The Volokh Conspiracy

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Today in Supreme Court History: May 15, 2000


5/15/2000: U.S. v. Morrison is decided.

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  1. United States v. Morrison, 529 U.S. 598 (decided May 15, 2000): statute allowing civil remedy for victims of gender-related violence was outside Congress's Commerce Clause power nor did Equal Protection clause did not apply to private conduct

    Randon v. Toby, 52 U.S. 493 (decided May 15, 1851): "The buying and selling of negroes, in a State where slavery is tolerated, and where color is prima facie evidence that such is the status of the person, cannot be said to be an illegal contract, and void on that account. The crime committed by those who introduced the negroes into the country does not attach to all those who may afterwards purchase them."

    United States v. Miller, 307 U.S. 174 (decided May 15, 1939:) Second Amendment guarantees only right to keep and bear arms in "reasonable relationship to the preservation or efficiency of a well regulated militia". Contains long discussion of Articles of Confederation period, such as sentiment in favor of militias so as to obviate creation of a standing army and militia possession and training requirements states placed on males. The sawed-off shotgun at issue was not reasonably a militia weapon and therefore statute penalizing possession of such weapons (and requiring federal agency approval of any ownership or transfer of militia-type weapons) was within Congress's power.

    In re Gault, 387 U.S. 1 (decided May 15, 1967): juvenile and his parents are entitled to due process (e.g., assistance of counsel, protection against self-incrimination) before commitment to "industrial school" as a delinquent

    Fong Yue Ting v. United States, 149 U.S. 698 (decided May 15, 1893): United States could expel without due process any Chinese laborer who does not get a residency card from the IRS within the first year

    Kindred Nursing Centers et al. v. Clark, 581 U.S. --- (decided May 15, 2017): effect under Kentucky law of power of attorney given to relatives of nursing home resident was to exclude agreeing to arbitration from scope of authority and therefore was in violation of the Federal Arbitration Act; arbitration clause in contract therefore applied and lawsuit alleging negligence was dismissed

    Kulko v. Supeior Court of California, 436 U.S. 84 (decided May 15, 1978): California court had no jurisdiction over father in alimony dispute because he did not live there even though he had consented to mother and children moving to California from New York in contravention of the separation agreement

    Stephens v. Cherokee Nation, 174 U.S. 445 (decided May 15, 1899): application for "citizenship" in tribe allowing participation in election of tribal commission and access to United States courts can be denied without due process safeguards

    1. Correction:

      end of Morrison summary should be: “nor did Equal Protection clause apply to private conduct”

      1. Have you considered producing a textbook?

        1. Yes to that. 10000 Garbage Decisions Everyone Should Know About. The Supreme Court is Idiotic.

          1. When people vote against our failed elite, and choose a scam artist as President, the failed Supreme Court is a factor. They stink and are ridden with error. They cannot even read the plain English of the constitution. These petty tyrants just impose their sicko feelings and whims because they are so arrogant. They are totally toxic and unbearable. I do not want any killed. They would just be replaced by grateful competitors fromt the same pool of bokkworm, know nothing losers. I would support their getting arrested, tried and sentenced to a public ass kicking livestreamed to the nation. To deter the elite lawyer scum.

            1. As a generality, a capable person is avoiding public service. We are getting the dregs of society in our leadership. A successful person will not submit to the abuse by the scumbag press, and by political competitors who know shit. I support corporal punishment for members of the press, and for politicians, after due process, of course. I would like to protect capable people who choose to go into public service. Deter the loser scumbags from attacking winners and capable people willing to serve.

              1. Nitpicking, lawyer parsing, quotes from the past, would get a lash for each instance. Politically motivated investigations would be assessed to the personal assets of the accuser, of the investigators and of the prosecutors. To deter. Livestream the lashes. Livestream to seizures of the homes, and the expulsions to the curb of the scumbags.

                1. This is the kind of crazy person attracted by Trump. Note it.

                  1. I am the kind of person who is not not only attracted by but follows the Queenie. I am your biggest supporter here. What is your preferred pronoun, Hon?

                2. This is the kind of crazy person attracted by Trump.

                3. Sometime you feel like a nut, sometimes a Trump nut!

        2. A textbook takes actual work, and these posts are not work. I just look up cases that were decided that day, quickly skim through them, and write a blurb.

          Besides, if I wrote a textbook no one would publish it.

          1. " A textbook takes actual work "

            Are you sure?

          2. You understand that these posts come from Blackman's textbook....and have a YouTube video describing them.

            Right? Right....?


            1. By "these posts" I meant my comments.

            2. You understand that it has been demonstrated that Today In Supreme Court History is low-quality, unreliable work, right?

      2. Pro-slavery, pro-criminal, pro-big government abominations. This is a good documentation of the toxicity of this awful court filled with horrible people. They are traitors in insurrection against our constitution, and should be arrested.

  2. Man, thought this had to be related to the late (if you believe the news reports) Jim Morrison, and his charges in Florida, which would have actually been an interesting case.
    CT and Breyer are the only remaining Justices from this decision, guessing a current vote would be 6-3 depending on if Roberts picked heads or tails.

    1. On one of the stalls in the first floor bathroom of my college's library (this was in 1975) someone had scrawled, "Jim Morrison Died For Your Sins". It stayed up all year, without being cleaned off, which seemed preternatural. So if that was true, maybe Morrison, like Jesus, will rise from the dead (or has he already risen???).

      1. Jim died for his sins not for ours. Wasn't he a real jerk? Only an oblivious, loser, drug addict would be his girlfriend.

        1. Her drugs dispatched him. He was ahead of the fentanyl epidemic. It may drop crime and cause lawyer unemployment.

  3. Today in Supreme Court history, the Court continued to pretend that it's perfectly okay for citizens to buy assault weapons, go to supermarkets, and methodically massacre their fellow citizens.

    1. Well 2 of the 3 are ill-legal at Bushwood (and Buffalo New York) obviously more laws are needed!

    2. Getting 2 out of 3 right isn't bad, but, man, did you ever get that 3rd wrong.

    3. In the wake of the Buffalo grocery store shootings, are Republican politicians going to condemn the Great Replacement theory and white supremacy in general? Or are they going to double down on the Trumpian position said in the wake of Charlottesville that there are very fine people on both sides?

      1. Well the Dems had a chance to condemn black nationalism

        and black gang violence

        fairly recently among many other things but passed on it and the media covered it up and nobody noticed or cared.

        1. Is tu quoque all you´ve got?

            1. That word doesn´t mean what you seem to think it means.

          1. if you want to know the proper way to react to something shouldn't you follow the example of your 'moral betters'?

            1. I have no idea what you are talking about. Are you willing to denounce the Great Replacement or not?

              1. Yes of course I denounce it. Oh you mean say it doesn't exist? Why would I say something doesn't exist if it obviously does and its promoters actually admit to it, when they're not calling it a conspiracy theory? I mean just because pro abortioners bombed a prolife meeting place doesn't suddenly mean the agenda to ban abortion doesn't exist.

      2. Is it really a "theory" when leftists publicly post on Twitter that they are happy the nation is becoming less white and that we need more immigration to make that happen quicker...?

        1. Are you claiming Payton Gendron was on target? (Pardon the pun.)

          1. If the allegations be true, he would be on target as Darrell Brooks was (if the allegarions be true).

            1. Again, is tu quoque all you´ve got?

              Of perhaps it doesn´t even rise to that. Is there any evidence Darrell Brooks was racially motivated?

      3. Will you ever stop lying? Trump did what you ask, and yet you still remove the "very fine people, on both sides" from its context: "I’m not talking about the neo-Nazis and the white nationalists -- because they should be condemned totally."

        Yes, you are guilty.

        1. The event was organized by white supremacists. Good people on both sides (but not the neo-Nazis and white nationalists) hits a bit different when one side is explicitly white supremacists.

  4. At the time, some predicted U.S. v. Lopez (1995) and U.S. v. Morrison (2000) signaled a sea change in jurisprudence that would usher in an era of the Court's rolling back the Commerce Clause power of Congress. I thought they would be anomalous blips of the radar of little lasting significance. I believe the latter has proved to be the case thus far, and that Congress' powers under the Commerce Clause, as interpreted by the Court, continue to be virtually limitless.

    1. What result would you guess would occur from a new challenge to the Partial-Birth Abortion Act under the Commerce Clause, or some hypothetical codification of abortion restrictions/legalization that conflicts with state law under the Commerce Clause?

      1. I would guess overruling Wickard v. Filburn.

      2. In Gonzales v. Carhart (2007) a 5-4 Court upheld a Congressional ban on partial-birth abortion. In his concurring opinion, Justice Thomas (joined by Justice Scalia) noted, "whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it." I think, however, it is clear that Thomas (and Scalia) did not believe the Act was permissible under the Commerce Clause. Why bring it up otherwise?

        I believe that this Court would strike down a Congressional ban or restriction on abortion as exceeding its powers under the Commerce Clause. Note how such a case would put the Court liberals in an awkward position, especially if the Commerce Clause question were the only one before the Court. Would they, contrary to their usual broad reading of the Commerce Clause, hold that Congress cannot regulate abortion, therefore foreclosing a potential future Congressional act mandating elective abortion upon the States? Or would they vote to uphold the ban?

        I believe an Act purporting to mandate elective abortions upon the States would likewise fail under the Commerce Clause, but would have the additional constitutional infirmity of infringing upon the Tenth Amendment and anti-commandeering principles. See, for example, Murphy v, NCAA, (2018) in which the Court struck down a federal law purporting to forbid states from legalizing sports gambling.

        I believe the Court would (and should) simply say that the regulation of medical procedures is generally a state matter, and the federal government should stay out of it. This could also resolve other hot-button issues that are turning up (or will turn up soon) in the federal courts, namely state bans or regulations of "gay conversion therapy" and sex-reassignment surgery.

        1. "Would they, contrary to their usual broad reading of the Commerce Clause, hold that Congress cannot regulate abortion, therefore foreclosing a potential future Congressional act mandating elective abortion upon the States? Or would they vote to uphold the ban?"

          Rather than joining the majority opinion, they'd concur on the result, and dissent on the basis for reaching it.

          1. The statute prohibiting so-called partial birth abortion includes as an essential element of the offense that the procedure be ¨in or affecting interstate or foreign commerce." I don´t see why Congress could not prohibit interference in or affecting interstate or foreign commerce with a statutory right to abortion.

            1. It is standard operating procedure for Congress to use such language in statutes, particularly criminal statutes, but that is not dispositive of the question. For one, it doesn't provide much guidance to a jury to ask it, "Did this abortion affect interstate or foreign commerce?" If Congress passed a general prohibition of burglary, I don't think inserting an "affecting interstate or foreign commerce" element would bring it within its enumerated powers.

              As I noted the Court has held Congress cannot forbid states from allowing sports gambling. Why not? Sports gambling certainly implicates interstate commerce, certainly to a greater degree than abortion. Because states are sovereign within their spheres of authority, which are large. If Congress could just dictate to states the laws they must or must not have, then that would be the end of federalism, and there would be no point in even having states.

              1. Some evidence of an effect on interstate or foreign commerce is essential to avoid a judgment of acquittal.

                1. The problem is the courts permit the "effect on interstate or foreign commerce" to be so absurdly indirect and tenuous that it's basically impossible to NOT satisfy that predicate.

                  And the bigger problem is that the interstate commerce clause doesn't say anything about regulating effects. It says Congress can regulate the commerce, itself.

                  This is the classic example of how the N&P clause has been transformed into a "convenient, and eh, whatever" clause by allowing pretextual claims of necessity, when the non-interstate commerce is the actual target of the regulation.

                  1. On the contrary - necessary and Proper seems to deal with the commerce/effects issue you have quite handily. Impossible to regulate commerce without addressing it's effects.

                    Consider for a moment a world where the commerce clause is as you would want it to be. The vast majority of actions that effect interstate commerce would be unreachable. The Commerce Clause would be nearly a nullity in terms of actual function.

          2. Perhaps, but they would still be in a box, if the Court accepted a case and granted cert only as to the Commerce Clause question and limited briefing and arguments to that question. Would they all just ignore the question completely and express no opinion on the matter? Would we get a "concur in result only" with no opinion, or perhaps one or two sentences?

    2. Sadly, you're right about that.

    3. Raich v. Ashcroft more or less signalled that this was not going to be much of a trend.

  5. Get ready for all the fake leftist hand wringing and gnashing of teeth over the "white supremacist" that shot up the grocery store in NY.

    Forget about the racist NYC subway shooter or that bigoted "SUV" that magically killed a bunch parade goers. Those didn't happen. But this thing, oh it is a HUGE deal.

    Definitely means we need more left wing things like CRT and gun control. The media has already started riding all those caskets the whole way to Congress.

    1. The surprising thing about this comment is that it appears to rule out Jimmy The Dane as Payton Gendron's screen name at The Volokh Conspiracy.

      Who is it? Which Volokh Conspiracy fan is Payton Gendron? Somebody should start a pool.

      1. My guess would be none because all the commenters here don't fit into that profile whatsoever. Of course, I know you bend and twist everything to fit into your narrow worldview so it isn't a surprise to at least me that you are so ignorant to think the opposite.

        1. "all the commenters here don't fit into that profile whatsoever"

          Disaffected and backward? Check

          Cranky about replacement? Check

          Superstitious and downscale? Check

          Prominent use of vile racial slur? Check

          Consumed by white, male grievance? Check

          Afraid of change and immigration? Check

          Broadly intolerant and "a little off"? Check

          Gun nut? Check

          Backwater hayseed? Check

          Culture war casualty? Check

          Fan of right-wing fringe websites? Check

          Which line(s) of the official Volokh Conspiracy Target Audience Manual checklist does Payton Gendron miss, in your judgment?

          1. Rev. You still talkin'. Start resigning, you hypocrite. INterview your diverse.

          2. New York State can't execute him, judging from Wikipedia:

            "On June 24, 2004, the state's highest court ruled in People v. LaValle that the state's death penalty statute violated the state constitution, and New York has had no valid statute relating to capital punishment since then. Subsequent legislative attempts at fixing or replacing the statute have failed, and in July 2008 Governor David Paterson issued an executive order disestablishing New York's death row. Legislative efforts to amend the statute have failed, and death sentences are no longer sought at the state level, though certain crimes that fall under the jurisdiction of the federal government are subject to the federal death penalty."


    2. Dude, you disassociate from a shooter.

      You don’t say ‘leftists do it too’ as a defense you absolute psycho.

      1. Funny the left has a hard time doing that when some hate driven person shoots up a subway car, drives a SUV into innocent parade goers, or targets Congressional Republicans for assassination.

        My comment was pointing out the disingenuous double standard. That is obvious to everyone except you apparently.

        1. If after a mass shooter with right wing motives the main thing you have to say is that the left sucks, you need to check yourself.

      2. You have to be associated with in the first place, to have to disassociate.

        1. Shooter talked about Great Replacement as his big motivator.

          You also believe in the great replacement.

          I do think you have something you need to say. Either about yourself, or about what the actions the theory implies to you, or *something* that says this guy is a nut and not with you.
          You take the left with such shit often ebough.

          1. You also believe in the great replacement when described as the emerging Democratic majority.

            Libs have been crowing for awhile about the coming "majority-minority" nation.

  6. U. S. v. Morrison legalized wife-beating.

    I based this conclusion on a poll of women screaming through megaphones, 4 out of 5 of whom adopted this interpretation of Morrison. #5 was screaming about how she was being persecuted by tachyon rays from space.

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