Judge Breyer’s rendition of Cruel and Unusual, by Daily Editors


When Stephen Breyer was 4 years old and his father, Irving Breyer, was legal counsel for the San Francisco Board of Education, the San Francisco Examiner published an article called “Court Test Looms in SF Student Beating”.

“The flogging of Robert Troutfelt, a 13-year-old student at Marina Junior High School, yesterday showed he was becoming a ’cause celebre’, determining the status of corporal punishment in local schools,” the story said.

Two days earlier, on March 18, 1943, the Examiner had exposed the alleged details of the case.

“Upon complaint by George T. Troutfelt, outraged father of Robert Troutfelt, warrants have been issued for Walter Nolan, Warden, and Walter Pickett, Deputy Warden,” this story said.

“Robert was sick at home on Monday,” the reviewer said quoting his father. “When he returned to school on Tuesday, I gave him some money and told him to be sure, because of his condition, that he had a hot lunch. He crossed the street to get his lunch – and was beaten for leaving school grounds.”

“My father had told me to have a hot lunch, so when noon came I went across the street and took it,” the boy said in his own version of events reported by the examiner. “The school cafeteria was packed, as always, and I knew I would have a hard time getting served. When I came back, I was told to introduce myself to the principal.”

“When I walked into his office,” the boy said, “Mr. Nolan reached into his desk drawer and pulled out a strap which he handed to Mr. Pickett. It was about a yard long and was thicker and wider than a belt.”

“Mr. Pickett told me to reach out and hit myself four times with the strap,” the boy said. “He was gritting his teeth when he hit me. He hit my hand and wrist. It hurt a lot – and it kept hurting all day and all last night.”

The boy’s father was not happy.

“The father took the boy to Dr. Howard C. Newson at 2964 Fillmore Street, who treated the bruises,” the examiner reported. “Then Troutfelt took his son to a studio to have the welts photographed.”

“Before taking the oath, the elder Troutfelt revealed, he went to the office of JP Nourse, Superintendent of Schools, to file a complaint, but was told that Nourse was ‘too busy’ to see him”, the newspaper said.

The next day, the school board said it would stand with the principal and vice-principal. This time, the reviewer’s title read, “School board backs pair in abuse case.” Attorney Irving Breyer explained why.

“Unless startling new evidence develops, the board will stand solidly behind the two school officials and provide them with legal assistance if they wish,” the reviewer said.

“This decision was made at a special school board meeting, school department attorney Irving Breyer revealed yesterday as he appeared before City Judge Frank W. Dunn to represent one of the defendants (Pickett ) and act as an observer for the school board.

“Revealing that the school board does not consider Nolan or Pickett to have violated school regulations governing corporal punishment, Breyer said both men appeared before the board and gave their side of the case,” the statement said. ‘examiner.

“They told the board that ‘four light blows’ were delivered with a strap,” the reviewer reported.

“Both men,” the newspaper quoted Breyer as saying, “expressed astonishment that the boy complained of being badly beaten and said the punishment had caused marks or bruises. It was certainly not serious enough for that, they said.”

A month and a half later, the trial in the case was postponed when the school principal suffered a health crisis.

“Breyer informed the court that Nolan suffered a heart attack three weeks ago and was confined to a hospital,” the examiner reported.

The boy’s father then asked that the charges he had filed against the principal and vice-principal be dismissed, which they were, and aimed directly at the school board.

A June 9, 1943, Examiner article said: “A claim for damages in the amount of $20,000 was filed with the school board yesterday by George E. Troutfelt, whose 13-year-old son, Robert, was recently punished injuries at Marina Junior High School.”

On June 23, 1943, the Examiner reported: “The school board yesterday denied a claim for damages in the amount of $20,000, filed by George E. Troutfelt, whose 13-year-old son, Robert, received corporal punishment at Marina Junior High School.”

Sixty-seven years later, Justice Stephen Breyer published a book, “Making Our Democracy Work”, in which he explained why he had not adopted an originalist interpretation of the Constitution.

“What would the public think of an Eighth Amendment (which prohibits ‘cruel and unusual punishment’) that would allow flogging in the Navy today on the grounds that flogging was common practice on 18th century ships?” writes Breyer.

“Can originality win public respect? He asked.

“Similarly,” he writes elsewhere in the book, “the values ​​underlying the prohibition of ‘cruel and unusual punishment’ suggest that today the amendment would prohibit flogging even though many 18th-century Americans thought the flogging was neither cruel nor unusual.”

He did not address the issue of corporal punishment in San Francisco schools in the 20th century.

But in Stenberg v. Carhart, which the court decided in 2000, addressed a Nebraska law that prohibited “an abortion procedure in which the person performing the abortion partially delivers a live unborn child vaginally before killing the ‘unborn child and complete the delivery.’

“We believe this law violates the Constitution,” Breyer wrote in the court’s 5-4 opinion.

History will remember him for asserting that killing a partially born child was a constitutional right.

Photo credit: QuinceCreative at Pixabay


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