Today in Supreme Court History: July 2, 1908

7/2/1908: Justice Thurgood Marshall's birthday.

Justice Thurgood Marshall

Comments

[Dan Schiavetta]

Gregg v. Georgia, 428 U.S. 153 (decided July 2, 1976): death penalty is ok if character/history of defendant taken into account and appellate review provided (basically overruling Furman v. Georgia, 1972; White and Stewart changed their minds, and Douglas had been replaced by Stevens)

Roberts v. Louisiana, 428 U.S. 325 (decided July 2, 1976): death penalty is unconstitutional if it's mandatory for certain crimes (this decision cited Gregg)

Proffitt v. Florida, 428 U.S. 242 (decided July 2, 1976): Florida death penalty is now o.k. because it has been changed along the lines of the Georgia law in Gregg

New York v. Ferber, 458 U.S. 747 (decided July 2, 1982): First Amendment not violated by bans on children engaged in sexual activity (here, boys masturbating) even if not "obscene" (i.e., even if it has educational value and does not involve putting penis into some orifice)

Hobby v. United States, 468 U.S. 339 (decided July 2, 1984): even if there was discrimination in the selection of grand jury foremen (for 7 years, none had been black) that does not violate due process so as to dismiss indictment

Berkemer v. McCarty, 468 U.S. 420 (decided July 2, 1984): Miranda warning must be given when arrested for misdemeanors (drunk driving -- which the Court called a "minor traffic offense"??) and well as felonies

Columbus Board of Education v. Penick, 443 U.S. 449 (decided July 2, 1979): Columus, O. school district in violation of Brown desegregation order because its practice of assigning only black teachers to black schools and pattern of new school placements had effect of perpetuating segregation

Richmond Newspapers v. Virginia, 448 U.S. 555 (decided July 2, 1980): closure of courthouse for criminal trial (defense moved for it, no one objected) was in violation of Sixth Amendment (public trial) and First Amendment (freedom of press); extensive opinion going through the historical rationale for Sixth Amendment right; distinguished Gannett v. DePasquale, 1979, which dealt only with pretrial arguments, not trials

[David Nieporent]

Berkemer v. McCarty, 468 U.S. 420 (decided July 2, 1984): Miranda warning must be given when arrested for misdemeanors (drunk driving -- which the Court called a "minor traffic offense"??) and well as felonies

Just for clarification — because a lot of people misunderstand this – Miranda warnings do not have to be given when arrested for misdemeanors or felonies. Miranda warnings must be given only before custodial interrogations, and only in order for the statements to be admissible.

It's only on TV that the cop recites the Miranda warnings as he's slapping the cuffs on the person.

[Mr. Bumble]

According to ABC neither Thurgood Marshall nor Clarence Thomas exist or they were both White, since PBJ is the first Black (and possibly a woman) to be appointed to the Court.

[wreckinball]

You're not black if you're conservative in Thomas' case. Marshall?

Although the liberals of yesteryear would not be considered liberal today

[Rev. Arthur L. Kirkland]

Without throwback snickering by disaffected clingers, it wouldn’t be the Volokh Conspiracy, Official Legal Blog Of Grievance-Consumed White Males.

[Frank Drackman]

up bright and early at https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx
Jerry? Do you get special "Privileges" if you shine your "Betters" Shoes??

Frank "Angostura Bitter"

[DaivdBehar]

Rev. Your comment is well reasoned legal analysis.

[Frank Drackman]

Best Decision TM made was to retire. If he'd held out to the end William Juffuhsun Clinton would have nominated his replacement, probably not Clarence "Frogman" Thomas.
On the brighter side, we'd never have gotten to meet Annie Hill and her Coterie of "Corroborating" witnesses (Corroborating what? that somebody put a Pubic Hair in CT's coke? (what guy hasn't had that happen?)
Frank "Who's Pubic Hair is This!!!!!! Oh wait, mine, never mind"

[Sarcastr0]

Hobby v. United States reminds me of McClesky v. Kemp.

Has a statistical bias argument ever prevailed?

[bernard11]

Has a statistical bias argument ever prevailed?

I don't know, but I wouldn't be surprised if one never had.

The courts are not famous for their numeracy.

I've always that that was bizarre, given how evaluating evidence seems to be a big part of their job.

[Dan Schiavetta]

Law in general seems allergic to math. Though sometimes it mimics the external forms (like with Law and Economics). Possibly it’s because most lawyers, if they had been good in math, would have gone into something else, not law.

[Rev. Arthur L. Kirkland]

A post about a Black man, and not one Conspirator or commenter has used a vile racial slur yet.

This is remarkable.

[DaivdBehar]

Great comment, Bruh.

[F.D. Wolf]

President Lyndon Johnson appointed two justices to the Court, Abe Fortas in 1965 and Thurgood Marshall in 1967. Marshall had been appointed to the Sixth Circuit Court of Appeals by President Kennedy in 1961. In 1965, Johnson asked Marshall to become his Solicitor General and, in so many words, hinted at his intention to place him on the Court if the opportunity arose (1). Marshall accepted. Around the same time, Johnson confided his intent to put Marshall on the Court to his informal adviser and Harvard economist John Kenneth Galbraith (2).

The opportunity would arise with the retirement of Justice Tom Clark in June 1967. Though there was never any real doubt about who his nominee would be, Johnson was not above manufactured drama; nor was he above using the pick for maximum political benefit. He told Larry Temple, a staff attorney for Texas Governor John Connely whom Johnson had asked to be his White House Counsel, that he was thinking of appointing a black to the Court and asked if Temple had any suggestions. Temple suggested Judge A. Leon Higginbotham, whom Johnson had appointed to the Eastern District of Pennsylvania in 1964. The ever-tactful Johnson responded, "Larry, the only two people who have ever heard of Judge Higginbotham are you and his momma. When I appoint a n****r to the bench, I want everyone to know he's a n****r." (3)

1. Michael Beschloss, Reaching for Glory: Lyndon Johnson's Secret White House Tapes, 1964-1965 385-86 (2001).

2. Id. at 400.

3. Robert Dallek, Flawed Giant: Lyndon Johnson and His Times, 1961-1973 441 (1998).

[Dan Schiavetta]

That anecdote actually speaks well of Johnson and his political courage.

One might add that Clark’s retirement was engineered by Johnson so that he would have a seat Marshall could fill. He appointed Clark’s son Ramsay as Attorney General which meant Tom would always have to be recusing himself.

[Bob from Ohio]

If Nixon had said it you'd be demanding his corpse be dug up and retroactively impeached.

It was the opposite of courage, he knew it would be greeted with loud applause.

[Dan Schiavetta]

I don’t care how he phrased things in private. What he did in public was brave, important. What Nixon did was craven, cowardly.

[Cal Cetín]

Philadelphia Plan? Wage/price controls? The rapprochement with mainland China?

[Dan Schiavetta]

Civil rights, of course.

Look up “we have given up the South to the Republican Party for the next generation” and “Southern Strategy”.

[Cal Cetín]

Whether or not you like the Philadelphia Plan and the precedent it set

https://en.wikipedia.org/wiki/Revised_Philadelphia_Plan

it was under Nixon.

Of course, it was the *Philadelphia* Plan, not the Mobile, Alabama plan, so I haven't disproven the idea of a *Southern* strategy, have I?

But back to the point I was trying to develop, which is that Nixon did a bunch of "liberal" stuff and some "conservative" things. I suppose one could argue that the liberal stuff was courageous and the conservative stuff was cowardly.

[Dan Schiavetta]

Most of the “liberal” stuff he did was half-measures designed to defang the opposition.

Usually when he created a new “liberal” program, he put someone in charge who didn’t want it to work.

[Frank Drackman]

Used by that great Repubiclown, William Juffuhson Clinton with his
"Sista-Soul-ja moment", and signing the death warrant for the execution of a Retarded black man....

[Frank Drackman]

Yeah, sending 600,000 Amuricans to Veet'nam so he wouldn't look like a P-word, great.
Sleepy wants to do the same thing for Yuke-rain, as do alot of you, only thing keeping him from doing it is the Military's been gutted so much there aren't 600,000 to send, and re-instituting a draft would be such a Cluster-foxtrot, they just might do it.
It's hard enough to find physically fit volunteers, have you seen todays "best and brightest??"

Frank "Peace!"

[F.D. Wolf]

*Marshall was on the Second Circuit, not the Sixth.

[Dan Schiavetta]

True

[DaivdBehar]

Great comment, bro.

[John F. Carr]

MADD gave us perverse incentives from a traffic safety point of view.

Suppose you arrest a drunk driver. Not legally drunk after a couple beers, but stumbling and slurring and actually drunk by normal person standards. If he's smart enough not to blow you can't punish him any worse than the apparently sober driver who blows .08% at a checkpoint. Because .08% and drunk have to be treated as the same offnse under federal rules. If you treat falling-down drunk more harshly than blowing .08% your state has weak DUI laws and loses federal funds. This is MADD's doing. They opposed reductions in the BAC limit when the lower limit came with a lower punishment. In the national speed limit era you could hand a $5 bill to the Montana police officer and go on your way because going over 55 was not real speeding. They did not want blowing (insert number here) to be any less of a crime than drunk driving.

If he does blow, then you've got him for extreme DUI. Extreme" DUI is the actual statutory name for a violation of ARS-1382(A), blowing over .15%, and a number of states have similar laws. The typical driver who is arrested for being drunk, and not caught by chance at a checkpoint or pretext stop, will blow .15% or more. If you blow over .20% in Arizona it is informally called "super extreme". It's the same offense that 40 years ago would have been plain old DUI.

[DaivdBehar]

I support ending the death penalty by federal statute. These decisions made it a rent seeking joke. They started a $billion bunko racket yielding a worthless dozen executions a year.

Incapacitation is the sole effective mature purpose of the criminal law. The other purposes are quackery. This point has been shown true by dozens of historical experiments. Lower it ctime goes up. Mandatory sentencing guidelines dropped crime 40%.

I support the Italian death penalty. Guard waves a carton of cigarettes. Troublesome prisoner gets stabbed 50 times. The investigation finds he committed suicide.

[DaivdBehar]

The 100000 overdose deaths fron Chinese fentanyl will get of crime by incapacitation. The 100 million internet crimes will remain as an utter failure of the dumbass lawyer profession. Crime updated. The dumbas lawyer profession has not.

This stinking failed profession needs to be crushed to save this country. You suck.

[DaivdBehar]

Rhoid. Love your great comment, bruh.

[David Nieporent]

It's true, but Behar has been mentally ill since long before Trump. He's been running around on legal blogs spouting most of this identical insanity in the comments sections for at least 15 years now.

[DaivdBehar]

Excellent point, bruh.

[DaivdBehar]

Hey, Rhoid. Always believe the accuser. Just ask Emmett Till. Otherwise, love your comment, Bruh.

[DaivdBehar]

Hi, Davey. Do you believw minds can be read? Do you believe future rare accidents avoided by most people can be foreseen? Do you believe a little fictitious character should set standards of behavior? These beliefs are not true. They are psychotic delusions.