Today in Supreme Court History: August 28, 1958

8/28/1958: Cooper v. Aaron is argued.

Comments

[DaivdBehar]

De jure discrimination was illegal and enforced by men with guns. Lynch mobs with guns were immunized by the lawyer prosecutors. The lawyer court tried to end discrimination more men with guns stopped feweren with guns from blocking the order.

Conclusion. Get a gun to get things done. That is the active ingredieent, not the words.

[apedad]

So society’s laws no longer apply and each person gets to create their own law, be the prosecutor, judge, and jury, and if needed executioner.

Why are you on a law blog?

[DaivdBehar]

I support the rule of law as a replacement for perpetual violence and as a key requirement for civilization.

It is the lawyer who cannot read the plain language of the constitution, who uses men with guns to enforce feelings, biases, whims, and his own idiocy. If you do not like the constitution, amend.

To our credit other advanced primates are 10 times violent. They still live in trees without air cinditioning.

[DaivdBehar]

What was hard to inderstand about the 2 words, equal and persons? The trouble the lawyer had with them caused a lot of drama amd trauma. We need to get rid of this scumbag profession, and to start over.

[DaivdBehar]

The scumbag Supreme Court used the supernatural power of mind reading to get around those 2 words. They read the minds of dead people. That is really supernatural. Supernatural doctrines violate the Establishment Clause. The word, meant, violates the Establishment Clause unless referring to a dictionary. Vile, lawless scumbags brought destruction to our land.

[DaivdBehar]

Eugene, First Amendment expert, is totally in denial. Every year, he infects intelligent, ethical young people with the psychotic delusions of this sick profession.

[DaivdBehar]

LGBT's use swatting against political opponent.

https://ijr.com/person-angry-greenes-stance-transgenderism-sparked-swatting-incident/

[DaivdBehar]

The trans community is attacking its groomer opponents with men with guns.

[Bob from Ohio]

"Why are you on a law blog?"

Because it has lawyers on it of course.

He's only restating Mao's dictum about power anyway.

[Dan Schiavetta]

Willhauck v. Flanagan, 448 U.S. 1323 (decided August 28, 1980): Brennan denies stay of prosecutions by two D.A.'s arising from high speed car chase through adjacent counties; defendant had argued violation of Double Jeopardy clause and Brennan suggests that there is a double jeopardy exception for Younger abstentions, but jeopardy would not "attach" until jury was sworn in (I always thought that phrase was pretty meaningless; to say "jeopardy attaches when the jury is sworn in" means exactly nothing -- defendant can always be retried if there's a hung jury or a mistrial) (defendant eventually got one prosecution dismissed on double jeoparty grounds, but look how long it took (see 953 F.2d 689 (1st Cir. 1991))

Dayton Board of Education v. Brinkman, 439 U.S. 1357 (decided August 28, 1978): Stewart denies stay in desegregation case because to grant it would disrupt current plan (as opposed to case from two weeks ago, where Rehnquist's granting of stay preserved current plan)

Penry v. Texas, 515 U.S. 1304 (decided August 28, 1995): Rehnquist puts his foot down and denies 59-day extension of time to file cert petition; extensions in earlier cases were "when I was a new Circuit Justice" and complexity of case cannot be a reason for extension because counsel's own Circuit Court brief ran 375 pages with 132 points of error and he must now have "considerable familiarity with the record"

[John F. Carr]

After a trip to the Supreme Judical Court of Massachusetts, Willhauck won his double jeopardy claim in 1981. The next ten years were spent in civil litigation.

I read an article about a pair of law enforcement officers from neighboring jurisdictions who worked as a team so they only had to pull over half as many drivers. They set up a speed trap at the edge of town. They would pull over a car after it crossed the city line. The county officer would write a ticket for exceeding the county's speed limit and the city officer would write a ticket for exceeding the city's speed limit.

The MDC officers mentioned in the First Circuit case belonged to a state park agency. The agency was later merged into another state agency and the police force was merged into the State Police. I got hassled by a real state trooper and an ex-MDC horse cop. The state trooper was standing by quietly to keep the peace while the MDC horse cop was angry because even though I wasn't breaking any law he did not approve of what I was doing. (I was using a laser gun to measure traffic speed.) One professional, one useless consumer of public money.

[F.D. Wolf]

As a learned practitioner, you know, of course, if not for the rule that jeopardy attached once the jury was empaneled and sworn, a prosecutor who thought his case was going poorly, could conceivably dismiss it and try again. It naturally follows from that that a defendant cannot be retried after a mistrial caused by prosecutorial misconduct.

The federal and state courts were split on the issue until the Supreme Court adopted the rule by a 5-4 vote in Downum v. United States, 372 U.S. 734 (1963). In that case, after the jury had been empaneled but before opening statements, the prosecutor, advising the court that a key witness was not present, asked the court to discharge the jury. The court did so over the defendants' objections. Two days later, trial began with a different jury with a different jury. The Supreme Court, reversing the court of appeals, held this violated Double Jeopardy.

Per FastCase, Downum has been cited 789 times, so the issue does arise. In Bretz v. Crist, 546 F.2d 1336 (9th Cir. 1976), for example, the defendants were charged by a nine-count information in Montana state court. Before jury selection was complete, the court dismissed on of the counts. After the jury was empaneled, the court granted the defense motion to dismiss another count, which, due to a typographical error, had alleged the conduct had occurred on dates after the statute in question had been repealed. The state moved for leave to correct the information, which the court denied. After the state supreme court denied the state's appeal on the issue, the state moved to dismiss the entire information so it could file a new, corrected information. The court granted the motion, the state filed a new two-count information, and a trial began with a new jury. The Ninth Circuit held the "second prosecution", as it were, constituted double jeopardy.

[F.D. Wolf]

Sixty years after Downum, prosecutors still screw up.

In a case from five months ago, Ex parte Herrington, 643 S.W.3d 255 (Tex. App. 2022), the defendant was charged with DWI. After a jury was empaneled, the state realized its state trooper witness, who had been deployed to the border without its knowledge, was not present. The court sua sponte (on its own motion) declared a mistrial. The defendant was charged again with DWI and filed a <habeas corpus petition, alleging jeopardy had attached and any further prosecution was barred. The court of appeals agreed with the defendant and granted his petition.

[Mr. Bumble]

For most (but not all) a sleepy Sunday morning.

[John F. Carr]

At dawn we slept, oblivious to the squadron of Behars launched off a carrier group just out of radar range.

[Mr. Bumble]

Funny. Brace for the attack.

[Syd Henderson]

From Wikipedia: "In a joint opinion authored by all nine Justices (the only instance of that occurring on record), but primarily drafted by Justice Brennan,[10] the Court noted that the school board had acted in good faith, asserting that most of the problems stemmed from the official opposition of the Arkansas state government to racial integration.[11] Nonetheless, it was constitutionally impermissible under the Equal Protection Clause to maintain law and order by depriving the black students of their equal rights under the law."

If it's not only unanimous but co-authored by all nine justices, that really sends a clear message. Orval Faubus and the state legislature get their asses handed to them. Again.

[David Nieporent]

Josh still hasn't gotten over it.

[The Margrave of Azilia]

I should have more fully quoted that passage, because right after the part I gave, it says:

"It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, 3 "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers" "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State. * * *" Ableman v. Booth, 21 How. 506, 524, 16 L. Ed. 169."

For those taking notes at home, Ableman v. Booth was where the courts of Wisconsin tried to liberate an abolitionist whose "crime" was helping a slave escape. Predictably enough, the Taney court overruled this (the Taney court, proslavery? Who would have thought!) and laid down a bunch of rhetoric about the supremacy of the federal judiciary (i. e., of the Supreme Court).

Proslavery or pro-equality, it makes no difference, there's no distinction between Supreme Court decisions in the mind of the justices in Cooper v. Aaron. All must be not only obeyed, but internalized as the true meaning of the Constitution.

So before 1954, the country had to internalized Plessy v. Ferguson as the true and only interpretation of the Constitution, until in 1954 the Court graciously gave the Constitution permission to mean something else.

[The Margrave of Azilia]

If a court order meets with resistance, the answer isn't to delay the order but to call on the President for enforcement assistance, which in this case the President gave.

These are fairly elementary propositions, but because the dealt with Jim Crow the Court felt at liberty to throw in some dicta which in the context no right-minded person would dare to question:

Marbury v. Madison, said the Court, "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system."

No mention of Dred Scott, or for that matter of the Plessy decision, or any other situation where the Supreme Court was the bad guy. No mention of the inconvenient truth that there would be no Fourteenth Amendment to enforce in the first place if the country had accepted Roger Taney's Supreme Court as "supreme in the exposition of the law of the Constitution."