Today in Supreme Court History: May 14, 1973

5/14/1973: Frontiero v. Richardson decided.

Comments

[Dan Schiavetta]

Frontiero v. Richardson, 411 U.S. 677 (decided May 14, 1973): gender is a “suspect class” so any discrimination subject to “strict scrutiny” (Air Force treated married males and married females differently in regard to housing and medical benefits)

Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504 (decided May 14, 2001): The Padres did not offer Steve Garvey a contract extension for 1988 and 1989. He demanded arbitration per the MLB agreement, alleging collusion with other teams (looking at his stats, he was already over the hill in 1986, and the Padres saved him from late-career humiliations like what Steve Carlton was going through at the time). The arbitrator ruled against him despite a self-incriminating letter written by Ballard Smith (Padres president), he appealed, and the Court of Appeals vacated the award as “industrial justice” and sent it back to arbitration. The Court holds that it is not the business of the courts to review an arbitration award on the merits, even when the arbitrator’s factfinding is “improvident and even silly”, and restores the award.

United States v. Cronic, 466 U.S. 648 (decided May 14, 1984): Young attorney, inexperienced in criminal matters, given only 25 days to prepare for complex $9.4 million mail fraud trial after four years of government investigation involving thousands of documents, and with some witnesses still not tracked down. This was not “ineffective assistance of counsel”.

McCoy v. Louisiana, 584 U.S. --- (decided May 14, 2018): Experienced attorney strategically decided to admit his client committed murders and pursue mental instability defense despite defendant’s repeated insistence that he didn’t do it. This was ineffective assistance of counsel.

Murphy v. NCAA, 584 U.S. --- (decided May 14, 2018): federal government has no power under the Constitution to regulate state sponsorship or operation of sports gambling (invalidating the Professional and Amateur Sports Protection Act)

Byrd v. United States, 584 U.S. --- (decided May 14, 2018): evidence of heroin found in rented car after warrantless search suppressed because driver who was not listed by renter as an authorized driver but who was driving with her permission was entitled to Fourth Amendment expectation of privacy

Dahda v. United States, 584 U.S. --- (decided May 14, 2018): District Court warrant that improperly authorized some wiretaps outside the District’s jurisdiction was still valid as to those within

United States v. Sanchez-Gomez, 584 U.S. --- (decided May 14, 2018): challenge to District Court policy permitting gratuitous use of full body restraints on defendants attending nonjury proceedings was not a “functional class action” and therefore dismissed as moot when challengers’ criminal cases were resolved

[SRG]

Re McCoy: you just know that Alito and Thomas dissent, on the general principle that guilt overrides the Constitution.

[The Margrave of Azilia]

A hearing on the case is scheduled for later this month.

It seems all the local judges recused themselves.

https://www.ktbs.com/news/caddo-judge-assigned-to-preside-over-bossier-triple-murder-retrial/article_4deb518a-d972-11ed-90e8-93073d06c4a8.html

[Dan Schiavetta]

Thanks! (They’re probably all golf buddies with that “experienced attorney”.)

[Bob from Ohio]

"He had the murder weapon with him. "

Seems like the lawyer was pretty good. Trying to save his miserable client's miserable life.

[Dr. Ed 2]

He was arrested with the murder weapon.

That doesn't mean that it wasn't planted, or that it was.

[Gandydancer]

Anything is possible, I suppose, but how did the Idaho police know ahead of time that they would encounter this particular Louisiana murder suspect so that they could, as a a matter of professional courtesy apparently, have the murder weapon on hand in order to plant it? Not saying that I know the details of the arrest, but that doesn't sound like the way to bet.

For convenience: https://supreme.justia.com/cases/federal/us/584/16-8255/

[Gandydancer]

Also https://www.ksla.com/story/8318517/robert-mccoy-back-in-bossier-parish/

[Bob from Ohio]

"In a 911 call played to the jury, Yolanda's mother, Christine Colston Young, could be heard screaming: "She ain't here, Robert! I don't know where she is. The detectives have her." A gunshot followed and the call ended."

"McCoy, whose car was seen being driven away from the scene of the murders, was arrested four days later in Idaho, where he had hitchhiked with truck drivers. He had the murder weapon with him. The victims' phone was found in the car that had been ditched shortly after the murders."

Harmless error I'd say.

So we have a trial where he will be sentenced to death again but get to start his appeal process and keep his miserable life longer. Yeah!

[SRG]

And another person who thinks that guilt overrides the Constitution

[Michael Ejercito]

I was told the Constitution was not absolute.

Were they wrong?

[Bob from Ohio]

"guilt overrides the Constitution"

Judge made rule of "effective counsel' was satisfied here. Only an idiot would argue innocence here.

Funny thing is when he goes up to appeal his next death sentence, appeals counsel will claim "ineffective" because trial counsel would be an idiot to argue innocence here.

[Dr. Ed 2]

There is an issue not being stated here -- should an attorney have the ability to (a) declare a client mentally ill and then (b) ignore the client's wishes for what the attorney considers best for the client.

Here "what is best for the client" (not being executed) is clear -- but it often isn't. And then there is the Gary Gilmore argument -- life in prison is more cruel than a speedy execution.

[SRG]

I am not arguing innocence. But it seems blindingly obvious that your right to counsel is rendered a nullity if your counsel ignores your wishes to the extent that counsel did in the first trial.

As far as "judge-made rule" is concerned - perhaps you should take Jurisprudence 101. Pretty much every interpretation of the Constitution leads to judge-made rule, and the great lie of textualism is claiming that they alone have an interpretation-free reading of the Constitution, when there is no such thing.

The Constitution doesn't specify that counsel has to be human, nor that, if they are, that they should have any legal qualifications. Yet I suspect that even you would concede that if Alabama, for example, had "lawyer dogs*" that as far as the state was concerned were able to act as counsel by barking at prosecution witnesses, that would not count as "counsel" for constitutional purposes. But that would require a judge-made rule, oh the horror!

* Roberts, in an instance of unusual dishonesty, once decided that when a defendant asked for "a lawyer, dog" it was not clear whether he'd asked for a lawyer, and "dog" was just slang like "bro"/"man", etc. or an actual lawyer dog. That lack of clarity allowed a confession to be admitted, IIRC.

[Gandydancer]

Why the fake quote? Roberts joined Ginsberg in agreeing that McCoy didn't get the assistance he was entitled to.

Oh, yeah, you're a Lefty shithead. I forgot.

[TwelveInchPianist]

"Roberts, in an instance of unusual dishonesty,"

That wasn't Roberts. It was the Louisiana Supreme Court.

Roberts, as Gandydancer points out above, joined the majority to overturn this conviction.

[Noscitur a sociis]

Roberts, in an instance of unusual dishonesty, once decided that when a defendant asked for “a lawyer, dog” it was not clear whether he’d asked for a lawyer, and “dog” was just slang like “bro”/”man”, etc. or an actual lawyer dog. That lack of clarity allowed a confession to be admitted, IIRC.

You of course do not recall correctly. But by all means, wouldn’t wan t to slow the takes long enough to check the facts!

[SRG]

I did indeed err, and my recollection, while confident - which is why I didn't check - was off. I would apologise for the error, but the only people who complained are cunts, so they can fuck right off.

[bevis the lumberjack]

Admitting guilt in order to pursue a weak “mental instability” defense in defiance of the clients wishes is not effective representation.

Guys like Bob and Ed seem to think that only the innocent are entitled to a fair trial without explaining how the hell we figure out who qualifies as guilty or innocent. Oh, wait, that’s right - these two constant critics of government incompetence (on which they are frequently right) believe that cops and courts are unique among government institutions in their absolute perfection.

Ed is willing to let the government shoot illegals in sight because you can always just tell by lookin’.

[Noscitur a sociis]

Admitting guilt in order to pursue a weak “mental instability” defense in defiance of the clients wishes is not effective representation.

There was, practically speaking, no way that this guy wasn’t going to be found responsible for the killings. Although a long shot, the defense his lawyer offered seems like the one that offered the best chance of improving results for the client (by not getting him sentenced to death), whereas the defense he wanted to run was all but guaranteed to lead to that result. Figuring out the best of a lot of bad options is kind of what we want lawyers to do.

Anecdotally, I’ve never heard a prosecutor complain about this holding. (I mean, I assume the ones involved in this particular case aren’t thrilled but I don’t know them.) Rather, it’s criminal defense attorneys generally, and public defenders especially, who don’t like it—because they know that the upshot is a net negative for their clients,

[Gandydancer]

"Figuring out the best of a lot of bad options is kind of what we want lawyers to do."

Nobody is objecting to the lawyer figuring anything out. The objection is to his thinking he is the boss of his client.

[Noscitur a sociis]

There is (and, at the time of trial, was) literally zero doubt that a sane person could entertain as to the defendant's guilt. (I don't consider Dr. Ed a counter-example). The defendant wanted his lawyer to make the risible argument that he was framed by a trans-national conspiracy of law enforcement officers. The lawyer instead decided to admit the obvious truth that the defendant killed the victims, but argue that he had done so in a way that would not make him eligible for the death penalty. (Had he adhered to his client's wishes in this regard instead, the Supreme Court surely would have found that violated the sixth amendment.

Note that the special pleading the Supreme Court accepted for this guy results in a doctrine that will systematically disadvantage other criminal defendants.

[SRG]

a doctrine that will systematically disadvantage other criminal defendants.

What, that if a defendant insists on rejecting all of counsel's arguments, counsel has to go along with what the defendant wants? That is very much on the individual defendant, but does not systematically disadvantage defendants in general..

[Noscitur a sociis]

Incorrect—it means that defendants are less able to benefit from the advice of counsel, and accordingly are more likely to obtain worse results.

You can say that’s on them, if you want—but in that case, what’s the concern about this case?

See also my response to bevis the lumberjack above: defense practitioners get how it works.

[SRG]

You can say that’s on them, if you want—but in that case, what’s the concern about this case?

Because the defendant did not get the representation he strongly insisted upon.

[not guilty]

Is Frontiero v. Richardson on the current SCOTUS hit list? After all:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The Constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state, and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most states.

Bradwell v. The State, 83 U.S. 130, 141 (1872) (Bradley, J., concurring in judgment).

[Michael P]

Yes, they're going to overturn Frontiero v. Richardson in favor of 150-year-old cases just after they overturn Bostock, Obergefell, Windsor and Lawrence. *eyeroll*

[not guilty]

To paraphrase George Corley Wallace,

Misogyny now!
Misogyny tomorrow!!
Misogyny forever!!!

[Michael P]

Democrat sentiments don't really change over time, do they?

[Frank Drackman]

Does leaving a young woman to asphyxiate (Not drowned, there’s a difference) like a certain DemoKKKrat Senator from MA who’s name rhymes with Dead Kennedy qualify as “Misogyny”??? and George Corley Wallace (D) won re-erection in 1970/1974/1982 thanks to the Afro-Amurican vote (David Duke ran as a DemoKKKrat also)

Frank

[The Margrave of Azilia]

Justice Bradley’s concurring opinion is a nice campfire horror story – I’ve seen some accounts which attribute his three-person concurrence to the Court itself.

But with equal voting rights as between men and women (per the 19th Amendment), then politicians seeking their votes can pass laws for what they deem equal opportunity. This includes laws against *private* sex discrimination, and such laws are not (yet) required by the Supreme Court, so you can’t give the Court credit for such laws.

As to the “misogynistic” laws still on the books, there are not only women who oppose such laws but women who support them. For example, there are women who support abortion laws, and women who are fine with being exempt from draft registration.

The problem is that women who support the “misogynistic” laws (laws which exempt them from potential military service, for example) are not *real* women; they suffer from false consciousness, and they have to be saved from themelves by the judges.

[Dan Schiavetta]

A lot of women were opposed to getting the vote. And opposed to being given the right to own property. These were "masculine world" things they did not want any part of.

[The Margrave of Azilia]

The right to abortion, and the right to be conscripted into the army, are *just the same* as the right to vote!

[Dan Schiavetta]

Who knows? In 100 years our descendants might look on it as we are looking on the right to vote. That was my point.

[The Margrave of Azilia]

I think, pretty much by definition, that the prolifers are better positioned than the pro-abortionists to appeal to posterity.

In any event, the arc of history doesn't always mean getting better and better. It could include people becoming accustomed to evil over generations.

Vice is a monster of so frightful mien,
As, to be hated, needs but to be seen;
Yet seen too oft, familiar with her face,
We first endure, then pity, then embrace.

https://www.poetryfoundation.org/poems/44900/an-essay-on-man-epistle-ii

[Dr. Ed 2]

Well you need to understand that this wasn't always a secret ballot -- even today it isn't.

This was a time when most of the votes that mattered were cast in town meeting, by the husband and if is wife wasn't sitting next to him, enough of her friends would tell her how he voted. The most controversial issue on most town meeting ballots was to either retain or fire the municipal minister (yes, until about 1850, all of New England had a taxpayer-funded municipal church).

The women met after church and decided if they'd keep this minister or not, and their husbands voted the way they were told to, as they really didn't care much either way.

What they DID care about was the Minister's firewood allotment -- how much firewood they would provide him to heat both his own house and the church for the next year -- and how much they would have to cut, split, & cart to him for this purpose. That was a contentious issue, heavily debated....

[BravoCharlieDelta]

Today in Democrat History:

Democrats evict homeless vets from taxpayer-funded luxury hotels so they can house illegals while simultaneously accusing Republicans of hating vets.

[John F. Carr]

So what did we need the Equal Rights Amendment for?

[The Margrave of Azilia]

Social signaling and abortion.

[Dan Schiavetta]

At his confirmation hearing in 1975 Stevens said passage of the ERA would be just “symbolic”. I disagreed: women as a protected class was a judge made rule, and such rules can be un-made (as we saw with Dobbs).

[Mr. Bumble]

And just whom deserves to be a "protected class"?

[Dan Schiavetta]

That’s my point. Without positive law it’s up to the casuistry of the judge. I do think there has been improvement since 1975 with some of the legislation since.

It’s a mistake to think that supporting the ERA was virtue signaling. It was more the opposition that was engaged in that task. The GOP, which had supported it since 1940, went 180 degrees anti, in the space of a few years.

[The Margrave of Azilia]

*Today* it’s social signalling and abortion.

Back then, much of the opposition to the ERA was because it would invalidate protective labor laws for women. The Republicans supported the ERA because they were monocle-twirling country-club members who didn’t care about the plight of working women. Those progressives who opposed the ERA, did so because they wore the white hats and Deeply Cared about poor women who had to work and needed legal protections.

Then there was a social revolution, and Congress approved the ERA, and the Senate specifically rejected provisos to protect women from the draft, from unisex bathrooms, and the like. While the people themselves didn’t ratify the amendment, the Court came close to doing so, and that is the important thing.

The female draft (oops I mean draft registration) is coming with or without the ERA, so that would leave social signaling and abortion, like I said.

[Dan Schiavetta]

I don’t remember anyone pointing to “protective” labor laws. I do remember that the ERA would have required equal pay for equal work and a lot of people were genuinely opposed to that.

It was a long time ago. Some memories stick out more than others. My sharpest memory was eating in the college dining hall (this would have been the Spring of 1976) and a girl sat across from me at the next table. She had on a very tight T-shirt (inadvisably, given her endowments) and, in the style of those days, no bra. The shirt had on it the simple, 26-word text of the ERA. I’m trying to look or not look — she wants me to read what’s on the shirt, obviously. But I didn’t want to be caught looking at her chest. My eyes darted up a lot (to her shirt) and down a lot (to the rubbery mac and cheese).

P.S. Though I don’t remember the room being cold, it evidently was.

[Mr. Bumble]

Nice story, but tell me again why we need the ERA?
Fourteenth Amendment

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[Dan Schiavetta]

Originalists would point out — correctly — that the 14A was adopted to protect equal rights for blacks, not for women.

[Mr. Bumble]

Cut the crap. It may have been (was) it's unstated intent but that is not what it says and not how it has come to be applied.

[Dan Schiavetta]

You’re not an originalist then.

[Mr. Bumble]

You are?

[Dan Schiavetta]

No of course not.

No reason to get upset. I had in mind what Scalia said a few years ago. "If the current society wants to outlaw discrimination by sex, you have legislatures." Or the Constitutional amendment process.

[The Margrave of Azilia]

Highly interesting.

I recall reading a book by a pro-ERA male – I think it was Equal Rights, the Male Stake, by Leo Kanowitz (Albuquerque: University of New Mexico Press, 1981).

In any case, the argument was that men suffered from sexism and the ERA would address that problem. One alleged injustice was the fact that women on the Titanic got to board the lifeboats before the men.

"I had in mind what Scalia said a few years ago. “If the current society wants to outlaw discrimination by sex, you have legislatures.” Or the Constitutional amendment process."

RBG and others were winning sex-equality cases under the 14th Amendment at the same time the ERA was before the public. From the political standpoint, that seemed to convey the idea that the ERA was unnecesssary. I know about the different standards of review and how ERA would impose strict not intermediate scrutiny, etc., but look at it from the voters' point of view. Sex equality was winning in the courts without having to use the untested route of an ERA. This would tend to make the ERA seem a bit less "urgent."

I don't know the current status of "women and children first" policies, but otherwise the stuff the ERA was supposed to do has been done (or is about to be done), except social signalling and abortion. Ratifying the amendment would just be about those two issues.

[Dan Schiavetta]

You don't think Scalia's view would hold today? Not even with Alito, Barrett, and Thomas?

[The Margrave of Azilia]

They'd need Gorsuh and Kavanaugh, and as for those two going along with Alito et. al, I'll believe it when I see it.

[The Margrave of Azilia]

"I don’t remember anyone pointing to “protective” labor laws."

The Women's Bureau in the U. S. Labor Department opposed the Equal Rights Amendment on precisely this issue:

"The Women's Bureau...had traditionally maintained that protective labor laws helped the overwhelming majority of women and hurt only a few. When faced with the imminent threat of the ERA, advocates of protective labor legislation, fearing that the amendment would result not in extension but in obliteration of the labor laws, fought the amendment vigorously and defended the laws for women."

Cynthia Harrison, On Account of Sex: The Politics of Women's Issues 1945-1968 (Los Angeles: University of California Press, 1989), p. 151

It's even in Wikipedia.

[Dan Schiavetta]

That was in the 1920's. The Women's Bureau supported the ERA later on, during the Koontz era (starting in 1969).

[The Margrave of Azilia]

Just to be clear, they were opposing the ERA in the 1960s.

https://en.wikipedia.org/wiki/United_States_Women%27s_Bureau

[Bob from Ohio]

" monocle-twirling country-club members "

Yes, then Phyllis Schlafly stopped it.

She's the most effective female political activist in US history.

[Dr. Ed 2]

I never thought to ask her this, but I think her argument was that the ERA was more anti-family than anything else. My aunt was the same way, her kitchen was her domain and she ruled it with an iron fist. The men could go smoke in the shop if they wanted to, but not in *her* house.

Schlafly was younger -- during WWII she had a job testing machine gun bullets, seeing if various batches met specs for penetration, etc. Refrigeration existed then, much of the rural landscape had been electrified and those two things changed society more than anyone realizes.

But back as late as the 1920s, outside major urban areas, there still was a lot of basically subsistence agriculture. A housewife (helped by her daughters) had a full-time job "putting food by" and then preparing it -- remember that there were no microwave ovens back then, nor frozen foods in the supermarket.

Women dried, salted and canned (in glass bottles), my mother even canned beef (as it was a way to store it) -- and then they had to somehow make this preserved food palatable. Betty Fredan was a product of post-war affluence and new technologies -- technology had replaced all the things that women used to have to know how to do.

[BrotherMovesOn]

This has been another episode of "How I Imagine The World To Be" by Dr Ed.
Like the doctor said in Silence of the Lambs, "it's so rare to capture one in the wild."

[Brett Bellmore]

The problem is the whole concept of "protected classes". It's illegitimate in a country where we're all entitled to the equal protection of the law. It basically amounts to just coming out and saying, "here are the animals that are more equal than other animals".

[Mr. Bumble]

...and any justification for exempting women from the draft (not currently relevant) and being required to register with Selective Service disappeared when women were allowed (and encouraged) to serve in the combat arms.

[Bob from Ohio]

Just because a few promotion hungry female academy grads got their way is no reason to make other women suffer.

[Mr. Bumble]

Registering with SS is not suffering.

[Dr. Ed 2]

Women WILL be drafted if the draft returns.

Sad thing is that a higher percentage of them will be draft eligible in terms of clean criminal records, high school graduation, and physical fitness (if we use the washed/down girl's chart).

[Mr. Bumble]

If we reach the point where the draft returns, we will be in a dire national emergency. I do not approve of placing women in combat but there are countless other roles they could fill.

[Dr. Ed 2]

I wouldn't have any problem putting women in combat.
Do you have any idea just how vicious some high school girls have become? They are in some cases more violent than the boys.

[Frank Drackman]

Yes, since no ones been drafted in the last 50 years,
I proudly registered in 1980, as Jimmuh Cartuh ordered, problem was they didn't really send you a "Draft Card" because that would be, umm, too much like "The Draft" they sent you some BS form, looked like a 1099 or other IRS form, 4 years later, applying for Military Scholarships to pay for Med School, had to produce my "Selective Service Number" must have spent a week trying to find that damn form,

Frank

[Nige]

'It’s illegitimate in a country where we’re all entitled to the equal protection of the law.'

Except that has never been the case for any of its history.

[Dr. Ed 2]

Read Marshall's Diatribe sometime -- the MA Gay Marriage decision was based on the MA ERA provision that passed in the 1970s.

And while other decisions were based on due process, this was the one that opened the floodgates....

[Frank Drackman]

Of Turd Burglars getting "Married" OK, don't like it myself, but hey, if you take a Rock Hudson, Ceasar Romero, Lindsay Graham out of the dating pool, isn't that a good thang?? in 1993 Pete Booty-Judge would have a little hotty wife, probably a Medical Scientist, or Psychologist, now he's got (Pudgy) "Chaz"

Frank

[Frank Drackman]

Jeezus, 1978 called, wants their copy of "KISS meets the Phantom" back

[BrotherMovesOn]

It all went to hell when women were allowed to hold securities in their own name.

[Frank Drackman]

How so???
OK, I know you're not prepared to defend your statement, probably don't own any Securities yourself, or any purchased with your own money, it's peoples like you that almost make me think it's OK for men to chop off their dicks,
"No Offense" (OK maybe a little Offense)

Frank "Feminist"

[BrotherMovesOn]

You so funny. Word.