Today in Supreme Court History: June 21, 1989

6/21/1989: Texas v. Johnson is decided.

Comments

[Dan Schiavetta]

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (decided June 21, 1971): federal officials can be sued for violation of Constitutional rights (just as state officials can be under 42 U.S.C. §1983) (here, FBI agents conducting improper drug search)

Texas v. Johnson, 491 U.S. 397 (decided June 21, 1989): struck down on First Amendment grounds laws in 48 states banning flag burning as a form of political protest (plaintiff had been prosecuted for flag burning outside the 1984 Republican convention)

South Dakota v. Wayfair, Inc., 585 U.S. --- (decided June 21, 2018): states can collect sales taxes from suppliers who have no physical presence in the state (overruling National Bellas Hess v. Dept. of Revenue of Illinois, 1967, and Quill Corp. v. North Dakota, 1992)

NCAA v. Alston, 594 U.S. --- (decided June 21, 2021): NCAA's prohibition on student athletes getting paid violates the Sherman Act; subjecting NCAA to antitrust analysis (unlike major league baseball in Flood v. Kuhn)

Hirabayashi v. United States, 320 U.S. 81 (decided June 21, 1943): upholding curfew on Japanese-Americans living on the West Coast during World War II

Guinn v. United States, 238 U.S. 347 (decided June 21, 1915): invalidating grandfather clauses exempting white people from written exam which everyone else (i.e., black people) had to pass in order to be allowed to vote (one imagines the written exams disappeared pretty quickly after this decision)

Colgrove v. Battin, 413 U.S. 149 (decided June 21, 1973): civil jury of six jurors instead of twelve does not violate Seventh Amendment

Florida v. Bostick, 501 U.S. 429 (decided June 21, 1991): police can't search without a warrant even if person agrees to it, if under circumstances person doesn't feel free to refuse (here, police boarding bus to search passenger's luggage)

[John F. Carr]

Has anybody tried to rely on _Hirabayashi_ in recent years? I remember _Ex Parte Quirin_ was unpersuasive during the Global War on Terror.

[Dan Schiavetta]

For all of Trump's ranting about Muslims, I don't think he ever suggested a curfew.

[Commenter_XY]

captcrisis...That Bivens case....it must have created an exceptionally narrow circumstance to sue Federal agents for violations of constitutional rights. I see/hear those cases get dismissed and never seem to move forward.

I really like the case cites.

[Dan Schiavetta]

Thanks!

[Syd Henderson]

"Texas v. Johnson, 491 U.S. 397 (decided June 21, 1989): struck down on First Amendment grounds laws in 48 states banning flag burning as a form of political protest (plaintiff had been prosecuted for flag burning outside the 1984 Republican convention)."

That's close to a record. Has the Supreme Court ever struck down laws in all 50 states at once?

[Dan Schiavetta]

I don't think so. Interesting question.

[John F. Carr]

In a sense, _Miranda_ overruled customary practice in all 50 states because nobody had used the exact warning prescribed by the court. There were varying rules about when confessions were admissible, some probably more favorable to defendants than Miranda required, but none compatible with it.

I would not be surprised if some of the other criminal procedure changes in the 1950s and 1960s overruled existing practice everywhere.

[apedad]

I was watching an old film on TCM (might have been Scarface [1932], with Paul Muni), and there was a scene when the cops were questioning a gangster, and the gangster said, "Hey, I know my rights. I don't have to tell you guys nothin'."

So there was some level of national conscience of the 5th amendment even before Miranda.

[apedad]

BTW, "Angel on My Shoulder" (1946) is my favorite Muni film.

[Dan Schiavetta]

In a scene in the Dickens novel "Our Mutual Friend", 1864, a detective starts questioning with a warning that anything he says might be used against him. (Whether silence could have been used against him, I don't know.)

[AlottaPushy]

In law school, we looked at a few studies that showed folks are far more likely to waive their rights (and talk to police) POST-Miranda than pre-Miranda. In this way, Miranda was probably a fantastic legal development for cops, in practice (although no one predicted this would be the case when Miranda was handed down-- quite the opposite).

[Dan Schiavetta]

Cf. "With a pack of cigarettes and a couple of beers, I do better than I do with torture."