Today in Supreme Court History: April 6, 1938

4/6/1938: United States v. Carolene Products argued.

Comments

[JoeFromtheBronx]

I referenced this case, along with a blog post somewhere else by JB, in a recent post. Turns out, eventually in the 1970s a district court found the law a problem & the government didn't appeal.

This is the case with the famous footnote four, which was joined by four justices, though that was enough for a majority since only seven justices took part. Black didn't join the section with the footnote, and Butler concurred separately. So it was 4/5-1-1.

[Dan Schiavetta]

You can still buy filled milk in the supermarket, so the law prohibiting it (at issue in Carolene Products) either is no longer in effect or is not being enforced.

[Syd Henderson]

If I remember correctly, the law only prohibited interstate commerce in filled milk, so they were still able to sell it in-state.

[Dan Schiavetta]

Yes but it’s unlikely for canned goods to be on supermarket shelves if it’s only instate.

[Noscitur a sociis]

Those two cases I cited do mention that the manufacturers made it a point to avoid interstate distribution, although I doubt that would have made a difference if they wanted to rigorously enforce the ban.

[Noscitur a sociis]

Turns out, eventually in the 1970s a district court found the law a problem & the government didn't appeal.

Are you sure? It looks like the business community accepted its validity until at least the early 70s. See Rasmussen v. American Dairy Ass’n, 472 F.2d 517 at n. 2 (9th Cir. 1972).

[Noscitur a sociis]

Nevermind, I found it. Milnot Co. v. Richardson, 350 F.Supp. 221 (N.D. Ill. 1972).

Seems like a pretty blatantly lawless decision, but I guess it led to a good policy outcome. Strange that there’s no notation on the statutes in Westlaw.

[Frank Drackman]

Sounds like one of Kramer's schemes, but did you know there's no law against women selling their own Breast Milk?? Of course there's already a website, "Only the Breast" (get it? I would have gone with "Nothing but the Breast") going rate seems to be about $2.50/oz, or about twice as much as my "Mother's Milk", Makers Mark. I was raised on Breast Milk (Ok, my teen yrs were a little weird*) but as in Infant, kept me quiet from Atlanta to Vance AFB OK (talk about your "Interstate Commerce") In 1962 breast feeding hadn't become cool yet (why is stealing milk from a cow and boiling it the "Normal" thing to do?)
No, my daughters weren't breast fed, Mrs D was pissed enough about the C-sections

Frank
* I'm kidding, my teen years were weird for other reasons

[Dan Schiavetta]

Ashe v. Swenson, 397 U.S. 436 (decided April 6, 1970): double jeopardy bars trial as to break-in and robbery of second poker player when acquittal as to robbery of first was based on failure to identify defendant as the robber

United States v. Barnett, 376 U.S. 681 (decided April 6, 1964): contemnors (Governor and Lt. Gov. of Mississippi who flouted court order to admit black student to state university) not entitled to jury trial; four liberal Justices dissented (i.e., principled behavior on both sides)

Kansas v. Glover, 589 U.S. 376 (decided April 6, 2020): reasonable cause for stop because plates showed car belonged to driver with revoked license (and it turned out to be him; arrested for habitually driving without a license)

Corley v. United States, 556 U.S. 303 (decided April 6, 2009): 18 U.S.C. §3501, making confessions admissible if within six hours of arrest and found to be voluntary, did not replace McNabb - Mallory rule that confessions are inadmissible after “unreasonable delay” in arraignment

Jacobson v. United States, 503 U.S. 540 (decided April 6, 1992): Government kept mailing child pornography to defendant, then convicted him of possessing child pornography; conviction overturned because no showing he was “predisposed” to possess it (did they count how many days he had it before he threw it in the trash?)

Universities Research Ass’n v. Coutu, 450 U.S. 754 (decided April 6, 1981): no private right of action for back wages for federal contractor employees paid below “prevailing wage” as required by the Davis-Bacon Act because contract did not contain prevailing wage stipulations (then what’s the purpose of the Act anyway?)

Arnold v. North Carolina, 376 U.S. 773 (decided April 6, 1964): vacating murder conviction of black men because records showed that in 24 years only one black person had been selected for grand jury service

United States v. First Nat’l Bank & Trust Co. of Lexington, 376 U.S. 665 (decided April 6, 1964): merger of two major competing banks is per se violation of Sherman Act (resulting bank would be larger than all other banks in Fayette County combined)

New Jersey v. New York, 345 U.S. 369 (decided April 6, 1953): City of Philadelphia can’t intervene in interstate dispute (New Jersey and Pennsylvania objecting to New York’s diversion of Delaware River tributaries) because Pennsylvania is already a party (odd because New York City was already in the suit, as a defendant)

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (decided April 6, 1987): When I was in law school the $11 billion found against Texaco -- the largest verdict ever -- was much discussed. I said, “Can you imagine being the law firm that lost that case?” Since then, I’ve learned that “losing big” actually helps you because it makes you look like a “big player”. Anyway, the Court here exercises the Younger abstention and refuses to interfere with state enforcement proceedings, dismissing suit raising due process and Equal Protection issues which were not brought up in state suit.

[F.D. Wolf]

Re: Universities Research Ass’n v. Coutu, generally speaking, a federal statute doesn't create a private cause of action, unless Congress has explicitly created one or one is implied by congressional intent. In the Davis-Bacon context, it is up to the government to enforce the law and collect any back wages due employees. Had the employment contracts themselves included language like "we will pay the prevailing wage" or "we comply with Davis-Bacon", then the employees would have had a common-law breach-of-contract claim.

[Dan Schiavetta]

Private rights of action are allowed for so many other wage-related illegalities that it was odd that the Court would not allow it here, particularly since even if the government did decide to investigate, the Secretary of Labor's determination was not subject to judicial review, and later Congresses seemed to assume that a private right of action would exist. Also odd that the Court was unanimous.

[taqmcg]

Since I was born in Philadelphia I thought I'd look at the New Jersey vs New York decision. Was this yet another dis to my birth town? Maybe not.

The reason New York City was a party, was because they were the actual agents diverting the water for their residents use. But Philadelphia had no special interest in the case compared to any of the other towns and cities in Pennsylvania or New Jersey downstream and the court did not wish to throw the gates open for them all to join. Which is not so unreasonable. The court notes that Philadelphia could not show any way in which Pennsylvania was not representing their interests. Then the decision addresses this question directly:

"The presence of New York City in this litigation is urged as a reason for permitting Philadelphia to intervene. But the argument misconstrues New York City's position in the case. New York City was not admitted into this litigation as a matter of discretion at her request. She was forcibly joined as a defendant to the original action, since she was the authorized agent for the execution of the sovereign policy which threatened injury to the citizens of New Jersey. Because of this position as a defendant, subordinate to the parent State as the primary defendant, New York City's position in the case raises no problems under the Eleventh Amendment."

[Dan Schiavetta]

Thanks ! Will rephrase

[Sarcastr0]

The reaction of conservatives & libertarians to Trump’s first 2 months is starting to remind me of the story a man who lived in a town that was hit by a massive flood.

As the waters rose, he climbed onto the roof of his house and prayed to God for salvation. Soon, a neighbor came by in a rowboat and offered him a ride to safety. The man refused, saying, “No, thank you. I have faith that God will save me.”

The floodwaters continued to rise, and a short while later, a rescue team arrived in a motorboat. They urged the man to come with them, but again he declined, saying, “I’m waiting for God to save me.”

Finally, as the situation grew dire and the man clung to his chimney with the water lapping at his feet, a helicopter flew overhead. The crew dropped a ladder and shouted for him to climb up. Once more, he waved them off, yelling, “God will save me!”

Inevitably, the flood overwhelmed him, and the man drowned. When he arrived in heaven, he stood before God and asked, “Lord, I had faith in you. Why didn’t you save me?” God replied, “I sent you a rowboat, a motorboat, and a helicopter. What more were you waiting for?”

In this story, Trump is the rowboat, the motorboat and the helicopter, and the man is a “principled” conservative or libertarian.

* “some” conservatives and libertarians.
-https://x.com/RandyEBarnett/status/1908968105612619840

[Noscitur a sociis]

Prof. Barnett goes on to claims that he did not support Trump “at the outset” but notes that “[h]]e’s wildly exceeded my expectations.”

Unless this is a joke about low expectations (which it doesn’t seem like in context), this seems like a very difficult statement to defend, and a bizarrely inopportune time to make it.

[Dan Schiavetta]

They’re in denial. They don’t want to have to admit that Trump has proven to be exactly the immature, incompetent idiot liberals have always said he was. It gets harder and harder to deny that Harris, for all her faults, was the better choice.

[The Margrave of Azilia]

"for all her faults" - could you list a few of the faults you're willing to acknowledge?

[The Margrave of Azilia]

"She just cared too much" and "she didn't communicate her awesomeness effectively" aren't really what I have in mind for faults.

[Dan Schiavetta]

She didn't have many, when stacked up against Trump, who was worse in every aspect except willingness to lie and fan hatred (he did excel at that). She could have phrased things differently. She could have made more specific policy proposals (though running against somebody with nothing has often proved successful). But she did have better control over her mouth, as we saw in the one debate Trump dared show up for. I suppose you have a list of faults you're willing to give us.

[The Margrave of Azilia]

No, I'm more interested in your version of "all her faults," which seem to boil down to electoral strategy.

"My worst fault? Well, sometimes I just work too darn hard!"

[Sarcastr0]

She was never President so your demands for 'flaws' are just silly fishing for hypocricy based on unequal situations.

Unless you're one of those who thinks the Vice President is a vital position, her main thing was losing a primary and later losing a general election.
Electoral criticism is exactly on point.

[The Margrave of Azilia]

Dan referred to Harris' "faults." I was interested on what counted as "faults" for him. Apparently, just the messaging.

And of course she's held posts other than Vice President. And she was part of the Biden administration.

[David Nieporent]

She was something of an empty suit, an intellectual mediocrity who was unwilling or unable to articulate views on much of anything, and in the past basically twisted in the wind, pointing in whichever direction her electorate wanted her to. So she was a cop when she was a prosecutor, a progressive when running for the nomination in 2020, and a bland middle of the road Democrat in 2024.

[Dan Schiavetta]

Sounds like the perfect candidate — no extensive past record to be attacked, not too liberal. Unfortunately too much of the electorate was contaminated by right wing media effects like forgetting about the Covid epidemic, believing the economy was bad when in fact it was good, “sanewashing” what Trump was saying, or not believing he was serious when he spoke about doing exactly what he is doing now.

[The Margrave of Azilia]

False consciousness in the electorate.

[Dan Schiavetta]

Yes.

Folks, when someone loses an election, it’s not always their fault. In fact it often isn’t.

[The Margrave of Azilia]

We've come come distance from acknowledging Harris had "faults," other than the "she's too good for this world" variety.

[Dan Schiavetta]

You seem incapable of seeing shades of gray. There are not just two possible answers here.

[The Margrave of Azilia]

[deleted]

[Thought about __ all my life]

But 'fault' is not even a category of analysis. If I roll a die and get a 4 , it is nobody's fault. Kamala lost because she is a fool. Now, if you wanted to analyze why a fool like Biden got elected that 'might' be vallid. He has been the same stupid, poorly-spoken, weak jerk for 50years (!!!) in DC--- might I suggest that most who voted for Biden or Harris were not mainly thinking of them but of Trump. And so the research of Salena Zito seems to confirm

[The Margrave of Azilia]

[deleted]

[Thought about __ all my life]

The reasoning behind Lee Optical has been the basis of many Clarence Thomas decisions. SCOTUS has no warrant to revise godawful stupid legistlative enactments.