On January 12

On this day in ...

... 1948, on a Monday just 4 days after the conclusion of a 2-day oral argument, the U.S. Supreme Court issued a per curiam judgment declaring that Oklahoma must afford petitioner Ada Sipuel Fisher (right) -- whom the Court described as "a Negro, concededly qualified" --admission to the state law school where "many white applicants have been afforded legal education." The brief opinion in Sipuel v. Board of Regents added that Oklahoma "must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment, and provide it as soon as it does for applicants of any other group." But Oklahoma ignored the order. The Court, in Fisher v. Hurst, a decision issued the next month, refused to issue a writ of mandamus on behalf of petitioner. As I've posted, the dissent by Justice Wiley B. Rutledge was preceded by a bench memorandum from his law clerk, John Paul Stevens. Eventually, Sipuel Fisher was permitted to attend the law school, albeit under harsh conditions; she graduated in 1952 and returned to her hometown to practice law. In 1992 she was appointed to the Board of Regents of the university that once had excluded her. She died in 1995. (credit for oil portrait of Sipuel Fisher, by Mitsuno Ishii Reedy, which is on display in the rotunda at the Oklahoma State Capitol)

... 1992, in a national referendum, the people of Mali approved a new Constitution. According to the Library of Congress, the 1992 Constitution, "[l]ike its two predecessors, ... is based on the French model." (The West African country, flag at left, won independence from France in 1960.) The 1992 Constitution has been amended once, in 1999, "to incorporate some revisions of the electoral system and strengthen the judicial system"; those changes were not submitted to popular vote.

On February 4, ...

... 2008 (today), the World Health Organization marks World Cancer Day, designed to raise awareness about the malady that, absent intervention, is expected to kill 84 million persons this decade. The focus this year is on children; specifically, on the risk to children when adults around them smoke. WHO states:

Around 700 million children - almost half of the world's children - breathe air polluted by tobacco smoke, particularly at home. ... [A] simple message to parents: 'Second-hand smoke is a health hazard for you and your family. There is no safe level of exposure to second-hand smoke. Give your child a smoke-free childhood.'

... 1946, the U.S. Supreme Court affirmed the conviction of Japanese General Tomoyuki Yamashita for war crimes committed by his troops in the battle for the Philippines, won by the United States shortly before the end of World War II. The Court did so over the vociferous dissents of Justices Wiley B. Rutledge and Frank Murphy. Yamashita -- convicted on a command responsibility theory, as IntLawGrrl Beth Van Schaack has written here -- was hanged soon after. The case drew new interest 40 years later. In Hamdan v. Rumsfeld (2006), the Court gave credit to the dissents; a majority agreed that "[t]he force of" Yamashita 's approval of military commission procedures "has been seriously undermined by post-World War II developments." Author of the opinion was Justice John Paul Stevens who, as I've written here, had begun a yearlong clerkship for Rutledge 18 months after the Yamashita decision.

World War II déjà vu, all over again

The 2d of the transnational cases the U.S. Supreme Court's just agreed to review promises a revisit, yet again, to World War II-era precedents.
Litigation post-9/11 has prompted the Court more than once to plumb those precedents in determining whether and to what extent the Constitution protects persons the United States detains in time of conflict. In the citizen-enemy-combatant case Hamdi (2004), for example, the plurality relied heavily on its interpretation of Quirin (1942); in contrast, 2 other Justices dwelt on statutory reform in light of Korematsu (1944). Noteworthy has been the reliance on cases in which Justice Wiley B. Rutledge, Jr., for whom Justice John Paul Stevens clerked in 1947-48, took part: Stevens' opinion for the Court in Rasul (2004) drew on Ahrens (1948); in Hamdan (2006), on Yamashita (1946). (See analyses here, here, and here, here.) The just-granted Munaf likewise portends a new look at Hirota (1948).
Mohammad Munaf (left) and Shawqi Ahmad Omar (below left), both U.S. citizens who also hold citizenship in a 2d country, are in U.S. custody in Iraq, where a multinational military force is in place. An Iraqi court convicted Munaf of involvement in a kidnapping and sentenced him to death; Omar has not been charged. Both petitioned U.S. courts for habeas relief. The U.S. Court of Appeals for the D.C. Circuit ruled against Munaf 2-1. Yet a couple months earlier, a somewhat different panel of the same circuit had ruled in favor of Omar. Last week the Supreme Court consolidated and agreed to hear both matters. The importance of the 1948 precedent is evident not only in the circuit's reasoning, but also in Munaf's petition for certiorari, which includes this Question Presented:

Does the decision of the Court of Appeals, holding that Hirota v. MacArthur deprives the federal courts of jurisdction under these circumstances, extend the 1948 per curiam opinion in Hirota into conflict with this Court's post-1948 jurisprudence culminating in Rasul v. Bush and Hamdi v. Rumsfeld, and should that conflict be resolved either by restricting Hirota to its proper sphere or by overruling it?

As detailed here by our colleague Steve Vladeck, Kōki Hirota (below right) was a civilian diplomat and erstwhile prime minister who never held military rank; however, most petitioners in Hirota were, like Yamashita, Japanese military officers. Whereas

Yamashita had been convicted by a U.S. military commission sitting in the Philippines, petitioners in Hirota challenged their convictions before the multinational International Military Tribunal for the Far East (IMTFE). The Supreme Court had devoted many pages to its refusal to rule in favor of Yamashita; in contrast, it disposed of Hirota in a 3-paragraph per curiam, the crux of which are these sentences:

We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.
Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.

The opinion was shorter either than Justice Robert H. Jackson's December 6, 1948, statement that his colleagues were divided 4-4 on whether "the Japanese convicted of war crimes should have some form of relief, at least tentative, from this Court," 335 U.S. 876, or than Justice William O. Douglas' detailed concurrence with the denial of relief that the Court issued 2 weeks later.

Perhaps of particular contemporary interest is the identity of the 2 Justices who did not go along with that ultimate disposition of Hirota: One was Frank Murphy, who served as Attorney General before President Franklin D. Roosevelt appointed him to the bench in 1940. Murphy's dissenting vote in Hirota followed prior dissents in Korematsu, Ahrens, and Yamashita. The other was Rutledge, who'd gone with the majority in Korematsu, but wrote dissents in Ahrens and Yamashita that post-9/11 precedents have cited with favor.

So what did Rutledge do in Hirota? Good question.

The decision itself states:

Mr. Justice RUTLEDGE reserves decision and the announcement of his vote until a later time.

According to his biographer, Rutledge had drafted a dissent before argument was set, in which he set forth reasons the IMTFE might not qualify as a "'validly constituted international'" tribunal, such that exercise of federal jurisdiction would be proper. After argument, though, Rutledge "'passed'" on voting, reportedly remarking to his colleagues in conference, "'This is an international tribunal but if I get over that hump I would act.'" (John M. Ferren, Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge 411-14 (2004)).

Rutledge never did come to rest in Hirota. He never wrote in the case -- never even cast his vote.

Check back in a few months for the role the circumstances of Hirota might play today: As with the other transnational case just granted, Munaf is due to be argued before the Court in spring 2008.

On December 7, ...

... 1917 (90 years ago today), at 5:03 p.m. Eastern time, the United States went to war against Austria-Hungary when President Woodrow Wilson signed a joint resolution of Congress authorizing the action. The United States had entered World War I in April, when it declared war against Imperial Germany.
... 1941, at 7:48 a.m. Hawaii time, Japanese bombers startled the U.S. Pacific fleet at Pearl Harbor with an early morning attack, prompting the United States' northern neighbor, Canada to declare war against Japan at once. The United States followed the next day, when President Franklin D. Roosevelt, in a speech to Congress that can be heard here, condemned December 7, 1941, "a date which will live in infamy."
... 1945, a U.S. military commission convicted and sentenced to death Japanese General Tomoyuki Yamashita, who had surrendered after Japan-controlled Philippines fell to the U.S. military. On a theory of command responsibility Yamashita (pictured at right returning to his cell after a day of trial) was held responsible for war crimes committed by his troops. In fewer than 2 months the U.S. Supreme Court rejected his habeas petition by a vote of 7-2, and Yamashita was hanged soon after. In time the opinions of dissenting Justices Frank Murphy and Wiley B. Rutledge, Jr. won over many legal commentators; indeed, they were discussed favorably in the Court's invalidation in Hamdan v. Rumsfeld of President George W. Bush's post-9/11 military commissions.
... 1952 (55 years ago today), U.S. Sen. Susan M. Collins (R-Me.), was born in Caribou, Maine.

Way-Faring Justice

Notable at the end of a U.S. Supreme Court Term notably lacking in transnational references is Justice John Paul Stevens' reach across borders of time as well as place. (For upcoming transnational cases, see below.)
Yesterday's plurality opinion invalidating programs designed to maintain racially integrated public schools relied on Brown v. Board of Education (II), the 1955 judgment that ordered desegregation with "all deliberate speed." This reference by Chief Justice John G. Roberts Jr. (above right) rankled Stevens (above left), whose involvement with the Court and desegregation, as I wrote here, well predates Brown. In the 1948 case of Ada Sipuel Fisher (right), who'd sought admission to the University of Oklahoma Law School, a typescript memorandum by then-law clerk Stevens advised Justice Wiley B. Rutledge:

I would think it possible to take judicial notice of the fact that (a) a law school for one student cannot be equal, even if you accept the equal but separate doctrine, and (b) the doctrine of segregation is itself a violationof the Constitutional requirement.

Nearly 6 decades later Stevens, who'd gone on to serve as a judicial brother to Sipuel lawyer Thurgood Marshall (left), found "a cruel irony" in Roberts' invocation of Brown II. Elaborating, Stevens' wrote that Roberts' opinion concludes with the sentence

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." This sentence reminds me of Anatole France's observation: "The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions. Compare ante ("history will be heard"), with Brewer v. Quarterman (2007) (Roberts, C.J., dissenting) ("It is a familiar adage that history is written by the victors").

The transnational reference is to Le Lys Rouge, or The Red Lily, an 1897 novel by Anatole France (left). The renowned French author used his 1921 Nobel Prize speech to condemn the Versailles agreement as "a peace treaty that is not a treaty of peace but a continuation of war" on account of which, if not amended, "Europe will perish." The sentence that Stevens invoked yesterday comes from a passage likewise laden with social commentary. In a chapter entitled "Madame Has Her Way," the character Choulette delivers a bitter critique of what he sees as France's Revolutionary legacy:

"... We are warlike in France, and we are citizens. Another reason to be proud, this being a citizen! For the poor it consists in sustaining and preserving the wealthy in their power and their laziness. The poor must work for this, in presence of the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread. That is one of the good effects of the Revolution. As this Revolution was made by fools and idiots for the benefit of those who acquired national lands, and resulted in nothing but making the fortune of crafty peasants and financiering bourgeois, the Revolution only made stronger, under the pretence of making all men equal, the empire of wealth. It has betrayed France into the hands of the men of wealth. ..."

Choulette's traveling companion, Countess Martin, thinks his ideas "a little absurd," the novel continues. "She did not think that the past had ever been better than the present." And so she replies with resignation:

"I believe, Monsieur Choulette, that men were always as they are to-day, selfish, avaricious, and pitiless. I believe that laws and manners were always harsh and cruel to the unfortunate."

Stevens' dissent underscores the continuing relevance of this 110-year-old debate over formal versus substantive equality.