Today in Supreme Court History: April 25, 1938

4/25/1938: United States v. Carolene Products decided.

Comments

[Thought about __ all my life]

I am certainly more LIbertarian than Josh
Williamson v. Lee Optical Co.

Here is where that leads us
"n Louisiana, to be licensed as a hair stylist (cosmetologist), individuals must complete 1,500 hours of approved cosmetology school training and pass the required State Board exams. "

HAIR STYLING?

[Dan Schiavetta]

United States v. Carolene Products Co., 304 U.S. 144 (decided April 25, 1938): Congress’s Commerce Clause power extends to public safety concerns; upholding statute prohibiting interstate sale of filled milk (sounds gross from the description, but the statute is no longer enforced and you can still buy it in the supermarket) but the decision is famous for its (unnecessary) footnote 4, where the “presumption of Constitutionality” as to federal statutes is questioned as to laws involving religion or racial minorities -- the beginning of the “strict scrutiny” idea

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (decided April 25, 1938): All lawyers know this one, where the Court finally abandons Swift v. Tyson, 1842, and holds that on a state law claim a federal court must apply the law of the state in which it sits, and not on any federal common law (though there is still such a thing as to federal-based law). Younger, I., “What Happened in Erie“, 56 Texas L. Rev. 1011-31 (1978), which we were referred to in Civ Pro class, extols the “genius” of the attorney who argued the winning side. But it was clear that Swift was becoming unworkable (see discussion in Gilmore, “The Death of Contract”, 1974, p. 97), and the product of this “genius” was that poor Harry Tompkins, who was injured due to the railroad’s admitted negligence (state law equired “gross negligence”), went through life minus his right arm and, being uneducated, was barely employable. See “The Ballad of Harry James Tompkins”, 52 Akron L. Rev. 531 (2019) (it’s online), which treats his plight with smirking levity but does contain a 1960 photo of the smiling one-armed Tompkins with his wife.

Northern Ins. Co. v. Chatham County, Ga., 547 U.S. 189 (decided April 25, 2006): county was not acting as an “arm of the State” (no, I’m not making a joke about Tompkins) and therefore does not enjoy Eleventh Amendment immunity from suit for injury due to drawbridge it built

Palmore v. Sidoti, 466 U.S. 429 (decided April 25, 1984): prospect of racial bias against children (a.k.a. the concerns of the Spencer Tracy character in “Guess Who’s Coming to Dinner?”) is not basis for depriving (white) mother of custody of child after she married a black man

National Society of Professional Engineers v. United States, 435 U.S. 679 (decided April 25, 1978): striking down on antitrust grounds canon of ethics issued by professional association prohibiting competitive bidding; overrides association’s First Amendment Free Speech rights

Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723 (decided April 25, 1977): order remanding diversity action to state court can’t be appealed (there are some exceptions, not noted by the Court but noted by me in my stupefyingly dull CLE on federal court jurisdiction)

Carson v. Dunham, 121 U.S. 421 (decided April 25, 1887): another removal case (a foreclosure action), this one pointing out that the removing party has the burden to show grounds for removal, i.e., he must establish that plaintiff is not from the same state

Huron Portland Cement Co. v. City of Detroit, Mich., 362 U.S. 440 (decided April 25, 1960): Dormant Commerce Clause did not prohibit Detroit smoke abatement ordinance as applied to docked ships (belching steam boiler smoke) even though they are engaged in interstate commerce

California v. Zook, 336 U.S. 725 (decided April 25, 1949): state statute prohibiting unlicensed transport of passengers (these were customers of a travel agency) not preempted by ICC regime (which exempted “casual, occasional, or reciprocal” transportation)

Duignan v. United States, 274 U.S. 195 (decided April 25, 1927): right to jury trial is waived if not demanded (tenant was claiming unconstitutionality of claim for repossession due to Prohibition-era liquor nuisance)

[SMP0328]

Erie didn't just overrule Swift v. Tyson, it declared the latter as being unconstitutional. That seemed excessive, as the Erie Court could have simply ruled Swift had become unworkable.

[Dan Schiavetta]

yes

[Noscitur a sociis]

According to the court,

The injustice and confusion incident to the doctrine of Swift v. Tyson have been repeatedly urged as reasons for abolishing or limiting diversity of citizenship jurisdiction. Other legislative relief has been proposed. If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century.

[Dan Schiavetta]

Yet, federal courts often cite prior federal court decisions in their Circuit in construing state law, often because there is no state court decision on point and the federal court has to make its own guess. The state supreme court can end the confusion, but it is up to the federal court to "certify" a question to it.

[Dan Schiavetta]

Grant Gilmore, "The Death of Contract", 1973, p. 96 - 97:

"A degree of federalization was, so to say, sneaked in the back door through the doctrine of the general federal law announced by the Supreme Court of the United States, speaking through Justice Story, in Swift v . Tyson. Over a considerable period of time this odd device worked extremely well: when the Supreme Court proposed a synthesis of conflicting views the lower courts, state as well as federal, were, more often than not, delighted to go along. The device, perhaps predictably, began to work less well as the political, economic and technological complexities and tensions of our society mounted and as the Supreme Court was forced to turn its energies in other directions. After 1900 the Supreme Court began to withdraw from the business of proposing new private law syntheses; with that balance-wheel no longer functioning, the whole Swift v. Tyson machine could no longer work and, as we know, eventually had to be scrapped."

[JoeFromtheBronx]

I have spoken about today's case recently so will summarize.

Seven justices took part, and the remaining conservatives split 1/1. Justice Black, new on the Court, didn't join the section with the famous footnote. It still retained a majority (4/7).

The Supreme Court dealt with the matter again later. In the 1970s, a lower court did not uphold the regulation. The Nixon Administration, though likely winning if they did, did not appeal.

JB years back had a discussion on a personal blog.

Overall, Footnote Four is an example of the Supreme Court using a case to interpret existing precedent and determining general legal principles it argues are found therein. Some instances, like here, have significant staying power.

==

Palmore v. Sidoti is a depressing case. Sounds nice regarding constitutional principles.

OTOH, she never got her child back. The Supreme Court set her up to fail by not granting relief before judgment.

The longer she was separated from her child, the longer it became likely it would be seen as in the child's interest not to change her status. Meanwhile, the Palmore's marriage broke up.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3613821

[Dan Schiavetta]

Thanks.

These child custody cases are always depressing.

In New York I once had to go to the Appellate Division. Another attorney was trying a case and the trial judge for some reason was not granting a short recess. Ahead of me was a gaggle of lawyers who told a heartrending story of a child who was being taken away to Switzerland from her birth mother due to an obviously incorrect trial court ruling. I don't know if the story was true but nobody was opposing it and the attorneys painted a pitiful picture of a child with a long history of abuse by her father (I think). It went on for about 45 minutes and the judge finally granted the stay.

Then it was my turn. "Please stay this trial for a week. Our expert witness has a toothache."

[A Japanese Student]

Injury Case (Second Petty Bench, decided April 25, 1958): Supreme Court's jurisdiction for decisions conflicting with its own precedent only applies to precedents predating the appealed decision (though it is free to grant relief under Article 411)

Special Kokoku-Appeal to Order Dismissing Prosecutor's Objection (Second Petty Bench, decided April 25, 1969): Judge may order prosecutors to disclose evidence when it is deemed necessary and proper for defense (though it is discretionary, unlike Brady)

Zennorin PDEA Protest Case (Grand Bench, decided April 25, 1973): In overruling precedent 8-7 and upholding conviction for soliciting labor strikes by Government employees, rules that separation of powers and public interest in functional Government overrides the Constitutional right to strike (Court also noted that the "strike" was to oppose amendment to Police Duties Execution Act (PDEA) and unrelated to any labor disputes)

Special Kokoku-Appeal to Judge's Order (First Petty Bench, decided April 25, 1985): Court watcher's appeal over removal from the gallery (for taking notes) became moot when the order expired at the end of the day (in a later suit, Court holds taking notes is an exercise of free speech; see March 8)

Stimulants Control Act Case (Second Petty Bench, decided April 25, 1986): Evidence obtained in violation of law can only be suppressed if the violation is so significant that admission would frustrate future violations of search requirements; reverses suppression of urine samples where the police (who received tips about the defendant using meth again) entered the defendant's house without search warrant, woke up the defendant and had him enter police vehicle "voluntarily" while he is still confused as to what's happening, and refused to release him when asked even though there was no arrest warrant issued yet and he was supposed to be free to leave interrogation, because none of the violations are significant enough

Patent Application Examination Petition Case (Second Petty Bench, decided April 25, 1986): Filing a patent, and actually seeking review of that application (so that it can be granted), are separate processes; the latter must be done within three years of application (Patent Act §48-3). Can petitioner request relief from the deadline under Code of Civil Procedure §159(1) (now relocated to §97(1))? Court says no because §48-3 doesn't refer to §159, unlike other provisions where §159 is explicitly referenced. (Here's a good reminder: semi-official translation of many Japanese statutes are available online, https://www.japaneselawtranslation.go.jp/en/laws/view/4797#je_pt1ch5sc3at5)

Video Game Resale Case (First Petty Bench, decided April 25, 2002): First-sale doctrine bars copyright infringement claim against resale of video game software (which, under law, is a "cinematographic work")

Injury Causing Death Case (Second Petty Bench, decided April 25, 2008): Judge should give due respect to expert's opinion on whether, and to what extent, the defendant had a mental disorder (while noting that the determination of insanity itself is a question of law)