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The lecture notes are here.

Scope of Federal Powers III

• Taxing Power (637-643).
• The Spending “Power” (643-645).
• United States v. Butler (645-648).
• South Dakota v. Dole (648-656).
• New York v. United States (657-670).
• Printz v. United States (670-683)

Baiely v. Drexel Furniture Co. (The Child Labor Tax Case)

The Drexel Furniture Company was established on November 10, 1903 in Drexel, North Carolina. B

By 1968, after several acquisitions, the company became known as the Drexel Heritage Furnishings, Inc. It is still known as that today.

Here is a photograph form 1906 of the Drexel Furniture Company in  Drexel, North Carolina that employed child laborers.

The company’s first plant burned in 1906.  The plant pictured was built in two weeks after the fire and was identical to the first one. The plant consisted of two buildings. In 1917, the building got electricity.  An addition was added in 1918.

Steward Machine Company v. Davis (1937)

The Steward Machine Company, based in Birmingham, Alabama, challenged the constitutionality of the social security tax cases. The company was founded in 1900. Here is one of their first facilities.

I think this photograph is dated February 19, 1900, but it is too blurry to make out for sure.

Here is their modern-day image.

United States v. Butler

This is President Roosevelt signing the Agricultural Adjustment Act into law.

And some cartoons.

South Dakota v. Dole

This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996.

Printz v. United States

The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.

I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).

Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.

From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.

Sheriff Richard Mack at the Utah Capitol.

Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.

More pictures of Sheriff Printz

 

 

The legal blogosphere we live in often seems insular–until the leader of the free world enters it. This morning, President Obama wrote a guest post at SCOTUSBlog titled “A Responsibility I Take Seriously.” (This will no doubt hamper their effort to get a press pass).

A few days ago FBI Director James Comeny wrote a guest post at Lawfare, titled “We Could Not Look the Survivors in the Eye if We Did Not Follow this Lead,” urging Apple to help the feds unlock the iPhone of the San Bernadino terrorists.

Obama and Comey no doubt could have gotten a few columns in the Wall Street Journal or The Washington Post, but they chose SCOTUSBlog and Lawfare.

What a testament to the power of legal blogs that the leaders of our government use this medium to communicate to the American people!

On Saturday, I received in the mail a package filled with a huge, pink beach towel from the Green Bag.

The quote comes from Justice Brewer’s dissent in Hartranft v. Meyer (1893). (I freely admit I had to google it).

Would anyone suppose that the terms “handkerchiefs,” “napkins,” or “towels,” when used with statutory precision, were intended to include or did include the cloth imported in bolts?

This case concerned whether “chinas” And “marcelines,” types of clothes made of silk and cotton, should be subject to tarrifs as something that can be used for “hat and bonnet trimmings,” rather than linings.  Justice Brewer dissented, because he thought they were not trimmings, but linings.

Now I am of the opinion that these goods were, in the condition in which they were imported, not trimmings. I concede that if they had a commercial designation as such, that would be sufficient within many rulings of this Court, but the testimony does not establish that fact, and the refusal of the first two instructions eliminates that matter from present consideration. That being eliminated, it does not seem to me that these goods, when and as imported, legitimately fall within the ordinary meaning of the word “trimmings.” …

Indeed, to my mind the word “trimmings” carries necessarily this idea: something in size, form, or condition fit and ready for present use in the making or ornamentation of hats, bonnets, or other such articles.

For these reasons, I cannot concur in the decision in the latter case.

The Wall Street Journal published an editorial by Ilya Shapiro and me analyzing all of the instances since World War II where an eight-person Court either (a) scheduled a case for reargument or (b) affirmed by a 4-4 margin. In this post, I listed all of the cases we identified. Here is the introduction:

Justice Antonin Scalia’s death leaves the Supreme Court in a tough spot, but it is one for which the institution is prepared. Due to death, retirement or resignation—or recusal in individual cases—the high court has often been short-handed. Since World War II there have been 15 periods when the court had eight justices, and each time the court managed its docket without a hitch.

Even in the rare cases when eight justices split evenly, 25 times the court affirmed the lower-court judgment without opinion (or precedential value) and 54 times the court set the case for reargument. The former approach allowed the issues to be raised again in similar future cases. The latter allowed for proper resolutions once the ninth justice joined—and only 25 of those cases ended up 5-4, meaning the new justice made no difference in over half of the reargued cases.

In other words, rather than making the judicial system grind to a halt, a Supreme Court vacancy merely delays rulings in a small number of cases. A study of the past 60 years of eight-justice rosters reveals that today’s Roberts court can easily handle the current vacancy, however long it lasts.

And the conclusion:

This history shows that today’s court is more than capable of doing its work with eight justices. By far the majority of cases the Roberts court decides aren’t closely contested. Last term only 19 of the 74 decided cases went 5-4. Of those, Justice Scalia was in the majority only six times. Yet regardless of what happens in any particular case, Justice Scalia’s absence—while a huge loss for the nation—hardly hampers the functioning of the Supreme Court even if his seat remains vacant until after the election.

I would note that the title provided by the WSJ was not ours.

In the coming weeks, we will have a more detailed analysis of the specific cases where Justice Scalia was likely to be the 5th vote.

As part of our research for our WSJ editorial, Ilya Shapiro and I (with the assistance of Randal Meyer and Anthony Gruzdis) compiled a list of all of the instances where the Court was at less than eight justices due to death or sudden resignation, and scheduled a case for reargument.

Reheard cases	Original Argument dates	Rehearing Date	Date Decided	Outcome of Reargued Case
11/20/1945-9/30/1946:  Jackson at Nuremberg
United Public Workers v. Mitchell	12/3/1945	10/17/1946	2/10/1947	4-to-3
Adamson v. California	1/15/1946	1/16/1947	6/23/1947	5-to-4
American Power & Light Co. v. Securities and Exchange Commission	11/16/1945	10/14/1946	11/25/1946	6-to-0
7/19/1949-8/24/1949 Murphy died; Clark succeeded
Engineers Pub. Serv. Co. v. SEC/ SEC v. Engineers Pub. Serv. Co.	11/15/1945	–		per curiam
Freeman v. Hewitt	11/8/1944	10/14/1946	12/16/1946	6-to-3
9/10/1949-10/12/1949 Rutledge died; Minton succeeded	No Holds- 1 month vacancy, no overlap with Murphy
7/19/1949-8/24/1949 Murphy died; Clark succeeded	No Holds- 1 month vacancy, no overlap with Rutledge
9/8/1953-10/5/1953 Vinson died; Warren succeeded
Brown v. Board of Educ. (I)	12/9/1952	12/9/1953	5/17/1954	per curiam
Bolling v. Sharpe	12/11/1952	12/9/1953	5/17/1954	per curiam
10/9/1954-3/17/1955 Jackson Died; Harlan succeeded
United States ex rel. Toth v. Quarles	2/9/1955	10/13/1955	11/7/1955	6-to-3
Indian Towing Co. v. United States	2/10/1955	10/13/1955	11/21/1955	5-to-4
Ellis v. Dixon	10/18/1954	4/20/1955	6/6/1955	5-to-4
02/25/1957-3/25/1957 Reed resigned; Whittaker succeeded	No Holds- 1 month vacancy
8/28/1962-10/1/1962 Frankfurter resigned; Goldberg succeeded (FF had a stroke on 4/2/1962)
Wong Sun v. United States	3/29/1962	10/8/1962	1/14/1963	5-to-4
Douglas v. California	4/17/1962	1/16/1963	3/18/1963	6-to-3
Yellin v. United States	4/18/1962	12/6/1962	6/17/1963	5-to-4
7/25/1965-10/4/1965 Goldberg resigned; Fortas succeeded	End of Term Vacancy; no relevant holds recorded in Oct 64-June 65.
6/12/1967-10/2/1967 Clark resigned; Marshall succeeded	End of Term Vacancy; no relevant holds recorded in Oct 66-June 67.
5/14/1969-6/9/1970 Fortas resigned; vacant until Blackmun
Boyle v. Landry	3/24/1969	11/16/1970	2/23/1971	8-to-1
Nacirema Operating Company, Inc. v.Johnson	3/25/1969	10/20/1969	12/9/1969	5-to-3
Gunn v. University Comm. to End the War in Vietnam	1/13/1969	4/29/1970	6/29/1970	per curiam
Maxwell v. Bishop	3/4/1969	5/4/1970	6/1/1970	per curiam
Dutton v. Evans	10/15/1969	10/15/1970	12/15/1970	5-to-4
Bodie v. Connecticut	12/8/1969	11/17/1970	3/2/1971	8-to-1
Hill v. California	1/19/1970	10/21/1970	4/5/1971	6-to-2
United States v. United States Coin & Currency	2/25/1969	10/20/1970	4/5/1971	5-to-4
Younger v. Harris	4/1/1969	11/16/1970	2/23/1971	8-to-1
Samuels v. Mackell	4/1/1969	11/16/1970	2/23/1971	per curiam
United States v. White	11/10/1969	10/20/1970	4/5/1971	5-to-4
North Carolina v. Alford	11/17/1969	10/14/1970	11/23/1970	6-to-3
Baird v. State Bar of Az.	12/8/1969	10/14/1970	2/23/1971	5-to-4
Sanks v. Georgia	12/8/1969	11/17/1970	2/23/1971	per curiam
In re Stolar	12/9/1969	10/14/1970	2/23/1971	5-to-4
United States v. Jorn	1/12/1970	10/22/1970	1/25/1971	6-to-3
Roges v. Bellei	1/15/1970	11/12/1970	4/5/1971	5-to-4
Dyson v. Stein	4/30/1970	11/16/1970	2/23/1971	per curiam
9/17/1971-1/7/1972 Black resigned 9/17/71. Filled by Powell 1/7/72. Harlan died 9/23/71. Filled by WHR 1/7/72. Between 9/71 and 1/72, down to 7 Justices
Johnson v. Louisiana	3/1/1971	1/10/1972	5/22/1972	5-to-4
Apodaca v. Oregon	3/1/1971	1/10/1972	5/22/1972	5-to-4
United States v. Brewster	10/18/1971	3/20/1972	6/29/1972	6-to-3
S&E Contractors Inc. v. United States	10/21/1971	3/20/1972	4/24/1972	5-to-3
Kirby v. Illinois	11/11/1971	3/20/1972	6/7/1972	5-to-4
Argersinger v. Hamlin	12/6/1971	2/28/1972	6/12/1972	per curiam
Roe v. Wade/Doe v. Bolton	12/13/1971	10/11/1972	1/22/1973	7-to-2
11/12/1975-12/19/1975 Douglas resigned 11/12/75; Stevens succeeded 12/19/75. (Douglas had a stroke 12/31/1974. The Court held over 4-4 cases.)
Hampton v. Mow Sun Wong	1/13/1975	1/12/1976	6/1/1976	5-to-4
Middendorf v. Henry/ Henry v. Middendorf	1/22/1975	11/5/1975	3/24/1976	5-to-3
Beer v. United States	3/26/1975	11/12/1975	3/30/1976	5-to-3
National League of Cities v. Usery/ California v. Usery	4/16/1975	3/2/1976	6/24/1976	5-to-4
Laing v. United States/ United States v. Hall	1/21/1975	10/15/1975	1/23/1976	5-to-4
7/3/1981-9/25/1981 Stewart resigned 7/3/81; O’Connor succeeded 9/25/81	No holdovers
6/26/1987-2/18/1988 Powell resigned; Kennedy succeeded (Court operating at 8 Justices)
Boyle v. United Technologies Corp.	10/13/1987	4/27/1988	6/27/1988	5-to-4
K Mart Corp. v. Cartier	10/6/1987	4/26/1988	5/31/1988	5-to-4
Liiljeberg v. Health Services Acquisition Corp.	12/9/1987	4/25/1988	6/17/1988	5-to-4
Ross v. Oklahoma	1/19/1988	4/18/1988	6/22/1988	5-to-4
7/20/1990-10/9/1990 Brennan resigned; Souter succeeded	No Holds- Out of term vacancy, no rearugments 89-90
6/27/1991-10/23/1991 Marshall resigned; Thomas succeeded
Doggett v. United States	10/9/1991	2/24/1992	6/24/1992	5-to-4
Cipollone v. Liggett Group, Inc.	10/8/1991	1/13/1992	6/24/1992	7-to-2
Bray v. Alexandria Women’s Health Clinic	10/16/1991	10/6/1992	1/13/1993	6-to-3
11/2/2005-1/31/2006 Rehnquist died 9/3/05. Robets succeeded 9/29/05. O’Connor stepped down 1/31/06. Alito succeed 1/31/06.
Kansas v. Marsh	12/7/2005	4/25/2006	6/26/2006	5-to-4
Hudson v. Michigan	1/9/2006	5/18/2006	6/15/2006	5-to-4
Garcetti v. Ceballos	10/12/2005	3/21/2006	6/30/2006	5-to-4

We deliberately excluded several cases that didn’t quite fit into the rubric, including a few that were scheduled for reargument, but never actually reargued. If we are missing any–or included one that shouldn’t be included–please drop me a line.

In addition, we also isolated the cases that split 4-4 during these short-handed periods:

Case Name

11/20/1945-9/30/1946: Jackson at Nuremberg

Haliburton Oil Well Cementing Co. v. Walker

Bruce’s Juices, Inc. v American Can Co

Alpine MacGregor v. Westinghouse Electric & Manu’f Co.

U.S. v. Pullman Co.

Otis & Co. v. United States

Chesapeake & Ohio RR Co. v. United States

Will Giese v. United States

PG&E v. United States

7/19/1949-8/24/1949 Murphy died; Clark succeeded

Brownell v. Rubenstein

02/25/1957-3/25/1957 Reed resigned; Whittaker succeeded

U.S. v. American Freight Co

5/14/1969-6/9/1970 Fortas resigned; vacant until Blackmun

Dewey v. Reynolds Metals Co.

Radich v. New York

Decker v. Harper & Row Publishers

Atlantic City Electric Co. v. United States/ Alabama Power Co. et al. v. United States et al.

In re Spencer

Standard Indus., Inc. v. Tigrett Indus., Inc.

Grove Press v. Maryland State Board of Censors

Dewey v. Reynolds Metals Co.

9/17/1971-1/7/1972 Black resigned 9/17/71. Filled by Powell 1/7/72. Harlan died 9/23/71. Filled by WHR 1/7/72. Between 9/71 and 1/72, down to 7 Justices

Walter Fleischer Co. v. County of LA

Diamond v. Bradley

Staats v. Bristol Laboratories Div. of Bristol-Myers Co.

United States v. Chas. Pfizer & Co., Inc.

6/26/1987-2/18/1988 Powell resigned; Kennedy succeeded (Court operating at 8 Justices)

Reagan v. Abourezk

Hartigan v. Zbaraz

Trans World Airlines, Inc. v. Flight Attendants