Today in Supreme Court History: March 29, 1937

3/29/1937: West Coast Hotel v. Parrish decided.

Comments

[Dan Schiavetta]

West Coast Hotels v. Parrish, 300 U.S. 379 (decided March 29, 1937): The Big Switch by Justice Roberts, breaking with the “Four Horsemen” and voting to uphold a state minimum wage regulation. From now on he would vote against them. Was this vote coerced by FDR threatening to “pack” the Court? This decision came out shortly after the court-packing plan was announced, but Roberts had already declared his vote at the December 19, 1936 conference, after Chief Justice Hughes sat down to talk with him in light of FDR’s 1936 landslide victory. I don’t know if there were noises at that time to pack the court, but maybe in light of the landslide they saw it coming. In the 75th Congress the Democrats had a 79 - 16 edge in the Senate, and were 345 - 89 in the House.

Connick v. Thompson, 563 U.S. 51 (decided March 29, 2011): D.A. can’t be liable under §1983 for failure to train A.D.A.’s based on one screwup (failure to turn over exculpatory evidence as required by Brady v. Maryland which led to conviction for armed robbery based on which defendant decided not to testify in later murder trial which led to murder conviction; both convictions then vacated due to the Brady violation); opinion by Thomas, 5 - 4
decision

Mays v. Hines, 592 U.S. 385 (decided March 29, 2021): habeas for ineffective assistance of counsel should not have been granted because though prosecutor did not question why person who found body in motel was there (he was having an affair and wished to avoid embarrassment) evidence of defendant’s guilt was overwhelming

Astra USA v. Santa Clara County, California, 563 U.S. 110 (decided March 29, 2011): medical facilities are not third-party beneficiaries of contracts between drug manufacturers and federal government under which manufacturers get Medicare reimbursements; if facilities are overcharged, they can’t sue the federal government but have to alert the Secretary of Health who will order restitution

City of Erie v. Pap’s A.M., 529 U.S. 277 (decided March 29, 2000): Upholds local ordinance prohibiting nude dancing, which required the girls to put on pasties and G-string (they’re probably grateful for that on cold nights); protected by First Amendment but ordinance is content-neutral; O’Connor, who wrote plurality opinion, has a dry sense of humor: “Even if Erie’s public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis.” (The “girls” make more $ when they dance completely nude, but that would make this a commercial speech case, not a free expression case.)

Illinois v. Abbott & Assocs., 460 U.S. 557 (decided March 29, 1983): Clayton Act allows Attorney General to hand over federal antitrust grand jury materials in state antitrust suit but state A.G. still has to show particularized need (at issue was bid-rigging in Illinois construction contracts)

United States v. Topco Assocs., 405 U.S. 596 (decided March 29, 1972): regional purchasing association for small/medium sized supermarkets which had virtual veto power in their own locality was violation of Sherman Act even though prices achieved allowed them to compete with national chains

Labine v. Vincent, 401 U.S. 532 (decided March 29, 1971): Equal Protection not violated by Louisiana statute precluding inheritance by “illegitimate” children even if acknowledged (I learned a new word, “tutrix”, a female guardian) (statute later declared unconstitutional by Louisiana Supreme Court, 388 So.2d 1151, 1980)

Moore v. New York, 333 U.S. 565 (decided March 29, 1948): record did not support contention that having black men tried for murder by special jury violated fair trial right (no evidence that blacks were excluded from special juries or that conviction rates were higher for black defendants) (special juries, screened for education and good morals, were abolished in New York in 1965)

Winters v. New York, 333 U.S. 507 (decided March 29, 1948): striking New York obscenity statute which on its face was impermissibly broad even though construed narrowly along First Amendment lines by New York’s highest court (defendant was selling magazine with lurid/lascivious crime stories)

[JoeFromtheBronx]

Justice Ginsburg joined Stevens' dissenting opinion in Erie v. Pap's. Souter's separate opinion admitted being partially mistaken in an earlier case:

I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late.

[Noscitur a sociis]

Mays v. Hines, 592 U.S. 385 (decided March 29, 2021): habeas for ineffective assistance of counsel should not have been granted because though prosecutor did not question why person who found body in motel was there (he was having an affair and wished to avoid embarrassment) evidence of defendant’s guilt was overwhelming.

The complaint was that the defense attorney didn’t bring that up, not the prosecutor.

[Dan Schiavetta]

Thanks -- will correct.

[Dan Schiavetta]

On another note . . .

See this article on the demise of "Hooters" restaurants.

https://www.theatlantic.com/ideas/archive/2025/03/hooters-bankrupt-sexuality-restaurant/682167/

Some things just make me embarrassed to be a man.

I've never been to a "Hooters". It's like those girls in bikinis selling hot dogs. I don't care if it's the best restaurant in the world, or the hot dogs are the great. I would be totally embarrassed to be seen there.

A guy walking into a topless bar -- that, I can respect. There's no hypocrisy. Everyone knows why he's there. It's not because they have great coffee.

[Dan Schiavetta]

BTW, as long as I'm browing that magazine, check out this hilarious article by Caitlin Flanagan on internet porn. It starts:

"There’s a saying—or maybe a truism—that the test of any new technology lies in its ability to reproduce pornography. Long ago, pornography was the stuff of private collections: crude figurines and drawings that spread their influence only as far as they could be carried. But man could not live in this wilderness forever. He had opposable thumbs and pressing needs, and thus were born woodblock printing, engraving, movable type, daguerreotype, halftone printing, photography, the moving image. Man needed these innovations, of course, to spread the great truths of God, nature, king, and country. But it was never very long before some guy wandered into the workroom of the newest inventor, took a look at his gizmo, and thought, You know what I could use that for?"

[Dan Schiavetta]

"browsing", not "browing"

Actually "browing" does kinda fit.

[Dr. Ed 2]

Porn was a major component of the VCR industry, the DVD industry that followed it, and now a major percentage of web traffic.

[Dan Schiavetta]

The spurt (pun intended) of growth in the internet was due to the desire of men with disposable income to more effectively masturbate.

[Dr. Ed 2]

Hooters was founded in 1983.

Seven years before Tim Berners-Lee created the world's first web page. Back when the US telephone system was still a monopoly and Betamax was considered state of the art. When you could buy leaded gasoline and COBOL was being taught in colleges -- with punch cards.

When computers didn't have hard drives and you had to boot (and load the operating system) off a 5.25" floppy. When college students of modest means cut a square out of the other side of the floppy so they could use the back as well. When Larry Flynt was, well, being Larry Flynt.

When there was still a Soviet Union and a Berlin Wall...

It's 42 years later and the world has changed. Hooters audience was Baby Boomers...

Heck, our opinion of the attractive female body has changed and it's more athletic build than breast size now.

[Dan Schiavetta]

I’m out of date I suppose. Three things that turn me off are now ubiquitous: tattoos, shaved vulvas, and piercings.

[David Nieporent]

Way TMI.

[A Japanese Student]

West Coast Hotels, and the whole Lochnerism, had a significant impact on Japanese constitution. In addition to having explicit reservations on economic liberties, it enumerates several social rights and legislative directions, such as social security, free compulsory education, minimum wage, and the right to unionize and strike.

[Dan Schiavetta]

Japan would be a lot different today if Americans had occupied in 1935 instead of 1945.

[Dr. Ed 2]

When consensus couldn't be reached, Japan had a Constitution imposed on it during occupation, essentially ours, and the consensus was "we will replace this with one we want when occupation ends in (memory is) 2 years" -- except you never did.

[SRG2]

Unsurprising that Thompson was unsuccessful against Connick - it is hard to conceive how Thomas and Scalia could possibly rule in his favour.

Thus RBG: The evidence presented to the jury that awarded compensation to Thompson, however, points distinctly away from the Court’s assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.
https://supreme.justia.com/cases/federal/us/563/51/

The majority appear to have bought into the Lance Armstrong approach. Armstrong, when he eventually came clean, said, in effect "I only lied once, because repeating the lie is still only one lie"

[JoeFromtheBronx]

Various debates have been provided regarding how much of a "switch in time" Justice Roberts' vote in West Coast Hotel v. Parrish was. Let's focus on the holding.

First, that is "Elsie Parrish," which would bring to mind Adkins v. Children's Hospital where the 19th Amendment was partially cited to explain why women should not receive special treatment.

The 19A was later cited in Abele v. Markle (lower court opinion) to show the equal place in society of women in defense of a right to choose an abortion (egregiously overruled in Dobbs). Some people opposed the ERA in the early years because they thought it was important to allow protectionist legislation. One answer was to provide everyone protection.

Chief Justice Hughes in Parrish notes that the 14A protects "liberty" from undue deprivation:

Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.

He showed how the "liberty" of freedom of contract was regulated in multiple ways that were upheld by the Supreme Court. He then explained was it was justifiably regulated here.

We can correctly argue that there is a "liberty" to contract, which is basic to our way of life in a variety of ways, without taking the approach that minimum wage laws (however, like Justice Stevens once noted, you think they are unwise) are unconstitutional.

[Dan Schiavetta]

Roberts had voted against the "Four Horsemen" in 1934, writing the opinion in a case upholding maximum and minimum milk prices, as important to public welfare. Nebbia v. New York, 291 U.S. 502.

[A Japanese Student]

District court cases are usually not noteworthy, but I decided to include one. I think I saw this case in a junior high textbook. Article 9 is always a sensitive subject within the judiciary, despite being one of the three fundamental principles of Japan's post-war Constitution, along with democratic government and protection of civil rights. This is also a classic example of Brandeis rule - which sometimes comes up in more detailed high-school textbooks when discussing judicial review.

Eniwa Case (Sapporo District Court, decided March 29, 1967): Acquitted defendant of destroying "defense equipment" because telecommunication cables are not "defense equipment"; refused to rule on constitutionality of Self-Defense Forces Act, which was the main focus of case (Government did not appeal)

Tort Claims Case (Second Petty Bench, decided March 29, 1974): Police accusations are accusations only, and reporters (who reported it as true facts) cannot claim lack of negligence

Special Kokoku-Appeal to Order Denying Compensation (Third Petty Bench, decided March 29, 1991): Compensation not authorized for innocent children subjected to juvenile delinquency proceeding (superseded by statute, Act on Compensation in Relation to Juvenile Protection Cases, enacted 1992)

Special Kokoku-Appeal to Order Denying Petition for Prosecution (Third Petty Bench, decided March 29, 1994): Volunteers patrolling the streets to find delinquent juveniles by request of the police do not "assist in police duties", and are not subject to private prosecution for color-of-law offenses

Injury Case (Second Petty Bench, decided March 29, 2005): Affirmed conviction for criminal injury (neighbors having headache and tinnitus) in a case where the defendant played radio and set off alarm clock at full volume for over a year (is this a crime of violence?)

[John F. Carr]

On the violence of intangible things, see Eichenwald v. Rivello, and in particular docket 34 at https://www.courtlistener.com/docket/5622794/eichenwald-v-rivello/ (more lawyerly citation, 318 F. Supp. 3d 766 (D. Md. 2018)). Causing photons to hit plaintiff's eyes was battery.

[Dr. Ed 2]

"Eniwa Case (Sapporo District Court, decided March 29, 1967): Acquitted defendant of destroying "defense equipment" because telecommunication cables are not "defense equipment"

Interesting it's based on use and not ownership, which it would be here.

I don't think it would be decided the same way now with high tech war.

[A Japanese Student]

The provision explicitly listed weapons, ammunition, and aircrafts. The court found cables to be dissimilar enough to rule on defendant's favor. Perhaps it would be decided differently today - at least for computer systems used in missile control or cyber defense, not for clerical use.

Cutting cables obviously constitute the lesser-included offense of destroying property. But lesser-included offenses must still be charged by the prosecutor before the court can convict based on it, and they never did so, for some reason.

[John F. Carr]

In my state only the most serious charge needs to be listed in the indictment. At the request of either party the jury must be instructed on any lesser included offense supported by the evidence. Often the evidence will not support a lesser included offense.