Today in Supreme Court History: June 7, 1965

6/7/1965: Griswold v. Connecticut is decided.

 

Comments

[Dan Schiavetta]

Griswold v. Connecticut, 381 U.S. 479 (decided June 7, 1965): Fourteenth Amendment violated by statute outlawing sale of contraceptives; right to privacy makes enumerated rights more secure

Cohen v. California, 403 U.S. 15 (decided June 7, 1971): First Amendment protects immature jerkoff’s right to wear “Fuck the Draft” jacket in courthouse (contrast this guy with the brave schoolchildren in Minersville v. Gobitis)

Sanchez v. Mayorkas, 593 U.S. --- (decided June 7, 2021): El Salvadoran who obtained Temporary Protected Status in 2001 due to conditions in his home country (devastating earthquakes) but who entered this country illegally in 1997 was properly denied application for green card

Krupski v. Costa Crociere, 560 U.S. 538 (decided June 7, 2010): This case deals with the pesky “relation back” doctrine (here, F.R.C.P. 15(c)), where you can add a party past the statute of limitations has expired if it got notice of the claim via service of a timely-sued party. The Court holds that the focus is not on on plaintiff’s diligence in finally ascertaining the correct party but on the extent of the new party’s timely knowledge of the allegations. Suit was for injuries on a cruise ship.

Colorado General Assembly v. Salazar, 541 U.S. 1093 (decided June 7, 2004): In 2003 Republicans took over the Colorado legislature and tried to redistrict despite it being done only the year before (it’s supposed to be only once every ten years). This was rejected by the state Supreme Court. Here we see Rehnquist, Scalia and Thomas dissenting to the denial of cert, citing the Constitutional guarantee that each state have “a Republican Form of Government” (ha).

National Prohibition Cases, 253 U.S. 350 (decided June 7, 1920): rejects various procedural objections to the adoption of the Eighteenth Amendment: the required vote of both Houses was two-thirds of the quorum, not of the total members; the resolution did not have to say that the Amendment was “necessary”; the Amendment does not depend on Commerce Clause restrictions but is an independent part of the Constitution; it is operative in the territories; etc.

Minn v. Dickerson, 508 U.S. 366 (decided June 7, 1993): during a stop and frisk, police officer was attracted to lump in man’s pants and felt it up; it turned out to be cocaine, but he needed a warrant to do that because he already knew it wasn’t a gun (let the jokes begin)

Republic of Austria v. Altmann, 541 U.S. 677 (decided June 7, 2004): suit can proceed for recovery of paintings taken by Nazis (later discovered in Austrian art gallery) as allowed by Foreign Soverign Immunities Act even though claim arose before FSIA was enacted in 1976 and even before suit against foreign nations was first allowed by Court in 1952

Savage v. Jones, 225 U.S. 501 (decided June 7, 1912): state law requiring inspection of animal feed is valid exercise of police powers and does not violate Dormant Commerce Clause even though “incidentally affects interstate commerce”

Murphy v. California, 225 U.S. 623 (decided June 7, 1912): local ordinance forbidding pool halls does not violate Equal Protection of pool hall owner and was permissible use of police power despite lack of evidence that it was a corrupting influence, because they’ve got Trouble with a capital T and that rhymes with P and that stands for Pool

[wolfefan]

I once played Mayor Shinn in that show.

[Dan Schiavetta]

I was in the pit (playing cello) for a community production. The Mayor Shinn actor was terrific with a terrific part — craven, pompous, gullible (“wait — I have no son!!”) — and his wife Eulalie McKechnie Shinn — “a spectacle: my wife — wait — I mean a spectacle, in which my wife — ” — was no less. Both actors were having a lot of fun with their parts.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It's one of the few musicals I actually enjoy, along with most Gilbert and Sullivan. The songs seem to fit in better, not such disjointed transitions, and a lot of the roles seem to almost beg for actors to ham it up a little and have some fun. What the heck, guess I'm just a Philistine!

[The Margrave of Azilia]

No billiards, eh? Try and put this to music:

“The fact that there had been no disorder or open violation of the law does not prevent the municipal authorities from taking legislative notice of the idleness and other evils which result from the maintenance of a resort where it is the business of one to stimulate others to play beyond what is proper for legitimate recreation.”

In other words, there's a danger that people would be playing too much with their balls.

[Dan Schiavetta]

LOL

[Noscitur a sociis]

Here we see Rehnquist, Scalia and Thomas dissenting to the denial of cert, citing the Constitutional guarantee that each state have “a Republican Form of Government” (ha).

I do not think that is an accurate characterization of their position.

[apedad]

Re: Minersville v. Gobitis (in your note about Cohen v. California)

Facts of the case

In 1935, Lillian and William Gobitis were expelled from Pennsylvania public schools for refusing to salute the flag as part of a daily school exercise. The Gobitis children were Jehovah's Witnesses and believed that saluting the flag was forbidden by the Bible. They argued the expulsions violated their First Amendment rights.

Question

Did the mandatory flag salute infringe upon liberties protected by the First and Fourteenth Amendments?

Conclusion (8 - 1)

n an 8-to-1 decision, the Court upheld the mandatory flag salute. Writing for the majority, Justice Felix Frankfurter he relied primarily on the "secular regulation" rule, which weighs the secular purpose of a nonreligious government regulation against the religious practice it makes illegal or otherwise burdens the exercise of religion. The Court held that the state's interest in "national cohesion" was "inferior to none in the hierarchy of legal values," and that national unity was "the basis of national security." Frankfurter wrote that the school district's interest in creating national unity was enough to allow them to require students to salute the flag.

The Court declined to make itself “the school board for the country.”

Justice Harlan Stone dissented, writing that the “very essence of the liberty” guaranteed by the Constitution “is the freedom of the individual from compulsion as to what he shall think and what he shall say.” Stone’s position soon became the majority; the decision was reversed in 1943 in West Virginia State Board of Education v. Barnette (oyez)

What's absolutely amazing is the Court overturned itself only within THREE years when Justices Black and Douglas concurred to repudiate their earlier opinions in First Amendment decisions. (oyez)

[Dan Schiavetta]

Thanks, as always.

As a writer put it as to Gobitis, “Stone was alone on the Court, but he won a wider majority.” The public supported the right of schoolchildren not to pledge allegiance. It probably shamed Black and Douglas into changing their minds.

And this was while we were at war, not only that, the one war in our history which Americans supported the most wholeheartedly. It was rally-round-the-flag time. And yet most Americans stood with the schoolchildren. I’m pretty sure, in this Trumpified era of cheap, easy “patriotism”, that this would not be so today. In fact the schoolchildren (and their parents) would be the subject of right-wing harassment and evil fabrications spread through the media by people like Alex Jones.

[Mr. Bumble]

You're better when you don't pontificate.

[Dan Schiavetta]

If Alex Jones could do what he did with Sandy Hook, to people who had suffered a horrible tragedy (and have millions of people agree with him, and count the President of the United States as a friend), he could certainly do the same with those “unpatriotic” schoolchildren and their parents.

[The Margrave of Azilia]

I believe it was Sarcastro who said that hypothetical outrages are the worst.

[Nige]

But that wouldn't be worse than the Sandy Hook thing, that would be just bog standard for him.

[Commenter_XY]

captcrisis, I think with some of your more humorous summaries of the SCOTUS cases of the day (immature jerk-off, lol)....you should join those Short Circuit writers. 🙂

[Dan Schiavetta]

thanks!

[Commenter_XY]

I read your summaries, captcrisis. You are helping me along in my self directed legal education.

[Dan Schiavetta]

Thanks! (do you know anybody who’s hiring??)

[apedad]

Self directed?

I thought we were all enrolled in VCU (Volokh Conspiracy University).

[Krayt]

At war? Which war was that?

Oh, right. The one that started by giving a tyrant an expansion of land where his ethnic countrymen resided, in hopes that would satisfy him, and then he rolled tanks later anyway.

Thankfully the conscientious would learn from that and not repeat it decades later. Nobody making scurrilous statements like it's a territorial dispute, as if that dismisses it, instead of amplifying it.

[Dan Schiavetta]

Actually Chamberlain put one over on Hitler at Munich and Hitler realized it. We see that from his foul mood after it was over (recorded in John Toland’s biography and many other places). What Hitler really wanted was to invade the Sudetenland and showcase Germany’s military might. But Chamberlain took the wind out of his sails by handing it over to him.

Just about everyone in and out of Whitehall knew that Britain was not ready to fight in 1938. Chamberlain, who did not really trust Hitler, knew he had to buy time and did the right thing. At the same time he was smiling with Hitler for the photographers he was ordering an acceleration of rearmament.

[Mr. Bumble]

I guess that's one way of looking at it.

[bernard11]

That is the story the Netflix movie tells.

Is it now commonly accepted?

[Dan Schiavetta]

Not sure. What I am sure of is that whenever people mention "appeasement" they do it with a curl of the lip and no understanding of the context.

[Bob from Ohio]

"Chamberlain took the wind out of his sails by handing it over to him."

That sure showed him!

UK wasn't ready in 1939 either. Or 1940 or 1941.

[Dr. Ed 2]

Hitler wasn’t ready to fight either — he didn’t plan to be ready until 1942 and it was the Italians who forced him to start the actual war before he was really ready. (Imagine the Battle of the Atlantic if he’d started the war with all the U-boats he eventually had — by late 1942, we literally were sinking them faster than he could build them.)

Everything I’ve seen is that Hitler gambled (correctly) that a war-weary Europe wouldn’t challenge him and it didn’t — he would have been in serious trouble if it had. Now as to Chamberlin perhaps knowing that Europe wouldn’t and not wanting to give Hitler the photo ops, perhaps….

[David Nieporent]

Hitler may have wanted to fight, but Hitler's generals did not. Chamberlain apologists who try to argue that it bought necessary time for England to arm ignore the fact that it bought necessary time for Germany to arm. Germany was not remotely ready for war in 1938.

[The Margrave of Azilia]

Everyone I don't like is Hitler

https://www.thepoke.co.uk/wp-content/uploads/2016/03/6wv7MyT.jpg

[Krayt]

At some point, comparisons to Hitler are warranted. If any reason, ever, warrants it, it is the context of threats to roll tanks with the facetious claims it is to protect ethnic countrymen, in the context of that won't be enough, and the tanks will roll further anyway.

So, no, everybody I don't like is not Hitler. Hitlerian tyrants rolling tanks are like Hitler.

What a bizarre comment to make.

[The Margrave of Azilia]

It's bizarre if you're already equating Putin with Hitler.

[Dr. Ed 2]

By 1943, it was clear that Hitler would be defeated -- that wasn't so clear in 1940. Even in 1935, it was clear that war was coming...

[Frank Drackman]

So of course you're smarter than Patton who in December 1944 wrote in his diary, "We can still lose this war."
Some (not me) might argue that we did

Frank

[SRG]

Re: Austria v Altmann

The famous “woman in gold”, one of the paintings at issue: https://en.wikipedia.org/wiki/Portrait_of_Adele_Bloch-Bauer_I

When my mother visits NY we usually go to the Neue Galerie, and so I’ve seen the painting a few times. I still don’t like Klimt.

The niece was lucky to win – there are far more cases, not just involving art, of Jews being ripped off by the post-WWII Austrian government, local governments, etc. In many cases, Jews returned to Austria to find that their homes were now occupied by good Aryan Austrians, and the courts would not recognise the Jewish claims.

[bernard11]

There is a famous statement about Austrians:

"They are a very clever people. They have manged to convince the world that Beethoven was Austrian, and Hitler was German."

[SRG]

Yup. My great-aunt Rosa, who lived in Germany and then Austria before WW2 always said that in her experience the Austrians were more anti-Semitic than the Germans.

[Dr. Ed 2]

Hitler technically was -- because of his service for Germany in WWI, Austria renounced his citizenship and declared him German.

[Dr. Ed 2]

"Cohen v. California, 403 U.S. 15 (decided June 7, 1971): First Amendment protects immature jerkoff’s right to wear “Fuck the Draft” jacket in courthouse (contrast this guy with the brave schoolchildren in Minersville v. Gobitis)"

Agree with him or not, Paul Cohen was a lot braver than you give him credit for because he did it in April of 1968 when the mood of the country was quite different from what it would become when the case was decided in 1971. This was back when construction workers would routinely go beat up war protesters, and his 30 days in jail would not have been pleasant.

This was only a few weeks after Lyndon Johnson had shocked the nation by announcing that he was not running for re-election. It is amazing how much happened between then and 1971 -- I think this case would have been decided differently in 1968.

The other amazing thing is that you have to be 50 years old to realize that there once was a time when one could nonchalantly walk into a courthouse -- when you could walk in any door you desired. That there was a time before metal detectors and court security at the door -- that this case is now moot because they'd never let you into the courthouse wearing a jacket like that today...

The left tossed a few bombs and changed the country...

[Dan Schiavetta]

There’s being brave, and there’s being brave and juvenile.

A friend of mine was sent to jail for draft evasion and yes, he didn’t have a great time there. It’s not good when you enter prison with a reputation for refusing to fight.

Cohen could have walked into that courthouse with a peace symbol on his jacket (the “footprint of the American chicken”, as my soon to be ex girlfriend put it). The meaning would have been just as clear, and the anti war cause would not have been debased.

[Bob from Ohio]

"soon to be ex girlfriend"

Smart girl.

Your friend was just replaced with another man. So brave.

[not guilty]

With the doctrine of unenumerated rights being called into question more frequently, I wonder how long Griswold will remain good law. In the wake of Dobbs v. Jackson Women´s Health Organization, it is easy to envision a state legislature somewhere outlawing sale/use of contraceptives which are (mistakenly) believed to act as abortifacients. Dobbs would arguably require mere rational basis analysis of such a prohibition.

[Commenter_XY]

Guys do not want babies, so they will want condoms. I think Griswold is safe. 😉

[Dr. Ed 2]

As I understand it, it was only three states -- CT, MA, and I believe MS -- well I'm damn sure that MA would never vote to ban any kind of birth control today, I doubt CT would either.

[Magister]

The federal Comstock Act led to a lot of state anti-obscenity laws, many of which went after contraception; more than three states, even if Connecticut's was particularly severe (if widely unenforced).