Today in Supreme Court History: January 7, 1972

1/7/1972: Justices Lewis F. Powell and William H. Rehnquist take oaths.

The Burger Court (1972-1975)

 

Comments

[Dan Schiavetta]

Marsh v. Alabama, 326 U.S. 501 (decided January 7, 1946): Alabama statute requiring people to leave private property when asked violates First Amendment (and Fourteenth Amendment) when property is open to the public (this was a Jehovan's Witness on the sidewalk of a "company town")

Tucker v. Texas, 326 U.S. 517 (decided January 7, 1946): companion case to the above, another Jehovah's Witness, this time booted from a government-owned housing area (a clearer case of 1A/14A violation, if you ask me)

City of Escondido v. Emmons, 586 U.S. --- (decided January 7, 2019): in this handcuffed-by-police §1983 claim, the Circuit Court's brief statement that "excessive force" is "clearly established" was inadequate to support its conclusion that there was no qualified immunity; remanded for correct inquiry which is whether officer's conduct violated clearly established statutory or Constitutional rights

Wright v. Van Patten, 552 U.S. 120 (decided January 7, 2008): right to counsel not violated when attorney appeared at plea hearing via speaker phone (which is actually more effective than personal appearance or Zoom, if your position is very weak: you don’t have to strain to keep a straight face, just make sure there’s no giggle in your voice)

Susquehanna Boom Co. v. West Branch Boom Co., 110 U.S. 57 (decided January 7, 1884): battle of the booms (to control timber floating downriver; they interfered with each other); federal court jurisdiction cannot be created by federal issue concocted after state court appellate process is exhaused (the belated argument was that Pennsylvania's grant to the second boom company interfered with the contract of the first, in violation of art. I, §10)

[John F. Carr]

Marsh v. Alabama seems out of step with other First Amendment law cases, but consistent with California's rule requiring strip mall owners to allow non-customers to accost customers in the parking lot.

[Dan Schiavetta]

Yes. The California Constitution provides broader protection for free speech. (E.g., the Pruneyard case; as a law review editor I proofread and cite-checked an article on it; it was written by a law professor and a student who wanted to curb protests in front of abortion clinics.)

[Gandydancer]

So, is Twitter/Facebook/etc. “open to the public”?

And to get qualified immunity the person getting it must be acting within the scope of his authority, making excessive force a punishment without due process, thus violating the Fifth and Fourteenth Amendments… no? How did the Court tapdance around this? (Yes, I could read the opinion… just asking for a hot take if available.)

Re: Susquehanna Boom Co. v. West Branch Boom Co. To be a bit clearer: “Law impairing the Obligation of Contracts” claim needed to be raised in State court first to be preserved.
https://supreme.justia.com/cases/federal/us/110/57/https://constitution.congress.gov/browse/article-1/section-10/

[Frank Drackman]

So which one's the Black guy??

[Gandydancer]

Serious?
Thurgood "Death Penalty is Unconstitutional" Marshall.
One of the worst.

[David Nieporent]

We know why you think that, and it wasn't because of his capital punishment jurisprudence.

[F.D. Wolf]

On the rare occurrence that two Justices join the Court on the same day, seniority is determined by age. This occurred on January 7, 1972, when Lewis F. Powell, Jr., and William H. Rehnquist were sworn-in during a special sitting of the Court. Although Rehnquist had taken his Constitutional Oath prior to Powell, Chief Justice Burger administered the Judicial Oath to Powell (age 64) before Rehnquist (age 47).

https://www.supremecourt.gov/about/oath/supremecourtoathsfirstsandtrivia06-30-2022.pdf

[Frank Drackman]

And Rehnquist serves for 30+ years until cashing in the Big Casino,
Powell's out in 15 years and replaced by Tony Kennedy, man, what a waste of an appointment, just goes to show, when peoples talk about how shrewd and clever Tricky Milhouse was, he really wasn't that shrewd and clever. Oh, except for ending the Vietnam War (don't mind how it turned out), LBJ or Hubert Horratio been erected, we'd still be bombing Hanoi,

Frank " DemoKKKrats are unhealthy for Children and other living thangs"