Today in Supreme Court History: May 28

Home Depot U.S.A. v. Jackson, 587 U.S. 435 (decided May 28, 2019): new party sued in third party class action can’t remove case to federal court because statute allowing any class action to be removed can be invoked only by original defendant

Hoffman v. United States, 341 U.S. 479 (decided May 28, 1951): witness can “take the Fifth” before a grand jury even as to general questions about his background, occupation, etc. if he has a long criminal record and has been publicly associated with organized crime

Dewey v. United States, 178 U.S. 510 (decided May 28, 1900): plaintiff (this was Commodore Dewey, soon to become the only Admiral of the Navy in U.S. history) not entitled to full bounty for sinking ships during Spanish-American war because did not face superior enemy forces at sea (as is required for the full bounty) even though enemy had superior forces on land (Dewey was born into wealth and was rich already)

Deserant v. Cerillos C.R. Co., 178 U.S. 409 (decided May 28, 1900): mine operators sued for personal injuries after explosion cannot rely on “what a reasonable person would do” defense but are bound by specific ventilation requirements imposed by federal statute (i.e., violation of a relevant regulation is “negligence per se”)

Radio Corp. of America v. United States, 341 U.S. 412 (decided May 28, 1951): FCC had power to decide on CBS’s method of color TV transmission as the standard; plaintiff (known to my generation as “RCA”), argued that no system was yet developed enough (ironic because when I was a kid its flagship station, WRCA in New York, Channel 4, touted itself as the “full color network”)

United States v. American Sugar Refining Co., 202 U.S. 563 (decided May 28, 1906): for the purposes of duties imposed on sugar imports, treaty signed by Presidents of Cuba and the United States went into effect on date as calculated by treaty language despite later amendment and ratification by act of Congress with a definite date (“It is not an unusual judicial problem to have to seek the meaning of a law expressed in words not doubtful of themselves, but made so by circumstances or the objects to which they come to be applied”)

Reed v. County Comm’rs of Delaware County, 277 U.S. 376 (decided May 28, 1928): special Senate committee investigating Senatorial election could not sue to obtain materials from local election officials because enabling resolution did not authorize them to sue

Box v. Planned Parenthood, 587 U.S. 490 (decided May 28, 2019):  Upholding on “rational basis” grounds Indiana statute prohibiting treating fetal remains (in malpractice litigation we call it “products of conception”) as waste (i.e., to be disposed of together with surgical byproducts).  The Court did not grant cert on part of statute prohibiting abortions knowingly based on disability, gender or race considerations; this case is notable for Thomas’s opinion in favor of cert, a discussion of the history of eugenics (though as someone pointed out at the time, when post-birth disabled people come before the Court, Thomas always finds ways to vote against them -- is this a fair criticism?).

Hernandez v. New York, 500 U.S. 352 (decided May 28, 1991): prosecutor successfully made a race-neutral showing of why he used peremptory challenges to strike Latino jurors (after long discussion with jurors in court presence, felt these native Spanish speakers would form their own understanding of Spanish language testimony instead of relying on the interpreter) (my wife is Dominican and I can tell you translation of the same words can vary greatly country to country)

Nieves v. Bartlett, 587 U.S. 391 (decided May 28, 2019): 42 U.S.C. §1983 retaliatory arrest claim (arrested after urging another person to not answer police officer’s questions) defeated by showing of probable cause for arrest (drunk and disorderly)