The Volokh Conspiracy
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Today in Supreme Court History: July 19, 1949
7/19/1949: Justice Frank Murphy dies.
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Rostker v. Goldberg, 448 U.S. 1306 (decided July 19, 1980): Does the draft (applicable to males only) discriminate? The District Court said yes and enjoined enforcement. Here, Brennan grants a stay of that order (as to males born in 1960 and 1961), noting the significant questions involved and the likelihood of cert. As it turned out, cert was granted and the Court upheld the males-only draft, with Rehnquist’s opining that males and females were not “similarly situated” (453 U.S. 57 (1981)). (For years it was obvious that a later Court would hold differently, but what about the current Court?)
Akel v. State of New York, 81 S.Ct. 25 (decided July 19, 1960): Frankfurter denies motion to fix bail in a narcotics conviction, because New York’s highest court had denied it and had not certified that a federal issue was involved. (Note his snark toward New York’s most prestigious judge: “When a judge as solicitous as is Judge Stanley H. Fuld to safeguard the interests of defendants in criminal cases denies an application for bail pending a proposed petition for certiorari to this Court on a claim of a substantial federal right, one naturally attributes some solid ground for such denial.”)
Owen v. Kennedy, 84 S.Ct. 12 (decided July 19, 1963): Black refuses to stay order requiring Mississippi officials to hand over poll tax records in federal elections under Civil Rights Act of 1960, rejecting arguments as to self-incrimination and due process (prohibition on poll taxes became part of the Constitution the next year)
Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 409 U.S. 1207 (decided July 19, 1972): Burger refuses to lift stay of new railroad rates which allegedly would have the effect of reducing incentives to recycle in violation of the National Environmental Policy Act of 1969 (he notes, “Our society and its governmental instrumentalities, having been less than alert to the needs of our environment for generations, have now taken protective steps”); railroads won on full appeal, 412 U.S. 669 (1973)
“Our society and its governmental instrumentalities, having been less than alert to the needs of our environment for generations, have now taken protective steps”
Burger was a different kind of GOP appointee!
The Democrats back then were organized private-sector labor and hence were worried about manufacturing jobs going overseas — which they did — so as to avoid more stringent American pollution standards.
Hence a lot of the environmental stuff of 50 years ago came out of the Republican party — it was Nixon who created the EPA, not Johnson or Carter.
And the unions were right — imagine if all the stuff currently made in China was still being made here….
We’d be a lot more polluted?
So it’s OK to outsource pollution?
I thought we’re not supposed to be the world’s policeman.
And the US (and US consumers) – sometimes – try to enforce environmental and labor standards on foreign manufacturers (see Nike 1990s).
Nixon vetoed the Clean Water Act and his veto was overridden within days.
From the NYT:
“In his veto message to Congress, the President based his action on two major points: The $24.6‐billion price tag in the bill, four times more than the Administration proposal, and the need to hold down Federal spending to curb inflation and avert a necessity for a tax increase.
Emphasing that environmental protection has been “one of my highest priorities as President, “Mr. Nixon said he was also concerned “that we attack pollution in a way that does not ignore other very real threats to the quality of life, such as spiraling prices and increasingly onerous taxes.”
Yes, knowing it was popular he offered a watered down version which was easily rejected, he then vetoed the bill and had his veto easily overrided. Hardly a champion of environmentalism there.
Many of Nixon’s “progressive” actions were half-measures designed to defang the opposition. Often when he created a new agency he put in charge people who didn’t want it to work. And then there was the perverse case of Walter Hickel, whom he nominated for Secretary of the Interior. Hickel was an oil company executive and his nomination was held up in the (Democratic) Senate for weeks. When finally in office, he surprised everyone by actually protecting the environment, and Nixon ended up firing him.
Nixon fired him for not supporting his Vietnam policy writing
“I believe this administration finds itself today embracing a philosophy which appears to lack appropriate concern for the attitude of a great mass of Americans – our young people.”
Frank
I don’t think Hickel helped himself by getting sympathetic to the hippies. Oil or no oil, that’s not the way to keep a job in the Nixon administration.
Kinda economically ignorant, eh?
If you want a jobs program, why not ban ATMs and self-service car fueling. Better yet, let’s go back to days of yore when 90% of Americans lived on farms.
Or we could shrink manufacturing jobs while increasing manufacturing by $$$, releasing those workers to other more productive fields.
American manufacturing workers are paid so highly because the capital investments make them so productive. If you in your wisdom would rather they get paid less for less productive work, then your wisdom is cracked.
Was this a reply to me?
Meant it for Dr Ed, if I hit the wrong reply button, sorry ’bout that!
No worries!
I’m not saying I agreed with the unions, only that they were then still a major factor in what was then still the coalition that FDR had built 40 years earlier.
Today’s movie review: Gone with the Wind, 1939
“All we’ve got is Cotton, Slaves and Arrogance!” — Rhett Butler, setting a bunch of half-drunk “Southern gentlemen” straight on why the CSA is sure to lose the war
That’s about the only thing in the movie about slavery as such. Race takes over in too many discussions about everything. Some writers are hung up on it at the expense of being fully human. And so it is with this movie, which is viewed nowadays solely through the lens of its implicit (not explicit) racism.
In fact the movie is not about race. It became so popular not because of its view of black people but because it’s such a good soap opera between the white leads. The emotional heart of the movie is the interplay between Scarlett, Rhett, Melanie and Ashley in high society. The same story could be told in any squabbles-between-rich-people context, about corporate executives and their wives, or even about deans and provosts in a big university.
Also: what impresses me about Hollywood is not the acting, or the scriptwriting, but the production — cinematography, directing, blocking, continuity, matching the music to the scene, the editing. This is all very hard to do, as one easily sees in movies made without the expertise. These crafts take years to learn. They’re on full display here.
A minor point — you might notice in Thomas Mitchell’s scenes where he is in profile, the old acting technique of looking at the forehead (not the eyes) of the person you’re talking to. Apparently it was considered more flattering to an actor’s appearance to look upward. Rod Steiger mentioned this once in an interview and how it would drive him crazy. He kept on wanting to jump up so as to meet the other actor’s eyes.
I wonder what the results would be if Disney (or any other current studio) attempted to remake it today, as they are doing with Snow White (also released in 1939)?
They’d probably make the slaves major characters. and have disputes between the white characters as to slavery. Which would ruin the movie. Might as well write a new story with a new title.
I don’t know capt, it always seemed pretty suspect to me…
https://www.independent.co.uk/arts-entertainment/films/news/gone-with-the-wind-racist-hbo-max-trump-scarlett-o-hara-a9558531.html
My point is that they’re wrong about that, though of course I can understand a black person not wanting to see that movie (any more than an Italian-American would want to see “The Pope of Greenwich Village”).
I thought you were going to reference Scarlett slapping Prissy. But in that situation she would have slapped a white servant too.
I don’t think they’re wrong about the obtuseness of having black slave characters seem happy to serve, the suggestion that the war was due to Northern ambitions, the freedmen were scoundrels, etc. Those Dunning elements made for some long term negative stereotypes and whitewashing of history.
But that’s not why people love the movie.
Plantation society is just the setting for this particular soap opera. And those stereotypes were hardly created by this movie. “Birth of a Nation”, where racism toward black people motivates the narrative, was a lot worse.
Years ago, working at a crisis center with a mostly black female staff, we looked at an issue of “Jet” where black women were dressed in Scarlett O’Hara outfits, coming down elegant balustrades. They looked wonderful. It shows what the real attraction was of that film.
It helped popularize those stereotypes and myths.
“The bringing of the African to America planted the first seed of disunion.”
boy, DW Griffith got that one right.
of course “Birth” doesn’t hold a Torch (get it) to DWG’s follow up,
“Intolerance” would do alot of people some good to watch that one (Rep Slapajapapal for one)
Frank
Prissy don’t know nuthin’ bout birthin’ no babies!
Another point: in that “CSA” scene, Ashley, head of the state militia, says he will fight for Georgia, but: “Most of the miseries of the world were caused by war. And when the war was over no one was ever sure what it was about.” This was 1939. No one would say that after World WR II, where the reasons were very clear. The audience would be thinking of World War I (“the Great War”), which was indeed horrible and where the reasons were not so clear.
Always wondered why Ashley Wilkes had an English Accent
That actually would have been historically accurate — the America accents evolved from European immigration, which was in the North.
I recommend Robert E Lee and me. I’m about 1/4 of the way through it.
He is scathing about Mitchell’s book., Not as much about the film, though he notes that because the film reached far more people than the book, its grossly misleading history had a far greater effect on people’s knowledge and perceptions of the War of Southern Treason.
It’s very hard for someone to say about their great-great-grandfather, who fell face down at Antietam, choking on his own blood, that he died for nothing.
The best way to look at it was put by U.S. Grant, when talking about Lee’s surrender:
“What General Lee’s feelings were I do not know. As he was a man of much dignity, with an impassible face, it was impossible to say whether he felt inwardly glad that the end had finally come, or felt sad over the result, and was too manly to show it. Whatever his feelings, they were entirely concealed from my observation; but my own feelings, which had been quite jubilant on the receipt of his letter, were sad and depressed. I felt like anything rather than rejoicing at the downfall of a foe who had fought so long and valiantly, and had suffered so much for a cause, though that cause was, I believe, one of the worst for which a people ever fought, and one for which there was the least excuse.”
People make mistakes, often tragic ones, all the time. You can recognize this about an ancestor or relative without it messing with you very much.
Yup. The issue for me is that many of their descendants don’t seem to accept that they were mistaken at all, and regardless, want to hold up these traitors as some kinds of paragon, and to preserve their memory in as public a way as possible.
What people don’t realize is that if Lee hadn’t surrendered, as publicly and with the dignity he had, the war would have continued as a guerrilla war until at least 1870 — and the South well might have won as the war was increasingly unpopular in the North. (Lincoln didn’t expect to get re-elected in 1864.)
Lee could have become a Fidel Castro, living in the woods — remember that the US Army had no satellites, no airplanes, and no night vision glasses — and how difficult it was to fight a guerrilla war in Iraq *with* those….
Remember too that the North was losing an awful lot of men — in addition to the draft riots in NYC, the draft was starting to bite elsewhere in the North, and some of the battlefield photographs were starting to show up. This was the first time that civilians had actually seen the carnage of war and it wasn’t romantic.
The South would have wound up looking like Japan circa 1945 — and conventional bombing (a) did more damage and (b) killed far more people than the nukes did. Most of Tokyo had been burned flat, we were doing Dresdens on a daily basis.
What I am trying to say is that Lee did an incredibly honorable (to the USA) thing in surrendering. He deserves to be remembered for that — because of what would have happened if he hadn’t.
Love the “Quittin’ Time” scene
Field Hand : Quittin’ time! Quittin’ time!
Big Sam – Field Foreman : Who says it’s quittin’ time?
Field Hand : I says it’s quittin’ time!
Big Sam – Field Foreman : I’s the foreman. I’s the one who says when it’s quittin’ time at Tara. Quittin’ time!
https://www.youtube.com/watch?v=mqQmEnb0lRU
Frank ‘Frank-ly my dear…. (get it? “Frank-ly”)”
The scene where Butler goes off on the stupidity of the war may be the best scene in the entire movie. I think that scene (unlike a lot of stuff in there) is historically accurate; the white South was full of hotheads eager to go off to war with delusions of a second American revolution and with no idea about how it was actually going to go and how hard it would be to defeat the North.
Love how Rhett just leaves and Ashley has to tell Charles Hamilton
“He’s one of the best shots in the country, as he’s proved a number of times against steadier hands and cooler heads than yours”
Frank
Dilan — the South would have won the war had it been fought in 1820 — the three things they didn’t understand were (a) how much the North had become industrialized, (b) the extent to which the US Navy had grown and that they wouldn’t be able to trade with England, and (c) the extent to which Irish immigration would enable Grant’s meat grinder tactics.
The South was always Army — but the North had always been Navy and the South didn’t understand Naval tactics, notably a trade blockade. Without that, with the South being able to trade with England (and receive help from England), it would have been a very different war.
Speaking of race, in 1944, Murphy became the first Supreme Court Justice to use the word “racism” in an opinion (1). (In fact, this appears to be the first time the word appeared in any reported American judicial opinion.) He would use the word in an additional four opinions between 1944 and 1948 before his untimely death at the age of 59 in 1949 (2). (Notably, Murphy’s first three opinions (of five) to use the word were all released on December 18, 1944.) The word would not appear again in a Supreme Court opinion until 1966 (3). Per Fastcase, as of today, the word has appeared in 143 Supreme Court cases.
1. Steele v. Louisville & N.R. Co., 323 U.S. 192, 209 (1944) (Murphy, J., concurring).
2. Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting); Ex parte Endo, 323 U.S. 283, 307 (1944) (Murphy, J., concurring); Duncan v. Kahanamoku, 327 U.S. 304, 334 (1946) (Murphy, J., concurring); Oyama v. California, 332 U.S. 633, 664 (1948) (Murphy, J., concurring).
3. Brown v. Louisiana, 383 U.S. 131, 142 (1966).
Thanks!
Interesting, I wonder when it started to be used outside of judicial opinions?
FWIW:
The Oxford English Dictionary’s first recorded utterance of the word racism was by a man named Richard Henry Pratt in 1902. Pratt was railing against the evils of racial segregation.
Segregating any class or race of people apart from the rest of the people kills the progress of the segregated people or makes their growth very slow. Association of races and classes is necessary to destroy racism and classism.
“kills the progress of the segregated people”
Note that segregation works both ways, isolating both black and white, and other colors too.
Excellent point.
Yes, but I think that historically in any country or state with segregation, one class of “segregants” is the dominant class and the rest suffer.