Today in Supreme Court History: April 19, 1920

4/19/1920: Missouri v. Holland decided.

The White Court (1920)

Comments

[Drewski]

"There is before the Court an application on behalf of a
putative class of detainees seeking an injunction against their
removal under the Alien Enemies Act. The matter is currently
pending before the Fifth Circuit. Upon action by the Fifth
Circuit, the Solicitor General is invited to file a response to
the application before this Court as soon as possible. The
Government is directed not to remove any member of the putative
class of detainees from the United States until further order of
this Court. See 28 U. S. C. §1651(a).

"Justice Thomas and Justice Alito dissent from the Court’s
order. Statement from Justice Alito to follow."

[JoeFromtheBronx]

Chris Geidner provides the details including how it was dropped around 1 A.M. and that an order from the 5th Cir. followed.

https://substack.com/inbox/post/161568397

The law cited is notable:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

[A Japanese Student]

That is the All Writs Act, originally enacted as Section 14 of the Judiciary Act of 1789.

From my observation, writs of injunctions have served two different purposes; the first, and more well-known, is to prohibit the defendant from violating laws. The second, and which is invoked here, is to protect the court's jurisdiction from unilateral action by the defendant.

[John F. Carr]

The government may win a battle and lose the war. In successfully keeping Garcia out of the country and winning the APA case the government left a trail of bad behavior. The application for emergency relief cites to Judge Boasberg's writing. If courts don't trust the Justice Department immigration cases could stall for years with dozens of district-wide injunctions preventing even routine removal. The injunction just ordered could be left in place while the Supreme Court waits to issue a merits decision in the 2026 term.

Computers make this so much easier. I imagine once upon a time an emergency application with references to dockets of five or six different courts might have generated a lot of second generation faxes.

[SRG2]

I posted about that on the Friday open thread just now. Not difficult to guess who the 2 dissenters were in the 7-2. This, to adapt the Schumann title, is Freisleriana.

[Dan Schiavetta]

Nelson v. Colorado, 581 U.S. 128 (decided April 19, 2017): striking down on Due Process grounds Colorado statute requiring acquitted defendants who seek recoupment of the restitution, fees, etc. they have been required to pay to prove their innocence by clear and convincing evidence (being found not guilty was by itself enough proof)

Missouri v. Holland, 252 U.S. 416 (decided April 19, 1920): Missouri can’t prevent federal game warden from enforcing Migratory Bird Treaty Act (which was based on 1916 treaty with Britain as to protecting birds in Canada and the U.S. and which declared that birds were the property of the respective national governments)

McDaniel v. Paty, 435 U.S. 618 (decided April 19, 1978): Free Exercise clause violated by statute forbidding clergy from serving as delegates to state constitutional convention

Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247 (decided April 19, 2011): Ex parte Young exception to state Eleventh Amendment immunity (a legal fiction that a state official who acts illegally has “stripped himself” of his authority and can be sued individually) applies to suit by independent state watchdog (advocating for the intellectually disabled) against state hospital official unlawfully refusing access to records

Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (decided April 19, 2005): investors of corporation which allegedly gave false impression as to FDA approval of new drug resulting in artificial inflation of stock price could allege fraud but not economic loss because no showing of loss because stock then fell

Stone v. INS, 514 U.S. 386 (decided April 19, 1995): moving for reconsideration of deportation order doesn’t toll 90-day deadline for filing appeal (as might be implied by Administrative Procedure Act)

Rubin v. Coors Brewing Co., 514 U.S. 476 (decided April 19, 1995): prohibiting showing alcohol content on beer labels violates First Amendment right to free speech (belch!) (brewers wanted to get into “strength wars”)

J.E.B. v. Alabama, 511 U.S. 127 (decided April 19, 1994): Equal Protection violation to allow jurors to be stricken in paternity suit just because they were men (I would say so!)

United States v. Lara, 541 U.S. 193 (decided April 19, 2004): no Double Jeopardy when defendant convicted in tribal court for assaulting non-Indian policeman was charged in federal court for assaulting (same) federal officer; Congress had allowed tribe to be its own sovereign

Ingraham v. Wright, 430 U.S. 651 (decided April 19, 1977): corporal punishment in public school is not “cruel and unusual punishment”; does not require a hearing

[SRG2]

In JEB we have this splendidly antediluvian comment by Scalia in dissent.
In order, it seems to me, not to eliminate any real denial of equal protection, but simply to pay conspicuous obeisance to the equality of the sexes, the Court imperils a practice that has been considered an essential part of fair jury trial since the dawn of the common law. The Constitution of the United States neither requires nor permits this vandalizing of our people's traditions.

i.e., when discrimination is hallowed by tradition, it's fine and proper, nay, praiseworthy/

[JoeFromtheBronx]

His specific concern was the practice of peremptory challenges.

[SRG2]

Nelson decided 7-1. Guess who's the 1? Basically, according to Thomas, once you've paid the money, it's not yours, so fuck off (and what he did not say, but AFAIC he believes, is that because you were convicted the first time, you're guilty, so continue to fuck off.)

[Stupid Government Tricks]

Your jihad against Thomas and Alito is too one-sided to be credible. I've seen other cases where you approved the result which was written by one of them, and you never say a thing. You also don't level the same charges against other justices whose opinions rub you the wrong way. If I had more ambition, I'd tally them up every day for a year, but I don't.

If you want your hatred to seem justified to people who don't hate Thomas or Alito, you need to dish it out more evenly.

[Malika the Maiz]

“If I I had more ambition” is Stupid’s life mantra (and most other MAGAns as well).

[Stupid Government Tricks]

That's more ambition than you show in a comment with no content. And if you think I'm MAGA, you're as observant as you are ambitious.

[Malika the Maiz]

There’s content in my comment, it’s that you have little ambition and it shows.

[Stupid Government Tricks]

If it shows, then you didn't need to say it shows. That you felt the need shows you don't believe it shows.

[Stupid Government Tricks]

Here's an example of the kind of cases you ignore for not suiting your jihad, from the Reason side (https://reason.com/2025/04/19/not-guilty-but-punished-anyway/) concerning sentencing for acquitted charges:

That October, the Supreme Court declined to consider the case. But by that point, at least three justices were troubled by Watts and thought the Court should have taken the opportunity to revisit its approval of acquitted-conduct sentencing. "This has gone on long enough," Justice Antonin Scalia wrote. "We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment—or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable." Scalia's dissent was joined by Justices Ruth Bader Ginsburg and Clarence Thomas, forming an unlikely trio. They were one vote short of the number required to take up the case.

[A Japanese Student]

Japan banned all forms of corporal punishment in 2020, though it has never been expressly legalized. I believe school corporal punishment has always been illegal here.

[JoeFromtheBronx]

There were multiple important cases decided today. Justice White's dissent in the Wright case (the majority was wrong) shows how, sometimes, that often conservative-leaning justice wrote liberally.

Missouri v. Holland provided this general lesson:

when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.

Heather Cox Richardson provides an extended discussion on the famous ride referenced yesterday. It is worth reading.

https://substack.com/inbox/post/161656172

The specific concern is whether the application of the treaty is "forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved."

Later opinions suggest that a treaty might violate a more explicit provision (such as one violating free speech). Appropriately, birds are chirping outside as I type this.

There continues to be a fear that open-ended treaties and international human rights laws will violate the principles of federalism and other constitutional concerns. I think the treaty power over the interstate and international flight of birds is appropriate. The birds seem to agree.

[The Margrave of Azilia]

"Justice White's dissent in the Wright case (the majority was wrong) shows how, sometimes, that often conservative-leaning justice wrote liberally."

Justice White is best classified as a moderate.

"...they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation..."

Justice Holmes seems to have inherited his dad's poetic flair. That doesn't make the passage true - one might even argue that we were a nation before the Constitution and before Holmes' Civil War service. And that constitutional change ought to be done by the people, not by poet-judges.

As for a broad construction of the treaty power - I agree with it, but not because I agree with Holmes' weird rhetoric.

[JoeFromtheBronx]

That doesn't make the passage true - one might even argue that we were a nation before the Constitution and before Holmes' Civil War service. And that constitutional change ought to be done by the people, not by poet-judges.

He didn't deny that we were "a nation" before the Constitution and "their successors much sweat and blood" involved multiple wars and other things, not just his personal war service.

The "constitutional change" involved is the changing nature of how the Constitution is applied pursuant to experience and knowledge.

This is done by all branches of the government and the people overall, not just poetic judges.

[The Margrave of Azilia]

"The "constitutional change" involved is the changing nature of how the Constitution is applied pursuant to experience and knowledge."

Doesn't that kind of depend on the meaning of "applied"? Some applications of the Constitution are so broad as to amount to changes, which require amdendments.

I think the treaty power is broad from its very nature, and has traditionally (i. e., long before Holmes) included things which are beyond Congress' Art. I powers. We don't need this "organism proving it's a nation" stuff to get to that result.

[Dan Schiavetta]

Don't treaties have to be approved by Congress?

[Noscitur a sociis]

By the senate, yes. What’s your point?

[Dan Schiavetta]

The treaty power is not (as the comment above put it) beyond Congress’s powers.

[The Margrave of Azilia]

I said Congress' Art. I powers. You'll observe that the treaty power is in article II.

[JoeFromtheBronx]

Doesn't that kind of depend on the meaning of "applied"? Some applications of the Constitution are so broad as to amount to changes, which require amendments.

That's a bland statement for which the real debate is in the details. Missouri v. Holland did not apply the Constitution in a way that is "so broad as to amount to changes which require amendments."

I think the treaty power is broad from its very nature, and has traditionally (i. e., long before Holmes) included things which are beyond Congress' Art. I powers. We don't need this "organism proving it's a nation" stuff to get to that result.

Holmes cited various things, back to the 1790s, to support his ruling. He didn't purport to be starting anew. Nonetheless, how such power is to be applied would still require applying it now, using experience and knowledge gained.

We can remove a lot of prose and poetry from opinions. Lincoln could also have said, "87 years ago." Sometimes, justices use the moment to make an overall point.

[Malika the Maiz]

I think what he was getting at is the nation had developed from a relatively small, less complicated whole made up of 13. interdependent parts (organism) to a much larger, populous industrialized nation and as such the Constitution has to be read flexibly with that reality in mind. Notice he stops short of calling for damage to explicit language of the Constitution:

“The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.”

[The Margrave of Azilia]

"We must consider what this country has become"

I'd argue that the Pres and Senate could have approved a valid migratory-bird treaty in 1790; but no country (including ours) was interested at the time. It was not from a lack of constitutional authority.

[Malika the Maiz]

One that gave the federal government powers not enumerated in Article I to enforce it over the states? Doubtful as an empirical matter at that time.

[The Margrave of Azilia]

Where in Article I can Congress define the boundaries of the US? (A frequent topic of treaties, albeit sometimes controversial at the time)

[A Japanese Student]

Migratory birds were an easy case - what about other wildlife laws?

I suppose duck stamps could additionally be upheld under the Taxing Clause. And the federal government can regulate its own land and any wildlife inside it. Of course, an explicit interstate commerce requirement is also an option, as in the Lacey Act.

In 2022, Congress passed the Big Cat Public Safety Act. It prohibits possession of big cats, but does not have an interstate commerce requirement. Can that be assumed when the species is not native to America? Maybe we'll see a case law in the next decade. The one opinion that addresses the Act does not discuss its constitutionality, and the plaintiff appears to have stipulated to dismiss the case last year. Animal Legal Defense Fund v. National Foundation for Rescued Animals, case 6:22-cv-97-JDK (EDTX 2024)

[John F. Carr]

The Migratory Bird Treaty Act protects even non-migratory birds. Most of the birds that come to my bird feeder live here year-round and will never go to another state. I think the federal government has no business regulating what I can do with them.

I put birds into three broad classes.

Big, edible birds. Ducks and geese. Most of these migrate and could be hunted to extiction. Some of the older negotiators of the Migratory Bird Treaty may have seen flocks of passenger pigeons. (The population crashed around 1880 and the treaty was signed in 1916.)

Small migratory birds. The robin (Turdus migratorius) is the best known. The problem here is interference with nesting more than hunting. They might nest in idle construction equipment, for example. It's a small problem. At least it is legitimately interstate.

Small non-migratory birds.

[Syd Henderson]

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. " Sounds like a slam dunk, although it doesn't say what happens if the treaty contains something that contradicts the Constitution. I assume that was Missouri's argument?

[Syd Henderson]

It looks like Reid v. Covert (1957) resolved it in the obvious way (the constitution is supreme). It was 6-2. (Whittaker didn't take part. This was probably just after he was appointed.)

[A Japanese Student]

Death Sentence Execution Revocation Case (Second Petty Bench, decided April 19, 1963): Death-row inmates cannot bring method-of-execution claims under Administrative Case Litigation Act (Doesn't seem right; the inmates are seeking injunction against certain methods of execution, not all executions) (there was a recent appellate decision that held that inmates can challenge same-day notice of execution; the Government appealed that decision)

Fukuoka District Court Amagi Division Abolition Case (Second Petty Bench, decided April 19, 1991): Residents lack standing to challenge abolition of court division (this was preceded by another decision on whether Justices who participated in the abolishment of the division must recuse themselves; see February 25 entry)

Revocation of Denial of Patent Application Case (Third Petty Bench, decided April 19, 1994): Appeal ruled unlawful when the appellant (who unsuccessfully sought review of denial of patent application) withdrew patent application and appealed to the Supreme Court so that the judgment could be vacated as moot (cf. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994))

Telecommunications Business Act Case (Second Petty Bench, decided April 19, 2004): Playing wiretapped phone call is a violation of secrecy of communication even if the defendant was not involved in recording it

State Redress Case (Third Petty Bench, decided April 19, 2005): Prosecutors need not provide counsel with opportunities to formally meet and confer with defendant if there was no suitable room to prevent escape, but must allow informal meeting in the presence of an officer if the counsel is fine with it; tort claim denied due to lack of negligence (no established law)

Certified Kokoku-Appeal to Discovery Order (Third Petty Bench, decided April 19, 2013): Government survey forms are privileged from discovery because maintaining confidentiality is essential in collecting responses (social security case, where the plaintiffs claimed the cost-of-living statistics were improperly calculated) (Maybe they should legalize protective order in all cases, not just patent litigations?)