Today in Supreme Court History: April 5, 1982

4/5/1982: Justice Abe Fortas dies.

Justice Abe Fortas

Comments

[JoeFromtheBronx]

Abe Fortas among other things played the violin.

He plays the violin
He tucks it right under his chin
And he bows, oh he bows
For he knows, yes he knows
That it's hi-hi-hi-diddle diddle
Twixt my heart, Tom and his fiddle
My strings are unstrung
Hi-hi-hi-hi
I am undone

He grew up in the South as an Orthodox Jew. Fortas made good. He is well known as the lawyer who defended Charles Earl Gideon in front of the Supreme Court.

He became friends with LBJ back in 1939 & LBJ (unwisely, especially in hindsight) decided to convince Arthur Goldberg to resign for a U.N. position & replace him with Fortas.

He joined the liberal wing though sometimes did not go all the way, including when an early flag burning case arose and ironically in Time v. Hill, an invasion of privacy case. Fortas dissented, supporting the side advocated by Richard Nixon.

Again unwisely, LBJ chose Fortas as Chief Justice Warren's replacement. This was not a good reading of the times. The opponents, who unlike those of Merrick Garland did provide Fortas a hearing, had some fodder.

For instance, Fortas continued to advise LBJ, which raised concerns of both cronyism and separation of powers. Fortas also was an easy caricature of the Warren Court. Again, even though he was not an absolutist, including on obscenity matters.

His nomination was blocked. Later, President Nixon had his people send word to Warren that there was evidence Fortas not only did something unethical but broke the law while doing so. Warren told him that he had to resign. And he did so.

https://reason.com/volokh/2024/04/05/today-in-supreme-court-history-april-5-1982-5 [comment]

Justice Clarence Thomas did much more than him and continues to be on the bench. That's wrong. Fortas was a lesson for upholding ethical guidelines. The lesson remains.

Thomas getting away with it doesn't take Fortas off the hook, including him talking about pending cases with LBJ. People were upset with Scalia going on hunting trips with Cheney. Fortas did much more than that. And there should be a high standard for ethics generally. This is true even if Fortas was pushed off the Supreme Court partially for pretextual reasons.

[Dan Schiavetta]

Thanks -- corruption is a thing. People seem to be forgetting that in the age of Trump. Or at most they shrug their shoulders and think of it as a kind of joke.

[The Margrave of Azilia]

I think it was *Clarence* Earl Gideon, not Charles.

And did you know that Clarence Thomas married a white woman? (/sarc)

I thought of Fortas when one of the Conspirators said that Trump was the first President to *publicly* call for the impeachment of judges. That was a clever way to elide Nixon's role in Fortas' resignation, not to mention Jefferson's behind-the-scenes role in the Samuel Chase impeachment. (Of course, it would be useful to keep in mind James Buchanan's pre-Presidential management of the impeachment of Judge Peck.)

[JoeFromtheBronx]

Yes, it's a typo.

Checking, his father was Charles Roscoe Gideon.

[The Margrave of Azilia]

And I suppose I should mention Congressman Gerald Ford's advocating the impeachment of William O. Douglas. Again, that doesn't count because he wasn't President at the time (/sarc).

[Frank Drackman]

You left out the part about his diddyling an underage girl

[Dan Schiavetta]

Google LLC v. Oracle America, Inc., 593 U.S. 1 (decided April 5, 2021): Google wins copyright lawsuit; its partial copying of Java SE to operate Android platform was “fair use” (and not only that, the “fair use” defense was not “at law”, so no Seventh Amendment right to jury trial) (Google had tried to purchase the full copyright but owner insisted on open source interoperability -- horrors! that’s not how you make money in the software world!!)

Rogers v. Bellei, 401 U.S. 815 (decided April 5, 1971): upholding statute under which someone born elsewhere loses citizenship if doesn’t reside in the United States for 5 years between ages of 14 and 28 (statute later amended)

Conn v. Gabbert, 526 U.S. 286 (decided April 5, 1999): Just when client was about to testify before a grand jury, police served warrant on attorney for personal search of letter written by the defendant (one of the “Menendez brothers”). Attorney went to private room and produced the letter, missing the chance to represent his client. His §1983 action against prosecutor (violation of Fourteenth Amendment right to practice his profession) dismissed because attorney didn’t ask judge to postpone testimony and client did not have right to attorney in front of grand jury anyway.

Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (decided April 5, 1999): Can’t use fax to serve process! (this was in the days of the slick’n’slimy fax paper). 30-day removal period began not with faxing Complaint but by formal service (here, by certified mail per local law). (But what if there’s more than one defendant? Does the removal time run from the first served defendant or the last served? Still a split of authority!)

United States v. Texas, 507 U.S. 529 (decided April 5, 1993): Texas has to reimburse the federal government for food stamps stolen by United States Postal Service workers?? Apparently. To add insult to injury, the Court here holds that even though the Debt Collection Act does not allow prejudgment interest, the U.S. has a common law right to pursue it (so does the $ collected go to the people who should have gotten the food stamps?).

Mills v. Habluetzel, 456 U.S. 91 (decided April 5, 1982): denial of Equal Protection to hold mothers of “illegitimate” children to standard one-year deadline to bring paternity suits due to problems of assembling proof

Evans v. Bennett, 440 U.S. 1301 (decided April 5, 1979): granting stay of execution pending mother’s habeas corpus petition even though son desires execution

Kitchens v. Smith, 401 U.S. 847 (decided April 5, 1971): defendant should have had an attorney appointed for him even though he didn’t specifically request one; simply saying “I don’t have any money” and “I don’t have a lawyer” was enough

Pointer v. Texas, 380 U.S. 400 (decided April 5, 1965): Sixth Amendment Confrontation Clause applies to state prosecutions

Reinman v. City of Little Rock, 237 U.S. 171 (decided April 5, 1915): not a denial of Equal Protection for city to prohibit livery stables in densely populated area to prevent spread of disease; Court will not disturb state supreme court’s ruling that it was within the city’s powers do to this (I suppose this decision validates zoning regulations in general)

[JoeFromtheBronx]

In Robin Hood: Men in Tights, they used a fox to send a message.

[Dan Schiavetta]

The first fax machine I ever saw was next to my (shared) desk in my quarter-cubicle at the Kings County (Brooklyn) D.A. office where I was an intern. This was 1991. I didn't know what it was at first. It was a plastic tan-colored bulky thing, the size of a large toaster oven. Suddenly it made a noise like an old man straining at moving his bowels. Then a slimy sliver of paper emerged, lengthening and finally almost touching the floor, half curled. An odor emerged like denatured alcohol from a ditto machine (I thought of the ditto-sniffing scene in "Fast Times at Ridgemont High"). Somebody came by and tore it off and walked away. This description falls short of conveying the horror I felt.

[Jmaie]

Fist fax machine I saw was in 1991, looked like a mimeograph machine* and took 20 minutes a page. Good times.

* I wonder how many people today even know what a mimeograph machine was?

[Drewski]

I've always found it remarkable that the FAX predated telephones - by more than three decades. It makes perfect sense when you think about it, but it seems wrong on its face.

[Syd Henderson]

Working as a telephone operator, I got lots of calls from FAX machines. I blame them for some of my hearing loss.

[jb]

Google LLC v. Oracle America, Inc., 593 U.S. 1 (decided April 5, 2021): Google wins copyright lawsuit; its partial copying of Java SE to operate Android platform was “fair use” (and not only that, the “fair use” defense was not “at law”, so no Seventh Amendment right to jury trial) (Google had tried to purchase the full copyright but owner insisted on open source interoperability -- horrors! that’s not how you make money in the software world!!)

Uhh, I think you have the history a bit backward:

Google insists that the payment wasn’t just a licensing deal. “By the end of April 2006, though other terms of their partnership remained unsettled, Sun had agreed to accept a payment from Google of $28 million over three years to compensate Sun for the risk of lost licensing revenue that might result from an open source Android platform,” Google wrote.

“At that point, negotiations broke down over issues unrelated to money,” it continued. “Both Google and Sun wanted greater control over Android’s development, with Google wanting to make the platform more open and Sun wanting restrictions that Google viewed as incompatible with open source.”

[Dan Schiavetta]

"But Google did not want to insist that all programs written on the Android platform be interoperable. . . As Android's founder explained, '[t]he whole idea about [an] open source [platform] is to have very, very few restrictions on what people can do with it,' App. 659, and Sun's interoperability policy would have undermined that free and open business model. Apparently, for reasons related to this disagreement, Google's negotiations with Sun broke down. Google then built its own platform."

Id. at 1191.

[jb]

It wasn't really an interoperability requirement, it was a requirement around how the license worked (basically, Sun wanted people who used the open source license to be forced to open source their derivative software as well). This article is a very good primer for those who might be interested:

https://www.cnet.com/tech/tech-industry/android-java-and-the-tech-behind-oracle-v-google-faq/

And FWIW, the crux of Oracle vs Google is copyright vs. interoperability, with Google arguing that fair use allows for interoperability between different sets of differentiating code, although this is distinct from the set of issues that Sun and Google disagreed about.

[Dan Schiavetta]

Thanks!

[A Japanese Student]

Japan lacks fair use; instead the Copyright Act receives amendments frequently to cover new situations (often as a result of lobbying).

For example, Copyright Act §10(3) expressly denies protection to "programming language, coding conventions, or algorithms". "Coding conventions" is defined as "special stipulations for the use of a programming language in a specific computer program". Java SE interface is a "coding convention", and is not a copyrightable work.

The law lists dozens of limitations of copyright. Most of those would be considered fair use, and does not have an explicit authorization in the US. Guess this is the difference between common-law and civil-law countries.

Just how many? I listed them all for reference - the ones in bold are the most important ones: private use (§30); de minimis (§30-2); use as part of obtaining compulsory license (§30-3); use in machine learning (§30-4); copying in libraries (§31); quotations (§32); printing in textbooks (§33), digital textbooks (§33-2), or accessible textbooks (§33-3); use in educational TV program (§34); use in schools (§35); use in entrance examinations (§36); reproduction for the blind (§37) or for the deaf (§37-2); noncommercial uncompensated performance (§38); reproduction of editorials (§39), political speeches (§40), or for news reports (§41); use in judicial proceedings (§42); reproduction in FOIA response (§42-2) or by national archive (§42-3); digital archive by National Diet Library (§43); temporary recording by broadcasters (§44); exhibition of artwork by owner (§45); freedom of panorama (§46); reproduction of exhibited artwork by owner (§47); reproduction incidental to transfer of artwork (§47-2); making a backup of computer programs (§47-3); caching, and making a backup during computer repair (§47-4); minor use incidental to Internet search service (§47-5).

Copyright Act: https://www.japaneselawtranslation.go.jp/en/laws/view/4207

[JoeFromtheBronx]

Ed Whelan in his "Day in Liberal Judicial Activism" segment today:

The Colombia Supreme Court rules that the Amazon river is a rights-bearing entity and that environmental activists can sue on its behalf to enforce its rights. The court orders Colombian governmental authorities to formulate a series of action plans to combat deforestation and climate change.

Wildlife as Property Owners: A New Conception of Animal Rights by Karen Bradshaw discusses this overall approach. She cited certain nations that include some form of right and obligation to protect the interests of animals.

The ruling reflects Colombia's legal system providing an obligation to provide a trustee for the environment. Justice Douglas, in his (in)famous "trees have standing" dissent, effectively promoted this principle. He argued a right to bring a case in the name of nature ultimately for the benefit of those who enjoyed it.

The Colombia case cited provides a chance to examine other legal traditions, as one of our commenters does with Japan. Consider, for instance, a possible Native American tribal court referencing the history and tradition of their legal culture that requires protecting animals and the environment in a way different from that of the U.S.

https://iucn.org/news/world-commission-environmental-law/201804/colombian-supreme-court-recognizes-rights-amazon-river-ecosystem

[Mr. Bumble]

Too much of their own coke.

[SRG2]

Not being a believer that the world is zero sum, and having interacted with animals that are smarter than human toddlers I have no issue with extending some rights to some animals.

[A Japanese Student]

Attorney Discipline Case (Third Petty Bench, decided April 5, 1985): Case seeking review of attorney suspension not mooted by its expiration because the plaintiff lost the right to vote for the President of Japan Federation of Bar Association (which had not been restored yet)

Altering Securities Case (Third Petty Bench, decided April 5, 1991): Telephone cards are "securities" and changing its magnetic record is "altering securities"; affirmed conviction (superseded by 2001 amendment expressly prohibiting manufacture, use, and possession of counterfeit electronic payment cards)

Nabari Poisoned Wine Case (Third Petty Bench, decided April 5, 2010): This is the seventh postconviction appeal from a death-row inmate, where the issue was whether the wine was in fact poisoned; here the Court vacates and remands due to improper scientific analysis (the lower court, on remand, denied relief again - the inmate died from pneumonia during the ninth postconviction proceeding, but that didn't stop the lawyers from filing another one)