Today in Supreme Court History: May 20, 1996

5/20/1996: Romer v. Evans is decided.

Comments

[Dan Schiavetta]

Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. --- (decided May 20, 2019): drug manufacturer liable under state law failure to warn theory because no “clear evidence” that it notified FDA of risk of side effect (osteoporosis drug carried risk of unusual femoral fracture) with the FDA then rejecting its proposal to add warning to label

Romer v. Evans, 517 U.S. 620 (decided May 20, 1996): Colorado amended its constitution to prohibit any action designed to protect gay people from discrimination. (In other words, you must be allowed to discriminate!) The Court holds that this violated the Equal Protection clause. Notable as the first gay-friendly Court decision. As Kennedy put it in his majority opinion, “It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.” In dissent Scalia has a point when he calls gay people “a politically powerful minority” but, relying on Bowers v. Hardwick, still seems unaware that women as well as men give blowjobs.

Herrera v. Wyoming, 587 U.S. --- (decided May 20, 2019): neither the creation of the Wyoming Territory in 1868 nor Wyoming’s admission to the Union in 1890 affected Crow Tribe’s property rights and right to hunt under earlier treaty

Bloom v. Illinois, 391 U.S. 194 (decided May 20, 1968): defendant accused of criminal contempt serious enough to carry a prison sentence (here, submitting a fraudulent will for probate) is entitled to a jury trial

Alabama v. Shelton, 535 U.S. 654 (decided May 20, 2002): Apparently there is no right to counsel if only a suspended sentence results. Here, the Court holds that such a sentence cannot include the possibility of future “activation” (i.e., imprisonment).

Bruton v. United States, 391 U.S. 123 (decided May 20, 1968): admitting into evidence confession of co-defendant violates Confrontation Clause if in the jury’s mind it can prejudice the defendant whether or not it is adduced for that purpose

Lucas v. Alexander, 279 U.S. 573 (decided May 20, 1929): no tax on amounts received before the applicable taxing law (Revenue Act of 1918) went into effect

City of Arlington, Texas v. FCC, 569 U.S. 290 (decided May 20, 2013): FCC was entitled to Chevron deference as to its regulation setting 90-day deadline for state/local governments to act on siting applications for wireless services (statute, 47 U.S.C. §332(c)(7)(B)(ii), requires decision only “within a reasonable time”)

Sontag Chain Stores Co. v. National Nut Co., 310 U.S. 281 (decided May 20, 1940): manufacture and sale of patented machine for enlarged purpose is not patent infringement even after enlarged purpose falls within reissued patent

Doctor’s Associates v. Casarotto, 517 U.S. 681 (decided May 20, 1996): Federal Arbitration Act preempts Montana statute requiring any contract to state in capital letters on first page that it is subject to arbitration (dispute between Subway sandwich chain and franchisee)

Schlitz Brewing Co. v. United States, 181 U.S. 584 (decided May 20, 1901): bottled beer is not different enough from barrel beer to entitle bottler to “drawback” (refund of duty paid on imported materials when materials are changed and then exported) (I take exception to this conclusion, but with a cheap beer like Schlitz it hardly matters)

[Mr. Bumble]

“The Beer That Made Milwaukee Famous” Was at the time hardly a cheap beer and by 1902 became the largest selling beer in America. “When you’re out of Schlitz, your out of beer”

[Dan Schiavetta]

I stand corrected, as to 1902. As to 1981, the last time I tried it, I stand by what I wrote.

My friend was a dedicated drinker of Schlitz because of the annual R&B festival they sponsored in Memphis. I went there that year, when I lived near there. Willie Dixon, performing in his trademark porkpie hat, was the best I’ve ever seen. It was boiling hot and there was no shade anywhere. But nobody cared.

[Dr. Ed 2]

Prior to WWII, ale was the drink, at least in the Northeast. I remember adults complaining about that it was all beer postwar in the 1970s.

[Michael P]

Complaining that it was all lager post-WW2? (Ale and lager are both beer.)

[Dan Schiavetta]

Pilsener!

[mike petrik]

A pilsner is a type of lager. Most beer experts consider the flagship beers of large American breweries (Bud, Miller, and Coors) to be pilsners, though some reject that on the theory that a true pilsner uses "only" malted barley for fermentation. The industry generally considers these beers American-style lagers. Whether one enjoys American style lagers is simply a matter of taste. Even my most passionate beer aficionado friends say that there is nothing better after cutting the lawn on a hot day. The distinctions among American lagers are pretty minor, and whether a brand is sold at “premium” price is at least somewhat a matter of strategic marketing. Just like gin and vodka, frankly.

[SRG]

According to Vance Packard in Hidden persuaders, the reason that post-WW2 American beer was such garbage was that market research discovered that women bought more beer than men - because they were buying beer for their men at the supermarket - and what appealed to them were terms like "sparkling", "crisp", "fresh" , and a bright appearance, etc. so both advertising and beer were adjusted to reflect this; and the average American man wasn't fussy enough when he's sitting down of a Sunday afternoon to watch the game and his wife brings him a beer or three.

[Dan Schiavetta]

Suddenly all my silly thoughts disappear
She comes to me softly with crackers and beer
Winkin' and blinkin' and blowin' in my ear . . .

(I saw Bobby Goldsboro sing this on the Clay Cole Show)

[John F. Carr]

Ale, man, ale's the stuff to drink
For fellows whom it hurts to think:
Look into the pewter pot
To see the world as the world's not.

– A. E. Housman

[The Margrave of Azilia]

His original draft read

Smoke a bowl of primo pot
To see the world as the world's not

[blue heron]

to be accurate, primo originally referred to a black hashish from Afghanistan circa about 1970.

[The Margrave of Azilia]

I stand corrected. Pardon my ignorance.

[blue heron]

Willie Dixon was a giant, both as a player and writer. I was lucky enough to see both he and Lightning Hopkins in my youth.

[Alpheus W Drinkwater]

Dixon doesn't get anywhere near the credit he deserves as a composer. He basically invented modern blues riffs and a good deal of rock riffs as well. Everyone stole from him. I maintain he was more influential than Chuck Berry.

[JasonT20]

In dissent Scalia has a point when he calls gay people “a politically powerful minority” but, relying on Bowers v. Hardwick, still seems unaware that women as well as men give blowjobs.

The follow up jokes almost write themselves.

[mike petrik]

They would, perhaps, if there was any evidence that captcrisis' assertion of Scalia's putative unawareness was true.

[Magister]

Scalia presents the repeal of antisodomy laws as "eliminat[ing] criminal punishment for homosexual acts". I'm pretty sure that there were more straight blowjobs in 1996 than gay ones, just because there's so many more straight people.

[Rev. Arthur L. Kirkland]

The blame likely lies with Mrs. Scalia and/or Catholic dogma, and clingers are going to put their fingers in their ears rather than consider either candidate.

[Dan Schiavetta]

It's worse than that. Scalia's homophobia exceeded even the Church's.

This is from the 1991 edition of the Catechism:

2358 The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination, which is objectively disordered, constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God's will in their lives and, if they are Christians, to unite to the sacrifice of the Lord's Cross the difficulties they may encounter from their condition.

(emphasis added)

[mike petrik]

And this has to do with the Constitution how exactly?

[JasonT20]

It has to do with how the late Justice Scalia ruled on constitutional matters. Most of his critics view his religious beliefs to have heavily influenced his written opinions and votes in cases relating to social issues. To any extent he was biased, perhaps it wasn't adherence to Catholic doctrine that drove him on those issues, after all, but his own personal social conservativism and even disgust.

[mike petrik]

Kindly provide an example of a Scalia opinion that was constitutionally infirm but aligned with his religious convictions.

[bernard11]

Edwards v. Aguillard.

[Rev. Arthur L. Kirkland]

Has it been established that former Justice Scalia’s bigotry was entirely precipitated by religion? Superstition is not responsible for all intolerance and ignorance.

[The Margrave of Azilia]

What's "unjust"? Letting bakers decide which cakes to bake?

[JasonT20]

What’s “unjust”? Letting bakers decide which cakes to bake?

Can people make religious claims to be exempt from all anti-discrimination laws, or just ones that aim to protect LGBTQ people?

[The Margrave of Azilia]

I didn’t mention exemptions. What makes you think LGBT+ should be a proteted class? Why not ban *political* discrimination and have bakers make Kompulsory Konfederate Kakes?

[JasonT20]

What makes you think LGBT+ should be a proteted [sic] class?

Oh, I don't know, let me think... How about a long history of how they experienced discrimination and even violence for simply being what they are?

Why not ban *political* discrimination and have bakers make Kompulsory Konfederate Kakes?

Because people can choose to hold a variety of political views regardless of who they are and a baker doesn't have to bake a cake that carries a political message that they don't agree with. Refusing to bake a wedding cake for a same sex couple that is the same as any other wedding cake that they might bake for a hetero couple is discriminating on the basis of who they are.

[The Margrave of Azilia]

“How about a long history of how they experienced discrimination and even violence for simply being what they are?”

The violence wasn’t due to a lack of laws but due to a lack (in many cases) of a will to enforce the laws. So I see this as something of a red herring as far as the need for new laws is concerned.

“a baker doesn’t have to bake a cake that carries a political message that they don’t agree with”

…and baking a cake for a same-sex ceremony and calling it a wedding *is* a political message.

You prove too much by arguing for protecting people based on sex habits. People have also been discriminated against based on *political* habits - plenty of examples in the last few years. So your logic would justify Kompulsory Konfederate Kakes.

[JasonT20]

…and baking a cake for a same-sex ceremony and calling it a wedding *is* a political message.

It seems like a political message to those that don't want it to be called a wedding. To the same-sex couple and people that see them as deserving of equal rights and dignity, it is a wedding.

The violence wasn’t due to a lack of laws but due to a lack (in many cases) of a will to enforce the laws. So I see this as something of a red herring as far as the need for new laws is concerned.

I'm glad that you don't dispute the discrimination in housing, employment, etc., that LGBT+ people experienced for centuries, at least. If there was a lack of will to enforce criminal law when LGBT+ people were victims of violence, then that is a form of discrimination. Those with the power and duty to prosecute crimes turning a blind eye to violence when the victims are a disfavored minority is a horrible thing that deserves justice and warrants additional protection once the will does exist.

[mike petrik]

You are without a doubt the littlest dick on the planet.

[mike petrik]

Scalia was dissenting from the Court majority opinion that held that the Colorado constitutional amendment targeting homosexuals based upon animosity lacked a rational relation to any legitimate governmental purpose.

[Magister]

So he was just pretending, or what?

Note that Colorado's anti-sodomy law had criminalized both same and opposite sex sodomy, unlike the law struck down in Lawrence. Scalia's dissent there seems more complaining that Bowers got overturned while Roe did not (in Casey), although he does digress to lament that, among others, laws against masturbation* would have to be thrown out.

Irrelevant link:
https://www.gocomics.com/tomthedancingbug/2012/12/21

*Probably mandating hard time for violators.

[JasonT20]

Scalia was dissenting from the Court majority opinion that held that the Colorado constitutional amendment targeting homosexuals based upon animosity lacked a rational relation to any legitimate governmental purpose.

And in doing so, he was still referencing and relying on Bowers, which was about a Georgia law that criminalized oral and anal sex for everyone. Such laws were not enforceable against heterosexual couples at the time, though, due to previous precedents, like Griswold. So, only how the law applied to homosexuals was considered by the majority.

[Rev. Arthur L. Kirkland]

Superstition-addled bigots are among my favorites culture war casualties. . . and a core target audience of a white, male, disaffected, right-wing blog.

[SRG]

From Romer. Scalia opens with: "The Court has mistaken a Kulturkampf for a fit of spite."

Scalia's ongoing fit of spite is a one-man Kulturkampf.

https://supreme.justia.com/cases/federal/us/517/620/

[The Margrave of Azilia]

The majority opinion challenges traditional conceptions of the state-action doctrine; it finds ways for the federal courts to use the 14th Amendment to reach private conduct. Maybe there is some situation today warranting similar creativity?

[Rev. Arthur L. Kirkland]

We are approaching the point at which meetings of Libertarians for Criminalizing Blowjobs can be conducted in a closet . . . an increasingly small, deplorable, Republican closet.

[Krayt]

No true libertarian, as the saying goes, has a problem with thwarting the will of the majority to increase personal rights and freedom.

We don't need to rely on 51% want it ergo it is justified! Then one doesn't have to get into the asinine game of We Love Democracy!

Until we don't.

[The Margrave of Azilia]

Artie keeps displaying the on-the-spectrum behavior he professes to find in other people.

"Some situation today" meant, of course, social media censorship.

[Rev. Arthur L. Kirkland]

Artie was banned by the Volokh Conspiracy Board of Censors for making fun of conservatives too deftly for the proprietor's right-wing tastes. I am Arthur.

[Gandydancer]

You lie. Tediously and repetitively.

[Rev. Arthur L. Kirkland]

You lie, as the record demonstrates.

Just like the conservative bigot w who calls me Jerry Sandusky lies, and the conservative bigot who says I have AIDS lies . . . and why do you assholes lie? Because you are bigots, and Republicans trying to defend these right-wing law professors, and disaffected culture war losers.

[Gandydancer]

"...you are... Republicans..."

I’m a registered Libertarian. So that’s ANOTHER lie, Artie..