Today in Supreme Court History: January 19, 1990

1/19/1990: Justice Arthur Goldberg dies.

Justice Arthur Goldberg

Comments

[Dan Schiavetta]

Patsone v. Pennsylvania, 232 U.S. 138 (decided January 19, 1914): upholds statute prohibiting foreign born non-citizens from killing wild game except in defense of person or property (this case has never been overruled)

NASA v. Nelson, 562 U.S. 134 (decided January 19, 2011): upholding NASA regulation requiring even long-term employees to submit to background checks and answer questions about illegal drug use ("if there is a right to private information, it is not violated here")

United States v. Mueller, 113 U.S. 153 (decided January 19, 1885): builder of new customs house in Chicago entitled to delay costs incurred due to government dithering as to building design

Oyama v. California, 332 U.S. 633 (decided January 19, 1948): leaves in place California statute which in effect prohibited those of Japanese ancestry from owning land, with the result that a father's gift to his son was invalidated and the land went to the state (majority opinion relies on father's failure to make some formal filings, but c'mon . . . )

Presley v. Georgia, 558 U.S. 209 (decided January 19, 2010): Sixth Amendment right to public trial includes access to voir dire of prospective jurors

[John F. Carr]

Oyama v. California discusses a gift from father to son. The father paid for real property but his son’s name was on the deed. The father, being a Japanese alien not eligible for naturalization, could not own the land himself. The son could own property. There is a general rule that purchases for children paid for by parents are gifts allowed so long as the child is eligible to take possession. California law said land purchases by children paid for by their Japanese parents were presumed to be straw purchases punishable by forfeiture. They were void ab initio rather than voidable subject to a statute of limitations. The Supreme Court majority said the presumption was unconstitutional as applied to the case at hand: “We agree with petitioners’ first contention, that the Alien Land Law, as applied in this case, deprives Fred Oyama of the equal protection of California’s laws and of his privileges as an American citizen. In our view of the case, the State has discriminated against Fred Oyama; the discrimination is based solely on his parents’ country of origin; and there is absent the compelling justification which would be needed to sustain discrimination of that nature.”

[Dilan Esper]

Importantly, even though SCOTUS pulled its punches in Oyama, Roger Traynor and the California Supreme Court relied on Oyama in striking down the Alien Land Law in Sei Fuji v. State in 1952. So Oyama eventually did result in the right thing being done.

[Dan Schiavetta]

dicta = maybe somebody can use this stuff someday

[John F. Carr]

I know somebody who worked for a space contractor and didn't like the intrusive questioning upheld by NASA v. Nelson. It was like applying for a security clearance. Tell us about your sex life. Been sleeping with anybody or anything that would be embarrassing?

[Dan Schiavetta]

I know the questions are intrusive, and some unnecessary, but shouldn’t people working in sensitive agencies like NASA all have security clearances?

[Dilan Esper]

And I would think it's pretty standard to ask questions about who a person is banging. Sex is, even now, a pretty significant component of spying (we've seen scandals even over the last 20 years involving good looking Russian and Chinese female spies). A person conducting clandestine affairs behind their spouse's back might also be a blackmail target.

[apedad]

The OPM SF-85 form that was in the Nelson case does not ask about who's sleeping with who (whom?).

https://www.opm.gov/forms/pdf_fill/sf85.pdf

[John F. Carr]

There were interviews too.

I have twice been interviewed about people looking for security clearances.

In one case it became clear why the woman had come out about mental health issues a few months earlier. Minor mental problems must have been like being gay was in those days: not disqualifying on its own, but big trouble if you are trying to keep it secret.

The other time I was awakened from sleep by a phone call from a federal investigator with a scary title and half awake I tried to think of what I had done wrong.

[John F. Carr]

Patsone v. Pennsylvania reverses the modern popular dialogue on the Second Amendment. Aliens were prohibited from hunting and also from possessing shotguns or rifles, considered to be hunting weapons only. "...it hardly can be disputed that if the lawful object, the protection of wild life, warrants the discrimination, the means adopted for making it effective also might be adopted. The possession of rifles and shotguns is not necessary for other purposes not within the statute. It is so peculiarly appropriated to the forbidden use that if such a use may be denied to this class, the possession of the instruments desired chiefly for that end also may be. The prohibition does not extend to weapons such as pistols that may be supposed to be needed occasionally for self-defense."

Was there any overlap between this court and the court in Miller two decades later?

[Syd Henderson]

I really hope Oyama was promptly overturned by the Warren court. Sheesh.

[apedad]

"In part relying on the Oyama decision, the California Supreme Court found the Alien Land Laws unconstitutional in Sei Fujii v. California, 38 Cal.2d 718, 242 P.2d 617 (1952), and California finally repealed them in 1956." (wiki)

So not the SC.

[Dan Schiavetta]

I'm glad to hear that. Thanks!

[Hugo S. Cunningham]

Justice Goldberg wrote a thoughtful concurrence to " Griswold v Connecticut," explaining the importance of the Ninth Amendment to all sorts of marital and child-rearing rights that Americans took for granted. Justice Goldberg's reasoning stands up better that the easily parodied "emanations of penumbras" in Justice Douglas's opinion.

[Dan Schiavetta]

The problem is that leaving it up to the states allowed them to regulate sex, family and childrearing in a way that most people today would consider unacceptable. Making them federally protected proved to be the better course.

[Ed Grinberg]

Making them federally protected proved to be the better course.

Not for the unborn!

[Dan Schiavetta]

That depends on one’s construction of Fed. R. Civ. Pro. 19(b).

[The Margrave of Azilia]

As long as contraception was a right "retained by the people" - that is, existing and acknowledged as a right at time the Constitution and Bill of Rights were adopted.

Or does "retained by the people" have some other interpretation?

[Dan Schiavetta]

A woman is "retaining" the fetus in her body so I suppose she has the right to do with it what she wants.

(just a guess -- we're living in Alito-land now)

[The Margrave of Azilia]

Cute, and remarks like this are part of the reason nobody takes the 9th Amendment seriously.

[Alpheus W Drinkwater]

I don't really see why "retained by the people" would mean that any more than similar originalist claims for any other text in the constitution. It's the exact same argument, isn't it?

[The Margrave of Azilia]

You don’t have to buy the whole originalist package to suggest that certain terms incorporate past practice by reference.

Can the term “ex post facto law” evolve to fit modern conditions, so legislatures can extend sentences imposed by allegedly soft-on-crime judges? (Actually yes, it seems)

Can the term “cases at common law” evolve to fit modern conditions in order to deny jury trials to alleged fugitive slaves? (actually yes, it seems)

Can the phrase “rights…retained by the people” evolve to fit modern conditions, so that the government can trample on traditional rights when convenient? (actually yes, it seems)

[Krayt]

I have no problem expanding rights maintained by the people. That's in keeping with rights inherent to people. This decreases government power by restricting what it can control.

I do have a problem with government weasels deciding times have changed, and therefore government gets to control more things, not less, sans amendment. That's the exact opposite. This is the powerful expanding their power, at their whim.

[The Margrave of Azilia]

The amendment is like this:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

It doesn't say "maintained" but "retained."

And I don't see how it can turn into a one-way ratchet to expand rights but not contract rights. In fact, looking to history, we see that 9th Amendment rights have contracted not expanded, as one might expect when the government believes it's only constrained by vague and malleable language.