Today in Supreme Court History: July 16, 2019

7/16/2019: Justice John Paul Stevens died.

Justice John Paul Stevens

Comments

[Dan Schiavetta]

Travia v. Lomenzo, 86 S.Ct. 7 (decided July 16, 1965): in this order by Harlan refusing a stay of a District Court decision, we see 1) that a federal trial court order, even when up for appeal, is "final and binding" on a state's highest court; 2) how pissed off he was by the Supreme Court's earlier decision in this case, which he dissented from; 3) how he is bound by the Court's earlier decision regarding a similar application (381 U.S. 431); and 4) how if the Court had explained its reasoning "in a sensitive and not heavy-handed manner" the state court would have felt free to defer to the District Court. Here, the question was whether state senate and assembly elections could be held in the midst of litigation as to whether a recent reapportionment violated Equal Protection. The District Court ordered it to go foward; the state court had ordered it stayed. The matter was settled the next year, in time for the 1966 elections, when the New York court approved reapportionment recommendations of a judicial commission (Orans v. Rockefeller, 1966).

[DaivdBehar]

Stevens was toxic and horrible in Apprendi. He was OK in Kelo. Kosinski persuaded me that was OK. He said, who uses the public highway it is OK to seize property for? Private, profit making trucks. So what is the difference? I also see Kelo as permitting the seizure of organs for transplants. It refers to property, not to real property. A corpse is a chattel, and Kelo applies.

Frankie, what do you think of presumptive organ donation? If the family strongly objected and wanted their loved one's organs to feed the worm, let them persuade a judge.

[DaivdBehar]

His Apprendi surged the murders of diverses. Stevens has killed thousands of diverses by his awful judgment. Stevens is a mass murderer of thousands of diverses.

[Ginny Clarence]

Absolute clown. Good riddance.

[Sarcastr0]

I think he got a lot wrong too. But somehow I manage not to revel in his death.

Maybe it's that I'm not so terminally political that being a good person went out the window long ago.

[Commenter_XY]

I always appreciated Justice Stevens dissenting opinion in the flag burning case. He was a pretty remarkable American.

[Sarcastr0]

He was clearly, obviously wrong there. He acted like there was only one American Flag in the world.
If you believe in free speech you gotta defend speech you hate. Stevens failed that test pretty hard with a fallacious, outcome oriented dissent.

But that was far from his only opinions.
yeah, he was remarkable. Warts and all.

[Frank Drackman]

Burn the flag all you want, then take a one way fucking ticket to Ear-Ron.

[Sarcastr0]

That's not how free speech works.

Free speech includes condemning the country that grants it to you.

We are not so fragile we need care about such things. Well, most of us aren't so fragile.

[F.D. Wolf]

Justice Stevens was President Gerald Ford's only appointment to the Court. Ford's successor, President Jimmy Carter, remains the only president to serve a full term to appoint (or nominate) any member of the Supreme Court. However, if Carter had had the opportunity to do so, he would have been hard-pressed to find a more reliably liberal justice than Stevens.

Stevens authored 720 dissenting opinions, by far more than any other justice in history. (Second place belongs to Justice William O. Douglas, with 486 dissents). Perhaps the one that most stands out as surprising is his dissent in Texas v. Johnson, the flag-burning case. He did not join Chief Justice Rehnquist's lead dissent, but wrote a sole dissent of his own. It reads as the most "traditionally right-wing", a sort of paean to the Grand Old Flag.

In a 2012 interview, not long after his 2010 retirement, he stated that while he would not now overrule the 1989 case, he still believed it was incorrectly decided, noting the Court's logic that flag-burning was a protest against flag-burning laws might just as well apply to any activity. People could parade nude in the streets, claiming they were protesting public nudity bans. He also noted that no one seemed to be burning flags anymore. (Once it was legal, it wasn't fun anymore). (1)

1. John Paul Stevens and Linda Greenhouse, "A Conversation with Justice Stevens", 30 Yale Law & Policy Review 303, 319 (2012).

[DaivdBehar]

Still illegal to burn police cars and public buildings.

[bernard11]

He also noted that no one seemed to be burning flags anymore. (Once it was legal, it wasn't fun anymore)

So if you hate flag-burning you should love the decision.

[Michael P]

Because people moved on to burning federal courthouses as an alternative? I'm not sure I like that trade.

[Frank Drackman]

Can't wait to burn my MLK Jr. Flag on MLK Jr Day (not in the vicinity of any N-words of course, I'm not suicidal)

Frank "I Have A Scheme!"

[Sarcastr0]

Nice self-censorship. Kinda makes your performative bigotry fall a bit flat though.

[Cal Cetín]

"...stands out as surprising is his dissent in Texas v. Johnson..."

"It reads as the most "traditionally right-wing", a sort of paean to the Grand Old Flag."

Why wouldn't a liberal want to see flag-burners punished? When did liberals cede flag-waving to their opponents?

[John F. Carr]

Through much of the Cold War Americans sorted themselves that way. Liberals were communist sympathizers, conservatives were flag wavers.

Also through much of the Cold War, you could find recent veterans in lots of places you don't now.

[Cal Cetín]

There were those whom the far left* referred to as cold-war liberals. Truman, for example. I don't think *he* would have been really supportive of the rights of flag-burners.

He was sympathetic to a Communist (Alger Hiss) but that was because he didn't think Hiss *was* a Communist. He wasn't a fan of those he *knew* to be Communists.

*now known as the left

[Rev. Arthur L. Kirkland]

The world is passing you by, Cal Cetin.

And all you got was a fucking fairy tale to cling to.

[bernard11]

Also through much of the Cold War, you could find recent veterans in lots of places you don't now.

True. But one reason you haven't is that we haven't had a nationwide mobilization approaching that of WWII. That is, as they say, a good thing.

Another is that the last time we had a draft - Vietnam - it was so blatantly discriminatory, intentional or not, that relatively few middle to upper-middle to upper class individuals were drafted. So today's political leaders, top business execs, etc. did not, by and large, serve in that war.

Oh, and BTW, for all the "conservatives were flag-wavers" business, you may want to revisit the treatment Kerry got from the right in 2004. Utterly despicable.

[F.D. Wolf]

One day during my clerkship, Justice Stevens sat chatting with my co-clerks and me when somehow the conversation turned to Texas v. Johnson, the case upholding the constitutional right to burn the American flag in which Justice Stevens dissented.

"I suppose you all thought I was wrong in that case?" he half-asked and half-stated. He then paused for several seconds as his eyes darted around the room. My co-clerks and I nervously looked down and studied our hands. The clock ticked. No one said a word. He finally continued with a sigh, "I still think I was correct."

Justice Stevens' dissent in Texas v. Johnson is one of his most well-known opinions. It is usually hailed as the emotional decision of a loyal former soldier whose military experience changed him forever. Without any empirical data to back me up, I also believe it is likely true what Justice Stevens seemed to suspect in chambers that day, that his famous dissent enjoys surprisingly little support among his law clerks.

Sonja R. West, "The Least Popular Dissent", SCOTUSblog (May 4, 2010).

You may not have been surprised by Stevens' dissent, but the fact remains that many were, and, decades later, many leftists were still bemoaning the "betrayal". See, e.g., Wendy Kaminer, "When Justice Stevens Failed the First Amendment", The Atlantic (online) (April 24, 2010).

[Cal Cetín]

" It is usually hailed as the emotional decision of a loyal former soldier"

He's emotional, but we're passionate.

[Dan Schiavetta]

Or . . . Stevens was simply taking his usual position, that the First Amendment protects point of view, not every possible way to express it. As he put it in the FCC (Carlin monologue) decision, ideas are protected, but there is no idea that can't be expressed in a non-obscene form.

[F.D. Wolf]

His choice of language in the opinion is not exactly detached or clinical. He is obviously passionate and emotional about the topic and uses much rhetorical flourish. I say that neither as praise nor criticism, but just as an observation.

[Dan Schiavetta]

That is true. I agree with Sonja West in that the passion of his dissent it was the result of having fought in World War II. Like Byron White, who also dissented, he had served as an intelligence officer in the Pacific Theater. Though other WWII veterans lined up on the other side of that decision.

[Dan Schiavetta]

Stevens was a moderate Republican from beginning to end. He did not change much but the Court around him sure did.

[Dan Schiavetta]

E.g.,

"This Court has changed significantly . . . No Member of the Court that I joined in 1975 would have agreed with today's decision." Parents Involved in Seattle Schools v. Seattle School District No. 1, 551 U.S. 701, 803 (2007) (Stevens, J.) (dissenting from decision striking down school assignment policy designed to effect desegregation).

[Frank Drackman]

probably Robert's best Opinion, too bad it was 15 years ago.

[DaivdBehar]

Great comment, bruh. You are so well spoken, so clean, in the words of Biden.

[Mr. Bumble]

...and you happily ate them.

[Frank Drackman]

I take shits that exceed your life in accomplishment, (But probably not Odor, I'll give you that one, you (redacted) win!

[Kleppe]

It is telling that you chose highlights from before his time on SCOTUS to remember him by.

[F.D. Wolf]

That is not accurate. Kennedy served in the National Guard, Alito served in the Army Reserves, and Breyer served in the Army and Army Reserves.

[Cal Cetín]

"The last SCOTUS Justice to serve in the military, serving in the Pacific theater. Also did not go to an Ivy League school for law school, attended Northwestern on the GI Bill."

No wonder he said the government could punish flag-burners! (he was in dissent, by the way, he got overruled by Ivy League non-veterans)

"The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for - and our history demonstrates that they are - it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."

https://caselaw.findlaw.com/us-supreme-court/491/397.html

[Rev. Arthur L. Kirkland]

For the bigots this white, male blog attracts as fans, former Justice Stevens and his views were far too modern, tolerant, reasoned, inclusive, and reality-based.

Carry on, clingers.

[DaivdBehar]

Great comment, bruh. Did you make it out of Baltimore yet? I am worried about you, Queenie. They don't play, in that town.

[DaivdBehar]

Good one, bruh. You are so well spoken, so clean, Queenie.

[Mr. Bumble]

Can't get away from the grade school shit can you?

Don't bother to reply, gotta go slop the hogs.

[DaivdBehar]

Rev. Love the legal analysis. I can tell you attended a solid Top Tier law school. Preciate you, dude.

[Cal Cetín]

Locking up flag-burners certainly sounds reality-based to me.

[Area Man]

Came here to point this out. Perhaps she meant in actual combat?

[DaivdBehar]

Where did you grow up, Queenie?

[Cal Cetín]

at least overruled by non-combat-veterans

[DaivdBehar]

Queenie is just the bestest at playing the dozens. His mother is so fat, she does not need a diet. She needs a triet. Best played in Ebonics.

[DaivdBehar]

100% the fault of the scumbag lawyer profession. The Supreme Court took over psychiatry and knew shit about it. Now we are paying the price here, and with all rampage murders. We are sick of this vile, toxic, dangerous profession. It must be crushed to save our nation.

https://nypost.com/2022/07/16/nascar-star-bobby-east-fatally-stabbed-at-california-gas-station/?lctg=607d90f2373dd11b6ec10b87

[DaivdBehar]

I pray, Queenie, a random lawyer client does not stab you for no reason as you are pumping gas.

[Rev. Arthur L. Kirkland]

That's your assessment of former Justice Stevens?

Do you wonder why modern America has rejected your opinions and positions?

Superstitious, disaffected Republicans are among my favorite culture war losers.

[DaivdBehar]

Excellent point, Queenie. Where were you raised? You got so much wisdom there.

[Cal Cetín]

"This may shock you, but some people are capable of admiring some things about a person while thinking the same person was also wrong about others!"

I thought this was speak-no-ill-of-the-dead day.

So I'll simply focus on his vote to allow the punishment of flag-burners, his vote against affirmative action in Bakke, and his vote to stop the Court's death-penalty moratorium.

And you can praise his other decisions.

[Cal Cetín]

Well, I also like his opinion against affirmative action in Bakke, and his vote to end the Court's moratorium on the death penalty.

If California in 2020 is anything to go by, it seems modern America agrees with Stevens in his opposition to affirmative action:

https://ballotpedia.org/California_Proposition_16,_Repeal_Proposition_209_Affirmative_Action_Amendment_(2020)

[Cal Cetín]

Of course, Steven eventually grew out of step with modern California and accepted affirmative action, but he left us a good opinion in Bakke.

[Cal Cetín]

"Your cult leader"

I'd love to see you doing a Rorshach (sp?) test.

"That's Donald Trump raping the Statue of Liberty."

"That's Donald Trump in a Nazi stormtrooper outfit."

"That's Trump taking a dump on the Constitution."

"Gosh, Queen, you sure seem obsessed with Donald Trump."

"*I'm* obsessed? *You're* the one showing me all these political cartoons."

[Cal Cetín]

You're against burning the sacred Hammer and Sickle flag.

[DaivdBehar]

Hi, Queenie. Great comment. The dozens are better played Ebo ics. Seriousle, Stevens killed thousands of diverses by Apprendi. Is that OK with you?

[DaivdBehar]

Hi, Queenie. Great comment. The dozens are better played Ebo ics. Seriousle, Stevens killed thousands of diverses by Apprendi. Is that OK with you?

[DaivdBehar]

Queenoe. I totally rely on you as my guide to woke. Is the word, diverse, racially insensitive? Is d-word preferred in nice circles?

[Cal Cetín]

Nor am I, but I believe you knew that.

My question to you is how you can be such a warmonger while making sure to protect trans soldiers from going to the wrong bathrooms on the front. How do you reconcile your warmongering with your cultural Marxism?

[Cal Cetín]

"Yeah, that’s why Cal often responds to himself two or three times. Because he’s totally *not* obsessed with stuff!"

Sometimes it's nice to have an intelligent conversation.

I was wondering why, *in 1989,* it was supposed to be paradoxical or right-wing for a liberal justice to be OK with punishing flag-burners. How did that attitude develop? In 1989, Trump was IIRC a New York Democrat, but I can't say for sure because I haven't been following his career with the meticulous attention you have.

[Cal Cetín]

I don't have shirtless Putin pics, and please don't give me yours, they would fill too much space, you've got so many.

[Cal Cetín]

I see - your bosses in Beijing want to push America into a war in order to weaken her. That should raise your social-credit score.

[Cal Cetín]

You're probably already hankering for that position they promised you as 3rd assistant commissar for sanitation in the occupation government they plan to establish in America. Wear your chains proudly.

[Cal Cetín]

Cool story.

[Cal Cetín]

I prefer the United States and the flag of the United States, so you and your Communist flag-burning cronies can go find a more congenial climate in China, Cuba or Venezuela.

[Cal Cetín]

That must be some powerful stuff your bosses in Beijing have sent you to smoke.

[Mr. Bumble]

Hmmm. So Trump humps flags and Biden humps (and sniffs the hair) of women and young girls.
Think I'll stick with the flag humper rather than the patriarch of the current first faimly.

[Cal Cetín]

You seem to know more about Russian policies (and drug laws!) than I do. You also seem to know a lot more about Putin's shirtless pictures.

Feel free to use your knowledge of Russia to good advantage and move there, and don't worry, they won't take you seriously about your supposed opposition to aggressive warfare, they will know your true nature and won't believe you were telling the truth.

[Cal Cetín]

Listen carefully, you lying fuck, just because you hate your own country doesn't mean you get to project that sentiment onto others.

You're the one who's into burning the American flag.

[Cal Cetín]

You lie like a dog, only dirtier and less loyal.

[Cal Cetín]

It's as if you professed to love your girlfriend yet beat her constantly.

You profess to love your country - and maybe you do, unless that country is America - which you clearly don't love because you want to ruin it with forever wars and economic ruination.

[Cal Cetín]

And that's the last I'll have to do with this blog and its truly charming denizens.

[Mr. Bumble]

Having a bad day? Some of your posts seem exceptionally angry.

[Mr. Bumble]

Live, Laugh, Love. November is coming.

[Rev. Arthur L. Kirkland]

"November is coming."

The last thing you should be excited about is the future in modern America, you bigoted, obsolete hayseed. Thank goodness guys like you have the memories of the '50s and the Civil War (as revised and "properly understood"), because the only thing guys you can look forward to is replacement.

[Mr. Bumble]

Kirkland (the Costco house brand ) is also angry today. What gives. Are you and the queen constipated?

[DaivdBehar]

This should have happened at 14, we would be one NASCAR driver ahead. He was kept alive by the scumbag lawyer profession to generate lawyer jobs.

https://nypost.com/2022/07/16/california-police-kill-man-wanted-in-nascars-bobby-easts-death/?lctg=607d90f2373dd11b6ec10b87

[DaivdBehar]

This is 100% the fault of this vile, toxic profession, a 1000 times more toxic than organized crime.

[bernard11]

CAl,

Honest question:

WTF is "cultural Marxism?"

It gets thrown out a fair amount here, as an accusation just short of murder, but what is it, and who, exactly is a "cultural Marxist," and why are their ideas so bad?

What are the ideas, and why are they "Marxist?"

(I'm not talking about Marxist economic beliefs, which are foolish, but rather about this strange animal that rightists love to attack).

[bernard11]

Cal,

There is no doubt in my mind that many Trump supporters are effectively cultists.

They simply cannot imagine that He could ever do anything wrong, or stupid, and have a ready (often nonsensical) defense for everything.

[DaivdBehar]

Frankie. What do you think about his Kelo opinion? It supports presumptive organ donation.

[Cal Cetín]

It's when America-hating, flag-burning pukes try to question the patriotism of other people.

Coming to this blog looking for civil discourse on the issues of the day is like fishing in a sewer.

[Sarcastr0]

Your lack of an answer is a pretty good answer!

[bernard11]

Well, leaving flag-burning aside, it seems to me that conservatives questions other people's patriotism a heck of a lot more than liberals do.

I mean, that 's what all that "real Americans' shit is about, isn't it?

So is the right advancing "cultural Marxism?" Seems strange.

[Michael P]

It's fair to question the patriotism of people who burn the flag, or say its founding was steeped in evil, or claim that it is permeated with systemic racism.

And it's fair to mock those people when they project their oikophobia onto other people.

[Cal Cetín]

The Volokh Conspiracy might be something resembling a legitimate blog if it closed its comments section altogether.

The thing is, the more I stay, the more I'm signaling that this sort behavior is OK.

[DaivdBehar]

I get as much from the Comments as from the blog. For example, a kind reader gave me a link to buy a t-shirt, No Live Matter. I Hate Y'all Equally. I bought it.

[Sarcastr0]

Yes, you didn't cover yourself in glory in this thread. Mostly empty insults and telling people how to be properly patriotic.

Just make rules for yourself limiting how many times you can reply in a particular thread. Keep your comments top-level, and you can avoid getting personal and/or pedantic.

I've been experimenting with that lately.

[bernard11]

What behavior, Cal?

Calling people cultists?

I don't know a better term for those who simply cannot admit that Trump could possibly do anything wrong - that he's a truth-teller, never cheated anyone (see Trump University), never stole money (see Trump Foundation), never ran businesses into the ground (see any number of bankruptcy cases) never stiffed creditors (see any number of instances), had nothing to do with the Jan. 6 insurrection, (see evidence), etc.

It is stunning behavior. If you have a different word, let's hear it.

[Cal Cetín]

I would suggest another rule - if you don't want me to exercise verbal self-defense against you, don't lie about me being some kind of Russian agent or Russia supporter.

If you begrudge anyone exercising the right of self defense, you're either a kindergarten teacher or Neville Chamberlain.

[Cal Cetín]

"But Tweedledee stole my nice new rattle!"

Or was it Tweedledum who stole Tweedledee's nice new rattle? It's hard to keep up with the intra-duopoly Punch-and-Judy show.