The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today in Supreme Court History: March 19, 1891
3/19/1891: Chief Justice Earl Warren's birthday.
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Austin v. New Hampshire, 420 U.S. 656 (decided March 19, 1975): New Hampshire commuter tax applicable only to out-of-state residents (Maine) violated Privileges & Immunities clause even though Maine gave its residents credit for it
Snyder v. Louisiana, 552 U.S. 472 (decided March 19, 2008): rejecting prosecutor's bogus reason for peremptory strike of black juror (nervous about effect of jury service on his college grades, but white jurors accepted despite more serious issues) (murder conviction and death sentence vacated and remanded for retrial)
Ohio v. Reiner, 532 U.S. 17 (decided March 19, 2001): contra Donald Trump ("if you're innocent, why are you taking the Fifth?"), and also the Ohio Supreme Court, upholds Fifth Amendment immunity granted to babysitter in trial of father for shaken-baby murder despite her claim of innocence (defense theory was that she was the true perpetrator and "it was reasonable for her to fear that answers to possible questions might tend to incriminate her")
Meghrig v. KFC Western, Inc., 516 U.S. 479 (decided March 19, 1996): Resource Conservation and Recovery Act does not provide private cause of action to recover cleanup costs where waste was not present danger to health or safety (statutory phrase is "may present imminent and substantial danger") (city had ordered KFC to clean up underground petroleum it found when digging up prior gas station; KFC tried to sue gas station owner)
Wayte v. United States, 470 U.S. 598 (decided March 19, 1984): "passive enforcement" of selective service registration law (i.e., prosecuting only those who admitted violation) did not violate First Amendment (defendant, like me, had been ordered to register for the draft in 1980, but unlike me, wrote a letter refusing)
Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (decided March 19, 1985): applies "clearly erroneous" standard to trial court's finding that plaintiff was denied city recreation director job due to her sex; upholds verdict in her favor (can credit just one witness above all others so long as testimony is plausible)
United States v. Gillock, 445 U.S. 360 (decided March 19, 1980): Speech or Debate privilege (art. I, §6, cl. 1) does not protect state legislators or state legislatures (here, state legislator prosecuted under RICO)
Lascaris v. Shirley, 420 U.S. 730 (decided March 19, 1975): striking New York law which added extra conditions to federal AFDC benefits (requiring that parent assist in compelling other parent to provide support)
United States v. General Dynamics Corp., 415 U.S. 486 (decided March 19, 1974): yes, deep shaft coal mining business which acquired strip-mining business would concentrate the coal business, but other factors would do that too; judgment for defendant affirmed; 5 - 4 decision, dissent by Douglas, https://www.youtube.com/watch?v=Q6Vgs66kRAo
Burns v. Fortson, 410 U.S. 686 (decided March 19, 1973): approves (just barely) Georgia's 50 day pre-election deadline for registering to vote (except for President and Vice-President), time is necessary to ensure accuracy of voter lists
On Gillock: The federal and state immunities for legislative acts did not apply to federal prosecution of state officials under RICO. Do legislators acting as such have absolute immunity under federal civil rights law? It's 2026. The DeSantis administration indicts all the Democrats in the legislature of Wokeistan for passing a law abridging some right recognized by the DeSantis DoJ. Does the court grant a motion to dismiss on the grounds of absolute immunity for legislative acts? (Other defenses, like "I didn't read the bill" or "I didn't know that right existed", might have to wait until trial.)
On Wayte: In the 1990s I knew a guy who was permanently disqualified from student loans because he hadn't registered. As far as I know he was never charged criminally.
I am not happy with the state of the law on selective prosecution. It should be more of a defense than it is.
What is the criminal penalty for not registering?
fine of up to $250,000 and jail time of up to five years.
Wow, find me an example of someone getting prosecuted for it.
Nobody gets prosecuted, because nobody really cares, because nobody even pretends we are going to start drafting "kids today" unless the pretender needs to mill up opposition to a politically popular military "adventure" that is strongly associated with the opposing party.
Actually love how few "Civilians" realize that serving in the Military is just as much Bullshit as going to college, Surfing or whatever Bullshit,
um OK just actually read your response,
You're right
My Bad
Actually, there was serious thought of it in the tail end of the obama regime.
Anderson contains some nice language I sometimes cite about the tendency of lawyers and judges to misuse the written findings of fact and conclusions of law process:
"We, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record. We are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor."
Although I was closely following the Court by then, I seem to have missed this one. I'm kinda shocked that as late as 2001 there were still courts that didn't understand that the 5th amendment protects the innocent as well as the guilty. There are cases decades older than that which make it clear that being guilty is not a prerequisite for asserting the 5th.
Now if I believed in Hell (being an Atlanta Falcons fan is bad enough) and thought I had a say in who'd be there, THIS is a guy who'd be there (with other really bad peoples, i.e. Hitler, Khomeni, Arafat, Sadam H, Ted Bundy, Barry Bonds)
Frank
Guess who dissented in Snyder?
Uncle Thomas, of course.
“Uncle Thomas”. Cute.
Yeah Uncle Remus is the preferred word.
You effeminate, racist little troll.
Uncle Thomas? Really, that appellation isn't racial at all, is it? Disappointing.
I get criticism of reasoning, or behavior. I don't get the race thing.
I guess SRG considers himself one of Rev. Costco's "betters".
Call him Rev. Sam's Club.
He's regularly called "Uncle Thomas" in the black press.
Is your claim really that a word or phrase that is commonly used by Black people cannot be an anti-Black racial slur?
...including "nigger" which is probably used more by blacks than all other races combined.
"He’s regularly called “Uncle Thomas” in the black press."
So? Is SRG black? Or a member of the "black press"?
White guy calling a black a race traitor is vile.
FYI, its a slur even when used by the "black press".
It's undoubtedly a slur. If it hadn't been, I wouldn't have said it. Is it a racial slur? That's possibly a matter of subjective definition. It is certainly an insult that could only be applied to a black man. But it is a slur applied not because of his blackness but in some sense despite it. Suggesting that someone is in effect a traitor to their class/caste/race/religion/nationality is not a slur of that class/caste/race/religion/nationality. It so happens - unfairly to the original Uncle Tom of the book - that there is a pithy name for a specifically black male traitor to his race, but that does not make it a slur of black males.
And you should in any event be more outraged by Thomas's dissents than my slurs.
You literally cannot use it about anyone but a black American male, so it's definitely a racial slur. Whether it's a *racist* slur requires some pretty fine chopping of logic and meaning and cultural significance all of which boils down to white people should probably refrain from using it unless they're talking about the book.
Hey capt., how does it feel to step on you dick?
Fun game: compare the contributions to this blog between captcrisis and Mr. Bumble.
Mayhaps. But like other racial (or other group) epithets, the fact that they’re used in-group should not be taken as a license for them to be used by outsiders.
I actually don’t even think black people policing black authenticity is cool., much less drafting off of that.
I don't think the use of that particular world has anything to do with 'authenticity?' It's a skirmish in the culture war that they have actually won, I say let 'em have it.
Because Clarence isn't just "Black" he's "BLACK", like no way he rubs in some Hydroquinone and does a "White Like Me" book, and he married a "White" Woman, and not just "White" but "WHITE" (Find me a Black Woman worth her Aunt Jemimah Pancakes who goes by "Ginny" which is short for "Virginia", which umm "1619" anyone??
To Bad Richard Milhouse didn't appoint Wilt Chamberlain to the Surpremes in 1970, could have gotten all this Racial Bullshit on the table 20 years early (can just hear Sam Ervin now "Sooo, you've had Sexual Congress, with How Many (White) Wimmin???!!!"
Probably would have been voted down, like Bork, and you know no way Wilt the Stilt would have voted against Bee-otches right to kill his unborn chill'in.
And unlike Ke-grungy Jackson Brown, My Man Clarence can tell a Twat from a Cock, nome sane??
Frank
Clarence Thomas made his bones as a black critic of affirmative action programs (notwithstanding his admission to Yale Law school as a beneficiary thereof). Then when it looked like his SCOTUS nomination was in trouble, he suddenly played hell out of the race card. Remember "a high tech lynching for uppity blacks"?
If the Senate had voted down his nomination, Judge Thomas would have retained life tenure on the U.S. Court of Appears, like Robert Bork and Clement Haynesworth before him -- nice work if you can get it. Thomas's cynical ploy trivialized the horror of actual lynching. He is a thoroughly loathsome human being.
The "loathsome" human beings in the Thomas hearings, were Joe Biden and Anita Hill among others.
I found Anita Hill more persuasive. I wish that the U.S. Attorney for D.C. had put the matter of who committed perjury to a grand jury to sort out, but the Bush administration could not have dared risk that.
“I found Anita Hill more persuasive”.
I’m gobsmacked.
Understandable point about perjury, though. This was a few years before we learned that perjury in DC was ok.
Justice Thomas should also have been prosecuted under 18 U.S.C. 1001 for filing serial false financial disclosures. The statute of limitations has unfortunately run.
more so than her "Corroborating Witnesses"??? who not only didn't "Corrobarate" her, "Judge" Kirschner's lucky she didn't end up with a Perjury Rap
No, not "notwithstanding." Because of. He felt that his degree was devalued precisely because of the not-unreasonable perception that he was an affirmative action beneficiary.
This is dumb ad hominem anyway. It's just a way to deflect from the criticism.
Come on, now. The man is the most prominent beneficiary of affirmative action in American history.
With only short time service as an assistant state attorney general, he was nominated to the D.C. Circuit Court of Appeals. After brief and undistinguished service there, he moved up to the Supreme Court. In each case, George H. W. Bush needed a House Negro -- Thomas was never considered for the Brennan vacancy.
Still, he seems to regard affirmative action as a really crappy idea for anyone whose first name is not Clarence or whose last name is not Thomas. Despicable.
Man, he’s both an Uncle Tom and a house negro.
It’s astounding the degree to which people who love to label people as racist are perfectly fine themselves being openly racist toward blacks who demonstrate wrongthink.
That house negro should have thought about that before he escaped the plantation, huh. And the guy actually got uppity enough to marry white woman.
Think he can swim?
You and SRG are racist pigs.
I don’t like Thomas as a justice but it’s because of his consistently pro government decisions. I’ve never thought of him as a race traitor or a house n____r.
<i<You and SRG are racist pigs.
Nah. I never said anything racist about blacks. I did say something offensive about Clarence Thomas, and I stand by it, because I find him despicable.
In my experience, though, there are some people who love the opportunity to call someone else a racist, for reasons about which we can only speculate.
And so you used a racial slur to criticize Justice Thomas. Yet you never said anything racist about blacks.
You’re a liar, and you’re not qualified to even wear Thomas’s underwear.
I did not use a racist slur about Thomas. I used a slur, which by its nature and intent was offensive - to Thomas, and, it seems, he's hypersensitive supporters.
But as I noted earlier, there are people who love the opportunity to accuse others of racism. Evidently you're one such.
One of my principal gripes with Justice Thomas is not that he is black, but that he is unprincipled. If he indeed abhors affirmative action, he should not have accepted the benefits of affirmative action.
My strongest objection is that he is an implacable enemy of individual liberties. I realize that it is simple to fling the epithet, racist, at anyone who refuses to genuflect to Justice Thomas, but that is disingenuous.
He felt that his degree was devalued precisely because of the not-unreasonable perception that he was an affirmative action beneficiary.
Why focus on affirmative action when legacy admissions are also a thing? Legacy admissions also tend to give a boost to applicants that already have advantages due to wealth and/or having well-educated parents.
"...a study led by an economist at Duke University in North Carolina found that legacy applicants had an admit rate of about 34% across six consecutive admissions cycles at Harvard University in Massachusetts, compared with a roughly 6% overall admit rate for nonlegacy students."
Besides, in the Students for Fair Admissions v. President and Fellows of Harvard College, Harvard's brief points out that about 5 times the number of applicants have perfect 4.0 GPAs than there are spaces among the incoming freshman class. Those with perfect verbal and/or math SAT scores are also around double or more the number that will be admitted. If Harvard limited its admissions only to those with perfect transcripts and test scores, it still would have to find some other way to distinguish between students in that pool of applicants.
I think that both affirmative action or similar considerations as well as legacy admissions are not going to let in someone that couldn't hack it at top colleges and universities. They just get so many more applicants than they have space available that they can meet their diversity and legacy goals without having to lower the bar nearly as much as some people seem to think, or perhaps not at all. Maybe they are using race, gender, socio-economic status, or whatever else as a tie-breaker instead of flipping a coin.
I think that you're not looking at the actual data. Race is a thumb — and an index finger, and eight other fingers, and a torso — on the scale, not a "tie breaker."
I tried to be clear that I wasn’t making factual claims and was just offering my speculation. I couldn’t find any data on how much affirmative action or similar admissions policies affect who gets in. If you know where to find it, I’d be happy to know the facts.
But I still would be very surprised if it is a strong enough affect to mean someone that would struggle to pass and graduate would be admitted to a top tier school. As I was arguing, top colleges and universities, whether private or public, get so many more applicants than they have space to admit that they shouldn’t have to scrape the bottom of the barrel to meet diversity goals.
Now, someone there on an athletic scholarship, absolutely could need a lot of help to pass rigorous classes.
Which means he was right, my man Clarence, (find me any other Surpreme who had to answer questions about his Pubic Hairs) and like "Aunt Jemimah" that Racial "Trope" should be banished to the Dustbin of History, along with the Real Race-ist Fucks (RRF) that perpetuate "Tropes", see, if I mention that Barry Hussein O, used "Nigger" in his Auto-Erotic Biography, I'M , the bad guy, not Barry Hussein O, for using "Nigger" (as a 1/2 Nigger, he should have only used 1/2 the N-Word)
Frank
I noted yesterday that Clarence Thomas is anti-defendants' rights and goes out of his way to support the prosecution. You can summarise most of his dissents as follows, "the defendant is obviously guilty, and we must defer to the jury and judge".
It seems to me that as a Supreme Court justice, in this consistent rejection of defence appeals, underneath it all is his urge to tell people, "look, I am not like all these other black lawyers and judges who support or excuse black defendants specifically or criminals in general". I think that this attitude makes him fundamentally biased.
His appointment to SCOTUS would have been a source of pride amongst the black communities regardless of his being a conservative, but they saw through him.
...and now we have "can't tell what a woman is because I don't have a degree in biology" PB&J to advocate for criminals.
Ahh, progress.
I never watched her hearings, but somehow I doubt that is what she said. I think it more likely that she was just refusing to play the gotcha game that was the purpose of the question. (Congressional hearings are full of that kind of thing from all sides. Must get on TV with a viral moment!)
My comment paraphrases her response. Here is the video:
https://www.youtube.com/watch?v=BWtGzJxiONU
But Republicans have trouble defining "woman":
https://www.washingtonpost.com/lifestyle/2022/04/06/republican-woman-definitions/
'Sen. Josh Hawley (R-Mo.) was asked by a HuffPost reporter to define “woman,” and replied, “Someone who can give birth to a child, a mother, is a woman. Someone who has a uterus is a woman. It doesn’t seem that complicated to me.” When the reporter asked him whether a woman whose uterus was removed via hysterectomy was still a woman, he appeared uncertain: “Yeah. Well, I don’t know, would they?”'
Ketanji Brown Jackson might have been better off going through a lengthy explanation of how judges determine what words in statutes mean, but that might also have veered into an unfortunate discussion of things like originalism. Since she was confirmed, her answer was sufficient.
How Hawley answered was thorough and correct. The addition of whether a woman had a uterus that was later removed is a stupid straw man. He didn’t have any trouble with the definition at all.
Is the legal profession this screwed up that they think this is an argument for not being able to define a woman?
Those with XY androgen insensitivity syndrome will have a uterus. Are they women? Even assuming normal genetics and development, when does a girl become a woman? On her 18th birthday? When she starts menstruating, like in many societies centuries ago?
Like I said, you want this to be simple, but it is only simple if you ignore all of these questions and special cases. I think that is the point, of course. If you ignore all of the ways in which a simple definition of woman that you prefer might be insufficient or imprecise for those that you wouldn't dispute being female, then you can ignore the possibility that someone transgender could be a woman.
There was more to what she said than that. She said, "Not in this context, I'm not a biologist."
Really, the reason that is an appropriate answer is that there was insufficient context to give a definition. Is a 17 year old female a woman? How about those with 46,XY DSD: androgen insensitivity syndrome? (They have X and Y chromosomes, but their insensitivity to androgen meant that female genitals developed almost normally. They often don't discover this until puberty.) Yes, intersex conditions like that are fairly rare (about 1 in 15,000 individuals born with XY chromosomes, according to a Danish study several years ago), but if you want a definition, you need to specify the context and whether you want a definition that will apply universally or if 99.9% is good enough. The judge's later point, also in that video, is that her job is to settle disputes. If the dispute involves disagreement over a definition, then that will need to be argued by both sides and for the judge to decide then, not beforehand, what the functional definition should be.
All of this and from Sen. Blackburn's response, it is even more clear to me now that the senator wasn't after anything substantive. She simply wanted something that would play well on conservative media. The judge's well-reasoned response tried not to play along with what Blackburn wanted, but conservatives still got their moment that satisfies them, even if it did make them look even more foolish to people willing to look beyond what conservatives will quote.
Hey, no fair using nuance and actual science. 🙂
Um, well... Here's a USA Today article that includes the footage in question, and then leads with these smug-ish "Key Points":
Someone asked in the subsequent Thursday open tread how to define a woman. Lots of appeals to incredulity but no consensus was reached.
But sure keep your shallow bullshit. Better than calling her an affirmative action pick like some of the open racists on here do.
So I shouldn't say she's an "Affirmative action pick like some of the open racists on here do."
Umm, because she can't give an Opinion on telling a Dick from a Pussy (OK I get there can be some confusion when there's a Dick AND a Pussy, but she was like "I don't know what at Dick or Pussy looks like( Pretty Sure Clarence "Frog Man" Thomas knows what a Dick and Pussy looks like,
Frank
What, pray, is my "shallow bullshit"? JT20 questioned whether that's what she said. She did, and USA Today loved that she did and affirmed it to the hilt.
Crawling down my throat for making such an uncomplicated, narrow point almost leaves me with the impression you came here... well, loaded for bear. ROTFLMFAO.
Life of Brian,
I am happy to admit that I was overly skeptical about whether she used words to the effect of not having a degree in biology. But at the same time, I think my point is supported by the video of her response that it was a typical congressional hearing gotcha question trap that she was trying to avoid. See my reply above.
So, it is "shallow bullshit" to focus on her saying, "I'm not a biologist," and ignoring everything else she said.
I hear you, but I think she was doing more than just dancing away from danger. The USA Today article I linked went way beyond those specific words and pulled in the usual shadowy cadre of "experts" to suggest that not even biologists could provide a definition.
That in my view takes the issue far beyond the usual mealy-mouthed confirmation hearing answer: she ultimately was toeing the avant-garde line that nobody is able to objectively define "woman."
So though the biologist line is an eye-roller, I doubt you'll ever be seeing a definition from her lips/pen in any context. She's pot committed at this point.
But it’s ok to call Thomas an Uncle Tom?
Myself, I don't like seeing the epithet "Uncle Tom" used in that way.* The character in Uncle Tom's Cabin was not servile as this use of the word would make him seem. Instead, he was more of an example of the Christian ideal of nonresistance. In the end, he is beaten to death by the slave master for not revealing the location of women that had escaped slavery. He is a nonviolent martyr, not the "house negro" stereotype that the epithet makes him out to be.
*On the other hand, there was this one time a character in another story was called an Uncle Tom that was actually hilarious and almost fitting. See Buffy the Vampire Slayer, season 2, episode 3, "School Hard".
“Uncle Tom” as a racial stereotype, doesn’t come from the book, but from contemporary theatrical performances of the story, in which Tom’s character was a servile clown.
No. As posted an hour before your comment here.
Eh. I missed it. Busy day.
And I didn’t say what I believed you to think, thus the question.
In a sexually dimorphic species, the sex that produces the larger gametes.
Fine on a species level. On an individual level this becomes challenging.
No, it doesn’t become challenging. Something simple and logical is being made into something challenging for political reasons.
You can stamp your foot all you want but it’s not that easy. In sports, neurologically, genetically, and socially, egg producing won’t cut it.
Something simple and logical is being made into something challenging for political reasons.
It's simple to you because that's what you want it to be.
I would not dispute that the current Justice Jackson is an affirmative action pick. That is not a bad thing, and to point it out is not racist or sexist. Sandra Day O'Connor was an affirmative action selection by Ronald Reagan. In each case, a presidential candidate promised to nominate a justice from a demographic group not previously represented on the Supreme Court, and each did so at his earliest opportunity. The selection criteria were baked into the electoral cake. Justice O'Connor, despite her thin resume, turned out to be a widely respected justice (although I hope she burns in Hell for Bush v. Gore,)
Amy Coney Bear It's gender made her a more attractive candidate to succeed Ruth Bader Ginsburg. That was likely an affirmative action appointment. Again, her resume was thin, but she is not an unqualified buffoon like Clarence Thomas.
The whole thing seems very silly to me.
For Josh Hawley I would think the answer should be "someone with 2 X chromosomes"
And for Kentaji Brown Jackson in would think "someone who self-identifies as a woman"
That was kind of my answer. It’s contextual/functional.
Athletics will mean a different answer than common parlance is different than political gotcha is different from medicine is different from discrimination law yada yada.
"Experts say", huh?
Experts say a lot of really dumb shit, especially when they are called to defend leftist fictions.
You talk like an expert.
Some people might have read your first comment without thinking you’re a racist piece of trash. Thanks for removing the ambiguity.
I may be decorum poisoned, but seems to me this may feel good but it doesn’t help.
Tomas sucks but not like this.
And you know the sad thing? I saw you leave this and was about to tell you I appreciated you speaking up, but then you had to get all shitty in the other thread not 3 minutes later.
Oh, what the hell. I still appreciate you speaking up here.
While the criticism is merited, it doesn't quite ring true coming from people who think black Americans are all on the 'Democrat plantation.'