Today in Supreme Court History: April 28, 2015

4/28/2015: Obergefell v. Hodges argued.

Comments

[Dan Schiavetta]

Crawford v. Marion County Election Board, 553 U.S. 181 (decided April 28, 2008): Indiana law requiring photo ID to vote did not violate Equal Protection (6 - 3 decision)

Cummings v. Premier Rehab Keller, PLLC, 596 U.S. --- (decided April 28, 2022): emotional distress damages not available under Rehabilitation Act of 1973 or Affordable Care Act (physical therapist did not provide sign language interpreter for deaf and blind client)

Vieth v. Jubelirer, 541 U.S. 267 (decided April 28, 2004): no justiciable question presented by Pennsylvania Republicans' political gerrymandering, no matter how obvious (the Supreme Court of Pennsylvania seemed to disagree, striking down a subsequent map that "clearly, plainly and palpably" violated the Pennsylvania Constitution, 645 Pa. 1, 2018)

Edwards v. United States, 523 U.S. 511 (decided April 28, 1998): sentencing judge can permissibly find that defendants distributed crack (as well as cocaine), which the Sentencing Guidelines treat more harshly, even though crack charge was not before jury

Richards v. Wisconsin, 520 U.S. 385 (decided April 28, 1997): no-knock entry (with warrant) justified because police were aware defendants knew it was the police at the door (of a motel room) and waiting for response would give them chance to flush the cocaine

Meese v. Keene, 481 U.S. 465 (decided April 28, 1987): the term "political propaganda" as used in the Foreign Agents Registration Act ("intended to influence foreign policy") is content neutral and therefore no First Amendment impediment to registration and disclosure requirements for materials so designated by the Department of Justice (Canadian films that a California state senator wished to show, dealing with nuclear war and acid rain)

Costarelli v. Massachusetts, 421 U.S. 193 (decided April 28, 1975): In Massachusetts, trial for certain criminal offenses is without jury -- but if found guilty, can "appeal" and get a de novo jury trial in Superior Court. Does this system violate Sixth Amendment trial by jury? No jurisdiction to hear a direct appeal as to this; defendant must go through to Massachusetts's highest court (he never got that far -- perhaps he was acquitted?).

Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (decided April 28, 1975): reports given to Renegotiation Board (watchdog agency as to excessive defense contractor profits) are not "final opinions" disclosable under the Freedom of Information Act (Dick Cheney fought tooth and nail, mostly successfully, in resisting disclosure of documents as to his pre-9/11 Energy Task Force -- this holding was probably helpful to him)

Beauharnais v. Illinois, 343 U.S. 250 (decided April 28, 1952): upholding against First Amendment attack Illinois statute criminalizing materials "portraying lack of virtue in a class of citizens" (white supremacist handing out broadsheets accusing black people of rape, murder, etc.); if there can be criminal libel against individuals, there can be such against classes of people (this case, written by the Jewish Justice, Frankfurter, with recent memories of the Holocaust, has in effect been overrruled by later First Amendment jurisprudence, see discussion in Nuxoll v. Indian Prairie School District, 523 F.3d 668)

Zorach v. Clauson, 343 U.S. 306 (decided April 28, 1952): (no, this was not Zorach from "Space Ghost Coast to Coast", a great show) release time from public school to attend religious classes is Constitutional (we Catholic kids were let out an hour early for the bus, though with Catechism added in, we ended up getting home an hour later than everyone else)

[John F. Carr]

Massachusetts' two trial system was upheld by a 5-4 margin the following year in Ludwig v. Massachusetts, 427 U.S. 618 (1976). Ludwig's lawyer followed the proper procedure while Costarelli's lawyer followed what was determined to be the wrong procedure. The two trial system was replaced with a conventional single trial system in the 1990s.

[John F. Carr]

On gerrymandering, the Supreme Judicial Court of Massachusetts also says that districting is a political question despite the presence of clear rules in the state constitution.

[Dan Schiavetta]

Thanks as always!

[John F. Carr]

What we saw in Pennsylvania and North Carolina was a disagreement between an elected legislature and an independently elected Supreme Court of the opposite political leaning. Massachusetts judges are not elected.

[Dr. Ed 2]

"...release time from public school to attend religious classes is Constitutional (we Catholic kids were let out an hour early for the bus, though with Catechism added in, we ended up getting home an hour later than everyone else)"

I'm not sure that would be legal today -- is anyone still doing it?

My first concern would be things like the Federal NCLB and the related state laws mandating a minimum number of hours of instruction for each child -- and the obligation to provide that to (in this case) Catholic children.

Remember that 1952 was a decade before the decision to ban prayer in the public schools, when many schools required the homeroom teacher to start the day with a Biblical reading.

Second, Atheists would demand the same release time, and I don't see how you could refuse it.

[Dilan Esper]

Vieth v. Jubelirer, 541 U.S. 267 (decided April 28, 2004): no justiciable question presented by Pennsylvania Republicans’ political gerrymandering, no matter how obvious (the Supreme Court of Pennsylvania seemed to disagree, striking down a subsequent map that “clearly, plainly and palpably” violated the Pennsylvania Constitution, 645 Pa. 1, 2018)

Snark aside, the Constitution obviously permits political gerrymanders. The framers themselves gerrymandered and did not think they were outlawing the practice, and the only provision that comes close to regulating it is the Guarantee Clause which is in fact not justiciable (it calls on Congress to guarantee it, not the courts).

States can of course hold these things justiciable. Political gerrymandering isn't actually a serious problem, and the left didn't discover it was one until it started packing itself into cities and the electorate became polarized (the left filed briefs in support of gerrymanders in the 1990's). And even in a non-gerrymandered system, the minorities in legislative districts are often screwed and have no political power. But if states want to outlaw it, they certainly can.

[Bob from Ohio]

"left filed briefs in support of gerrymanders in the 1990’s"

The left also gerrymanders vigorously when they can. See Illinois and Mass. among others.

Its opposition is completely transactional.

[apedad]

Re: Beauharnais v. Illinois

Facts of the case

Joseph Beauharnais circulated leaflets petitioning Chicago government officials to halt the encroachment, harassment, and invasion of white people and call whites to unite against the violence perpetrated by African-Americans. He was convicted under a state law that prohibited libel against any class of citizens of a certain race, color, creed, or religion if it might cause unrest or a breach of the peace. The Illinois Supreme Court affirmed his conviction.

Question

Did Beuharnais' conviction under the Illinois statute violate his constitutional right to free speech under the First and Fourteenth Amendments?

Conclusion

In a 5-4 opinion authored by Justice Felix Frankfurter, the Court concluded that Beuharnais' speech amounted to libel and was therefore beyond constitutional protection. Citing the racial tensions of the day, the Court characterized Beuharnais' speech as provocative. The petition consisted of extreme racial and religious propaganda that was distributed to the public and was intended to have a strong emotional effect, so it properly fell within the ambit of the law and was not constitutionally protected.

In his dissent, Justice Black (joined by Justice Douglas) argued that individuals rather than the state should determine the scope of issues that are appropriate for public discussion.

Justices Reed and Jackson wrote separate dissenting opinions. (oyez)

The Supreme Court never overruled Beauharnais but effectively invalidated it in New York Times v. Sullivan (1964), R.A.V. v. St. Paul (1992), and other cases that declared hate speech, with
limited exceptions, to be constitutionally protected expression.

I tried to find a copy of the pamphlet to see exactly what it said.

If it was just blah blah Negros blah blah then that's protected by 1A.

But if it was specific to violence (the 1A exceptions), then obviously no.

[Frank Drackman]

Isn't "Truth" an absolute defense against Libel??
or "Defamation"?? or both? I-ANAL....
As mean as it is, can't I say "Hunter Biden is a Crack Addict who fucked his dead brother's wife" without committing Defamation?
or Libel? I-ANAL

Frank

[Dr. Ed 2]

WIDOW, not wife.

I'm no fan of the Biden Crime Family, but facts matter.

[Frank Drackman]

For some reason that makes it even creepier. I get it, she's hot, but he's Hunter Biden, he has to fuck his dead brothers Widow?? Too bad Tony Soprano's dead (and fictional) and can't beat him like Councilman Zellman for fucking his Goomar...

[Dr. Ed 2]

Isn't there a tradition in some culture (Jewish?) of marrying your brother's widow so as to provide for her and her children?

[SRG]

In Judaism it’s called a levirate marriage, but it’s only when there was no offspring from the previous marriage. The idea was that the first child of the levirate marriage would carry on the dead brother’s lineage. Hence there would never be kids to take care of.

The true sin of Onan – not the Christian revision – was failing to consummate a levirate marriage, and according to a Midrash, the reason was that the widow had a lovely figure and Onan didn’t want to spoil it by getting her pregnant.

[apedad]

And people actually believe in this bullshit . . . .

God: Noah, I want you to build an ark?

Noah (momentary pause): What's an ark?

[Mr. Bumble]

Channeling the old Bill Cosby routine?

[Bob from Ohio]

"And people actually believe in this bullshit . . . . "

People believe that a man with intact penis and testicles can be a woman. Noah's story is much more realistic.

[David Nieporent]

But if it was specific to violence (the 1A exceptions), then obviously no.

There's almost no chance a pamphlet is going to satisfy the Brandenburg test.

[Michael P]

Is https://www.trumanlibrary.gov/sites/default/files/styles/original/public/research_files/B20_01-15_04.jpg an accurate image of one of the leaflets? It came up in a DuckDuckGo image search, and I haven't figured out how to find it through the Truman Library's web site navigation, so I don't know what other files are part of the same collection. That broadsheet, while clearly racist, seems entirely too staid to support a group libel conviction.

[Dan Schiavetta]

It can be found elsewhere.

I agree. It’s no worse than what Trump said about about people coming across from Mexico. And he got elected. I wonder what Frankfurter would have thought about that.

[Frank Drackman]

"What Trump Said"?? you mean?

"When Mexico sends its people, they’re not sending their best. […] They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people”

What the fuck part of that isn't true?

Frank

[Frank Drackman]

OMG, it says Blacks (OK, "Negros") prefer Segregation!!! Shows how we've advanced, just find me any College campus with Dorms segregated by race!!!!!!!

[Frank Drackman]

Oh, Corn-hole, I mean Corn-nell, Yale, MIT, Columbia, UC Berkley, UCLA, Rutgers.....

[Syd Henderson]

Joseph Beauharnais later transitioned and married Napoleon XIV.

[Dan Schiavetta]

When researching the source of the pamphlet (described as a “lithograph”) I got diverted in that direction.

[Frank Drackman]

You know it! no telling how much the "Jews have huge cocks" "Trope" has cost me!

[apedad]

You could have said, ". . . big noses . . .," but I guess you gotta fulfil your day's penis fixation.

[Frank Drackman]

This chick said she wanted 10 inches and for it to hurt, so I fucked her twice and punched her in the mouth, OH!!!!!!!!!!!!!!!!!!!!
Hard to believe Andrew Dice Clay was once "Mainstream"

Frank

[Dr. Ed 2]

Hard to believe that people actually thought he was funny...

[Frank Drackman]

Little Boy Blue,
he needed the money!!
Whoa!!!!!!!!!!!!!!

[Frank Drackman]

My Pubic Screw-el in No-Fuck Vagina 1975 still had a daily morning prayer over the Intercom by Vice Principal Beamon (rhymed with .....) I don't think Principal Beamon really gave a shit about the Surpreme Court.

[Frank Drackman]

Damn right I am, gets how many hundreds of bullions of Somolians from the Chinks, You-Cranes, A-rabs?? Smokes crack in the White House, in the Navy, somehow doesn't get Court Martialed, and on top of it, fucks that hot slice of Poon-tang Hallie Biden, and then skips out on child support payments and hides out in the White House (smoking crack, no doubt)

Frank

[Dilan Esper]

Zorach is a prominent exhibit in the "William O. Douglas was a terrible Supreme Court justice and the left should stop idolizing him" file. "We are a religious people whose institutions presuppose a Supreme Being." is one of the most offensive and untrue things to make it into a SCOTUS opinion in the last century.

[Bob from Ohio]

" Nature's God" "endowed by their Creator" "appealing to the Supreme Judge of the world for the rectitude of our intentions" "firm reliance on the protection of Divine Providence"

Seems Jefferson, John Hancock, John Adams etc. would agree with Douglas.

[Bob from Ohio]

They oppose gerrymandering only when its the GOP doing it.

[Rev. Arthur L. Kirkland]

I am Reverend Arthur L.* Kirkland in the judgment of the Congregation Of Exalted Reason. Others are welcome to question that judgment, just as they are welcome to consider whether arguments rooted in adult-onset superstition deserve respect (should be accepted or advanced) in reasoned debate among competent adults.

* The L stands for libertarian.

[Rev. Arthur L. Kirkland]

You are welcome to wallow in childish superstition, mad_kalak, which is nonsense. People are entitled to believe as they wish, even in the delusion that fairy tales are true.

But competent adults neither accept nor advance nonsense-based arguments in reasoned debate.

[Bob from Ohio]

Not talking about courts, talking about the "left" as a movement.

Did it slip your notice of how the left cheered the recent Wisconsin S/C election because of its impact on redistricting?

[Dilan Esper]

The stronger point is when gerrymandering writ large favored the left (by keeping the House in Democratic hands) the left loved it. When the left started packing its coalition into cities, suddenly it became unconstitutional and outrageous.

[Dilan Esper]

Nope. We were a people who included some religious individuals. But there was no shared religion and Douglas was an idiot.

[Dilan Esper]

Jefferson was wrong too! But also, "Nature's God" is a reference to Deism and there were very few Deists in America when Douglas wrote his dumb words.

[Mr. Bumble]

Why does Drackmak seen to get your panties in a twist. Your up thread post were well reasoned, thought ful and on point and then Drackman shows up and you go off the rails.
I thought the general advice was "don't feed the trolls".

[Mr. Bumble]

Stuttering is dramatic effect? Your saying it's affected?

[Dilan Esper]

Nope, because people who believe in totally different things can't be lumped together, and there were always nonbelievers and they were part of "the people" too.

We were never a religious people.

[Dilan Esper]

Look at the briefs filed in Shaw v Reno or the 1980's gerrymandering cases.

[David Nieporent]

Come on, this is lying by omission. Shaw vs. Reno was not a political gerrymandering case; it was a racial gerrymandering case. Liberals were not defending gerrymandering for the purpose of preventing the other party from getting proportional representation; they were defending gerrymandering for the purpose of maximizing the number of black members of congress. You can argue that this was wrong, obviously. But it was not about "favoring the left."