepare)

Oh, come on. For the most part, they weren't using the time to prepare; rather, the delay made it more likely the prosecution's case would fall apart — witnesses would disappear, etc.

[Dr. Ed 2]

The B-29 was a very dangerous plane and engine fires were common -- in bombing Japan, we lost about twice as many to mishaps than were shot down.

In 1953, the B-36 was just starting to come in, and it had its own problems with engines. It wasn't until the B-52 arrived in 1957 that they had a reliable heavy bomber -- I can see that fact being kept a state secret.

In other words, the fact that the plane crashed because of an engine fire (and how many engine fires the B29s had) was something we didn't want the Soviets to know.

[SRG2]

Aaand guess who dissented in Gray?

[JoeFromtheBronx]

5-4, with O'Connor joining the liberals in the majority.

Thomas, the remaining member of that court, wrote Samia v. United States, which was 6-3 (usual suspects).

We also had Thomas v. Barrett debate use of historical evidence, which has become something of a theme.

[A Japanese Student]

Apparently the comment is too long? posting in 2 parts.

Robbery-Murder Case (Third Petty Bench, decided March 9, 1948): Under the Emergency Measures Act (which supplemented the Code of Criminal Procedure to ensure its compliance with the new constitution until they could amend it), out-of-court statements can be admitted, but the court must summon the witness if requested. The Court here rules that judges do not have to advise the defendant of this right. Defendant's capital conviction and death sentence is thus affirmed.

Extortion Case (First Petty Bench, decided March 9, 1961): Constitutional to admit out-of-court statements made to prosecutor when the witness is outside Japan and unable to be cross-examined (although it cites a 1949 precedent, it distorts its holding; although the precedent did hold that the right guaranteed under Confrontation Clause is to cross-examine witnesses summoned and examined, it only rejected absolute ban on out-of-court statements - and the law in question there was the Emergency Measures Act (see above))

Certified Kokoku-Appeal to Order Denying Certiorari (First Petty Bench, decided March 9, 1999): Appeals court cannot deny cert. petition as un-cert-worthy; only the Supreme Court can (certiorari, formally known as "petition to accept a final appeal", was introduced the previous year)

MHI Nagasaki Shipyard Case (First Petty Bench, decided March 9, 2000): Working hours are determined solely by whether the employee was placed under the command and direction of the employer, and not by contracts or collective bargaining agreement; time spent putting on PPEs before work and preparing for work is included; time spent going from the gate to the locker room, taking off PPEs during breaks, or showering after work (when not ordered by employer) is not included

[Dr. Ed 2]

A first appeal from the trial court is not a matter of RIGHT? It is here on both the Federal and State levels.

Massachusetts and Maine used to have "trial de novo" (new trial) in Superior Court instead of an appeal when the initial trial (and conviction) was in District Court. Maine got rid of it in the 1980s because it had become a way for drunk drivers to be acquitted.

[A Japanese Student]

First appeal from District Court to High Court is a matter of right; appeals to the Supreme Court is not. In criminal cases you need to show a constitutional error or violation of precedents; in civil cases you need a certiorari (or constitutional error). Cert petition in civil cases is filed to the High Court (like how notices of appeal to CoA is filed in the district court in the US); in that case, the High Court thought it had the authority to summarily dismiss certs it thought was un-cert-worthy, instead of sending the case to the Supreme Court. That was improper.

There's a separate process where the High Court can exercise its discretion, which applies to summary (and usually non-final) orders like bail or discovery orders. In those cases, the Supreme Court's jurisdiction is limited to constitutional questions ("special kokoku-appeal") or questions certified by the High Court (like here). Code of Criminal Procedure, however, expressly allows the Court to hear a case notwithstanding lack of jurisdiction - and in fact, that is how most criminal cases are heard. Although there is a way to file a certiorari in criminal cases, it is very inconvenient (as you need to submit the entire brief within 14 days of judgment, and the Court has to grant or deny it within 14 days) and almost never used.

[A Japanese Student]

Special Kokoku-Appeal to Order Denying Bail (Second Petty Bench, decided March 8, 2005): Rare order from the Court granting bail. Defendant, charged with simple possession of marijuana, has no criminal history and admitted guilt. What separates this case from all other unsuccessful appeal is that the defendant's university entrance exam was approaching (likely, within days).

Division of Estates Case (Third Petty Bench, decided March 9, 2011): Frustrated by delays, appellant (in an estate dispute) settles without consulting their counsel. It turns out the delay was caused by appellant's counsel attacking the constitutionality of Civil Code §900 (for discriminating against illegitimate children), previously upheld in 1995 in a 10-5 vote. Only after the counsel notifies the appellant they had a miracle - an opportunity to argue before the Grand Bench - the appellant discloses the settlement. Court dismisses the appeal as moot. (The provision was unanimously invalidated on September 4, 2013, but was held to not retroactively apply.)

[A Japanese Student]

There was another case (the My Number Injunction Case) - but it seems that's triggering some sort of comment filter. The holding is pretty similar to the March 6 JukiNet Case.

[Magister]

I recall that Dan occasionally ran into issues with his Supreme Court cases, tied apparently to flagging certain phrases chosen for unclear reasons.

[Dr. Ed 2]

The marijuana charge wouldn't preclude university attendance?

In this country, with colleges, it is "conviction or charges pending" and while marijuana isn't taken seriously in this country, charges pending for something serious would preclude admission to most schools I am aware of.

Unless he had friends.... It reportedly is either a $30,000 or $40,000 donation to the athletic department, I forget which, at one institution I know of...

[A Japanese Student]

Most first-time offenders do not get sent to prison here. Unsupervised probation of a few years is the default sentence for most crimes, whether that's marijuana, cocaine, meth, fraud, bribery, and yes, things like robbery, child abuse, and many sex offenses. Physical attendance is not an issue.

Whether the university discovers the charge, and what it would do in response, is another question - but I don't know what happened to this defendant after the release.

[Thought about __ all my life]

As Gov Newsom proved, the imposition of minimum wage destroys businesses, kills jobs , and minimally helps whoever it helps EXCEPT for the Gov , who gets to appear to be helping people.