Supreme Court Activism in Economic Policy in the Waning Days of the New Deal: Interpreting the Fair Labor Standards Act, 1941–1946

Students of the Supreme Court universally agree that it made a dramatic shift in 1937. First, in West Coast Hotel Company v. Parrish, ¹ it retreated from the unbridled use of the Fourteenth Amendment's Due Process Clause to invalidate state economic regulatory legislation. Then, in National Labor Relations Board v. Jones and Laughlin Steel Corporation , ² the Justices widened the reach of congressional power under the Commerce Clause. This looser reading of the Commerce Clause was solidified in 1941 with United States v. Darby Lumber Company ³ and Wickard v. Filburn. ⁴ So decisive were these cases in dividing what went before from what came afterward that Bernard Schwartz has said, "The 1937 reversal marked the accession of what may be considered the second Hughes Court—so different was its jurisprudence from that of the Hughes Court that had preceded it." ⁵ Whereas the defining jurisprudence of the former had been close supervision of economic policy, the latter refused to second guess the economic wisdom of congressional (and state) regulatory initiatives. Alpheus T. Mason summarized Justice Harlan Fisk Stone's approach, which was indicative of the entire Court of this era, as one that would not say that "no economic legislation would ever violate constitutional restraints, [but that] … in this area the court's role would be strictly confined." ⁶ Confirming this approach, between 1937 and 1957 the Supreme Court struck down only four federal statutes as unconstitutional, none of which were economic in nature. ⁷     

STRUCTURAL DIMENSIONS IN THE GEOGRAPHY OF LOCATIONAL CONFLICTS

L ocational c onflict is a frequent by-product of efforts to change the physical structure of man-made environments. Within the geography discipline, theoretical and empirical interests in the conflict basis of public and private decisions on the use of land were stimulated in the early 1970s by the work of Julian Wolpert and his associates.¹ The resolution of conflicts over the locations of specific activities is seen as an important means of allocating benefits among locations² and has led to considerable variations in the distribution of necessary services and amenities among residents of the city.³ Indeed, irrespective of overt evidences of conflict occurrence, David Harvey has characterized the land-use pattern itself as an important indicator of the socio-political rules which direct urban development.⁴     

Source of ore fluids at the Kalahari Goldridge deposit, Kraaipan greenstone belt, South Africa: evidence from Sr, C and O isotope signatures in carbonates

The Kalahari Goldridge deposit is located in the Archaean Kraaipan greenstone belt in the north-west province of South Africa. Gold mineralization in this deposit is hosted within banded iron formation which is flanked by a mafic schist in the footwall and clastic metasedimentary units in the hanging wall. Data from carbonate minerals from mineralized veins and bulk rock from the A and D zone ore bodies have helped to define the ultimate origin of the ore-forming fluids and their migration history. Carbon isotope ratios of carbonates from both the A and D zone ore bodies have tight clustering from −7.6 to −5.3‰ that indicates a unique origin for the ore-forming fluids associated with the mineralization at Kalahari Goldridge. The δ¹⁸O values of the carbonates have been influenced by temperature gradients and variable degrees of fluid–rock interaction promoting oxygen isotope exchange between ore fluid and host rocks. Minimum ⁸⁷Sr/⁸⁶Sr ratio values of 0.70354 in mineralized veins are most consistent with ore-forming fluids being relatively pristine with a mantle origin. Strontium and the corresponding ore-forming fluids were most likely derived from mantle-derived magmatic rocks probably represented by the meta-basaltic rocks that underlie the ferruginous package in the Kraaipan greenstone belt. Strontium isotopic composition of vein carbonates show considerable variation in ⁸⁷Sr/⁸⁶Sr ratios ranging from 0.70354 to 0.73914. This is consistent with an ore fluid composition that has been modified by the addition of radiogenic Sr possibly during passage of fluid through siliciclastic country rock concomitant with the observed hydrothermal alteration.     

Terrorism and Habeas Corpus: A Jurisdictional Escape

Following the events of September 11, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons." ¹ Considering this surprising grant of authority, a question naturally surfaces as to whether a person whom the President has determined to have planned, authorized, committed or aided the attacks has an absolute right to challenge this determination in a judicial forum through habeas corpus proceedings, regardless of issues such as nationality, venue, next-friend standing for those held incommunicado, and jurisdictional barriers based on the place of imprisonment.     

Writing the First Draft of History: Anthony Lewis as Supreme Court Correspondent

The legendary Washington Bureau Chief and columnist of The New York Times , James Reston, with a push from Felix Frankfurter, decided that the paper of record would have its own correspondent specializing in the Supreme Court. ¹ With his eye for excellent young talent, ² Reston chose Anthony Lewis, already a Pulitzer-Prize winner before his thirtieth birthday, ³ and sent him to Harvard for the 1956–57 academic year as a Nieman Fellow to study law.     

Thomas Jefferson and John Marshall: What Kind of Constitution Shall We Have?

Although they were third cousins once removed—both descended from William Randolph of Turkey Island, one of the first settlers in Virginia—John Marshall and Thomas Jefferson had little familial affection for one another. During the disputed contest of 1800, the future Chief Justice felt "almost insuperable objection" to the man who eventually become the third President, declaring him "totally unfit for the chief magistracy of a nation which cannot indulge these prejudices without sustaining deep personal injury." ¹ For his part, Jefferson reciprocated, and his cousin became the embodiment of all he despised in the judiciary. He wrote of Marshall as a man of "lax lounging manners … and a profound hypocrisy." ²     

Oral Advocacy and the Re-emergence of a Supreme Court Bar

Over the past generation, roughly the period since 1980, there has been a discernible professionalization among the advocates before the Supreme Court, to the extent that one can speak of the emergence of a real Supreme Court bar. Before defending that proposition, it is probably worth considering whether advocacy makes a difference—whether oral argument matters. My view after one year on the opposite side of the bench is the same as that expressed by no less a figure than Justice John Marshall Harlan—the second one—forty-nine years ago, after he completed his year on the Court of Appeals for the Second Circuit. ¹ Justice Harlan lamented what he saw as a growing tendency among the bar "to regard the oral argument as little more than a traditionally tolerated part of the appellate process," a chore "of little importance in the decision of appeals." ² This view, he said, was "greatly mistaken." ³ As Justice Harlan told the bar, "[Y]our oral argument on appeal is perhaps the most effective weapon you have got." ⁴     

AN ANGLO-SAXON DISC BROOCH FROM BLETCHINGDON, OXFORDSHIRE, WITH STYLE II ANIMAL ART

Summary.   The brooch was found in 2003 near Bletchingdon, Oxfordshire. ¹ Its gilt Style II animal ornament and garnet setting indicate that it is a high status dress-fastener, datable to the period AD 575–610. Analysis of its form and ornament suggests that it was a local experiment in the application of a new animal style.     

Get Your Tongue out of My Mouth 'Cause I'm Kissin' You Goodbye: The Politics of Ideas

The seminal work of Derthick and Quirk (1985 ) argues that public policy changes when the intellectual debate of ideas establishes that policy options are legitimate and current policies are ineffective. ¹ Overlooked in their otherwise exceptional analysis is the role that country music plays in the politics of ideas. ² The thesis of this article is that country music is a crucial part of the politics of ideas, and, in fact, many policy debates are resolved in country music well before the intellectual community of policy analysts reaches a consensus. This article will recap some of the key policy debates in which country music set the agenda, ³ established the key policy alternatives, or resolved the policy debate and permitted the adoption of public policy ( Anderson, 1994 ). ⁴     

Monitoring the 1997 flood in the Red River Valley using hydrologic regimes and RADARSAT imagery

In this study, we attempt to relate hydrologic regimes of the 1997 flood in the Red River Valley to the areal extent of flooding, determined from RADARSAT imagery. We obtained ten scenes of RADARSAT imagery, from 27 April to 1 July, including bitmaps delineating flooded areas for each date, from the Manitoba Centre of Remote Sensing. These images were co-registered using an image-to-image registration process. By overlaying these flood maps in chronological order, we compared the areal extent of flooding with the hydrologic regimes of the Red River, expressed as relative depths of flooding above the bankful stage at selected gauging stations. The results of the study indicated that the area of flooding on 4 May (1,984 km ² ) corresponded well with the highest flood levels at several gauging stations. A previous scene on 27 April showed a larger area under water, but visual inspection of the processed imagery indicated a lack of conformity between flood level regimes and the areal extent of flooding on this date due to surface detention of pre-flood storm runoff. Thus, the RADARSAT imagery represented the flood regimes adequately only when its interpretations were combined with hydrologic analysis and visual inspection of surface characteristics of the floodplain.     

(Re)introducing Wiley Rutledge

With the rarest of exceptions, when Supreme Court Justices leave the Court, they are soon all but forgotten. ¹ Constitutional law is unrelentingly presentist, so closely intertwined with politics and society that sitting (or recently departed) Justices necessarily speak to the issues more directly than those from another era. If that were not enough, being forgotten is virtually inevitable for those whose careers are short. One of those men was Wiley Rutledge who served from February 1943 until his death at age 55 from a cerebral hemorrhage, six and a half years later. Until John M. Ferren's recently published and marvelously researched Salt of the Earth, Conscience of the Court , ² Rutledge even lacked a true biography. ³ That has been a shame, because the two dominant themes of Ferren's book show that Rutledge is worth knowing: He was a good man and a good judge. Indeed, on what probably was the most fractious Court in American history, ⁴ Rutledge was the sole member both personally liked and intellectually respected by every other member. ⁵     

Spatial variations in the salinity of pore waters in northern deep water Gulf of Mexico sediments: implications for pathways and mechanisms of solute transport

Spatial variations in the salinity of pore waters in sedimentary basins can provide important insight into basin-scale hydrogeologic processes. Although there have been numerous studies of brine seeps in the deep water Gulf of Mexico, much less is known about porewater salinities in the vast areas between seeps. A study has been made of spatial variation in pore water salinities in sediments in an approximately 500 km by 200 km area of the northern deep water (water depth >500 m) Gulf of Mexico sedimentary basin (GOM) to provide insight into pathways and mechanisms of solute transport in this portion of the basin. A second objective was to document salinities in the upper 500 m of the sedimentary section, the approximate depth to which methane hydrates, a potential future energy resource, may be stable. Elevated salinities would reduce the P – T stability range of hydrates. Salinities were calculated from borehole logs using a dual electrical conductivity model. Even though much of the northern GOM is underlain by allochthonous salt most of the undisturbed shallow sedimentary section has not been permeated by hypersaline waters. These waters are limited to areas near brine seeps. Hypersaline waters having salinities in excess of 100 g l⁻¹ become more common at subseafloor depths of 2 km and greater. A field study at Green Canyon 65 and published numerical simulations of fluid flow above tabular salt bodies suggest that brines produced by salt dissolution migrate laterally and pond above salt and/or within minibasins and that the dominant mechanism of vertical solute transport is a combination of compaction-driven advection and diffusion, not large-scale thermohaline overturn. Superimposed on this diffuse upward flux of dissolved salt is the more focused and localized expulsion of saline fluids up faults.     

Textual Corruption in the Civil Rights Cases

The Civil Rights Cases ¹ do not quite rival Plessy v. Ferguson ² for notoriety as the decision that most clearly confirmed the failure of Reconstruction and the rise of Jim Crow. Yet the Civil Rights Cases did far more than Plessy to limit federal power to address the continuing consequences of slavery. They declared unconstitutional the Civil Rights Act of 1875 insofar as it prohibited discrimination in public accommodations operated by private parties. Congress passed that act under its powers to enforce the Thirteenth and Fourteenth Amendments, but the Court held the act unconstitutional on the ground that private discrimination was neither a badge or incident of slavery under the Thirteenth Amendment nor a manifestation of state action under the Fourteenth. Although the Court's holding under the Thirteenth Amendment was effectively overruled by the Warren Court, ³ its holding under the Fourteenth Amendment continues to be influential, supporting a decision of the Rehnquist Court striking down the Violence Against Women Act. ⁴     

Policy Dilemmas of Post-Soviet Countries

I wonder what the West would think of us if Russia were to urge it to undertake reforms that would cost it half its gross domestic product, lake 10 years off its average life expectancy, and reduce its standard of living by two-thirds while throwing millions of people out of work, causing social anarchy, and displacing millions of specialists from positions in their fields to the very lowest rungs of society…. ¹     

FDR, Lewis Douglas, and the, Raw Deal

"Despite my emotions, I could not refuse the responsibility which has been offered; for in times like these, even more so than in times of war, individuals cease to be significant. Only the common welfare is important," explained Lewis Douglas in 1933 as he accepted President-elect Franklin Delano Roosevelt's offer of the position of director of the budget.¹ Douglas came to his post with a strong sense of obligation—he was certain the United States was in a "critical condition," and the only solution to the devastating depression lay in balancing the budget.² Roosevelt seemingly agreed with Douglas. Newspapers reported that the young budget director would "make his mark in the Roosevelt administration" and "be at the heart of things." Journalists argued that Roosevelt's appointment was an "indication that Roosevelt means business in his promise to reduce government costs."³     

The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General

"When the Supreme Court invites you, that's the equivalent of a royal command. An invitation from the Supreme Court just can't be rejected." ¹ The guest most frequently invited to the Supreme Court is the Solicitor General. Even before the practice of the Supreme Court calling for the views of the Solicitor General process developed, the Court occasionally invited the Solicitor General to participate as amicus in important cases by submitting a brief and/or participating in oral arguments before the Court. ² As then–Solicitor General Simon E. Sobeloff remarked to then–Attorney General Herbert Brownell in a 1954 letter about the landmark school desegregation cases, "The Supreme Court has expressly extended an invitation to the United States to participate in the reargument. While this by no means compels participation, such an invitation is not to be lightly declined." ³     

Permeability of the continental crust: dynamic variations inferred from seismicity and metamorphism

The variation of permeability with depth can be probed indirectly by various means, including hydrologic models that use geothermal data as constraints and the progress of metamorphic reactions driven by fluid flow. Geothermal and metamorphic data combine to indicate that mean permeability ( k ) of tectonically active continental crust decreases with depth ( z ) according to log  k  ≈ −14–3.2 log  z , where k is in m² and z in km. Other independently derived, crustal-scale k – z relations are generally similar to this power-law curve. Yet there is also substantial evidence for local-to-regional-scale, transient, permeability-generation events that entail permeabilities much higher than these mean k – z relations would suggest. Compilation of such data yields a fit to these elevated, transient values of log  k  ≈ −11.5–3.2 log  z , suggesting a functional form similar to that of tectonically active crust, but shifted to higher permeability at a given depth. In addition, it seems possible that, in the absence of active prograde metamorphism, permeability in the deeper crust will decay toward values below the mean k – z curves. Several lines of evidence suggest geologically rapid (years to 10³ years) decay of high-permeability transients toward background values. Crustal-scale k – z curves may reflect a dynamic competition between permeability creation by processes such as fluid sourcing and rock failure, and permeability destruction by processes such as compaction, hydrothermal alteration, and retrograde metamorphism.     

The Judicial Bookshelf

Decisions by the Supreme Court that are accorded "landmark" status are chiefly remembered for their holdings and effects. Such cases are also typically linked to a particular era of judicial history, as Marbury v. Madison ¹ was to the Marshall Court and Jefferson's presidency, as Youngstown Sheet & Tube Co. v. Sawyer ² was to the Vinson Court and Truman's presidency, and as Miranda v. Arizona ³ was to the Warren Court and the tumultuous 1960s. But probably only serious students of the Court will recall that Marbury was decided in 1803, Youngstown in 1952, and Miranda in 1966. And fewer still will know, without first consulting a reference, that Marbury came down on February 24, the Steel Seizure Case on June 2, and Miranda on June 13. Scholars typically associate decisions with years, not the day of the month.     

Property Rights versus "Public Necessity": A Perspective on Emergency Powers and the Supreme Court

Chief Justice Earl Warren once wrote that a free government is continuously "on trial for its life." ¹ And never are the foundations of constitutional liberties more fragile than in periods of emergency, when government invokes extraordinary powers. Invariably, emergency powers involve the immediate curtailment of some rights; at their extreme in martial law, they can warrant an entire suspension of normal civilian governmental functions, as well as full suspension of due-process guarantees. ² Once the constitutional fabric has been stretched to accommodate urgent public necessity in such situations, moreover, restoration to its earlier condition is not automatic or inevitable. On the contrary, as Justice Robert Jackson presciently warned, once the Supreme Court validates as constitutional the abridgement of essential rights during an emergency—and especially when the Court does so in relation to "the vague, undefined and undefinable 'war power'"—any principle that is thus articulated to justify such emergency action "then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." ³     

Contesting Commerce: Gibbons v. Ogden, Steam Power, and Social Change

The U.S. Supreme Court case Gibbons v. Ogden (1824) ¹ represents one of the most significant yet least understood cases in the history of American jurisprudence. Most accounts depict the case as a constitutional showdown between former New Jersey Governor Aaron Ogden and his estranged business partner, a Georgian businessman and planter named Thomas Gibbons. Ogden charged Gibbons with operating a steamboat on the Hudson River in violation of the Fulton–Livingston Steamboat monopoly that controlled steam travel in the state of New York. In March 1824, Chief Justice John Marshall ruled for the Supreme Court that Gibbons' federal coasting license trumped a state grant issued to Ogden by the Fulton–Livingston syndicate. ²